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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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o 


>MPLETE    COLLEOTION 


OF 


'     •     « 


State 


AKD  \ 


^GS   FOR   HIGH  TREASON   AND  OTHER 
CRIMES  AND  MISDEMEANORS 


FSOM  THB 


VRLIEST  PERIOD  TO  THE  PRESENT  TIME, 


J^OTES  AKD  OTHER   ILLUSTBATIOJ^S 

COMPILED  BY 

B.   HOWELL,  Esq.  F.R.S.  F.S.A. 


VOL.  XVII. 

A.D.  1726—1743. 


LONDON: 

rTEI>    BY  T.  C.  HANSARD,  PETERBOROUGH-COURT,  FLEET-STREET  s 

MAM.  H VBST,  REE8,  ORME,  &  BROWN;  J.  RICHARDSON;  BLACK, 
V,  8c  CO.;  E.  JEFFERY;  J.  HATCHARD ;  E.  LLOYD;  E.  BUDD  ; 
J1.I>ER  ;  J-  BOOKER  ;  CRADOCK  &  JOY ;  R.  U.  EVANS ;  J.  BOOTH  ; 
r.  C-  HANSARD. 

1813. 


<f 


•  •       • 


•  •••  «.« 


•  •  .   •     •    • 
•   ■    •       •  • 

•  •         •  •  •  • 


•  •  •  *  a  ■  •  ' 


*      •   •      • 


^.^A 


TABLE   OF  CONTENTS 


TO 

VOLUME  XVII. 


*0*    The  new  Artidei  are  marked  [N.] 


REIGN  OF  KING  GEORGE  THE  FIRST. 

Page 
407.  The  Itial  of  JOHN  GRAHAM,    ALEXANDER  CRAW. 
FOORD,  and  WILLIAM  HOGG,  for  drinkiDg  the  Pretender't 
Healtby  a«d.  1715.    Now  first  printed  from  the  Records  of  Jus* 
tidaiy  at  Edinbwi^  [N.]    1 


46B.  Hie  TMal  of  Mm^  JOHN  ONEBY,  at  thm  Seselons-House  in  the 

Old-Bailqr,  lor  the  Murder  of  Wm.  Gower,  esq.  a.  d.  1726  90 


* 


REIGN  OF  KING  GEORGE  THE  SECOND. 

469.  The  Trial  of  JAMES  CARNEGIE,  of  Finhaven,  before  the  Courif 

of  Justiciary  (in  Scotland),  held  at  Edinburgh,  July  25,  for  the 
Murder  of  Charles  Earl  of  Strathmore,  a.  p.  1728     ..rb 74 

470.  The  Case  of  EDMUND  CURL,  Bookseller,  in  the  King's-Bench, 

for  publishing  a  Libel,  a.  p.  1727 • •••• .^t. ...•••     154 

471.  The  Trial  of  WILLIAM  HALES,  for  forging  a  Promissory  Note 

for  G,40tf.  in  the  Name  of  Thomas  Gibson,  esq.  and  Partners, 
and  for  poblishmg  the  same  as  a  true  one,  knowing  it  to  be  false 
and  counterfeit,  a.  d.  1728 162 

472.  The  Trial  of  Mr.  WILLIAM  HALES,  at  the  Scssions-House  in 
the  Old-Bailey,  for  Misdemeanors,  in  forging  several  Notes  and 
lodoraementt  in  the  Name  of  Samuel  Edwards,  esq.  and  publish- 
ing the  aamey  knowing  them  to  be  forged,  a.  p.  1729 210 


TABLE  OP  CONIXMTS. 

Page 
The  Trial  itf  WILLIAM  ACTOK,   Deputy-Keeper  ml  H««d 

Timikty  of  the  Manhalset  Prken  m  Southwark,  for  the  Murder 

of  ThoiDis  Blitty  late  a  Pirisoiier  in  the  said  Prison,  at  the  Asrizes 

held  at  Kingston-upon-Thames,  for  the  County  of  Surrey,  Aug. 

1,  A.D.I7S9 469 


B  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  John  Brbm- 

fiekl,  at  King8ton*upon-Tliames,  in  Surrey,  August  2,  a.  d.  1729    511 


I 


H.  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  Robert  New- 
ton,  at  the  Assizes  h'dd  atKbgatcm-upon-Thames,  for  the  County 
of  Surrey,  Augusts,  a.d.  1729 • 506 

BS.  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  James 
Thompson,  at  the  Assizes  held  at  Kingston-upon-Thames^  in 
Surrey,  August  2,  a.  d.  1729. .•••...    546 

ft  %?eral  IVoeeedingcr  relaiidg  to  the  baiHng  Mr.  B AMBRID6E,  both 
at  the  King's-Beneh,  and  at  the  Sessions-House,  in  the  Old-Bailey, 
previous  to  his  Trial  for  Felony,  a.d.  1729 •••.•••    563 

IS7.   The  Trial  of  THOMAS  BAMBRIDGE,  esq.  for  Felony,  a.  d. 

1729 582 

Ke.  Minutes  of  the  Proceedings  of  the  Committee,  appointed  to  enquire 
into  the  State  of  the  Gaols  of  this  Kingdom,  touching  a  Charge 
against  Sir  ROBERT  EYRE,  knt.  Lord  Chief  Justice  of  his 
Majesty's  Court  of  Common  Pleas,  for  personally  visiting  Thomas 
Bambridge,  late  Warden  of  the  Fleet,  whilst  he  was  a  Prisoner  in 
Newgate,  under  a  Commitment  of  the  House  of  Commons,  &c.  &c. 
A.D.  1730 619 

Ml  The  Trial  of  Mr.  RICHARD  FRANKLIN,  for  printing  and  pub- 
lishing  **  A  Letter  from  the  Hague,'*  in  the  Country  Journal,  or 
CrafUman,  of  Saturday,  the  2d  of  January,  1731,  at  the  Sittings 
of  the  Court  of  King's«Bench,  at  Westminster,  on  Friday,  Dec  3, 
A.D.  1731 620 

ft  The  Trial  of  Mr.  JOHN  PETER  ZENGER,  of  New- York,  Printer, 
ior  printing  and  publishing  a  Libel  against  the  Government,  at 
New-York,  on  August  ^ih^  a.  d.  1735 675 


TABLE  OF  CONTENTS. 

Page 
491.    The  Trial  of  JOHN  OUPHANT  and  others,  for  drinldng  to  the 

Health  of  the  Pretender,  and  curring  the  King,  a.d«  1715.  [Now 

first  published  from  the  lUcordsofJustidary  at  Edinburgh.]  [N.]    763 

499.  The  Trial  of  Mr.  GEORGE  ROBERTSON,  Minister,  for  neglect- 
iDg  to  pray  for  the  King,  a.  d.  1715.  [Now  first  published  from 
the  Records  of  Justiciary  at  Edinburgh.]  [N.] 788 

493.  The  Trial  of  ALEXANDER  STEWART,  for  maintaining  the  Title 

of  the  Pretender,  a.  n.  1715.  [Now  first  published  from  the  Re- 
cords of  Justiciary  at  Edinburgh.]  [N] 791 

494.  The  Trial  of  JAMES  GEDDES  and  JOHN  CRAWFOORD  ( Ser- 

vants  of  Lord  Southesk,)  for  drinking  the  Health  of  the  P^tender, 
and  cursmg  the  King,  a.  d.  1715.  [Now  first  published  from  the 
Records  of  Justidary  at  Edinburgh.]  [N.] 799 

493.  Case  of  the  KING  against  GIBBON,  a^  d.  17S4.  Upon  an  Infor* 
mation,  in  the  Nature  of  a  Quo  Warranto,  by  the  King^s  Coro- 
ner and  Attorney,  against  the  Defendant,  to  shew  by  what  Autho- 
rity he  claimed  to  be  a  Freeman  of  the  Town  and  Port  of  New- 
Romney,  at  the  Rehitk>n  of  William  Jarvis.  Triedat  Kqnt  Assizes, 
held  at  Maidstone,  the  6th  of  August,  1734     802 

4%.  Case  of  the  KING  against  RICHARD  ELLES,  a.  d.  1734.  Upon 
an  Information,  in  the  Nature  of  a  Quo  WarrantOi  by  the 
King's  Coroner  and  Attorney,  against  the  Defendant,  to  shew  by 
what  Authority  he  claims  to  be  Mayor  of  the  Town  and  Port  of 
New-Romney,  at  the  Relation  of  Benjamm  Man.  Tried  at  Kent 
Assises,  held  at  Maidstone,  the  6th  of  August,  1734   822 

i97.  Case  of  HENRY  MOORE,  Plaindfl;  against  the  Mayor,  Jurats,  and 
Commonalty  of  the  Town  and  Port  of  Hastings,  in  the  County  of 
Sussex,  Defendants,  a.  d.  1736 846 

498.  Pk-oceedings  in  the  Trial  of  Captain  JOHN  PORTEOUS,  for  Mur- 

der, A.  D.  1736 923 

499.  The  Trial  of  WILLIAM  MACLAUCHLAN,  for  Mobbing,  Mur- 

der  and  other  Crimet,  a.  d.  17S7.    [Mac  Lourin's  Aigunents 
and  DecuHMH.]  [N.] » PM 


TABLE  OF  CONTENia 

Page 
aOO.    The  Triak  of  SAMUEL  GOODERE,  esq.  MATTHEW  MA- 

HONY,  and  CHARLES  WHITE,  for  the  Murder  of  Sir  John 

Dineley  Goodere»  bart  (Brother  to  the  said  Samuel  Goodere)  on 

Board  his  Majesty's  Ship  the  Ruby,  a.  d.  1741   1003 

MI.  The  Trial  of  QHARLES  WHITE,  for  the  Murder  of  Sir  John 

Goodeie,  a.d.  i74fl.« , 1079 


JOS.  The  Trial  of  JAMES  ANNESLET  and  JOSEPH  REDDING, 
at  the  Sesttoos-House,  in  the  Old-Bailey,  for  the  Murder  of 
Tbomas  Egglestone,  a.  n.  1742 ••••••••• 1094 

m.  The  Trial  in  Ejectment  between  CAMPBELL  CRAIG,  Lessee  of 
JAMES  ANNESLET,  esq.  and  others,  Plaintiff;  and  the  Right 
Hon.  RICHARD  Earlof  ANGLESEA,  Defendant,  a.  i>.  I74S    11S0 


* 


\ 


ADVERTISEMENT. 


Mr.  Cohbett  having  disposed  of  his  IfUerest  m  this  Woik, 
the  future  Volumes  will  be  published  under  the  TUle  prefixei  b 
this  Volume ;  and  new  Titles  will  be  furnished  for  the  first  lb 
Volumes. 

*ii*  CommunicatioDB  for  the  Work  will  be  received  b}'  the  Printer. 


Lately  published,  by  the  same  Proprietors^ 

The  Thirteenth  Volume  of 

THE  PARLIAMENTARY  HISTORY  OP  ENGLAND, 

From  the  Earliest  Period  down  to  the  Year  1803. 

[Vol.  XIV.  will  be  published  in  February.'] 

Also, 
THE   PARLIAMENTARY   DEBATES, 

From  the  Year  1803  to  the  present  Time. 

The  Twenty-first,  Twentt-second,  and  Twenty-third  Voluiiiet  cf  the 
Work,  comprising  the  Debates  in  both  Houses  of  Parliament  during  the  Sesuon 
1812,  are  ready  for  delivery. 

*4,t*  Subscribers  who  may  not  have  completed  their  Sets  are  requested  to  make 
immediate  application  for  the  Volumes  wanted. 


A    COMPLETE    COLLECTION 


OF 


STATE    TRIALS, 


467.  The  Trial  of  John  Graham,  Alkxandku  Crawfoohd,  and 
William  Hoog,  for  drinking  the  Pretender's  Health: 
1  George  L  a.  d.  1715.  [Now  first  printed  from  the  Re- 
cords of  Justiciary  at  Edinburgh.] 


Cnu  JomcfARiA^  S.  D.  N.  Res^,  tenta  in 
Pneiorio  Burgi  de  EfliDbargb,  trigesimo 
primo  die  mcnsis  JaDuarij  miiJesimo  sep- 
tinjfeotesiroo  decimo  qniDto,  Per  Hono- 
nbites  «iro8,  Adam  Cockburne  of  Ormia- 
Umn  Justiciariuro  Clericum,  Dominoa 
GUbertum  £liot  de  Minto,  Jacobam  Mac- 
kenzie de  RoyitouQ  et  Gulielinuro  Calder- 
wood  de  PoUoiin,  Magistros  Jacobum 
HamihoD  de  Pancaitland  et  Davidem 
Efikiiie  de  Duo,  Commissionarios  Justi- 
ciirij  diet.  8.  D.  N.  Regis. 

Curia  legittime  afHrmata. 

IntraiC  John  Graham,  youDgfer,  of  ^ew- 
^^n:  Alexander  Crawfoord^  younger,  of  Man- 
niulmiln;  and  Mr.  William  Il^gg,  desiu^ned 
kr^  of  Edinburgh,  professor  of  pUilosophy . 

iVDICTED  and  accused  at  the  instance  of  sir 

Pivid  Dalrynnple  of  Hailes,  baronet,  his  ma- 

jf^'y's  advocate  for  his  majesty's  interest,  for 

Jniikiojjr  the  Pretender's  health,  in  manner 

mentioned  in  the  criminal  tetters  raised  against 

'h^  thereaoent.       Makeing   mention,    that 

*j»*Te,  by  the  laws  of  ScoUaml  made  before  the 

^  Dion,  particularly,  the  4th  act  of  the  first 

*J*«»oo  of  her  late  majestic  queen  Anne  of 

i'-'cfted  memory,  her  first  parliament,  intituled, 

Act  airaiost  I>easiog  Makers  and  Slanderers, 

»3'i  Che  acts  therein  recited.     And  by  the  laws 

*>f  ill  well  goTemed  nations,  leasing  makeing, 

^  the  uttering  of  sUndrous  speeches,  tending 

^  excite  sedition,  and  alienat  the  affection  of 

^  people  from  his  majesty's  person  and  go- 

vnnmeot,  or  to  sett  up  and  encourage  the  false 

^  icandalons  pretensions  of  any  person  to  the 

p^Jiidice  of  hift  majesty,  his  estate,  and  his 

JQX  lod  law  full  title  to  the  crown  of  these 

'(•Ims,  stirring  up  thereby  his  subjects  to  mis- 

IiluiHrB,  sedition,  unquietness,  and  to  cast  off 

^rdoe  cibedieace  to  bij  majestie,  to  their  evi- 

VOL  XVII. 


dent  peril,  tinsell  and  deftructioti,  are  crimes  of 
a  high  nature  and  severely  punishable.  And 
more  especially,  whereas  by  an  act  of  the  par- 
liament of  Great  Britain,  made  in  the  sixth  year 
of  the  reign  of  her  said  late  majestie  queen 
Anne,  intituled,  Av  Act  for  the  Security  of  her 
majesty's  person  and  goveniment,  and  of  the 
Snooession  to  the  crown  of  Britain  in  the  Pro- 
testant line;  It  is  amongst  other  things  en- 
acted, That  if  any  person  or  persons  shall  mali- 
ciously and  directly,  by  preaching,  teaching,  or 
advysed  speaking,  declare  maintain  and  afnrm, 
that  the  pretended  prince  of  Wales,  who  now 
stiles  himself  king  of  Great  Britain  or  king 
of  England  by  the  name  of  James  tlie 
third,  or  king  of  Scotland  by  the  name 
of  James  the  eight,  has  any  right  or  title 
to  the  crown  of  these  realms,  every  such 
person  or  persons  shall  incurr  the  danger  and 
penalty  of  Premunire  made  in  England,  in  the 
16th  year  of  the  reigne  of  Richard  the  second. 
Yet  nevertheless  it  was  of  verity,  that  the  saids 
John  Grahamc,  Alexander  Crawfurd  and  Mr. 
William  Hogg,  and  each  of  them  were  guilty 
actors  art  and  part  of  the  foresaid  crimes,  in  so 
far  as,  upon  the  15th  or  16th  days  of  the  moocth 
of  December  last  1714  years,  a  stoup  with  ale 
in  i^  or  some  other  liquor,  being  bront(lit  to 
the  street  of  Edinburgh,  near  to  the  Tron 
church  and  to  the  main  guard,  by  a  woman  to 
them,  and  a  cup  filled  up  and  delivered  to  the 
said  John  Grahame,  he  proposed  the  king's 
health,  and  one  having  aslced  what  king?  the 
said  Alexander  Crawfurd  cried  out,  Ring  James 
the  eight;  whereupon  the  said  John  Grahame 
drank  to  the  healili  of  king  James  the  eight, 
and  the  cup  being  filled  np  again  twice  to  the 
said  Alexander  Crawfurd  and  Mr.  William 
Hogg,  each  of  them  did  likewise  drink  and 
spoke  these  words,  To  the  health  of  king  James 
the  right,  and  not  contontetl  with  their  thus 
direct  open  affirming  of  tha   pretooded  and 


Aleiander  Cnwlurd  nd  Mr.  William  Hagi(i 
did  drink  tu  Ihe  bappy  mioration  of  (he  uld 
Pretender,  under  the  DBine  of  kitiK  Jamea  the 
eight ;  which  words,  Tn  llie  health  of  kln^ 
James  the  ei^ht,  aai  to  the  happy-reituratioD 
of  kinti  Jamea  the  eight,  orwonls  to  that  effect, 
thev  and  each  of  them  did  pranoonee  allaad, 
and  huzza'd  at  each  health,  daDcin^attheaame 
time,  and  haTiog  hautboyi  playiDE  te  them 
in  deniongtratioD  of  Iheir  Joy  and  afiectioD  to 
what  they  were  doing,  la  open  deBaoce  and 
GODlempt  of  the  lawi  generally  and  particu- 
larly aboTe  mentioned,  and  they  were  seized  in 
the  Tery  act,  or  iocontineDt  thereafter  beinff 
pnnued  by  Ihe  city  guard*,  and  the  atoup  and 
cup  found  iu  the  place  to  which  they  had  fled, 
■nd  wherelhey  were  taken,  and  the  aaida  John 
Gnham,  Alexander  Crawfnrd, and  Mr.  WUHam 
Hogg  were  immediately  thereafter  brought 
priaonera  into  the  guard,  £^v  all  which,  they 
and  each  of  them,  were  guilty  aclora  art  and 
part  of  the  breach  of  the  aaid  Mwi,  which,  ur 


Trial  qfJohn  Graham  and  others, 

Iktoilvation  for  his  Majeity't  Advoc 
highoeHS  interest, 


*«raict  01  an  aBiae,  oerois  idb  wrua  jiuuc* 
j^SDcral,  jutice  okrk  ud  oommiaaiouera  of 
jiiaticiary,  they  and  each  of  them  ought  to  be 

Cuniahed  with  ihe  pains  of  law.  And  particn- 
irly,  they  and  each  of  them  ought  lo  be  putt 
out  of  his  m^eaty'n  protection,  aud  eadi  ot' 
ibeir  landa,  leneracuta,  gooda,  cbaltellaor  morc- 
aUet  Ibrfaulted  to  hia  majeatie,  aud  otherwise 
punished  conibrm  to  the  aaid  iiatote  of  Pm- 
tnunire  made  in  Epslaiid  iu  the  sixleenlh  year 
of  the  reigne  of  BicnanI  the  second,  lo  the  ex- 
ample and  terror  of  others,  lo  oommitt  tha  tike 


Akxandtr  Crmfurd'i  Canfaiitin. 

The  shore  named  Alexander  CrawfunI,  nne 
of  tlic  panneU  judicially,  in  presence  uf  the 
lords  and  ssbysen,  acknowledges  and  confessea 
the  tybel),  in  so  far  ns  relates  to  him,  aud 
hnmbli  throws  himtvlf  in  the  kiiiz's  mercy. 

Sit  Subscribitur,-  Alex.  CiuwTuRn. 

Ad.  Cockburne,  1.  P.  D. 

Purttifri. — Sir  Dmvid  Dalri/mpU  of  Uailn, 
barunel,  his  niajeiit}  '•  adrocale  fur  lua  hifrhness 
interctli  sir  JunMi  SleicatI,  bis  majesty's  ro- 


llie  Lybel  being  read  and  fully  debate  uva 
*wc,  JD  presence  of  the  nid  lords,  panoells, 
and  aaaysers,  Ihe  lords  justice  clerk  and  com- 
niiniionera  of  justiciary,  ordain  both  partiea  to 
giro  ia  (heir  iabnnatiuis,  Ihe  pursuer  lo  gire 
in  hit,  betwixt  anil  Wednewlay's  night  next, 
and  Ifae  paDMltB  to  gire  ia  theirs,  betwixt  sod 
Friitsy'a  uighl  IbereaAer  in  order  to  be  re- 
conled  j  and  cootinaed  (he  dyai  of  ^e  lai^ 
cauM!  till  Hotrfay  oext  at  oyne  o'dock,  and 
entained  anysera  and  wiloenes  to  aiteod  then, 
Moll  iimlartbe  pun  of  one  biiadred  mcris. 


Villuatt  Hogg. 

The  Ktng't  Advocate  has  raised  a  L\ 
Aire  the  lords  of  justiciary  against  it 
John  Grakame  and  William  Hogtr,  I 
upon  the  fourth  act  first  session  nf  her  \i 
jestie  queen  A nne'i  parliament  in  Scolli 
tiluled.  Act  against  Leaaing  Makers  am 
derers,  and  the  acts  therein  recited,  mni 
cially  reciting  the  worda  of  the  134  act, 
meot  8th  Jamea  6lh,  aud  also  foundei 
the  late  statute  made  iu  the  parliament  o 
Britain,  iu  the  Cth  year  of  her  said  late  n 
lied,  Act  for  the  Security  of  her  m: 
person  and  gnrerDroeot,  S^.  Where 
ig*t  other  things  provided.  Thai 
>n  or  persona  ahall  maliciously  and  d 
reaching,  teaching,  or  adiysed  ap 
ir,  maintain,  and  affirm,  that  ihepr 
prince  of  Wales,  who  now  Styles  himsi 
of  Great  Britain,  or  king  of  England 
amestheSrdi  orkingofScol 
of  James  the  ath,  has  any  r 
I  of  these  realms,  erery  such 
shall  incurrthe  penalty  of  Praemunirs,  ( 
to  the  act  made  in  England  in  the 
Richard  (he  3d. 

The  L^bel  subsumes,  that  the  defem 
guilty  Ot  the  saids  crimes,  having  u; 
ISIh,  or  IGth  of  December  last,  drink 
Pretender's  heahh,  under  the  name 
James  the  8lh,  and  also  drauk  to  his 
resturalion  ;  aud  Ihe  libel  mentions, 
words  were  pronounced  loud  niih 
having  hautboys  playing,  aud  the  di 
showiti);  other  marks  of  joy,  in  upen  o 
aiiddeiyani»«f  tlie  laws  generally  m 
ticularly  above  menlioDed.  And  that 
fenders  being  surprised  in  the  act  by  1 
guards,  fled,  but  being  incontinent  pursi 
were  made  prisoners.  And  concludes 
which,  they  and  each  of  Ihem  are  ^uill 
art  and  part  of  the  breadi  of  the  said  la 
ought  to  be  punished  with  the  pains 
And  rarticularly  with  the  pains  ol'  Pne 
Tix.  To  be  putt  out  of  the  king's  ptotecl 
each  of  their  Isnda,  tenerocnli,  goods, 
or  moveables,  tbrfanllcd  to  his  majestit 
The  defender  premised  to  his  mate, 
facts  Ij  belled  being  denyed,  he  (hong 
self  bound  naverth^es*  to  declare,  Iha' 
could  be  proved,  they  amounted  to  a  ti 
imprudence,  and  mdiscietioa  very- 
worthy,  but  that  erery  act  of  imprudt 
not  amount  to  a  crime  pualaliable  by  la 
And  tberelore,  the  first  defence  waa 
defender  John  Urabame  was  in  drinl 
degree,  aa  not  to  kaow  or  ictnember 

It  waa  answered  for  th«  pmaaui  in 
place,  that  by  the  coniBoa  opinioB  of 
(he  tfuilt  of  oimiBal  tacbi  ia  iacnaaw 
qnaS^  of  dM  pcriMs  aguoit  whan 


B] 


^r  drinking  the  Pretendcr^s  Health, 


A.D.  1715. 


re 


Mmmitted,  aod  other  drcamttancei .  Therefore 

tfw  same  fact,  which  done  against  a  person  of 

Ww  condition,  would  import  but  a  small  con- 

icBiptorimpnideiicenot  punishable ;  yet  being 

Ant  aicaiDst  a  magistrate  or  person  in  dignity, 

wwild  lie  crimiDal  and  punishable.  Tlie  same 

MS  vhick  at  one  time  might  be  innocent  and 

iaofleBHTe,  am  the  drinking  of  a  health,  vet  at 

uMbv  time  may  be  criminal  and  punbnabie, 

vbcB  it  is  the  noited  badge  and  symbole  of 

fMfiirlbat  are  disaffected.    The  same  facts 

■M  would  inferr  but  a  light  dignity  in  thtf 

SMBB  sf  a  priTote  person,  when  they  come  to 

kipplyed  to  the  state  aod  ilignity  of  a  king, 

if  Ibrj  be  imprudent  and  hinme worthy,  are 

erinMsl.    But  more  particnhrly,  as  to  the  de- 

facB,  it  it  answered,  First,  That  drunkenness 

ii  BOt  araperiy  a  defbnoe  exclusive  of  the  lyhel, 

lbs  only  dfect  U  can  have  is  to  make  an  allc?ia- 

lin  sf  the  sentence  or  punbhment;  drunken- 

I  not  deny  the  crimes,  but  only  excuses 

to  lessen  the  guilt :    Ffor,  it  the  fact 

mnese  Hid  affinti  an  exemption  to  eleid 

ibe  Ifbel,  it  would  inTile  men  to  commit  crimes, 

fir  it  were  easy  for  a  man  that  is  embittered 

vi^  a^  rooted  malice  to  get  himself  drunk, 

~  '  in  that  stale  to  perpetrate  the  greater 


My,  Drunkenness  is  not  relevant  even  to 

ilsia  ao  alleviation  of  the  sentence,  for  drink- 

>if  to  excesa  is  not  only  an  imorality,  but 

is  a  crime,  and  he  that  is  drunk 

re  illicit^,'  which  certainly  can 

I  bim  a  legal  exemption,  cither 

the  lybel,  nor  for  alleviating  the  punish- 


'M 


3tfy,  The  drunkenness  has  by  the  custome 
•t  Maa  all  nations,  lieen  admittc<l  as  an  allc- 
viuMaia  cases  capital!,  that  can  take  no  place 
bar,  ferasae  of  the  acts  ly  belled  on  inflict  the 
laasfdMi.     But, 

<lbfy,  Drimkenness  is  not  relevantly  pro- 
pnifd  even  lor  alleviation,  because  it  is  then 
*bIv  relevant,  when  it  is  alled^ed  to  have  been 
^  ibst  degree,  as  to  deprive  the  defender  of  liis 
Jid^ament  and  senses.  But  the  lybel  mcntimis 
ftcts  that  exclude  the  possibility  of  that  de- 
fect, viz :  The  defender  came  with  baut- 
kyi  to  the  place,  and  drink  bciu^  brought  to 
wn,  tlie  said  John  Grahamc  called  out  The 
bi^  beahh,  Crawford  another  of  the  company, 
crvcd  out  What  king,  king  Janirs  tliR  8th  ? 
iipos  which  the  said  Grahame  and  Hogpr,  as 
vtU  as  Crawfurd,  drunk  to  the  health  of  king 
JiBMs  the  8th,  and  after  that  proceeded  to 
^ak  to  bis  happy  resluration.  And  when  the 
fttsrds  came  up,  he  had  his  senses  fresh  enough 
knin.  aod  emleavour  to  make  his  e!>cape.  If 
1^  facts  or  the  substance  of  them  be  proven, 
Hibey  are  ly  belled,  it  were  in  vain,  or  indeed 
to  lay  a  soare'for  perjury,  to  allow  the  defender 
h  pove  that  he  was  dead  or  stupid  drnnk. 
^  therefore  the  Brst  defence  ought  to  be  re- 

Aad  whereai  the  defender  excuses  his  not 
p*"iug  the  crime,  laying  the  blame  upon 
■>  kaag  drunk,  and  ha? iog  forgote ;  the  pur- 


suer cannot  hut  observe,  that  this  excuse  is  but 
an  aggravation  or  mark  of  obstinacy,  for  the 
defender  had  never  time  to  forget,  he  was  taken 
*  in  flagranti  delicto,'  and  keept  prisoner  till 
next  day  that  he  was  examined  upon  the  facts 
in  his  presence,  aflter  which  he  was  committed 
and  remained  priboner  till  he  was  indictcil. 
Where  then  was  there  time  for  him  to  forgett  ? 
He  was  certainly  sensible  of  his  guilt  whence 
fled,  he  nas  taken  in  his  flight,  and  has  still 
been  keept  in  remembrance  of  it. 

But  since  the  defender  thinks,  that  his  in- 
sulting of  the  government  may  be  evaded  or 
excused,  it  reraams  now,  that  the  lords  of  jus- 
ticiary do  convince  him  of  the  contrary,  by 
maintaining  the  vigour  of  public  discipline,  for 
indeed  otherwise  his  tryal  might  have  tliis  bad 
effect,  viz.  To  shew  how  cheap  and  easy  the  like 
offence  may  be  committed  in  time  coming, 
which  might  grow  into  more  incurable  dis- 
orders. 

The  9d  deffence  proponed  was,  that  the 
lybel  is  founded  upon  the  acts  of  parliament  of 
Scotland  against  leasing  makins^,  &c.  And  also 
upon  the  statute  of  Great  Britam  the  6th  of  the 
late  queen,  but  the  judj>;es  cannot  proceed  upon 
these  laws  joyntly,  Uf cause  the  punishments 
are  different.  And  also  because,  where  any 
new  penal  law  is  made  for  punishing  any  tact 
punishable  by  a  former  law,  the  former  law  is 
su^ierseded  eo  iptOt  and  since  a  man  cannot  be 
twice  punished  for  the  same  crime,  he  mnstbe 
punished  on  the  last. 

And  to  confirm  this  more,  it  was  urged  for 
the  defender,  that  by  the  late  act  Anno  6to 
Regime,  there  are  several  things  introduced  for 
the  benetitc  of  the  subject,  whereof  the  subject 
would  be  deprived  if  they  were  to  be  tryed  on 
the  old  acts  concerning  Icasincr  makeing.  As 
for  instance  the  new  act  requires  a  malicious 
direct  deed,  by  advised  speaking,  declaiiing, 
raaintainiiicT)  and  a!Hrmin«^.  And  it  provide:^, 
that  no  person  shall  he  prosecuted  upon  that  act 
for  any  words  spoken,  iniless  inlbrniation  he 
given  upon  outh,  wiiliin  three  days  after  the 
words  spoken,  and  the  prosciMitiou  be  within  - 
three  months  iifiersueli  inrnrmalion.  And  it  is 
agaiii St  reason,  that  upon  the  same  facts  there 
should  he  temporary  actions  and  perpetual 
actions. 

It  was  answered  for  the  pursuer.  First,  that 
he  cannot  btit  observe,  tiiat  the  crime  in  ques- 
tion tieinti^  a  contempt  of  the  kin>;V  :i>ithority 
and  title,  the  very  defence  founded  upon  the 
merciful  statutes  pasi  since  the  Revolution,  is 
an  a;7gravation  of  the  crime.  Ttiere  have  been 
times  when  the  least  offence  has  been  strained 
to  be  the  highest  treason,  or  drawn  within  the 
compass  of  severest  laws,  tlie  eon.vtant  character 
of  tyrranic.  But  now  by  God's  good  provi- 
dence we  are  under  a  •gentler  aduiinistiatrun, 
the  government  and  tlie  petqde  are  in  tiie  same 
interest,  and  the  laws  ihiiionstrate  nmlual  con- 
fidence, the  lirst  consiMjuence  of  so  happy  a 
statute. 

But  this  gentlene«-'s  of  the  laws  is  not  to  ex- 
pose them  to  elusion,  the  laws  ore  the  mora 


7J 


1  GEORGE  I. 


Trial  of  John  Graham  and  othergf 


I 


particularly  to  be  observed ,  because  the  pooish- 
inents  hare  beeu  soiUned  both  in  the  case  of 
leasing  niakin^r,  and  in  that  of  the  statute  of  the 
6th  of  the  queen,  and  Uie  same  fact  must  be  a 
more  attrocious  crime,  when  committed  a^inst 
so  ijrentle  a  government,  than  it  would  be  in  the 
statute  of  rigour  and  terrour. 

This  being  premised,  it  is  more  particularly 
answered,  that  the  defence  is  irrelevant,  ffor, 
First,  it  is  no  new  thing,  that  several  acts  of 
parliament  should  be  msuie  fcA-  restraining  one 
and  the  same  delict,  and  that  these  severu  acts 
should  be  made  the  major  proposition  of  a  lybel 
against  offenders,  a  matter  so  nottour,  that  it 
needs  no  particular  instance  to  clear  it. 

Sdly.  The  general  rules  of  law  in  tliat  case 
are  against  the  defence,  for  though  it  be  a 
maxiuie  that  *  posteriores  leges  derogant  pri- 

*  oribus,'  yet  that  is  only  wliere  the  posterior 
law  abrogates  or  is  directly  contrary  to  the 
former,  for  otherwise  a  law  made,  or  a  law  in 
possession  is  more  tioivourable  than  a  new  law- ; 
the  law  is  jealous  of  alterations,  and  admitts  of 
them  only  in  cases  of  necessity,  and  so  far  as 
the  necessity  requires.  And  therefore  the  civil 
law  has  excellently  defined,  that  prior  laws  are 
drawn  to  the  posterior,  yet  it  subjoins  the  ge- 
neral caveat,  *•  Sed  et  posteriores  leges  ad  pri- 

*  ores  pertinent  nisi  contrariee  sint.  L.  26,  27, 
'  28  ft*,  de  Legibus.'  And  very  agreeable  to  this 
and  to  the  present  case,  Hermo;;enianus  and 
Paulus  the  lawicrs  have  said, '  Cum  ex  unode- 
'  lido  plures  nascuntur  actiones,  sicut  evenit 

*  cum  arbures  furtim  esse  dicuutur  omnibus 
'  experiri  permitti  post  magnas  varietates  obti  • 

*  nuit.  L.  32  sect,  de  oblig.  6c  actQuotiens  Lex 

*  obligationem  introducit  nisi  si  nominatim  ca- 

*  verit,  ut  sola  ea  actione  utamur,  Eliam  veteres 

*  eo  nomine  actiones  comuetere  si  ex  eodem 

*  facto  duse  competant  actiones,  postea  Judicis 
<  potius  partes  esse,  ut  quo  plus  ea  sit  in  reliqua 

*  actione  id  actor  ferat.  Si  tan  turn  idem  ut 
'  minus  id  consequatur  L.  4  eod.'  And  so  the 
same  Paulus,'  Si  furtim  arbores  ccesoe  sint  et 

*  ex  Lege  Aquiliii  et  ex  duodecim  tabularum 

*  dandam  actionem  Labro  ait.    Sed  Trebatius, 

*  ita  utrainquc  dandam  ut  judex  in  |K>steriore 

*  detlucat,  id  quod  ex  prima  conseciita  sit  et  reli- 

*  qua  CFUudemuct,'  and  it  is  observable,  that  the 

*  actio  arborum  furtim  caesarum,*  and  the  ac- 
tion *  ex  len^e  Aquilia'  \t  ere  both  penal,  and  bad 
ditferciit  penalties.  That  if  the  '  Lex  Aquilia' 
f^'as  to  repair  tlie  damnage,  according  as  the 
thing  had  been  of  greatest  value  for  a  moneth 
before  tlie  thing  happened,  which  very  often 
was  much  more  than  the  real  value,  and  the 
action  *  arborum  furtim  ctesarum'  was  given 
in  ^  Duplum  deductfi  jirius  arboris  cmuD  esti- 

*  matione/  Nay,  iH'sides  these  actions,  there 
was  yet  a  further  punishment  upon  a  separate 
fundation,  '  secunuuiii  est  autem  eos  qui  ar- 

*  Iwres  et  maxime  vites  cocciderint,  etiam  tan- 

*  qiiam  latrones  puniri.  L.  2il  eod.' 

To  apply  this  to  the  present  case,  whereas 
the  defender  pretends,  that  the  former  laws 
concerned  leasing  mti king  are  supersedeil  by  the 
new  hiw,  Audo  6lo  Kegine,  if  the  said  statute 


Anno  6to  Regins  does  extend  lothe  pamshB^ 
of  the  same  facts:  ^ 

It  is  answered,  First,  that  the  defeoder'Bpil 
position  is  contrair  to  the  authority  of  theMl 
said  laws  and  reason  itself. 

3ndly.    If  the  facts  shall  be  foond^to 
within  the  statute  Anno  6to  Regine, 
cording  to  the  principles  of  the  CivillAWi 
mentioned,  the  defenders  being  puDisbed' 
form  to  the  statute  Preemunire,  there 
no  occasion  for  the  judges  lo  apply  the 
mentof  the  laws  made  against  teanog 
unless  the  circumstances  being  proven 
cious,  shall  deserve  a  further  correctioii, 
that  case  upon  tlie  fundation  of  the  lawi  i 
cited,  the  judge  is  to  proceed. 

And  Sdly.    It  was  necessary  to  foml* 
lybel  upon  both  laws,  because  the  act  flf 
6th  of  the  queen  being  a  new  statute,  iti 
easily  forseen,  the  defenders  would 
anxiously  to  alledge  that  the  facta  lyl 
not  fall  under  the  compass  of  that  stati 
indeed  they  have  done,  tho  without  aoy  i 
foundation. 

And  whereas  it  was  further  alledgal, 
the  statute  of  the  6th  of  the  queen,  oovla 
benefite  to  the  subject,  which  cannot  ba  ckHi 
by  trying  the  crime  on  the  old  statotea  agiU 
leasing  making :  " 

It  is  answered,  that  the  defender  miilakl 
for  first  as  to  the  words,  '  malidontly  t 
rectly  by  speaking,  shall  maintain,  dedart^ll 
afiirm ;'  these  contain  no  new  benefit  tolhtliri 
ject,  for  all  lawsimposing  pains  upon  any  fiMl< 
offence,  do  expressly  or  tacitly  require  MiiB 
*  deliberatum  propositum,'  and  where  th»  i 
fence  consists  in  words,  it  must  be  by  flidi 
taining,  declaring  and  affirming,  wbicb  M 
tains  denying  in  the  sense  of  the  atatnlei  i 
appears  by  the  words  that  immediately  Mill 
'  and  affirm  that  our  soveraign  lady  toe  quo 
is  not,  &c.  *and  therefore  these  words  osnli 
nothing  new* 

2dly.  As  to  the  provision,  that  no  pcnkw  tb 
be  prosecuted  but  upon  bwom  informalioa 
words  within  three  dayes  at\er  they  areipokl 
and  pn»secuted  within  three  monetbs  after  i 
formation : 

It  is  answered  (Imu)  that  the  words  of  t 
statute  are,  ^  that  none  be  prosecuted  by  veil 
of  this  act,  and  that  none  be  convicted  by  vcft 
of  this  act.' — And  therefore  indeed,  if  the  m 
suit  were  founded  upon  a  sworn  infbnDatM 
and  only  upon  that  act,  sometliing  mi^t 
said,  why  the  defender  should  not  iDCurr  1 
penalty  of  Premunire,  unless  the  sworo  infi 
mation  had  been  within  three  days,  and  1 
prosecution  within  three  months. 

But  the  case  is,  the  defender  was  takea 
Jiugranti  delicto^  brought  prisoner  in  lo  I 
guard,  where  he  was  keept  till  he  was  broii| 
before  a  magistrate,  and  there  the  wiinca 
were  bnm!y;ht  face  to  face  to  declare  tbefae 
in  order  to  the  question,  whether  he  sbouM 
set  at  liberty  or  committed.  The  facta  appoi 
iog  nottour,  as  far  as  in  that  case  was  aeo 
sary ,  in  order  to  Ibe  quealion  ot'  impriaaanni 


firimUmgike  Pretendet^s  Heahh. 


JL  D.  1715. 


[Id 


vhere  be  renwiocd  till 
ded.  If  ibe  ooannittmeDt  wai  legtl 
ihoB  If  ifd  flagranti  delicto^  then 
MM  Biol  ccrtaiDly  be  legal,  be- 
fcomautud  for  tbil  crime,  be  cid- 
end  bat  by  doe  ooune  of  law. 
Me  vf  the  statute  !■»  wbere  words 
,aad  are  not  presently  cballenged, 
(I  most  befin  by  a  sworn  loforma- 
tbree  dnyes,  for  these  kinds  of  iii- 
if  the  natnre  of  iiiinries  by  the  civil 
I  good  rsmon  the  action  ceased  if 
nbiio  injnriB.'  That  is, '  si  quis 
d  animnm  non  revoea? erit.^— The 
iks,  that  mnoiag  of  three  days, 
f  sworn  information  against  the  of- 
krse  months  without  prosecntioo,  is 
ffidence  that  the  go? emnient  passes 
lory,  so  far  as  not  to  insist  upon  the 
nemunire.  But  the  defender  being 
^roBli  deUetOj  is  not  within  the  cage 
rtsion  ;  the  ^vemment  instantly 
d  animum  injuriam,'  the  offender 
a  the  offence,  and  there  needed  no 
to  be  sworn  against  him,  but  if 
Ibe  same  fiM:t  bemg  punishable  by 
England,  as  a  misdemanour,  as  un- 
it is,  the  criminal  pursuit  tor  such 
or  still  remains,  but  must  be  prose - 
irding  to  the  laws  of  Scotland,  and 
I  can  only  be  upon  the  foundation  of 
psuist  leasing  inakiug. 
lap  then  what  concerns  the  Answer 
EMoe,  it  is  plain,  that  tbe  lybel  as  it 
d,  is  Tery  regular  and  well  founded, 
kt  laws  of  leasing  making  are  not 
Ihj  the  act  of  ibe  6ih  of  the  queen : 
wefore  it  was  necessary  to  l^^bel 
I  iki,  that  the  defender  being  tryed 
smes  of  leasing  making,  suffers  no 
ir4unage. 

ervas,  it  was  further  alledged,  that 
Iocs  only  conclude  the  pains  of  tbe 
lute. 

swered,  that  the  lybel  is  expressly 
I  tbe  acu  of  leasing  making,  and  in 
Dptioo  says,  *  it  is  of  verity,.that  the 
Niers  sre  guilty  actois  art  and  part  of 
d  crimes,'  and  after  the  narration  of 
t  of  tbe  facts,  follows  these  words  *  in 
mce  and  contempt  of  the  laiis  gene- 
particularly  above  mentioned'  and  a 
',  *  they  and  each  of  them  are  guilty 
ich  of  tbe  said  lans  which  or  any 
>f  being  found  proven,  they  ought  to 
d  with  tbe  pains  of  law.' 
reason  why  the  pains  of  Premunire 
particularly  expressed,  is  because  the 
9g  new  and  less  known,  and  referring 
i  in  the  time  of  Richard  the  2od,  It 
iita  favour  to  the  defenders  to  trans- 
r  that  statute  the  words  which  con- 
inishment.  But  from  thence  to  re-' 
ybel  to  the  case  of  tbe  statute  of  the 
i|oeen,  is  so  manifestly  against  the 
e  lybel,  that  the  defenders  must  be 
1 M  what  the  lawyer  says,  **  L.  19 


sect  ad  exhibenduro  non  oportere.  Jos  civile 
calumniari,  ueq.  verba  captari,  sed  qua  mente 
quid  dioeretur  anima  advertere  convenire." 

The  third  defence  proponed  was,  that  the 
lybel  is  founded  on  the  acts  of  leasing  malEing, 
and  the  foresaid  statute  of  the  6ih  of  tbe  late 

Jjueen.     And  Ua  fit,  that  the  facts  lybelled, 
ail  not  within  any  of  these  statutes. 

And  first,  the  ststute  Anno  Sexto  ReginsB  is 
in  these  words,  that  if  any  person  or  persons, 
shall  maliciously  and  directly  by  preaching, 
teaching  or  advysed  speaking,  declare,  main- 
tain and  affirm,  that  the  pretended  prince  of 
Wales  hath  any  right  or  title  to  tbe  crown ;  it 
is  agreed,  say  the  defenders,  that  here  is  no 
preaching  or  teaching,  tbe  question  is  as  to  ad- 
vysed speaking  *  nuda  emissio  verborum„'  and 
there  the  benignity  of  the  lawgiver,  knowing 
how  much  men  are  liable  to  escapes  without 
malice  or  premeditation ; 

8do.  How  apt  witorssesare  to  mistake  words 
or  to  forget  when  things  are  not  recently 
brou^t  to  prosecution.  Therefore  the  law 
requu^  these  qualities,  First,  that  the  words 
be  spoken  maliciously.  2ndly,  Directly.  Sdly, 
Advisedly,  and  4tbly,  That  this  may  tbe  more 
clearly  appear,  the  words  are  **  by  advysed 
speakmg,declare, maintain  and  affirm,"  declare, 
that  is,  openly  and  publicly,  maintain,  in  tbe 
sense  of  the  £n:;lisn  law,  is  by  argument  to 
defend  or  to  sup|K>rt,  affirm,  is  to  conclude  and 
plainly  to  assert,  and  all  these  must  concurr. 

Stio.  Tbe  information  must  be  given  within 
three  dayes,  and  tbe  prosecution  must  be  with- 
in three  months. 

4to.  The  case  of  advysed  speaking  is  sepa- 
rated in  the  law  from  that  of^  preaching  and 
teaching,  for  as  to  speaking,  the  information 
must  be  sworn,  and  the  pnisecution  within  the 
time  above  mentioned.  And  in  the  first  words 
*  shall  by  preaching,  teaching,  or  advysed 
speaking'  there  is  s  disjunctive  particle  (or)  to 
separate  the  case  of  speaking  from  the  former 
two,  which  confirms  also,  that  the  three  qoalities 
(declare,  maintain  and  affirm)  are  to  be  taken 
conjointly ;  ffor  the  lawgri?er  having  used  tbe 
disjunctive  particle  so  immediately  before, would 
certainly  have  repeated  it  there,  if  it  had  not 
been  intended  that  those  three  must  concurr 
joyntly. 

And  thus  the  defenders  imagining,  that  they 
have  established  the  sense  of  the  law,  for  ap* 
plication  pretend,  that  there  was  no  malicious 
speaking,  nor  is  malice  so  much  as  lybelled, 
nor  any  fact  to  qualifie  it. 

2ndo.  There  was  no  advysed  speaking ,  tbe 
defender  being  young,  came  to  the  street  in  the 
beat  of  drink,  and  uttered  the  words  lybelled. 

3tio.  There  is  no  declaring,  maintaining  or 
affirming,  what  is  lybelled  are  transient  words. 

And  as  to  the  substance  of  the  fact, 

Ist.  The  drinking  of  a  health  to  any  body  is 
forbid  by  no  law,  and  it  is  of  itself  innocent. 

2do.  The  drinking  a  health  to  the  king,  not 
adding  of  Great  Britain,  does  not  imply  tbe 
drinkmg  of  the  Pretender^s  health. 

3tio.  Tbe  drinking  to  king  James  tbe  8tbr 


•■V  a* 

?v.  i»-<«  :  •«  cv^me 

X 

;..c  >  y:«5*;i.\l  io 

.v.* 

ft 

..  a:  ^  Lzyti  the 

V   ■• 

.  ■  u»  j^  4ttiritii:if 

p«>.  -«-'  • 


f 


^    •-'*^ 


.«  • 


V, 


1.  \ 


•  ••\  « ' 


•  \ 


»     •. 


t 


It 


Tiiat  nfJuhn  Graham  and  atherjf 

that  bdoDjf  to  it ;  as  for  ioitance,  ean  the 
lertioff  ot  the  iisur|M;(l  title  adyjaedlv,  bt 
fcrentfrom  doing  it  maJiciously  ?  Or  ear 
aawrtin|r  ndvysedly  and  malicioutly  be  diSf 
from  doioflr  it  directly  ?  Can  one  inaiiitMi 
declare  what  be  does  not  alKirin. 

It  is  then  certain,  that  the  worda  of  the 
are  to  be  taken  in  this  sense,  ?iz.  The  affin 
ot'  the  title  of  the  Pretender  inferrs  the  jm 
nient  of  the  law,  and  because  this  araii 
may  be  done  by  wry  tin^  or  speaking,  bbA 
S|)eakiui^  may  be  done  by  preacbiofr,  toafll 
or  any  other  way,  whereby  in  words  th«  M' 
lion  of  tlie  ofiendm  is  plainly  aignified,  tM 
has  made  use  of  ? ariety  of  wonis,  to  nf 
one  and  the  same  criiney  for  the  crime  dMi 
consist  in  any  form  of  pronouncing  of  OM 
words ;  it  consists  in  tlie  asserting  of  tlM 
of  the  Pretender,  whicli  whoever  doea  m  w 
erer  form,  does  maliciously,  directly  amI 
vyscdiy,  declare,  maintain  and  affirm  bia  Hi 

Sdly.  Thai  the  circumNtanccs  lyhelb 
such  an  affirming,  will  apiiear  to  any  mhm$ 
aiders, 

First,  tliere  are  certain  facts  to  whicb  t 
tome  hutii  affixed  a  determined  sense,  and  tl 
is  none  whereof  the  use  and  meaning  is  ■ 
incootestediy  uudersiood,  than  thatof  drial 
healths ;  is  any  man  ao  ignorant  as  iiottoki 
that  tlie  going  to  a  publick  place  aud  drink 
the  kiii;;'8  health,  is  a  publick  acknowlnl 
ment  of  his  authority,  as  well  as  a  wish  for 
long  life  ?  Is  not  the  common  form  of  ^L 
live  the  king,"  a  formula  of  homage  km 
both  in  sacred  and  prophane  history  P  And 
any  more  than  the  drinking  of  a  health  P  JH 
do  their  homnpfe  by  sivearing  directly,  th 
that  hare  offices  by  taking  the  oaths ;  bvt 
body  of  the  people  have  no  other  way  of 
pressing  their  homage,  but  that  acclamaft 
«<  God  save  the  king ;"  it  were  fniitieaa  lohi 
more  reasons  in  a  plain  case. 

2iMy.  As  the  drinking  of  the  health  ui 
that  designation  and  stylo,  is  in  the  cont 
acceptance  an  acknowledgement  of  the  I 
tender *s  title  as  king  James,  so  the  aMan 
of  that  title  is  the  cause  of  bis  attainder ; 
title  of  king  James  the  eight,  is  one  of 
usurpations  whereof  the  act  complains, 
the  wonls  are,  *^  He  takes  the  title  oft'  k 
of  8cotland,  by  the  name  of  James  the  eigl 
and  tiierefore  the  drinking  of  a  health  to  ^ 
person  under  tliat  name  by  a  Scotsman  M 
the  street  of  Edinburq^h,  though  he  did  not 
the  words  **  of  8cotland,"  can  inijiort  notli 
else,  but  t be  drinking  to  his  pros|ierity  as  fa 
ing  that  right,  wliidi  is  directly  and  malicioi 
to  affirm  his  title. 

Sdly.    The  circuoostancet  likewise  coni 
this,  it  was  not  affirming  for  argument  si 
there  was  no  dispute  in  tlie  case,  it  was  not 
t'>.  lU  wixsWr  uiUtakcs  the  meaning  of    firming  ex  calart  iracundir^  there  wasno<|i 
i»>i  iUtM>  M*veial  wonls  of  malicious,  I  rel  nor  contradiction,  it  was  a  deed  d«-iibera 
ku(  .iJmm-^I  ^|M'aking,  maintaining,  de-     done.    The  defender  came  with  his  aco 
«mJ  .tiiiiiniiivf,  are  no  otherwise  to  be     plices  to  a  certain  place  of  tlie  street,  when 


.  »i 


v» 


w^   »wh  v  aL<^iBi  an 

.••.- « J  M  v«r«2i  firi- 

V  ..w-w-  M  in«  crown 

'^  r^at^%  Bwf  could 

v«fi  H  Sviknil,  be- 

......    -^  .(-»&k9CkML«a  and  name 

■ 'iNk  1'^  (»  king  James 

...   .  .  % -vtMi  HuiiHi»  *and  tohia 

...      wi|^«'o  M  4iti  miog  of  Ilia 

.  .  .w^  ^»i  ■  "^  KNHUrary,  it  ira- 

..    '•.-v»  ■    '  t'.tiiriider  baa  no 

...>   :*  s  .   uit  by  alawtobe 

. ..  *  ..  o  .  o.   ««aru  a  person  is 

.     .*,.tM    V   ffi^, AVI  ,^ru/iir,  that 

.  ..u    .« -^  ^H  SkV4.«nd  is  called  a 

„.v  ***»•  ,  I  »^'  ****>d  *  restoration' 

.  v%i\    .1...  I'.vuuou,  it  is  accord* 

,..v.i«^  v*    >^  >^*«  t^*  be  taken  in 

A.I  4.S  vi>t%Mr  a  crime. 

.•.0  v«|iiM*aUy  insist  upon 
uo  w«»ids  directly  afBrao- 
I.  ,1     >    i>v.viuk-r.  It  is  butan  af- 
v.«  M.  M huh  m  matter  cri- 

.    .    ■  .vi   >  \c  «usi»fr  to  this  way 

I     «i  .A*  i'v*.  .<aU  put  the  defenders 

I     t«v*.«ia  I  i>i  iiuw  cited,  **  non 

.  i\4:(>  1  ui  iuN|ue  verba  cap- 

..kv«(vi.l  I'cviviur  auiinadver- 

i.i.H'i   «*(  AiuithiT  maxim, 

,.  .1    .^....  ^.ii  ul  i.ii*it  ipitid  lex  pro- 

.vMi  «%!%•  «|ai  sAUin  verbis  leges 

>  * .  -v'i«uk«\'<iu,"  licz  'ii>, Hect.de 

I.I  ^i:t«thck  part  of  tho  law  is  so 

\  >  I  .KiUiuii  tsi  in  legem  com- 

^ii,  ««iba  Ir^isi  aui|dexus  contra 

tcknuAu'M.    lav  {wuias  incertaa 

.«.  K^Ai  %%f  (\Mitia  juris  scntentiam 

•  o  i  \%kU»\iM\\  iVsudulenter  exou- 

V     i  «\hI.  .  MUillhtti  this  was agree- 

iti.i\   t*(*  «i'i*u  in  the  act  108, 

Uui.  •«  iho  I  si,  and  others  made 

.iwM%  I'i  ilii>  Acis  of  parliament. 

.'.v  ^Mtiicubily  answered,  to  all 

•^...  I «  iiuMis  u|Kin  tbo  words  of  the 

■UU'i't, 

•(  ii.'«vi  wstt  there  n  more  plain, 
■  ■■-  ,  .l.kVi'i.  iuU\seil,  maintaiuing, 
4.1 1  AUuiiiiu<  llit>  title  of  the  Pre- 


4i> 


II' 


i.  4«  i.»  ilio  ipiality  of  the  malice, 

•  «  tvui4i  ttkihs  iiniMi,  it  is  in  law 

oiti  ihol.ici!i,aiul  is  uutby  itself  the 


,MiA  ilv.  ttiau  as  they  contain  a  de» 
k.,>o\*i  4Ai'iHhouB  fact  with  exaggentumi 


thought  fitt  to  baity  he  came  with  musick,  I 
the  BDOMui  timt  in  the  iBonung  might  con 


Jvr  itiMng  the  PrOendet**  Heabh. 


A.  D.  1715. 


tl8 


nw  words  nid  to  be  spoken  by  the 
lo  not  fkU  under  the  description  of  that 
eh  CDsctSy  That  if  any  person  shall 
■ly  and  directly,  by  advysed  speaking, 
vaintaiD  and  amrm,  that  the  pretend- 
M  if  Wales,  who  now  styles  himself 
Gnat  Britain,  or  kin^r  of  England  by  the 
f  Jasiea  the  3d,  or  king  of  Scotland  by 
m  of  James  the  8,  hath  any  right  or 
ibe  crown  of  these  realms,  shall  incurr 
tkf  of  PrBmunire.  And  the  drinking 
James  8ih's  health,  and  the  drinking 
■ppy  restoration,  is  neither  a  malicious 
d  declaration,  maintainance  or  affirma- 
■i  right  and  title  to  the  crown  of  Great 
,  and  the  lybel  does  not  bear,  that  these 
acre  maliciously  spoken,  or  that  the 
dU  thereby  declare  and  maintain  the 
id  prince  of  Wales  had  any  right. 
The  set  reqnires,  that  the  words  where- 
right  in  the  Pretender  is  affirmed,  be 
§j  wpekt.  But  the  pursuer  has  laid  no 
Mmi  in  his  ly  bel,  firom  whence  it  might 
ltd,  that  these  words  were  advysedly 
« the  ooDtrary,  the  pannel  is  brought 
aajTi  buxsain^,  dancing  on  the  streets 
t  low,  all  which  circumstances  are  in- 
■t  with  deliberate  and  advysed  speak- 
as  to  the  other  acts  against  leasing 
and  slanderers  lybelled  upon,  it  was  al- 
far  the  pannel.  That  these  acts  wera 
■ded  and  inno? ate  by  the  foresaid  sta- 
ihepariiament  of  Great  Britain,  in  con- 
sseT  the  18th  Article  of  the  treaty  of 
whereby  it  was  agreed.  That  the 
hieb  concern  publick  right,  policy  and 
{■tesmeut  (as  the  old  Scots  acts  cor- 
ds) sight  he  made  the  same  thn;ughout 
hsfe  United  Kingdome.  And  supposing 
IS  Scots  acts  were  still  in  force,  which 
veil  be  admitted  otf,  for  the  reasons 
dl  attcrwanis  be  more  fully  cx)ilaii)cd, 
'  facts  charged  upon  the  pannel,  are 
danderini;  the  king  to  his  sulijects,  nor 
fcts  to  ihe  king,  which  is  the  descrip* 
r  law  gives  (<f  leafiu;^  makin;^,  and 
y  such  slanderers  d'j  iucun-  the  peual- 
Btioned  in  these  actd. 
is  the  sum  of  the  defence,  and  therein 
Del  humbly  conceives  he  is  miicli  siip- 
by  the  great  length  to  which  tliis  argu- 
drawn,  in  the  pleadings  and  inforiua- 
B  the  other  side  in  civil  cases,  which 
all  be  comprehended  under  the  express 
of  positive  law ;  there  is  place  f(»r  in- 
5  and  conjecture,  but  it  is  the  happiness 
constitution  that  such  facts  as  are 
d  are  plainly  and  clearly  forbid  by 
notes,  and  therefore  need  little  argu- 
•  make  them  plainer.  The  law  speaks 
H^  and  if  this  is  the  case  of  our  criminal 
I  general,  it  is  more  particularly  to  he 
I,  where  the  Uw  concerns  words  said  to 
ken,  and  requires  that  such  words  be  di- 
i4  advysMlly  emitted. 
iihcr  this  fact  charged  on  the  pannel  be 
HL.  XTII.  ^ 


so  or  not,  will  appear  from  a  more  particular 
examination  of  the  answers  made  to  his  de- 
fences in  the  method  as  they  are  set  down  in 
thepnrsne^  information. 

The  pannel  then  in  the  first  place  having  al» 
ledged,  that  he  was  in  drink  the  time  when  h% 
is  said  to  have  spoke  the  words  labelled ;  the 
pursuer  premises  to  the  answer  a  general  ob- 
servation, that  crimes  are  aggravated  or  less- 
ned  with  respect  to  the  quality  of  the  persons 
against  whom  they  are  cumniittetl,  and  the  ob- 
servation is  certamly  just,  but  then  the  law 
upon  which  the  party  offending  is  to  be  con- 
vict, mnst  first  make  the  fact  a  crime,  and 
that  is  the  poynt  which  the  pursuer  is  to  make 
out ;  and  here  the  pannel  would  not  be  under- 
stood, as  if  he  meant  that  the  fact  charged 
against  him  was  not  an  offence,  but  what  hia 
concludes  is,  that  it  is  not  an  offence  falling 
under  the  description  of  tbe  laws  mentioned  in 
the  lybel,  and  even  though  it  were,  the  de- 
fence of  drunkenness  is  relevant  totally  to  ex* 
elude  the  lybel,  and  nota%an  alleviation  only. 

For  tho'  as  the  pursuer  observes,  drun- 
kenness does  not  take  off  the  fact,  yet  it 
takes  off  the  greatest  crimes  as  much  ais 
fnry  of  fatuity,  because  such  persons  are 
incapable  to  consent  or  to  adhibite  a  free  act  of 
the  will,  but  there  can  be  no  doubt  in  this  mat- 
ter if  the  natura  of  tbe  libel  is  consideredp 
which  is  laid  against  the  pannel  upon  a  statute 
requiring  malicious  and  advyscd  speaking. 
And  therefore  it  is,  that  our  famous  lawier  sir 
George  M'Kenzie,  in  his  observations  upon  the 
act  'i,  scss.  pari.  1st  Charles  3d,  entitled,  Act 
for  Preservation  of  his  Majestiu*s  person,  where 
the  same  \tcrds  of  pn^achingaud  malicious  and 
advysed  speaking,  wJKjrcby  a  pnrly  expressctl 
cr  declared  his  treasonable  intentions  in  the 
matters  by  that  law  forbid  is  dticlared  treason, 
Sci3's,  that  .such  as  wercdrnnh  when  tliey  spoke 
those  words,  are  not  punishable  by  this  act. 

lint  tbe  pursuer  says,  dnmkenness  is  not  re« 
Icvantly  proponed,  because  the  nannel  does  not 
alledgc  he  was  drunk  to  that  degree,  as  to  he 
deprived  o\'\\is  judij^enicnt  and  senses. 

It  is  answered,  that  the  Defence  nreds  not  be 
so  qualified,  because  the  fact  objected  oj^ainst 
him  is  malicious  and  advysed  speaking,  which 
any  degree  of  drunkenness  is  sufUcieut  to  ex- 
clude, so  as  to  save  the  defender  from  being 
convict  upon  the  laws  lybellcd  upon.  And  the 
insinuation,  that  the  paunel  coulrl  not  be  drunk, 
because  he  was  ubio  to  go  oU'  when  the  city 
guards  appeared,  is  i.ot  concluding,  unless 
the  pursuer  subsume,  that  every  party  who 
walks  is  not  drunk,  and  is  capable  of  deliberate 
I  thinking  and  speaking,  which  the  pannel  cannot 
adniitt. 

The  order  nf  the  Defence  and  pleading 
leads  the  pannel  in  the  next  place  to  take  notice 
of  the  Answer,  to  u  hat  was  objected  against 
'the  defect  of  the  ]>ursuer's  lybel,  in  so  far  as 
it  is  founded  upon  the  Brilish  statute,  w  hich 
liears  that  no  person  shall  be  prosecute  by 
vertue  of  that  act  for  any  words  s[K)ken,  unless 
the  information  of  such  words  be  giveu  upoa 

C 


15] 


1  GEORGE  L 


Trial  of  John  Graham  and  otkerif 


oountry  of  England  or  councellon  thereof, 
tendioif  to  the  remembrance  of  ancieut  grudjures, 
whereby  hatred  may  be  fof^tered,  and  misiike- 
ing  raised  between  his  majestie's  subjects  of 
this  island,  is  made  criminal  under  the  name  of 
leasing  making.  So  that  there  can  be  noUiing 
more  evident,  than  that  the  crime  of  leasing 
making  consists  in  uttering  false  and  scanda- 
lous speeches,  tending  to  stirr  up  his  majesties 
subjects  thereby,  to  mislikeing,  sedition,  un- 
quietness,  and  to  cast  off  their  due  obedience  to 
tlieir  kintr,  to  their  peril  and  tinsel. 

2dlv,  The  facts  1y belled  are  such,  for  what 
speech  or  deed  can  shew  more  contempt  to  the 
majestie  of  the  king,  or  what  can  more  endan- 
ger his  estate  than  the  publickly  owning  the 
title  of  another,  and  wishing  his  happy  restu- 
ration  ?  What  can  more  stirr  up  the  people 
against  bis  lawful  authority,  than  the  disputing 
ot  his  title?  Or  what  can  more  clearly  invite  an 
unnatural  invasion,  whereby  this  country  should 
be  made  the  scene  of  blood,  cruelty  and  vasta-  - 
tion  at  the  hands  of  people  whose  relipon  di- 
vest them  of  all  faith,  mercy  and  pity,  to  those 
whom  they  falsely  reckon  hereticks,  than  the 
publick  profession  of  a  desire  to  have  a  declared 
enemy  to  our  religion  and  our  happy  constitu- 
tion, upon  which  our  laws  and  liberties  depend, 
restored  ? 

It  scarce  deserves  mentioning  what  the  de- 
fender so  often  observed.  That  the  acts  against 
leasinc^  making  were  odious,  for  so  they  were 
indeed,  as  all  powers  in  the  hands  of  enemies, 
or  the  hands  of  a  government  engaged  by  reli- 
gion and  mistaken  principles,  against  tlie  inte- 
rest sacred  and  civil  of  the  people,  then  indeed 
the  acts  of  leasing  making  were  strained.  But 
since  the  happy  llevoTution  that  grivance 
amongst  many  others  has  been  removed. 
What  was  useful  in  the  acts  of  leasing  making, 
and  indeeil  all  that  concerns  the  present  ques- 
tion, is  preserved  by  the  act  4th  pari.  1703,  the 
bitterness  of  the  punishment  is  restrained,  and 
80  the  odioasness  of  the  law  taken  off.  Nor 
can  these  laws  be  said  to  be  old  and  obsolete, 
which  have  been  so  lately  under  the  considera- 
tion of  the  legislature  and  approven. 

To  conclude  then  in  the  words  of  the  for- 
cited  134  act  of  the  8th  pari.  Ja.  6th>  tho'  his 
majestie  continues  in  love  and  clemencie  to- 
wards all  his  good  subjects,  and  most  willingly 
seeks  the  safety  and  preservation  of  tbem  all, 
and  his  servants  in  his  name  proceed  with  the 
same  regret  against  the  guilty,  vet  seeing  the 
law  and  authority  must  be  vindicated  against 
open  insults  obstinately  justified,  there  can  be 
no  doubt  but  the  Court  will  sustain  the  lybel, 
and  find  that  the  drinking  a  health  to  king  James 
the  eight  in  the  open  streets  with  huzzas,  and 
the  drinking  of  the  said  health,  or  to  bis 
happy  resturation,  relevant  to  make  the  defen- 
ders guilty  of  the  crimes  and  according  to  laws 
libelled. 

This  debate  being  a\  to  Af  r.  Graham  for 
whom  compearance  only  was  made,  and  Mr. 
Hogg  the  other  defender  having  for  himself 
«nv«d  the  btneata  of  tlM  same  4mncei  wludi 


the   Court  allowed,  the  tiOcd  Advoc 
peated  the  same  answers. 

Sic  Subscribitur^      David  Dalbti 

February  ath^  1715. 

Information  for  John  Grahame,  m 
James  Grahame  of  Newtmm 

AGAINST 

His  Majestie*8  Advocate. 

His  Mafettie^t  AdvocatehnM been  pk 
raise  and  for  liis  higlmess  interetit,  to  iai 
criminal  process  before  the  lords  commii 
of  justiciary,  lybelling  upon  tfae*acts  of ll 
liament  of  Scotland,  made  against  I 
makers  and  slanderers ;  but  more  cs^ 
upon  the  statute  made  in  the  parlisa 
Great  Britain  in  the  6th  year  of  tbehte 
intituled,  '<  Act  for  the  Security  of  her  J 
tie's  Person  and  Government."  WbfftJ 
amongst  other  tbinirs  enacted,  That' if ai 
son  or  persons,  shall  malicioualy  and  i 
by  preaching,  teaching  or  advyscdspc 
declare,  maintain  and  amrm,  that  the  pic 
prince  of  Wales,  who  now  styles  bimici 
of  Great  Britain,  or  kinf  of  Engtend  I 
name  of  James  the  third,  or  king  of  8i 
by  the  name  of  James  the  eight,  hi 
right  or  title  to  the  crown  of  these  i 
every  such  person  shall  incurr  the  pel 
Praemunire.  And  subsuming  that  then 
guilty  of  these  crimes,  in  so  far  as  M 
to  the  health  of  king  James  the  eigk 
to  the  happy  resturation  of  the  said  I 
der,  under  the  name  of  James  the 
Which  words,  to  the  health  of  kinglH 
eight,  and  to  the  happy  resturation  d 
James  the  eight,  he  duf  pronounce  all 
huzza'd  at  each  health,  dancing  at  th 
time,  and  having  hautboys  playing.  Ai 
eluding  the  pannel  is  guilty  of  tlie  hn 
the  said  laws,  and  therefore  ought  to 
nished  with  the  pains  of  law,  aiid  partii 
that  he  ought  to  be  put  out  of  his  majeslt 
tection  and  his  lands,  tenements,  goodi 
tells,  or  otiier  moveables  Ibrfaulted. 

It  may  appear  even  from  the  lybi 
whatever  was  done  by  the  pannel  tl 
therein  mentioned,  was  the  conseqaei 
debauch  by  too  much  drinkmg,  and  node 
act  So  that  the  pannel  not  remembris 
had  passed,  denyed  the  Ivbel ;  and  in 
fence,  it  was  alledged.  That  hownvcr  I 
charged  upon  him,  was  a  very  great  li 
indecency,  yet  he  could  not  ior  il  bn  < 
u|ion  the  laws  generally  or  speciaUj  M 
in  the  libel. 

For  Imo.  As  to  the  act  ainde is  Nm 
ment  of  Great  Britain,  entitokd,-  ^MM 
Security  of  her  Miyestie'i  ppnBB.«Mi 
ment,"  tbe   necessary   wm 
cuting  any  person  np^ 
spoken,  were  not  in  lb 
been  no  infonBti* 
oath,  I0opa« 


** 


^  dHMUHg  ike  Praentla*s  Heabh. 


A.  D.  1715. 


[18 


?be  words  nid  to  be  spoken  by  the 
to  not  fidl  uodcr  the  description  of  that 
leh  enacts,  That  if  any  person  shall 
■ly  and  directly,  by  advysed  speaking^, 
vuntain  and  affirm,  that  the  pretcod- 
Hs  of  Wales,  who  now  styles  himself 
I  Gmt  Britain,  or  kin^  of  Enfi^Iand  by  the 
tf  Jioies  the  3d,  or  kmg  of  Scotland  by 
■e  of  James  the  8,  hath  any  right  or 
(ihe  crown  of  these  realms,  shall  incurr 
Mkf  of  PrsBmunire.  And  the  drinking 
I  Jtmes  Bih's  health,  and  the  drinking 
■fpy  restoration,  ii  neither  a  malicious 
net  declaration,  maintainance  or  affirma- 
fkii  right  and  title  to  the  crown  of  Great 
lyisd  the  l^hel  does  not  bear,  that  these 
vera  maliciously  spoken,  or  that  the 
I  id  thereby  declare  and  maintain  the 
M  prince  of  Wales  had  any  riffbt. 
i  Tbe  act  reqnires,  that  the  words  where- 
liifbt  in  the  Pretender  is  affirmed,  be 
rif  ipoke.  But  the  pursuer  has  laid  no 
blNB  in  hb  lybel,  from  whence  it  might 
M,  that  these  words  were  advysedly 
I  m  the  contrary,  the  pannel  is  brought 
ikiw,  huzzaing,  dancing  on  the  streets 
b  ttt,  all  which  circumstances  are  in- 
tBt  wiih  deliberate  and  advysed  speak- 

1  ■  to  the  other  acts  against  leasing 
■isd  ibnderers  ly  belled  upon,  it  was  al- 
i  ftr  the  pannel.  That  these  acts  were 
WM  and  innof  ate  by  the  foresaid  sta- 
'ikptriiaroent  of  Great  Britain,  in  con- 
Mi  «f  the  18th  Article  of  the  treaty  of 
■i  vbereby  it  was  agreed,  That  the 
'*Ucli  concern  nublick  right,  policy  and 
'  fwnoieiit  (as  the  old  Scots  acts  cer- 
7di)Bi^it  be  made  the  same  tlirciigliout 
"^Uaited  Kingdome.  And  supposing 
IfcffipDU  acts  were  still  in  I'oroe,  which 
'  'cit  be  admitted  otT,  for  the  reasons 
UH  afterwards  be  more  fully  ex|)laliied, 
^  ficts  diarged  upon  the  pannel,  are 
'|diDderin<;  tlie  king  to  his  suhjects,  nor 
^ects  to  the  king,  which  is  the  dcscrip* 
ir  law  gives  oV  leafing  making,  and 
9  lurh  slanderers  d'j  iuciirr  the  peual- 
ntionrd  in  these  acts. 
>ii  Ibe  sum  of  the  defence,  and  therein 
Hifl  bambly  conceives  he  is  much  sup- 
by  the  great  length  to  which  this  argu- 
I  drawn,  in  the  pleadings  and  informa- 
a  the  other  side  in  civil  cases,  which 
ill  be  comprehended  under  the  express 
of  positife  law  ;  there  is  place  fur  in- 
I  ind  conjecture,  but  it  is  the  happiness 
coostitutioo  that  such  facts  as  are 
fl  wn  plainlv  and  clearly  forbid  by 
Mhl  and  therrfhre  need  little  argtt-> 
I  Mt  Ihem  plainer.  The  law  incSkt 
iriUi«tfiecMt«rmir    '-' -' 


■0  or  not,  will  appear  from  a  more  particular 
examination  of  the  answers  made  to  his  de- 
fences in  the  method  as  they  are  set  down  in 
thepursne^  information. 

The  pannel  then  in  the  first  place  baring  al» 
ledged,  that  he  was  in  drink  the  time  when  ha 
is  said  to  have  spoke  the  words  labelled ;  the 
pursuer  premises  to  the  answer  a  general  ob- 
servation, that  crimes  are  aggravateil  or  less« 
ned  with  respect  to  the  quality  of  the  persona 
against  whom  they  are  cumniittetl,  and  the  ob- 
servation is  certamly  just,  but  then  the  law 
upon  which  the  party  offi:nding  is  to  be  con- 
vict, must  first  make  the  fact  a  crime,  and 
that  is  the  poynt  which  the  pursuer  is  to  make 
out ;  and  here  the  pannel  would  not  be  under* 
stood,  as  if  he  meant  that  tlie  fact  charged 
against  him  was  not  an  ofll'uce,  but  ^vhut  he 
concludes  is,  that  it  is  not  an  offence  falling 
under  the  description  of  the  laws  mentioned  in 
the  lybel,  and  even  though  it  were,  the  de- 
fence of  drunkenness  is  relevant  totally  to  ex- 
clude the  lybel,  and  nota%an  alleviation  only. 

For  tho'  as  the  pursuer  observes,  drun- 
kenness does  not  take  off  the  fact,  yet  it 
takes  off  the  greatest  crimes  as  much  as 
fury  of  fatuity,  because  such  persons  are 
incapable  to  consent  or  to  adiiibite  a  free  aet  af 
the  will,  but  there  can  be  no  doubt  in  this  mft- 
ter  if  the  nature  of  the  libel  is  conridcrcd^ 
which  is  laid  against  the  pannel  upon  a 
requiring  malicious  and  advysed  ip 
And  therefore  it  is,  that  oar  fiunous  k 
George  M*Kenzic,  in  his  observations 
act  2,  scss.  pari.  1st  Charles  3d 
for  Preservation  of  his  Majestic^s  perm  v**^ 
the  same  ucrds  of  preaching  and  malidfV'' 
advysed  speaking,  wlitirehy  a  p?rtj  ajhw*" 
or  declared  his  treasonable  intendnv  >"  ^ 
matters  by  that  law  forbid  is  dedand  m*" 
says,  that  such  as  were  dnink  vba  fb^  ^"^ 
those  words,  are  not  punishable  Hy  cliif «• 

lint  the  pursuer  says,  drunkaii^'  '* "" 
Icvautly  proponed,  because  •^  ■■"■*' '^ 
a!ledgc  he  was  drunk  to 
deprived  of  his  judgemeot 

it  is  answered,  that  tbe  ' 
so  qualified,  because 
him  is  malicious  and 
any  degree  of  dm 
elude,  80  as  to 
convict  upon  tbe 
insinuation,  that 
because  he 


int 


X  J 


le 

a 


ip. 

osi- 

^,  or 
said, 


m 


1  GEORGE  I. 


Trial  of  John  Graham  and  otheri. 


going  debile  thereniwD,    Tlicy  find  the  uiJ 

Kbtirili  oreachof  them,  thnrdriokiugtrf* king 
mes  tlie  ei(;ht  hia  health,  ordrinking  tokicg 
James  the  eight  his  hnppy  lestaratimi,  at  lite 
time  labelled,  tetmntim,  rt-IeraDt  to  infcrr  fen 
aiUtrwy  pimilbment.  And  repel]  the  defencti 
nroponed  lor  the  said  uaaDells  against  the  said 
lybet  as  mtrictnl,  and  remitt  tbe  pannells  and 
lybell  a*  fonnd  relevant  to  the  knowledge  of  an 
JJiRze. 

Sic  Subieribilur,     Ad.  Cockbdrkb.  I.  P.  D. 

Sir  DaTid  Dalrymple  of  Hailet,  hu  mqjectie'g 
•ilTOCtt  for  his  majeatie's  interest.  Judicially  re- 
BIricts  lui  lybel  and  caDclusiao  thereof  1«  an 
ai-bhruy  paoishmeoL 

Sk  &ibttribitur,  Datid  Dalryhpia 

Diet  coDlianed  till  next  day  at  9  o'clock. 
FcinMf^ll,  1T15. 

John  Grahame,  AUlander  Craa/urd,  and 
Mr.  IVilliam  Hog^,  inilicted  and  accuied  at  th-e 
iottaiice  of  bis  roajestie's  adrocaie/or  his  high- 
Ma'  interest  ut  in  diebut  pmcedenlibui. 

Sir  William  Hensies,  of  Glatdstaines. 

Oeorge  lind,  of  Georgie. 

Thomas  Faicbolm,  of  Greenhill. 

FUrick  M'Dowal,  tnercfasnt  in  Edinbur^'b. 

John  Bell,  merchant  there, 

Jehu  Thomion,  mercbaDt  in  EiUnborgh, 

John  Colqaboou,  of  Tilliebewn.  j 

John  Martiue,  of  Litlleeires. 

Alexander  Waddel  of  Holliubum. 

James  KI'Millan,  merchant  in  Edinburgh. 

Patrick  Gibson,  merchant  in  Edinburgh. 

Akxaoder  Clark,  of  Glaadarock. 

■         Priogle,  of  Symin^un. 

John  HultoD,  tueccbant  m  Edinburgh. 

John  Lesdy,  merchant  there. 


tbem  repeat  the  ivords,  but  sat  Air'  GrahM 
putthecsf  ti)  bi* head,  and  dnnkoulthedria 
Depones,  that  he  nj  no  wore  peraon*  dancii 
but  the  paoDelU,  but  that  tjiere  were  oths 
looking  on .  Cotus  tcienti*  ptiUt.  And  thia 
the  troth  aa  he  shall  answer  to  God,  and  i 
pones  he  cannot  write. 
Sic SttbKribitur,      An, Cocxbcbne,  I.  P.] 

jl/emn^cr  iror^  Bouldier  in  IhecitjgBM 
of  Edinburgh,  aged  (wcuty  Etvea  yevt,  i 
thereby,  marned,  solemnly  Eworn,  purged  m 
inteiTugate  ut  lupra.  Depones,  That  upon  d 
sixteenth  day  of  December  last,  betwixt  fti 
and  five  a'clock  in  tbe  mnrniDg,  he  did  sea  M 
Grahame  and  Hr.  Hogg,  two  of  the  paonell 
dancing  niion  tbe  street  wiih  Ur.  Craw^ 
-■    '     ■ehau  ■  ■  "" 


rhyle  I 


Her  Majestie's  Advocat  and  solicitor  for  Pro- 
bation adduced  Mr.  Crawford's  Confeaaion. 
Ac  also  adduced  the  witnesses  atler  depODrng, 

David  Smith,  indwdler  in  Edinburgh,  and 
chair-carrier  there,  aged  fourly  thrtc  .years 
or  thereby,  narried,  solemaly  Bwom,  purged 
of  malice,  nreJuJicr,  and  partial  council,  exa- 
mined and  interrogate,  depones,  That  the 
month  of  December  last,  in  a  morning  hetnixt 
four  nod  fire  a'clock,  he  did  see  tbe  psnnells 
Hr.  Grahame  and  Mr.  H<^g  by  the  street, 
dancing  to  the  hautboys,  ann  when  they  bad 
donedancing,  the  deponent  saw  a  woman  come 
out  of  a  cellar  with  a  stonp,  and  saw  Mr.  Gia- 
hame  take  the  stoup  and  a«ap,  and  fill  a  drink, 
and  heard  him  utter  tbeae  worda,  Here  is  the 
bing'a  health,  and  some  other  of  the  company 
Mked  what  king  t  But  the  deponent  cannot  tie 
poaitiveby  whom,  king  Jameslhe  eights'  imjib. 
AndbdngiiitanogmleiforiMtbeff^Hr.  Gra- 
fcuH  fli  Hr.  H<nr  pat  tbe  cap  M  tbeir  beads, 


itboys  were  iilnying,  and  did  si 
Mr' Crawford  with  a  dish  in  bis  hand,  M 
Cranfnrd  say.Tbia  is  the  kiug's  health,  and  U 
Grahame  aiuwered,  God  damn  y  tu,  what  king 
and  heard  Mr.  Crawfurd  reply,  KiogJomeaU 
eight,  and  saw  lilm  drink  the  liquor  in  tfc 
dish,  but  did  not  bear  Mr.  Grahatne  name  tl 
heahb  of  king  James  the  eight,  neither  bear 
any  of  the  pannells  name  ahcaltl)  tothehappi 
resturation  of  king  James  the  eight.  And  m 
mediately  tbe  deponent  went  away  and  left  tb 
company.  Causa  tcicnlia,  the  deponent  be 
ingupon  tbe  guard  thatnii^bl,  happened  to  b 
on  tbe  street,  and  heiird  end  suw  as  he  baa  do 
poned.  And  tliii  is  tbe  truth  as  he  shall  ut 
Hwer  to  God.  And  depones  he  cannot  wriia 
And  fnrder  depones  that  he  saw  Mr.  Graham 
have  tbe  atoup  in  his  band,  and  fill  tlie  drink 
in  tbe  dish,  which  Mr.  Crawfurd  had  in  hii 
l»nd.  Aud  this  is  also  llie  truth  as  he  sfaali 
luiBtrer  to  God. 

•Sic  Snburibitur,        Gilb.  Eliot. 

Jamet  Malcolm,  souldier  in  the  city  guards 
aged  fourty  four  years,  or  thereby,  manied,  so- 
lemnly sworn,  pucgcd  of  malice  and  prejudice, 
interrogate,  depones.  That  some  lime  in  ibl 
month  of  December  hist,  about  tour  or  fin 
a'clock  in  the  morning,  The  deponent  saw  tbi 
three  pannelti  steniling  on  tbe  high  street  ol 
lidinburgli,  near  the  Trnn,  and  the  said  psoneUi 
had  a  cbopine  stoup  snd  a  cap  amongst  tbem, 
and  the  deponent  heard  Mr.  GriLhante  thepan- 
i^et  drinkto  the  health  of  king  James  tbe  ei^ht, 
t'Ul  cannot  particularly  Icll  whether  any  ol  the 


had  uttered  Ibese  words,  he  pointed 
It  Mr.  Grahame.  Caum  tciealitr,  the  depo« 
:ieot  was  on  the  guard  tbsl  night,  nnd  was  gi^ 
ng  down  with  a  watch  coat  to  one  of  nil 
jiimotades  that  stood  centry  near  the  pUca 
.vhere  the  pannells  were.  And  this  is  the  tratk 
la  he  shall  answer  to  God. 

Sic  Subtcribilur,        3 ahem  Malcolm. 
Ja.  H'Kcnhk, 

.itiKimCBilUaw,aeiieantintbecityguuia 
aged  fifty  yean,  or  tbaraby,  Bairied,  aoMBoty 


*] 


Trial  of  Major  OnSt/m 


A.  D.  1726. 


[SO 


mn, jpvgf^  and  iDtei/vgate,  de|Km8,  that  be- 

iviit  bar  mod  fire  in  the  morDing  of  some 

ter  in   December   last,  the   deponent  was 

olM  by  a  oeolioell  in  the  flfuard  dour  to  go 

^iwato'Miliis  sc|uare,  where  there  were  some 

padcnKB  drinking  to  the  health  of  kin^  James 

the  cishi,  lod  aat  the  de[ionetit  waa  at  the  ^lard 

ter,  ae  beanl  some  perrons  crying,  To  the 

VfiU,  »*  the  iiappy  resturation,  and  immed- 

^klrfr  tbe  deponent  went  in  to  bring  out  a 

fvir'sf  the  foiurd  with  their  arms,  and  with 

itifirty  went  towanis  Milns  square,  and  the 

If  fledy  mnd  the  deponent  and  the  party 

"them,  aud  seized  the  pannclls  in  a  stair. 

Kienti^  pqtet.    And  this  is  the  truth  as 

hi  Ml  answer  to  God. 

Sk  Sutneribiiurf        Andrew  Castlelaw. 

\V.  Calderwood. 

1W  AfSTze  ordained  to  enclose  and  return 
thsicxdict  next  day  at  9  o'clock. 

February  13,1715. 

£lffBJ|* 

JUa  Crahamcj  Alexander  Craufurd^  and 
k.lTU/iaia  Hoeg, 

Ik  sud  day  the  persons  who  past  upon  the 
I^Kof  the  said  pannells  returned  their  Ver- 
ity is  presence  of  the  said  lords,  whereof  the 
Wfettom, 

Eoc^BURCH,  February  11, 17 J 5. 

1Wabo\-e  Aaayse  ha?  iuf;  inclosed,  did  choyse 
arl^iliiaoi  Meozies,  of  Glaidstaius,  to  br  their 
dasedkN-,  and  Thomas  Fairholm,  of  Grren- 
hAI,  tbeir  clerk.  And  hnring  considered  the 
i^luihe  i:istuncc  of  Mr  Oavid  I)nli-vii)|ilr, 
iUula.his  innj^stics  advocatfor  liis  liij^hness 
>*^-<  s^ainst  Jolisi  (^r.iliamr,  Alcxamier 
Lnz:jx.  lad  Mr.  Willi-.m  Ilopir.  pamielis, 
<M  Lf'Ti:  Janice  Clerk  uud  Conniiisstonri's  of 
ivjfvii.v,  their  intpiloqiiitor  thtT^'in,  and  de- 
;««J:oc)  of  tiiu  witnesses  adduced  a<rainst  the 


said  John  Grahame  and  Mr.  William  Hogg 
with  the  judicial  Confession  emitted  judiciaTly 
by  Alexander  Craufiird,  all  in  one  voice  find  it 
not  proven,  that  John  Grahame  or  Mr.  William 
Ho^rg,  pannelU,  did  drink  king  James  the  eight 
his  health,  nor  did  drink  to  kin:*:  James  the  eight 
his  happy  restoration.      And  find  the   Ivbel 

tiroren  against  Alexander  Crawfurd,  pannel,  by 
lis  judicial  Confession.     In  witness  whereof 
thir  presents  are  subscribed  by  our  said  chaa- 
cellour  and  clerk. 
Sic  Subscribitur^    W.  Menzies,  Chancellor. 

T.  Fairiiolme,  Cleric. 

After  op|>ening  and  reading  of  which  Vjerdiel 
of  Assyze,  the  Lords  Justice  Clerk  and  Com- 
missioners of  Justiciary,  in  respect  whereofp 
assoilzie  the  said  John  Grahame  and  Mr.  Wil- 
liam Hogg,  pannells,  and  dismiss  them  from 
the  barr. 

Sic  Subscribitur^     Ao.  Cockburne,  T.  P.  D. 

February  31,  1715, 

Intran' 

Alexander  Crawfurd  yoongcr,  of  Manual* 
milne. 

The  liOrds  Justice  Clerk  and  CommissioDerf 
of  Justiciary,  havincc  considered  the  Verdict  of 
Assyse  returned  upon  the  12th  day  of  Febmarr 
instant,  against  the  said  Alexander  Crawfurd, 
pannel ;  thev  in  restpecl  thereof,  by  the  month 
of  Charles  Riuross,  macer  of  court,  fy  ne  and 
amerciate  the  said  Alexander  Crawford,  in  the 
sum  of  5(;/.  sterlinsr,  to  be  payed  to  his  majes- 
tie*s  rcecivor  general  for  his  majestic's  use,  be- 
twixt and  the  1st  day  of  July  next  to  come» 
and  ordain  him  t(i  l)e  cLrriud  to  prison  until 
he  G^ive  hoiid  and  sunificnt  caution  that  hft 
shall  nir.kf!  )  ayment  of  the  said  sum  in  manner 
to r« a i d . — Sic  Su hsrribi i u r^ 

A  I).  Coi;KRi;i{N.  W.  Calderwood. 

Cxii.n.  ]-'.i.i(>T.  J.  Hamilton. 

Ja.  31*  KlNZIC.  I).  fc)RMCINE. 


*33.  The  Trial  of  Major  John  Oveby,*  at  the  Sessions-House  in 
the  Old-lJailey,  before  the  Right  Hon.  Sir  Francis  Forbes, 
kut.  Lord-Mayor  of  London,  Mr.  IJaron  Hale,  Sir  William 
Thompson,  knt.  Recorder  of  London,  and  others  his  Majesty's 
Justices,  for  the  Murder  of  Wm.  Gower,  esq. :  V>  Gkorof.  L 
A.  D.   172G. 


John  Oneby,  of  St.  Martin's  in  the  Fields, 
est.  was  iu'Jicted,  for  that  he,  oti  the  'Jnd  day 
if  Ft^rruary,  IJ  C*>o.  at  the  said  |farish,  felo- 
■hhIv,  iJluntarily,  and  ok'  his  malice  fore- 
ihsurht,  nmlc  an  ass.-nilt  upon  one  William 


,  esq.  and  that  he  the  said  John  Oneli 
*ttk  a  sword  which  lie  then  and  there  he 


*  See  «  Hum.  766.    ft  Lord  lUym.  1485.    1 

.n. 


drawn  in  his  riGflit  hand,  the  said  Willlara 
Cj'iwer  in  and  upon  the  left  part  of  his  belly, 
near  the  navel,  Icloniously,  vulniitarily,  and  oi 
his  malice  forcthonr^flit,  fhd  strike  and  thrust, 
^i?in{7  tiic  said  ^Villiam  (iouer,  then  and  there, 
with  the  said  dniwn  swonl,  in  and  upon  his 
said  left  part  of  his  helly.  near  the  navel,  a  mor- 
tal wotind  of  the  lin^tli  of  one  inch  and  a  half, 
and  of  the  depth  ol'  len  inches  ;  of  which  mor- 
tal wound  the  said  William  Goner  lived  io  » 


313 


IS  GEORGE  I. 


TruU  of  Major  Onehf, 


I 


langpiishiiig  condition,  from  the  2nd  day  of  Fe- 
bruary to  the  3rd  day  of  the  said  February ; 
on  which  3rd  day  of  February,  the  said  Wil- 
liam Gower,  at  tlie  parish  aforesaid,  of  the  said 
mortal  wound  did  die ;  and  that  the  said  John 
Oneby,  the  said  William  Gowcr  feloniously, 
▼oluntarily,  and  of  his  malice  forethought,  did 
kill  and  murder.'* 

He  was  a  second  time  hidicted,  on  the  coro- 
ner's inquisition,  for  the  said  murder. 

Thomas  Hnwkint.  On  the  2nd  of  February, 
between  nine  and  ten  at  night,  Mr.  Blunt,  the 
deceased,  the  prisoner  and  myself,  went  from 
Will's  coffee- house  to  the  Castle  tavern  in 
Dniry-laiie,  where,  in  about  half  an  hour,  Mr. 
Rich  came  to  us.  After  the  fourth  bottle,  the 
prisoner  called  for  a  box  and  dice ;  the  drawer 
said,  they  had  none  in  the  house;  "Why 
then,"  says  the  prisoner,  **  bring  the  pepper- 
box." The  drawer  brought  it,  and  dice  were 
laid  upon  the  table :  but  I  don't  know  by  whom. 
We  played  low,  nobody  setting  abo?e  half  a 
guinea,  and  yet  I  had  no  great  inclination  to 
game,  and  especially  to  set  the  prisoner ;  and 
therefore,  aAer  a  trifling  loss  I  declined  the 
play.  The  prisoner  appeared  di«|^usted  at  it, 
and  aHked  me  why  I  refused  ?  1  told  him  I 
should  use  m^  own  pleasure,  whether  it  was 
agreeable  to  his  h  umour  or  not.  The  rest  con  - 
tinued  playing.  The  deceased  lost  SOf.  Mr. 
Rich  said,  "Who  will  set  me  three  half 
crowns?"  Upon  which  the  deceased  took 
something  out  of  his  pocket,  and  laid  it  on  the 
table,  but  concealed  it  with  bis  hand,  and  said, 
"  I'll  set  ye  three  pieces ;"  and  then  taking  his 
hand  avray,  we  saw  three  half- pence.  This 
was  not  offered  to  the  prisoner ;  but  he  appear- 
ed to  be  much  affronted.  He  said,  "  That  is 
▼ery  impertinent  to  set  three  half- pence."  The 
deceased  said,  "  What  do  you  mean  by  imper- 
tinent 1*"  And  the  prisoner  replied,  "  You  are 
an  impertinent  puppy  ;"  and  presently  snatch- 
ed up  a  bottle,  and  threw  it  at  the  deceased's 
bead,  and  it  beat  some  i»owder  out  of  his  wig, 
but  did  him  no  hurt.  Ue,  in  return,  tossed  a 
glass  or  a  candlestick,  I  can't  tell  which,  at  the 
prisoner;  but  it  did  not  reach  him.  They 
both  rose  up  together,  and  went  to  their  swords, 
which  hung  up  in  the  room.  The  deceased 
being  quickest,  got  his  sword  first,  and  drew  it, 
and  stood  still  in  a  posture  of  defence,  at  a  good 
distance  from  the  prisoner,  who  was  advanc- 
ing, and  was  drawing  his  sword  to  meet  him ; 
but  Mr.  Rich  stepfied  in  between,  and  pre- 
vented him.  Then  the  deceased  threw  away 
his  sword,  and  they  all  sat  down  again,  and 
drank  for  about  half  an  hour ;  when  the  de- 
ceased offering  his  h&nd  to  the  prisoner,  said, 
"  We  have  hsM  words,  mi^or,  and  you  was  the 
aggressor;  but  let  us  agree."  The  prisoner 
answered,  "No,  damn  ye!  I'll  have  your 
Mood  I"  And  then  tummg  to  me,  he  said, 
"  Hawkins,  yoa  was  the  occasion  of  this." 
••  Why  then,^*  says  I,  "  if  ye  have  done  with 
bim,  and  have  any  thing  to  say  to  me,  I  am 
your  inaOf  and  I'll  see  yon  out.**    "  No,^  says 


be,  "  I  have  another  chap  first."  In  ala 
half  an  hour  after  this,  which  was  near  tk 
in  the  morning,  the  company  broke  op.  I  it 
out  of  the  room  first,  and  Mr.  Blunt,  and  '. 
Rich  were  next  after  me.  When  I  casBe 
the  street  it  rained,  and  I  run  under  a  p* 
house,  where  I  stood  a  little  while ;  bafc 
having  a  chair  ready,  and  seeing  none  of" 
company  come  out,  I  returned  to  the  rc3 
where  Tlound  the  deccasetl  wounded,  and  E 
ing  on  a  chnir  in  a  languishing  c^mdition. 
died  the  next  inoniiiig.  1  knew  him  intiaa 
ly,  and  I  don't  believe  that  tliere  was  a  swfl 
teniftered  man  in  the  world. 

John  Rich.  I,  the  prisoner,  the  deoea 
and  some  others,  went  together  te  see  the 
tragedy  of  Hecuba ;  we  sa^  io  the  pit. 
deceased  and  the  prisoner  appeared  to  be  ^ 
friends  all  the  time  of  the  p)ay ;  and  as  80« 
it  was  done  I  left  them  ;  but  met  them  ib 
at  the  Castle  tavern  in  about  half  an  hour, 
prisoner  and  I  called  for  a  box  and  dice ;  im 
not  being  to  be  had,  he  called  for  a  pei}pcr— 
and  it  was  brought ;  I  saw  dice  lying  upoK 
table,  but  don't  know  how  they  came  there 
said.  Let  us  play  low.  Some  words  pssK 
tween  the  prisoner  and  Mr.  Hawkins.  K 
down  three  half  crowns.  The  major  set 
I  threw.  Seven  was  the  main,  and  sis 
chance.  The  deceased  put  down  three  J 
pence  ajgfainst  me,  and  said.  Here,  I'll  sei 
three  pieces.  The  prisoner  damned  liim, 
called  him  an  impertinent  puppy.  Sir,  i 
the  deceased,  I  am  not  afraid  ot  ye,  and  be  I 
calls  me  a  puppy  is  a  scoundrel.  At  Ife 
words,  the  prisoner  threw  a  bottle  at  bia. 
brushed  his  wig  as  it  passeil,  and  he  in  lili 
tossed  a  glass.  They  both  gut  up  loffelfa 
but  the  deceased  being  nimblest,  jumped  on 
table,  and  reached  his  sw(»i  d  first ;  and  tl 
slopping  down,  he  drew,  and  stood  ready  to 
feud  himself,  but  made  no  offer  to  push, 
the  mean  time,  the  prisoner  took  down 
sword  and  cane,  which  hung  t«>gether; 
there  lieing  the  table  and  a  chair  bt-tween  th 
he  came  round  the  table,  and  was  going  to 
gage  with  tlie  deceased ;  but  I  stepped  betn 
them,  told  the  prisoner,  who  was  drawing 
sword,  if  he  made  a  longe,  it  must  be  thro 
my  body,  which,  as  I  was  unarmed,  wouh 
wdful  luunler.  The  deceased  then  threw  a 
his  sword,  and  they  lioth  sat  down  again.  ' 
deceased  put  his  hand  forward,  and  said,  Cc 
major,  let  us  be  reconciled,  words  in  beat  i 
be  forgot  and  forgiven.  The  prisoner  ans^ 
ed,  God  damn  you,  you  lie — I'll  have  i 
blood,  by  God!  And  then,  turning  to*^ 
Hawkins,  be  said.  This  is  all  along  of  ^ 
Mr.  Hawkins  answei'cd.  Then  I  am  i 
man;  and  the  prisoner  replied,  No,  1  I 
another  chap  to  deal  with  first.  When  w 
got  up  to  go,  the  prisoner  hung  his  great  i 
coat  upon  his  shoulderS|  and  I  think  butli 
it  in  one  or  two  places.  Mr.  Hawbios  i 
out  first,  Mr.  Blunt  next,  the  deceased  folk 
biui ;  I,  the  deceased,  and  tbe  prisonw  c 
last :  but  he  was  hardly  out  of  the  rosniy « 


ySr  <X*  MHrier  'tfWSBiuk  Gmtr, 


iuD.  1786. 


t» 


I  li  lh«  tocMd,  Htrk  ye^  yoaafr 
■ift  vOTi  wi*  y«^  The  deoettM 
lAt  ^mj  loth  re-cnlHcd  the  room. 
r wi wiwrtiitoly tlittt flat  IbcNml, 
|rfnwiJi^iBd»kwrfitiBp  €Q  the 
■blfWMed  Wis  mede  Irf  tbeBri- 
llnffaTeiyheftTyiDiui.  llr.Biiiiit 
■H  Mck,  and  endm?eured  to  vet  in ; 
llHiMdily  epea  the  door;  hot  the 
pnfjto  our  oMitlMice,  tre  made  eo 
Uk.  Bhmc  lliet,  and  1  deae  behind 
kprnwer  was  then  next  to  the  door, 
fcfailh  hb  aword  drawn  in  his  right 
tflBalsf  it  heinff  towards  the  deceas- 
akMd  1^  the  ahoaUer  with  his  left 
liUithedeoesard  had  then  no  aword 
ai,ailsitt  I  saw  none;  and  1  soon 
ibftsai  it  dose  to  the  wainseot,  be- 
ftUtafsfthegreatond  table.  It  was 
rifnaqr  four  or  fife  inciies  from  the 
H»  diemed  cloosd  with  the  prisoner ; 
khaauusr,  as  if  he  rather  fell  to- 
bthnngh  wcaknets,  than  otherwise^ 
IImhm  think  the  woond  was  jpvett 
pee  came  in.  We  pat  him  mtoa 
itm  far  a  smgeon.  As  I  lidd  np 
hm  part  them,  I  felt  a  littie  prielc 
ipeiatybj the priaoner'a aword;  bat 
hws  done  aoeidentally.  Mr.  Blant 
Miaw  dapped  his  hand  on  bn  bdlj. 
hi  vaidangmiisly  wounded ;  bat  I 
■t  hy  wbtt  mesne.  I  told  the  pri- 
■iws  csaae  out  of  the  room*  that  I 
i  ha  had  kUled  the  deoeaatd ;  No, 
■j^  have  done  it,  if  I  wouM ;  bat 
^fhghted  him.  But  suppose  I  had 
^  1  know  what  I  «lo  in  those  afl&irs  ; 
I  killed  him  to-night,  in  the  heat  of 
ihoald  have  had  the  law  on  my  side ; 
d  done  it  at  any  other  time,  it  would 
d  like  a  set  meetini|^,  and  not  a  ren- 
I  advised  him,  however,  to  make  off, 
the  worst.  1  asked  the  deceased  on 
lid,  if  he  received  the  wound  fairly  P 
red,  faintly,  «*  I  think  I  did— but~I 
r— what  might  have  happened— if 
ioi— come  in." 

Blunt,  From  the  play  we  went  to 
thence  to  the  Castle,  where  we  were 
f  and  triendly,  till  the  dice  were 
We  played  low,  but  Mr.  Hawkins 
led ;  upon  which  the  prisoner  said 
IThy  do  you  come  into  company, 
won't  do  aA  others  do  ?  Mr.  Uaw- 
ned.  Don't  trouble  yourself  about 
»  as  I  please.  The  deceased  set 
-pence:  the  prisoner  said  it  was 
ipertiueut;  and  some  other  words 
'  flung  a  flask  at  the  deceased,  who 
OKd  a  glass  or  a  candlestick.  They 
tworda,  but  were  prevented  from  en- 
4  so  they  sat  down  again ;  the  de- 
lod  hia  hand  to  be  reconciled,  upon 
priMoer  save  him  very  ill  language, 
m  wottlu  have  his  lAood.  As  this 
dve  that  their  quarrel  would 
IIm  nest  day,  1  invited  the 


oompany  to  dme  with  aie,la  hopcs.lo  brioff  oa 
n  recoodfiathm,  and  nrsvent  futnre  niienief. 
The  prisoner  answersd  my  ofler  with,-  No,  God 
damn  ye,  I'll  dine  with  none  of  ye.  Are  ye 
ngry,  £Kr,  says  I,  Bare  ye  any  thing  to  any 
tome r  Or  me?  says  Mr.  Hansins.  Or  ooef 
saya  Mr.  Rieh.  No^  he  had  nothhtf  to  say  to 
anyoffls.  This  was  aboat  two  or  three  in  the 
morning.  And  after  we  were  all  enme  oat  of 
the  room,  I  heard  the  prisoner  call  the  deocaied 
book ;  and  they  were  no  aooner  got  into  the 
room  agam,  but  the  door  waa  flimg  to,  with 
grsat  nolcoee,  and  I  heard  the  mshing  of 
swordsi  When  I  got  in,  which  was  with  maoh 
dlffienhy,  I  did  not  see  that  the  deeeaaed  had 
any  sword  in  lus  hand,  but  he  waa  sinking  forr 
ward ;  and  I,  by  gomg  to  assist  him,  received 
a  wound  in  my  belly,  which  I  was  afraid  wii 
mortal ;  bat  1  cannot  tril  how,  or  by  whom  it 
was  given,  though  I  tbonk  it  conld  not  be  by  th« 
deonsed,  beoa^  he  had  no  sword  ;  and  be- 
sklesy  vraa  not  in  a  eonditioii  to  do  it.  A  sor* 
geon  being  in  the  hoose,  gave  me  his  imm9- 
diate  asristanc^ 

Mr,  SAow,  the  snrgeon'.  I.  fhnnd  the  da> 
oiised  bngnishmg  in  a  chahr.  His  intestines 
nppsnred  attheweand,  and  by  being  esposed 
to  the  dr  began  to  mortify.  When  1  had 
dreised  him  1  sent  him  home ;  bat  the  neil 
day  I  foand  a  second  mntnre  of  the  mtestines. 
Hediedsoon  aUter;  and  thai  woimd  was  the 
cnnse  of  his  death. 

Prnsmr.  A  wager  was  Idd  bdwixt  Mr. 
Bioh  and  Mr.  Blunt,  concemmg  Mr.  Mills*i 
actittg  the  part  of  Caesar  m  the  day  of  Jalios 
CsBsar,  and  it  waa  kist  by  Mr.  Blunt.  After 
this  a  box  and  dice  were  called  for,  but  not  by 
me;  the  drawer  said  he  had  dice,  but  no  box ; 
upon  which  somebody  edied  for  a  pepper-box. 
1  flung  a  main  at  12i.  and  passed  it  about. 
Mr.  Hawkins  refusing,  I  said,  I  thought  there 
was  as  good  fellowship  in  a  little  play,  as  in  al- 
together drinking :  then  we  played  for  half- a- 
crown  or  Ss. ;  and  when  the  box  came  round 
again,  the  rest  likewise  refused  to  play ;  at 
last,  the  deceased  offered  to  set  three  half- 
pence, which  1  said  was  very  impertinent  He 
called  me  rascal ;  **  You  impertinent  puppy," 
says  I,  ^'  what  do  you  mean  by  that  ?"  U|)on 
which,  he  threw  a  glass  at  my  bead,  and  drew 
upon  me.  1  told  him,  be  acted  basely  in  draw* 
log  upon  me,  when  it  was  he  that  gave  the 
affront.  Afler  this  i  put  on  my  great  coat, 
and  was  croing  out.  Mr.  Hawkins  had  slipt 
away,  ana  the  rest  being  gone  out  of  the  room,* 
Uie  deceased  pushed  the  door  to,  and  drew  upon 
me,  and  wounded  roe  in  the  knee,  and  cut  my 
finffers.  I  parried  and  closed  with  him ;  he 
endeavoured  to  stab  me  in  the  back ;  at  which 
time  Mr.  Blunt  came  iu,  and  received  a  wound 
in  his  belly,  which  must  have  been  by  the  de- 
ceased's sword. 

John  Barnat  the  drawer.  I  threw  the  pri- 
soner's great  coat  over  his  shoulders,  as  he  waa 
going  out.  Mr.  Hawkins  came  out  first,  and 
asked  if  his  chair  was  at  the  door  ?  I  said,  Yes. 
Mr.  Blunt  followed,  and  I  went  down  to  unbar 

1> 


S5] 


12  GEORGE  I. 


Trial  of  Mtgar  Oneig, 


the  door ;  tbc  rest  of  4he  company  not  eomingf, 
I  weut  baokimd  met  Mr.  Riob ;  Kebkl  me  open 
the  door ;  I  thou«^t  he  meant  the  street-door, 
and  was  turnings  that  way  again ;  but  be  airore 
at  me,  and  told  me  the  other  door :  I  opened 
it,  and  went  in  6r8t,  and  the  deceaied  and  the 
prisoner  were  both  with  their  swords  m  tbeir 
tiaudH,  pointing  towards  each  other.  The  de- 
cessetl  closed  with  the  prisoner  in  a  manner  as 
if  he  was  rather  falling'  than  pushing ;  and  the 
prisoner  with  his  led  hand  bad  hold  of  the  de- 
creased, who,  as  soon  as  we  parted  them,  was 
BO  weak  that  he  could  not  stand.  I  did  not  see 
him  bleeding  when  I  came  into  the  room, 
though  I  cried  out  to  the  prisoner,  For  God's 
sake  what  are  ye  doing? 

Pritoner.  uid  not  yon  see  the  deceased 
ofier  to  stab  me  in  the -back  ?~-jBariief.  No. 

Mr.  Burdet^  a  surgeon.  The  next  day  in 
the  evening,  the  prisoner  sent  a  coach  to  my 
house  with  a  letter  for  me,  intbrming  me  that  be 
had  been  wounded  in  a  rencounter,  and  desiring 
me  to  come  to  him.  I  went,  and  found  him  in 
bed  at  the  house  of  Mrs.  Gardiner,  in  Dean- 
atreet,  near  Red-Lion-sqnare,  where  he  had 
concealed  himself.  He  had  one  wonnd  beloir 
liis  knee  an  inch  and  half  long,  another  on  his 
buttock,  two  of  his  fingers  were  cut  in  the  first 
Joint,  -and  he  shewed  me  three  or  four  holes  in 
his  breeches ;  but  none  of  his  wounds  were 
above  a  quarter  of  an  inch  deep,  and  that  in  liia 
leg  had  but  just  raised  the  skin. 

Mrs.  Ganiiuer,  The  prisoner  came  to  my 
house  about  two  o'clock  in  the  morning:  he 
was  bloo<ly ,  and  upon  searching  him,  I  foood  a 
wound  in  his  buttock  as  deep  as  my  (inger,  and 
I  dressed  it  for  him. 

Court,  The  evidence  is  |)lain,  that  the  pri- 
soner cave  the  first  provocation ;  and  it  is  not 
denied,  that  he  afterwards  killed  the  deceased. 
The  question  is,  Whether  from  the  time  the 
prisoner  threw  the  bottle^  to  the  time  the  de- 
ceased received  the  wound,  there  was  any  re- 
conciliation P  If  there  wai  nutylthink  it  can 
be  no  less  than  murder. 

The  jury  found  there  was  no  reconciliation ; 
but  not  bemg  satisfied  as  to  the  murder,  they 
agreed  npon  a  special  verdict. 

The  counsel  on  both  sides  attending,  they 
stated  the  principal  points  of  the  evidence  for 
the  consideration  of  the  judges. 

Whattlic  prisoner's  counsel  di^ewup,  was 
lo  this  efiect : 

*<  We  fiud  that  the  prisoner,  the  deceased, 
and  three  more  wet  at  the  tavern,  where  they 
all  appeared  very  irieuflly. — A  box  and  dice 
wefe  called  for, — they  played  some  time  toge- 
ther, till  Mr.  Rich  said,  W  ho  will  set  me  throe 
half-crowns?— The  deceased  put  down  three 
halfpence,  and  said,  I'll  set  ye  three  pieces.— 
The  prisoner  said^  That's  impertinent— 4he 
deceased  answered,  He  that  says  I  am  imper- 
tinent, is  a  TasGal.^rhe  prisoner  threw  a 
bottle,  and  the  decessed  threw  a  glass.— They 
both  got  op,  and  took  tbeir  swords ;  but  one  of 
the  company  stepped  in,  and  prevented  their 
tngagingw— They  tat  dvwo  agam  to  drioki— > 


about  an  boor,  and  thao  the  ^ 
broke  ap. — The  prisoner  pot  an  his  g 
—-They  all  went  out  of  tne  room. — 
soner  and  the  deceased  returned,  the 
abut,  and  the  dashing  of  swords  waj 

The  counsel  for  the  king  stated  the 
to  the  following  purpose : 

"  We  find,  that  on  the  Sd  of  Febr 
jirisoner^  the  deceased,  and  three  otfa 
in  company  at  the  Castle- tavern,  and  < 
in  a  peaceable  manner  for  aboot  two 
The  prisoner  then  called  for  a  box  i 
but  none  beine  to  be  had,  he  callei 
pepper-box,  which  was  brought* — £ 
found  upon  the  table  $ — they  played  a 
—Mr.  Uioh  asked,  who  would  set  fa 
half-crowns  P  The  deceased  iaajocu 
ner  laid  down  three  half- pence,  a 
Ihere's  three  pieces— the  prisoner  ca 
an  impertinent  pappy,  and  threw  a 
him,  which  missed  lum,  but  brushed 
-^Tbe  deceased  tossed  a  glass  or  candl 
the  prisoner,  which  did  not  hit  him 
both  rose  up,  and  took  their  swords ; 
prevented  mm  fighting.— They  si 
a^in.— The  deonsed  wered  to  be 
with  the  prisoner ;  but  the  prisoner  a 
No,  Gad  damn  ye!  I'll  have  your  li 
God ! — ^In  about  an  hour  after  this,  t 
pany  all  went  out  of  the  room ;  but 
aoner  called  to  the  deceased,  and  said, 
gentleman,  a  word  with  ye.— They 
turned  into  the  room,— the  door  was  i 
violence,  and  the  claabing  of  swords  w 
—We  fiud  that  iram  the  time  that  tl 
was  flang,  to  tbc  time  of  the  breaking 
company,  there  was  no  wconciliation. 

Tliese  two  ron^h  drauj«hts  being  o 
and  some  alterations  bemg  made,  al 
drawn  op,  which  was  agrwd  to  and  a 
the  jury,  and  was  to  this  tenor. 

Spscul  Verdict. 

«  That  u|M>n  the  Sd  day  of  Fcbmai 
the  prisoner  and  the  deceased  were 
pany,  together  with  John  Rich,  ThoEfl 
Kins  and  Michael  Blunt,  in  a  roon 
Castle  •tavern  in  Dmry-lane,  in  the  c 
Middlesex,  in  a  friendly  manner.  1 
they  had  continued  thus  for  two  hours, 
dice  were  called  for ;  the  drawer  6ai< 
dice  but  no  box  ;  and  thereupon  the 
bid  the  drawer  bring  the  pepper-box,  ^ 
immediately  did  :  and  tnen  the  com 
gan  to  phiy  at  hazard ;  and  after  1 
played  some  time,  the  said  Rich  askei 
one  would  set  him  three  halt^owns  P 
upon  the  deceased  in  a  jocular  nsa; 
down  three  halfpenny  pieces,  and  the 
the  said  Rich,  1  have  set  you  three  pii 
the  prisoner  at  the  same  time  set  the  s 
three  half-crowns,  which  the  said  R 
and  immediately,  after  the  prisoner  in 
manner,  tnmcd  about  to  the  deceased, 
It  was  an  inpartinent  thing  to  aet  ha 
and  thai  Iho  daoeasad  ww  an 


Jlr4(rJIMb<^«HU»  Omt. 


Araint. 


t» 


j^lW  «>(lamir ;    to  which  the  dcFeased 

M  WborriT    caHe^    bim    su    ivns   a 

Tta  lhrrru[i>)n  lh«-  saii)  .luhn  Oni?l>y 

IlkNdr,  Bnd  wilh  grrat  furc«  llirpv  it 

Mfcf    ^rilhelmDfliGowEr;'    which 

■■M  hit  the  wid  Gnxrr,  but  brushed 

llfr.uit  pneaei  by  hi*  huid,  anil  heal 

Midi:  pnvitrr;    whereapon  tlie  de- 

^^diiW;  sftrr  iMsed  ii  CHwIlexticfc  oi 

^1  |int(hcl' JnhBnnirm  Olicbj,*  hut 

Hi  biw  niib  Ihe  same :    upan  which 

Bnl  ud  lb«  [insoner  both  rose  up  to 

^(■Mdt,  itiiicb  iben  htmg  tiji  in  (be 

Mlht  dcceaied  itrpw   hit  swoni,  but 

nr  MI  prevtnlF't'  frnm  dnwng  hit 

■fMji ;  and  Ibe  tlpcinfiHl  thereupon 

tf  hk  iword,  and  the  compuiy  iM«r< 

ItjrNtdDHnRcniTiror  Ihe  spare  of  n 

lilUlheFiEpirittinD  oF  an  hour,  lh« 

■M  to  Ihe  priMnier,  We  have  had  b«t 

Ijw  i»i*  ibe  aegremor ;  but  I  think 

■titorer;  and  bt  ihesanie  time  of- 

lad  Ktlbeiaid  John  ODcby,  lOTrhrdi 

ka  Oathv  nittwerEd,  M",  damn  you, 

t  t»Hir  bitwd.     They  furtlirr  Bod, 

WtIs  the  rtrkoniii^;  was  paid  by  Iha 

fee  pnioDer,   Hid),    Hawkins   and 

ll  all  the  company,  except  the  pri' 

iMit  n(  the  room  ti>  g<i  hume  ;  and 

Teiuainiiig  alotie  in  the  room,  called 

■Mh>I  in  these  words,  Young  tna 

K  I  have  somettiin^  to  say  tu  yoi 

kdie  deceased  rduraedinto  ih*  ruoi 

Mnlely  the  door  was  Ifltmg  (u  at 

Mvcfty  the  rest  of  the  company  we 

rvrf  then  B  dstliinr  of  swords  n 

■Ifce  nrituner,  with  Tiii  sword,  g»- 

■Md  tne  mortal  wound  meDtinncJ 

tamt,  of  which  he  died  the  next  day. 

ttm  tml,  riwt  at  Ihe  femkbig  up  of 


MaaGglit  wmwdi  in  (heenngement; 
tta  oeeeiacd  bong  atked,  upon  hii 


IMUldi 


did.    llial  Ann  tin  time  of 


M  iba  adtioe  of  tbs  Cmrt,  ai 

womtt  hting  carried  Itack  to  Newgate, 
vaa;  M7>  "or  about  a  twrirs-motiih, 
riMMOD,  •sdMgadb»ooiiMMdimH 
■i  M  tha  ftDascMtnr  bad  tahm  oa 
via  hta^Bg  m  the  kaariiig  «f  the 
^Jo,  ho  fraw  prett*  coiiHMit  tt 
r4mmm^ti  imm»amer,  and  ftad 
tmmn  *•  Cnart  of  Kii^a-beach  for 
■k  ta  ha  laada  liir  arnior  the  tpe- 
«Mbi>lbeOaM;  wliwhltcioff  or- 
etMormi  frm  Htgt ^ 


Bapoft^  Ml.  9,  p. 


M#lb«  Mlaaw  bilMsl  *•  lai,  il  WW  «■* 
kCmm&ui,  die  Court  befaifarMijiint  Hut  fl 
oonM  BOt  ha  aada  ■  Cutikim  in  hia  aliaoaea  | 
■i#J»nkM  TavBhWOae,  Y,  it  <MU  arnad 
WnrtMi  &vi^telk»U>ff,  an*  aajaHl 

aanifiwwJi  1«  awtor  ta  MaMM^mhtlklt 
m*  la  Mirfvor  MMlauhtais  f  ataUl  ww- 
nk»  «M  wUah  ta  km-  l»  ha  dMMltd,  tIM 
afwr  wilMaw  UUm  W  wJt,  aa2  that 
■alfivBH  toakhar  annaw  imlM.  fUk 
■•^  «iHn  toplio«  !■  lU  a«  itadf,  Ifnawn 
^ -  iMapaatMaHaat  tlni«WI« 


Balhtarh*«arii 
AapSawlhMw 
■dfthMl—ioft 


oAnnMl«adi*at|i»] 


«aM'  ••■MMfpivMei 


■t|i»iaiBl« 
BatWwaril 


miBMriM»t»*a.wriaff  ar  datav  aC« 
IMw  b*  Mr.  ««*«v  tW  «Mi*  ff)w«fcMa 
tvttaiitteM:  »*»aaib^  •Tbair.pmk 
iWi  »lblfl»  b«  wMlid,  IbaaAaatiwai  la 
lb.  IMS  aa<«at  «>  Mi.  Oncbt,  wbaaa  bMt 
t*  MM  WHDMMaU  aibeud  W  wbai  was 
*tolir  Mr.  ObtTCAr.  Aid  Aat  ilia  RMfdvii 
tbtodiftiiit,  Itkiak  caHM  hadiapma^ 
rtw  ba  MbMBt  of  tb«  (Tawt  in  Maw- 
wMm^  mmt  Iban  Iba  battto  thmn  br 
KpTbk  MMi<ib%a,  ni  Iraba  Ua  ba^ 
bwat  tba  flwdhaUcfc^  ar  battle  lowad  hj>  Odwv. 
did  sat  bfttbaipriaaBar  el  tba  bar:  that  ww 


■eonent  killing  bj 
in  Bf  nwfrid^g  « 


Id  peaev  maaihaled  byllriOewnv 

coMinaance  of  malioe  )»tbe  nriaonar  flw 

afeave  an  boor  alter  the  fiial  confliot.  What 
waa  doM  bore  hj  Ur.  Gtower  would  ban  beca 
nutiAaUe  in  him,  eten  if  the  caodlealiek  had 
hit  ibe  priwoer:  aod  io  it  wu  restored  ■■ 
HawrMlKe'ieaBC;  fbrthere  the  boUlo  returned 
by  Mr.  Cope  did  hit  the  defendant,  mod  broke 
bis  bead.  Aail  ai  %  act  done  hj  Hr.  Gower 
wia  jitrtifiabia  in  bmi,  it  follows,  that  it  caa 
ba  no  fcundatton  ta  exoiwe  or  mitiffate  the  «ah> 
by  Mr.  Oneby.'  The  eeaepi* 
"  of  ansaMnltby  A  upon  B. 
ind  pimaes  A  to  the  wall, 
where  A  in  b»  own  defence  kilh  B ;  this  ia 
held  ntarder  in  A,  thotigh  it  bu  many  siTonf 
riwuwattuces  in  flffonr  of  A,  which  arenotia 
tbia  caae.  Bat  I  appreheDd,  it  i«  not  necessary 
to  rIj  bately  oo  this  pmnt,  that  there  ia  inaiice 
iasplied  in  (be  ad  i  since  it  plaialy  appeara, 
upon  tboata(cof  thocaae,  (hat  heraisezpreaa 
iMliee.  When  Ibe  deceawd  waadeairoua  te 
end  (be  Battler  amieaUy,  (he  prisoner  repfiea, 
"Ne,  daoHi  yoa,  I  will  have  your  blood :" 
this  ezphiioB  and  goea  Areufih  (he  whde  fbet, 
and  pnnea  the  auhaeqnent  failliog  to  be  malt- 

I  do  therefore  insist,  that  takinf;  it  ather 

way,  citber  as  a  killitiir  out  of  malice  implied, 

malice  express,  i'  '  "'  <  ■•  —  ■^•- 


npoo  the  Hat  ii  a  killing  of  malic 
aadapoa  tbe  priswar^  awa  worda  coupled 


SJJJ 


12  GEORGE  I. 


Trial  tf  Major  Oneb^f 


D 


i»itb  the  fact,  it  is  m&lice  express,  and  conse- 
queiitly  murder. 

Serjeant  Eyre^  for  the  defendant.  The  ques- 
tion is,  what  degrree  of  homicide  this  is;  and  I 
apprehend  it  to  be  but  manslaugrhter :  the  dis- 
tinction is,  that  if  the  killings  be  of  malice  fore- 
thought, it  is  murder;  if  on  a  sudden' occa- 
sion, it  is  but  manslaughter ;  and  that  I  take 
to  be  this  case:  in  3  Instit.  61  malice  pre- 
pensed is  defined  to  be,  when  one  compasseth 
to  kill  another,  and  doth  it  udato  animo  :  on 
the  other  hand,  manslaugliter  is  the  doin^  it 
without  premeditation,  upon  a  sudden  brawl, 
shuffliofif,  or  contention.  3  Instit.  57. 

The  law  has  ever  been  indnlmrent  to  the 
passions  of  men ;  <  ira  furor  bre? is  est,'  and 
therefore  as  a  roadman,  the  party  is  excused 
for  what  he  does  in  a  sudden  transport  of 
pasRion.  I  do  admit,  that  bare  words  are  no 
provocation ;  but  yet  they  will  serve  to  explain 
the  nature  of  the  combat,  and  shew  whether 
it  was  sudden  or  not.  The  calling  the  prisoner 
a  rascal,  was  what  no  man  of  honour  could 
put  up ;  and  as  this  was  the  beginning  of  the 
quarrel,  the  fijc^htinrr  was  as  sudden  as  the  re- 

S roach ful  words.  If  the  prisoner  had  stabbed 
^Ir.  Gower,  upon  speakmg  the  words,  and 
Gower  had  done  nothing,  I  believe  it  would 
have  been  murder ;  but  here  was  a  regular 
tight,  an  interchange  of  blows,  and  so  it  comes 
up  to  the  case  put  in  Kelyng  o5,  of  a  combat 
1»etween  two  of  a  sudden  heat ;  where  if  one 
kills  the  oilier,  it  is  but  manslaughter. 

The  law  has  fixed  no  certain  time,  when  it 
shall  be  presumed  the  passions  of  men  arc 
cooled.  The  case  in  12  Co.  87,  must  take  up 
a  longer  time  than  this  ;  fur  there  the  boy  ran 
three  quarters  of  a  mile  to  his  father,  and  told 
his  story,  and  after  that  the  father  provided 
himiiplf  with  a  cudgel,  and  had  as  far  to  fro 
in  pursuit  of  the  other  boy ;  and  there  is  this 
ditference  between  that  case  and  the  case 
at  bar ;  that  there  the  adversary  was  out  of 
sight,  but  here  he  continuc<l  in  presence, 
which  must  rather  inflame  than  abate  the 
passion. 

I'he  words  made  use  of  by  Mr.  Gower  carry 
an  imputation  on  Air.  Oneby,  which  migKt 
provoke  him  afresh ;  the  tellmg  him,  he  was 
ihe  aggressor,  was  not  likely  to  make  an  end  of 
the  quarrel :  and  that  is  plain,  from  the  manner 
in  which  Mr.  Onehy  understood  them,  who 
would  never  have  said  so  harsh  a  thing  to  his 
friend  Mr.  Gower,  if  he  had  l>eeo  at  that  time 
in  an^'  degree  musicr  of  himsell*. 

It  is  not  ibund  by  the  verdict  who  began, 
after  Air.  Gower  returned  into  the  room :  it  is 
not  likely  the  prisoner  began,  because  he  hail 
his  great  coat  thrown  over  \m  shoulders ;  and 
as  to  the  shutting  the  door,  it  is  stated  to  be 
done  immediately  on  Mr.  Gower's  returning, 
and  is  likelier  to  be  done  by  him  that  came  into 
the  room.  When  the  first  conflict  happened,  it 
appears  Mr.  Gower  was  the  readiest  to  draw 
his  sword;  it  was  actually  drawn,  and  Uie 
priaooer'i  was  not ;  and  lince  it  ia  not  italadi 


who  drew  first  the  second  time,  I  think  itoog 
to  be  explained  by  the  first. 

To  make  it  murder  in  the  first  instance, 
must  be  done  with  a  weapon  that  wouki  m 
danger  life.  The  bottle  in  Mawgridge'a  a 
was  full  of  wine,  and  it  hit  him  (Cope)  sa  m 
lently,  that  he  never  spoke  more.  But  fbrs 
thing  appearing  upon  the  verdict,  this  am 
be  onl^  a  small  oil- bottle,  usually  set  v^] 
tables  m  pnblic-boujies;  and  might  perhapa 
empty  before  it  was  flung.  The  case  of 
Turner,  which  is  taken  notice  of  in  Comb.4i 
was  held  manslaughter  upon  this 
cause  the  clog  was  not  such  an  i 
from  a  blow  with  which  it  was  Ukelj 
should  ensue.  But  supposing  the  bottle 
be  as  big  and  as  full  as  Mawgridge's  ' 


jfet  no  harm  was  done  by  it  here,  as  tbcra 
m  Mawgridge's  case.  Here  was  no  dra^ 
the  sword  eo  instante^  as  Mawgridge  « 
which  occasioned  the  judges  to  lay  th^ 
turning  the  bottle  by  Mr.  Cope  out  ot  the  ^ 
and  construe  the  immediate  drawing 
sword,  as  an  intent  to  supply  the  miacft 
which  the  bottle  might  fall  short  of;  ande"^ 
in  that  case,  one  great  man  difi*ered  from 
rest  of  his  brethren. — So  that  Mawgriilc 
case  is  materially  difl*erent  from  this.  Tti 
the  intention  from  the  first  throwing  the  bo( 
was  to  commit  munler,  here  it  was  othenri 
There  the  first  boUle  hit,  here  it  missed.  Th 
the  murderer's  intent  was  immediately  earn 
into  execution,  here  was  a  long  intermplil 
The  deceased  needed  not  have  returned,  if  I 
baii  not  been  equally  disposed  to  combat;  ■ 
he  himself  said  it  was  a  fair  combat,  wUi 
there  was  no  pretence  to  lay  in  Mawgridp 
case. 

Serjeant  Darnall  replied.  The  words  on bi 
sides  must  certainly  be  laid  out  of  the  case; 
not,  puppy  was  worse  than  rascal,  because 
is  the  name  of  a  beast.  If  Mr.  Gower  ti 
Oneby  to  be  the  aggressor,  the  condescend 
was  greater  in  him ;  it  is  no  more  than  say  fa 
I,  who  have  been  injured,  am  ready  to  pasi 
by.  I  do  not  find  it  was  at  all  reiie<l  upon 
Mawgridge's  case,  that  the  bottle  was  fu 
and  as  to  the  case  in  Coinberbatch,  Tumc 
servant  there  had  committed  a  fault,  for  wh 
he  was  liable  to  be  c(>rrecte<l :  the  decease 
declaration  was  only  that  he  received  i 
wound  by  a  fair  push. 

The  Court  sniil  nothing  upon  this  arguroc 
but    appointeil  another  to  oe  before    all 
judges  of  Eugland.     And  in  Easter  term  1 
k)wing  (May  6),  it  was  accordingly  argued 
Mr.  liCe  fur  the  king,  and  Air.  Kettleby  (i 
,  jeant  liaynes,  who  was  rvtaiiu-d,  being  ill) 
the  prisoner,  to  the  same  efl*ect  as  the  fore 
argument.  Str.  vol.  2,  770.    Tlii>  prisoner 
being  present  in  Serjeants-inn  (ChaiictTy-lai 
a&  he  was  in  court  u|)on  the  first  argumei 
this  last  lieing  only  tu  have  the  advico  of 
other  judgtti 


/sr  Iht  Murder  nf  WiHiam  Comer.  A.  D.  1726.  [42 

i-allfil  htlf-erotms;  ifaai  thereupon  Ihe  said 
William  GoivFr,  in  n  jocular  raatiQer,  lel  tbree 
piccRS  "f  money,  cnlkil  li(lt-|ieiice.  Boil  then 
ni  J  to  th«  saiti  J'jhn  Rich,  ihat  h<'  hud  set  him 
ibrer  piecM ;  that  ilie  solil  John  Ooeby,  ul  ihs 
same  time,  kcI  tbe  saiJ  John  Ricli  tlirce  hnlt- 
crowDs,  nhich  the  Eaid  Jobn  Rich  won;  and 
imn»>(1ialely  the  <uiil  John  Oneby,  in  an  angry 
manlier,  lamed  to  the  said  William  Goiter, 
and  BBid  to  him,  that  it  was  an  impertinent 
tliini*  to  H-t  balf-ppnee ;  snil  I'urther  anid  lo  the 
said  William  Gower,  that  he,  ihe  laid  William 
Gower,  was  an  impertioeni  \>up\>y  in  sodoiog; 
lo  which  the  said  Witlinm  Gower  then  and 
there  answered,  that  whosoever  culled  him  to 
rascal;  and  thereupon  the  laid  Juhn 
Oneb;  tnoL  up  a  ^lans  biiitle,  and  wiih  i;reBt 
force  threw  it  at  the  said  Wilham  Gower  ;  but 
the  glasa  boHie  did  oot  strike  Ihe  said  William 
Gower,  hut  passing  by  near  his  heail  brushed 
*  'a  nemlce,  which  he  llien  had  upon  hii  head, 
id  btat  out  some  of  llie  powder  out  iif  hii  pe- 
ike  ;  that  thereupon  the  said  WiUiHin  Gower, 
immediately  aiier,  loase d  a  g\n%s  nr  <'andleslick 
at  the  said  John  Ooeby,  but  the  iflant  or  cau- 
dlestick  did  not  hit  the  said  John  Onehv,  iiuun 
which,  both  tlie  said  John  Oueby  and  Wilham 
Gower  jiresenllv  rose  fruin  their  aeals,  to  fetch 
their  swords,  which  then  bung  uii  in  the  room ; 
and  Ihe  said  William  Gower  thro  di-ew  hi* 
Bword  out  of  the  soahbard,  hut  the  niiid  John 
Onehy  •cat  hindered  by  olheri  of  tbe  cumpany 
from  drawing  hisNimrd  nut  ol'  Ihe  scabbani  ; 
whereupon  the  inid  William  Gower  threw 
away  hia  sword,  and  iiy  the  interpoiitioo  of  tbe 
■aid  Jobn  Rich,  ThomaH  IUivLiuh,  and  Mi- 
chael Btiinl,  tbe  smd  Wdlinin  Gower  and  John 
Oneby  «Bt  dnwn  8);^iii,  uU'l  beutg  so  set  iliiwo, 
contiuueii  lor  th>'  Etiiucc  uf  an  hour,  in  company 
with  the  said  Juhn  Rich,  Tliomaa  Hawkioa, 
and  Michael  Blunt ;  ihat  after  the  cxpiraiion 
of  thai  hour,  the  said  William  Gower  said  to 
the  said  John  Oiieby,  We  have  had  hot  worda, 
but  ynu  waa  the  aggressor,  but  I  think,  we 
may  iiasi  it  over ;  and  at  Uie  same  time  tha 
■aid  VVilliam  Gower  offered  his  band  lo  the  said 
John  Oneby  ;  to  which  the  said  John  Oneby 
then  aoswcreil  the  said  William  Goner,  No, 
damn  you,  1  will  have  your  blood  ;  Ihat  atter- 
wardc  Ihe  reckoning  was  paid  by  the  said  John 
Oneby,  VVilliam  Gower,  John  Rich.  Thomas 
Hawkins,  and  Michael  Blunt;  and  tluit  th« 
Eaid  William  Gnwer,  John  Rich,  Tbomaa 
Hawkins,  andMichael  Blunt,  went  out  of  the 
said  ninju,  with  an  intent  id  go  home,  leafing 
the  said  jobn  Oneby  in  Ihe  room  ;  thai  Ihe 
said  John  Oneby,  so  a<i  aforesaid,  remaining  in 
Iherooiu;  called  to  tbe  aaid  William  Gnifer, 
Young  man,  come  back,  I  have  something  ID 
say  loyou;  that  tliereu|HJn  Ibe  Siiid  Wdbam 
Gower  returned  into  the  aaid  room,  and  tba 
door  nf  tbe  room  was  unroedialely  flung  lo,  and 
shut ;  by  reason  ol  which  shulting  of  the  door, 
all  of  the  said  company,  besides  the  said  Wil- 
liam Gower  and  Jobn  Onehy,  were  shut  out  of 
Iberuoin,  and  thai  llien  alter  ahuiline  of  tba 
door,  a  clashing  of  sworda  was  heard  i  tbeu 


tm,  tS  Gm.  1,  and  1  Geo.  S,  1TS7. 

XfoaJiy,  Jitnt  11. 
t/bf  being  brought  to  tlie  bar  froin 
\t»i  the  resolution  of  the  Court, 
Raymond*  delivered  ihe  npi- 
jadges,  in  the  folloniug  manner, 

KlSR  Mrl.  Jons  OlSEBY. 

tanal  sessioiis  of  the  peace,  held 
lall,  for  the  county  of  Midillesex, 
Fdwusry,  in  the  13th  year  of  bis 
ip],  John  On^y.  of  St.  Martin's 
I,  ttot,  was  indicted,  for  that  he, 
■1  February,  19  Geo,  al  the  said 
■iouily,  foloDtarily,  and  of  bis 
Rlbanghi,  made  an  aasaull  upon 
Goner,  e*q.  and  that  he  the  said 
iritb  a  sword,  which  he  then  and 
'diawD  in  his  right  hand,  the  said 
in  and  upon  the  lel^  part  of 
.be  navel,  lekiniously.  volun- 
tf  his  mabce  fore'lhoushl,  did 
thrust,  giving  the  said  William 
~  and  there,  with  Ibe  aaid  drawn 
upou  bis  said  left  part  ot*  his 
e  (tare),  a  noortal  wound  ;  of 
wound,  the  said  William  Gower 
iwliing  condition,  from  Ibe  aatd 
'cbruary,  to  the  Srd  day  of  tbe 


■  nid  mortal  wound,  did  die ;  and  sn 
>4kd,  Ihat  the  said  Oneby,  the  said 

fcfe)ollioully,  Toluniarily,  and  of 
thought,  did  kill  and  murder. 
Icment  being  delivered  to  the  jus- 

r delivery  for  Newgale,  Ibe  said 
was  arraigned  thereupon,  aod 
Guilty.  And  u)Miu  the  Trial. 
id  belore  Mr.  baron  Hale,  and 
tTbompson,  reconler  of  London,  the 
■Im  special  verdict  lullowing,  viz. 
llw  said  Joho  Oneby,  and  the  snid 
>«w«r,  together  wiih  John  Ricli, 
lawkiiM,  and  Michael  Blunt,  were  in 
iQgrlher  in  a  room  in  (he  Gastle  la- 
e  parish  ofSt.  Martin's  in  tbe  fields. 

J  manner ;  that  after  the  saiil  John 
iatn  Gower,  Jobn  Rich,  I'hoiiias 
and  Michael  BInnI,  had  continued 
I  ibe  saiil  room,  lor  ihe  space  of  two 
>K  and  dice  were  called  for;  where- 
drawer  aaid,  that  he  bad  dice  but  no 
llul  thcreu|Hin  Ihe  said  Juhn  Oneby 
«!  ihe  drawer  In  bring  a  pepper-hox, 
hogly  a  pepper-box  HHil  dice  were 
Ihal  milled  lately  after,  tbe  said  John 
HUam  Uuwrr,  Julm  Rich,  Thomas 
•nd  Michael  Bluul,  began  to  gday 
nod  after  Ihey  hod  played  hall  : 
Mid  Jobn  Rtcb  B«ke<l,  il  any  of  (he 
Mold  *H  him  three  pieces  of  money, 

■    3, 


43]  IS  GEORGE  L 

the  jury  find,  that  the  said  John  Onebj  gare 
the  said  William  Gower,  with  his  swonJ,  tho 
mortal  wound  in  the  iDdicttnent  mentioned,  of 
which  he  died ;  but  they  further  find,  that  at 
the  hreafcing  up  of  the  company,  tlie  said  Joho 
Oneby  had  his  great  coat  thrown  over  his 
shoulders,  and  that  the  said  John  Oneby  re- 
ceifed  three  small  wounds  in  the  fighting  with 
the  said  William  Gower,  and  that  tliesatd  Wil- 
ham  Gower  being  asked  upon  his  death-bed, 
whether  he  the  said  William  Gower  had  re- 
ceiTcd  his  wound  in  a  roanoer  among  swords- 
men called  fair  ?  answered,  I  think,  I  did :  and 
they  fuither  find,  tliat  from  the  time  the  said 
John  Oneby  threw  the  glass  bottle  at  the  said 
William  dower,  there  was  no  reconciliation 
between  the  said  John  Oneby  and  William 
Gower :  and  whether  this  is  murder  or  man- 
slaughter, the  jury  pray  the  advice  of  the 
Court:  and  if,oec.'' 

So  that  the  question  upon  the  special  verdict 
is,  whether  John  Oneby,  the  prisoner  at  the 
bar,  is  guiltv  of  murder  or  manslaughter? 

A  great  deal  of  time  was  spent  m  drawing 
up  this  snecial  rerdlct ;  for  although  the  trial 
at  the  Ola  Bailey  was  in  the  beginning  of  hist 
Blarch  was  19  months,  yet  the  record  was  not 
removed  into  this  court,  'till  Hilary  term  last, 
towards  the  end  of  which  term,  it  was  argued 
by  counsel  on  both  sides  ;  and  another  argu- 
ment beincjr  desired  by  the  counsel  for  Uie  pri- 
soner, we  thought  it  proper  to  desire  the  opt- 
uion  of  all  the  rest  of  the  judges ;  and  for  that 
purjiose,  it  was  argued  berore  all  tho  judges,  at 
;sterjeant'8-inn  hall  in  Chancery-lane,  upon  the 
6ch  day  of  May  last,  which  was  as  soon  as  all 
the  judges  could  meet,  by  reason  of  the  inter- 
vention of  the  circuits.  And  at\er  mature  con- 
sideration had  upon  a  meeting  of  them,  they 
uriaiim  gave  their  opinions,  and  came  to  this 
resolution  unanimously,  not  one  of  them  dis- 
senting, and  which  1  nave  authority  from  them 
to  declare,  viz. 

That  John  Oneby,  the  prisoner  at  the  Iwr, 
npon  the  facts  found  upon  this  special  verdict, 
is  guilty  of  murder. 

Without  entering  into  a  nice  ezaminatbn  of 
the  several  definitions  or  descriptions  of  mur- 
der, as  they  are  found  in  the  old  law-books,  as 
Bracton,  Britton,  and  Fleta,  where  the  wicked- 
ness of  the  act  is  aggravated  by  the  circum- 
stances of  secrecy  or  treachery,  murder  has 
been  long  since  settled  to  be  the  voluntary  kill- 
ing a  person  of  malice  prepense;  and  that,  whe> 
ther  it  was  done  secretly  or  publidy.  8tanndf. 
PI.  Cor.  18,  b.  S  Inst.  54* 

But  then  it  must  be  considered,  what  the 
word  malk;e  in  such  case  imports.  In  com- 
mon acceptation,  malice  is  took  to  be  a  set- 
tled anger  (which  requires  some  length  of 
time)  in  one  person  against  another,  and  a 
desire  of  revenge.  But  in  the  lenl  accepta- 
tion, it  imports  wickedness,  whicn  includes  a 
circumstance  attending  an  act  that  cuts  off  all 
cicase.  By  35  H.  8,  o.  3,  ibr  taking  away 
dergy,  it  is  enacted,  That  every  penon  who 
•hnll  ne  indictMl  of  the  erina  ttenin  men- 


Trial  of  Major  Oneby^ 

tioned,  and  thereupon  arrugned,  and  si 
mute,  of  malice  or  of  frowaraiiess  of  xm 
shall  lose  the  benetit  of  his  dergy.  Nov^ 
that  place,  malice  can  never  be  understooc 
the  vulgar  sense;  for  the  party  cannot 
thought  to  stand  mote,  out  ot  a  settied  asfl 
or  desire  of  revenge,  but  only  to  save  himSH 
and  therefore  such  staiHling  mute,  and  reAw 
to  submit  to  the  course  of  justice,  is  said  tfl 
done  wickedly,  i.  e.  witliout  any  manner  of* 
cuse,  or  out  of  frowardness  of  mind. 

Tliis  malice,  an  essential  ingredient  to  ma 
the  kilUnff  a  peraon  murder  (to  use  Ike  eipp 
sions  of  lord  chief  justice  Coke,  and  lord  4l 
justice  Hale,  whose  authority  hath  estabU 
them,)  must  be  either  implied  or  express ;  i 
says  Hale,  in  his  Pleaa  of  the  Crown  44,  t 
implied  nuilioe  is  coUeoted  either  from  the  m 
ner  of  doing,  or  firom  the  person  slain,  or  i 
persoiTkilliog.  As  to  the  two  last,  there  in 
occasion,  at  present,  to  take  them  into  oon 
deration. 

1.  As  to  the  first,  viz.  firom  the  maMiei 
doing,  as  Hmle  expresses  it,  or  as  Holt,  ehi 
justice  (vide  Mawgridge*s  case  poiUa)  m 
firom  the  nature  of  the  action  :  1.  Wilfiii 
poisoning  any  man  implies  malioe.  S.  U 
man  doth  an  act,  that  apfwrently  must  d#  bar 
with  an  intent  to  do  harm,  and  death  easm 
it  will  be  murder.  As  if  A  runs  with  n  hsn 
used  to  strike,  amongst  a  multitude  of  peop 
and  the  horse  kills  a  man,  it  will  be  mesdi 
for  the  law  implies  maKoe  firom  tlie  nataie 
the  act.  3.  Killing^  a  man  without  a  provoi 
tion  is  murder ;  as  if  A  meets  B  in  the  sirs 
and  immediately  runs  him  through  wtlli 
sword,  or  knocks  out  his  brains  with  a  hai 
mcr  or  bottle.  And  if  angry  words  had  pe« 
in  thai  case  between  A  and  B,  yet  it  wm 
have  been  murder  in  A,  becauKe  woi-da  are  i 
such  a  provocation,  as  will  prevent  such  e  I 
mioide  from  being  murder;  lord  Morie; 
case,  Kelynge  5Q*.  4.  The  law  will  imj 
malice  from  the  nature  of  the  original  aetii 
or  first  assault,  though  blows  pass  between  t 
parties,  before  the  stroke  is  given,  which  ooi 
sions  the  death.  As  if  npon  angry  worda 
abusive  language  between  A  and  B,  of  a  sudd 

A,  without  any  provooalion  (for  aogry  woi 
or  abusive  language  in  snch  a  case  is  look 
on  as  none),  draws  his  sword  immediately,  n 
makes  a  pass  at  B,  or  strikes  at  him  with  ai 
dangerous  weapon,  as  a  pistol,  hammer,  lar 
stone,  &c.  which  in  all  orobability  might  I 

B,  or  do  him  some  great  oodily  hurt,  and  tb 
B  draws  his  sword,  and  mutual  |>aKses  i 
made,  and  A  kills  B,  this  will  be  murder,  i 
the  act  was  voinntary ;  and  it  appears  fn 
the  nature  of  it,  that  it  was  done  with  an  i 
tent  to  do  mischief;  and  therefore  since  in  ; 
probability  it  might  have  occasiooed  B's  deal 
or  dona  liim  some  great  bodily  harm,  the  li 
implies  malice  prepense ;  and  the  resistance 
passes  that  vrere  made  bv  B,  were  but  in  ti 
defence  of  his  person,  which  was  violently  ai 

«  Seevd.  6,p.7a»eftUiCoUectinB. 


lii^tvv  bMB  carried  before.  9.  That 
■tteraned  with  the  onaDimoiis  opi- 
MIlfcelheB  jadget,  for  one  rerj  great 
fifcelheBtwelfe,  viz.  lord  Trevor,  dif> 
m  the  other  judges,  and  held  it  was 
■Auirhter.  fiitt  opoQ  our  meetincT  to 
ef  Aia  prcaent  case,  all  the  judges 
mdj  agreed,  that  Mawgridge's  case 
med  lair  f ,  and  that  that  judgment 
te  and  jast  judgonent,  so  groundless 
iHiaiiatioDy  which  had  ^en  made 
ao  miouatioD  there  was)  in  West^ 
mH,  that  same  of  the  present  judges 
ipaioo,  that  the  judgment  in  Maw- 
aaa  was  not  a  legal  judgment, 
lia  is  aa  naoch  as  is  necessary,  rather 
I  is  necessary,  tocbe  said  as  to  im- 
i0i^  ainoe  there  will  be  no  occasion  in 
la  kok  out  for  malice  implied, 
ioa  ncpreas  is  a  design  formed  of  tak- 
aaollMr  man's  life,  or  of  doing  some 
la  BBoiher,  in  the  execution  ofwhic^ 
And  this  holds,  where 


p  ia  Bot  foTVied  against  an^  particu« 
if  as  if  A^  having  na  particular  ma- 


person,  comes  with 
naalatioo  against  all  opposers ;  if  the 
ImfM,  mad  death  ensoe,  it  is  murder. 
tacoauMt  a  riot,  to  enter  iato  a  park, 
B%  case,  H.  P.  C.  47.  Moore  86,  Sar. 
FA  fMa  with  a  reaolotion  to  kill  the 
he  aaals,  and  meeting  B,  kills  him, 
lar  wiA  exjpnas  maKoe :  yet  A  had 
wi  mmf  mahce  minst  D,  nor  a^nst 
iiaon,  Hach  more  it  will  ba 
F,~  when4ie  mischievons  design  is 
at  anj  particular  person,  which 
•vidmit,aB  well  hj  mmmstances 
I  gpiaas  dedaratiana  of  the  per- 


V 


Eve  him  no  provocation  wliatsever ;  for  when 
r.  Gower  set  the  three  halt- pence,  he  set 
them  against  Mr.  Rich,  and  that  in  a  jocular 
manner ;  tlierefore  that  was  no  affront  to  Mr. 
Oneby.  2.  Upon  that  Mr.  Oneby  turned  to 
Mr.  Gower  in  an  angrv  manner,  and  g^ve  him 
abusive  language,  and  called  him  impertinent 
puppy;  the  answer  of  Gower  was  not  im- 
proper, nor  more  than  what  might  be  expected, 
that  whosoever  called  him  so  was  a  rascal. 
3.  That  as  Oneby  had  before  begun  with 
Gower,  by  giving  hire  abusive  language,  so  he 
then  took  up  the  glass-bottle,  *  et  magnll  cum 
?i,'  threw  at  Gower,  and  beat  the  powder  out 
of  his  peruke ;  if  it  had  killed  Gower  it  had 
certainly  been  murder;  upon  which  Gower 
tossed  a  gloss  or  candlesticK  at  Oneby •*  And 
the  difference  of  Anding  in  the  special  verdict 
is  observable:  Oneby  threw  the  bottle  at 
Gower,  *  magnft  cum  vi;'  Gower  only  tossed 
the  glaoa  or  candlestick  at  .Oneby.  4.  Whan 
they  fetched  their  awords,  Gower  did  it  only  to 
.defend  himself;  for  tba  verdict  finds,  that 
though  Gower  drew  his  sword  first,  jix  the 
prisoner  at  the  bar  being  hindered  by  the  com- 
pany from  drawing  his  sword,  Gower  there- 
upon threw  his  sword  away.  5.  By  the  in- 
lerpoaition  of  the  company,  the  prisoner  at  tba 
imr  and  Mr.  Gower  sat  down  again,  and  con- 
tinued in  company  for  an  hour ;  after  which 
Mr.  Gower  said.  We  have  had  hot  words,  but 
yon  was  the'  aggressor,  but  I  think  we  may 
pass  it  over,  and  offered  his  band  to  the  pri- 
soner ;  that  the  priaoner  at  the  bar  was  the 
jggressor,  is  true,  and  that  in  a  violent  manner : 
Tlua  was  sufficient  to  have  appeaaed  Mr. 
Ond>y:  hot  what  is  his  answer  r  No,  damn 
yoo,  I  will  have  yoar  blood.  There  ia  an  ex- 
I  pnsa  declDration  of  malice,  an  express  de- 


O      A.t 


47]  12  GEORGE  I. 

room ;  that  the  prisoner  remaioioi^  in  the 
rtyna,  called  to  the  said  William  Giiwer.aaviogf, 
<*  Yuunt;  maa,  comeback,  I  have  aometliiDK'  to 
say  to  }-0H."  Tltene  word*  also  shew  a  plain  de- 
Jiberaliofl ;  and  l>ciiig' attended  with  tbedrcum- 
ataoces  tuiiud  tiefure,  and  what  foltowa  imnie- 
dialely,  import  c»n tempt;  **  Youn|r  man"  are 
insolent  and  impmous,  and  **  Come  back,''  im- 
port a  re»<;ntmc'nt  he  had  conceived  aniust  Mr. 
Gower,  abriut  which  he  had  somethin{|^  to  say 
to  him.  For  what  purpose  did  the  prisoner 
stay,  after  all  the  company  had  left  the  ro(rm 
to  go  home?  It  was  to  say  something  to  Mr. 
Gowcr.  What  is  that?  Wliy,  as  soon  as  BIr. 
Gower  is  returned  into  the  room,  the  door  iras 
immediately  flung  to  and  shut,  and  the  rest  of 
the  company  shut  out;  and  then  after  shutting 
die  door,  a  cla-shing  of  swords  was  heard,  and 
the  prisoner  gave  .Mr.  Gower  the  mortal  wound, 
of  which  he  died. 

These  immediate  subsequent  facts  shew, 
what  it  was  the  prisoner  had  to  say  to  Mr. 
Gower ;  it  was  to  carry  the  malicious  design, 
be  bad  bHbre  declared  he  had  against  Mr. 
Gower,  into  eiecution,  viz.  to  have  his  blood ; 
and  be  had  it,  for  be  gave  him  the  wound  of 
which  he  died. 

To  go  further:  If  the  prisoner  had  malice 
against  Mr.  Gower,  though  tfiey  tbuglit  alter 
the  door  was  shut,  the  interchange  of  blows 
will  niake  no  diflerence ;  for  if  A  has  malice 
against  B,  and  meets  H,  and  strikes  him,  B 
draws,  A  flies  to  the  wall,  A  kills  B,  it  is 
murder.     H.  F.  C.  42.  Kelynge  58. 

Nay,  if  the  case  had  been,  that  there  had 
been  mutual  malice  between  the  prisoner  and 
Air.  Gower  (which  does  not  appear  to  have  been 
on  tlie  part  of  the  deceased)*  and  they  had  met 
and  fought  upon  that  malice,  the  killing  Mr. 
Gower  by  the  prisoner  had  been  murder. 
11.  P.  C.47.  1  Bulstr.  86,  87.  Hob.  121. 
Crompt.  21. 

The  jud^  were  all  of  opinion,  upon  the 
ftcts  found  m  this  verdict,  there  appeared  to  be 
express  malice  in  Oneby  against  Mr.  Gower ; 
and  then  Oneby  killing  Gower,  having  such 
express  malice  against  him,  they  were  all  una- 
Dimous,  and  clear  of  opinion,  that  this  was 
plainly  murder. 

Having  thus  mentioned  the  reasons,  upon 
which  we  ground  this  present  resolution,  1  shall 
next  consider,  if  any  of  the  objections  made 
by  the  counsel  for  the  prisoner  are  in  answer 
to  these  reasons,  or  take  off  the  force  of  them. 
The  counsel  i'or  the  pri«Mier,  Mr.  Oneby,  in- 
sisted, that  upon  the  whole  verdict,  the*  case 
was  no  more  than  that  from  a  slight  occasion 
passionate  words  arose,  mutual  reproaches 
passed;  the  quarrel  was  sudden,  mutual  as- 
saults were  made;  and  on  a  sudden  figliliug,  in 
heat  of  passion,  the  prisoner  killed  the  de- 
ceased, which  can  be  uo  more  than  man- 
alaiiflhler. 
That  such  fact  could  amount  to  no  more 

*  The  verdict  implies  the  contrary:  Fur  he 
•ffarad  him  his  handy  te.    Fifrmcr  "EdUuM. 

4 


Trial  of  Major  Onebyt 

than  manslaozhter ;  they  cited  the  known  c 
that  if  A  and  B  fall  out  lipon  asiidtten,  and  L 
presently  aji^ree  to  tight,  and  each  fetches 
weapon,  and  go  in  to  the  tit-Id  and  fight,  and 
of  them  kills  the  other ;  this  is  but  maoaiaugfc: 
H.  P.  C  48. 3  Instit.  67,  because  the  pas^ 
was  never  cooled. 

In  this  case  (said  they)  it  is  plain  the  tp^ 
arose  on  a  sudden  ;  Mr.  Onebv's  passion 
raised,  and  that  it  is  not  founcf  by  ttie  jur^ 
have   ever   been   cooled;    and   therefore 
words  3lr.  Oneby  spoke.  No,  damn  yoiB 
will  have  your  blood,  Nc<r.  were  only  wordm 
heat,  spoke  under  the  continuance  of  the  ■ 
passion.      And  they  further  insisted,  that 
law  hail  fixe«l-'no  time,  in  which  the  pasm 
must  l>e  took  to  be  cool ;  but  that  depemn  a  . 
circumstances,  of  which  the  jury  are  the  pre 
judges.      In  this  rase,  the  whole  time  ■ 
passed,  between  the  f|uarrel,  and  giving 
mortal  wound,  was  but  little  more  tban 
hour;  and  it  has  been  adjudged,  that  the  p 
sion  shall  not  be  took  to  be  cooled  in  very  c 
that  time.     12  Co.  87.    Cro.  Jac.  996.  H. 
C.  48,  Rowley 's  case,  where  the  child  oT 
beat  the  chiUl  of  B.    B's  clnld,  all  bk>ody, 
home  to  his  father ;  B,  the  father,  ran  tla 
quarters  of  a  mile,  and  beat  the  child  of  A ; 
means  whereof  he  died  :  This  was  adjudged 
be  only  manslaughter ;    yet  there  must  ha 
been  a  considerable  time  after  B  was  provok 
by  the  usage  of  his  child  before  he  killed  A 
child,  because  he  ran  three  quarters  of  a  mill 
yet  it  lieing  one  continual  passion  raised  ia  1 
upon  tbe  boating  of  his  child,  it  was  held  ll 
was  only  mansUiughter.    And  in  this  preM 
case,  to  shew  the  passion  of  Mr.  Oneby,  wUi 
was  suddenly  raised,  was  not  cooled,  thu  cou 
for  Mr.  Oneby  observed,  tliat  the  jury  had  c 

Kressly  found  that  there  was  no  reconcilialii 
etween  Oneby,  the  prisoner,  and  Mr.  Gowi 
the  deceased,  from  the  time  Mr.  Oneby  ii 
threw  the  bottle. 

This  1  take  to  be  the  chief  objection,  up 
which  the  counsel  for  the  prisoner  principal 
relied. 

In  answer  to  this  objection,  I  must  first  ta 
notice,  that  where  a  man  is  killed,  the  law  « 
not  presume  that  it  was  upon  a  sudden  quarr 
unless  it  is  proved  so  to  be ;  and  therefore 
Lcgg's  case,  Kelynge  37,  it  was  agreed,  up 
evidence,  that  if  A  kills  B,  and  no  sudden  qui 
rel  appears,  it  is  munler ;  for  it  lie^  upon  t 
party  indicted  to  prove  the  sudden  quarrel. 

In  the  next  place,  from  what  I  have  aaid  I 
fore,  it  ai)i»ear8,  that  though  a  quarrel  was  sc 
den,  and  mutual  fighting  before  the  mor 
wound  given,  it  is  by  no  means  to  be  to 
as  a  general  rule,  that  the  killing  a  man  « 
be  only  manslaughter.  It  is  true,  if  i 
proaeht'ul  language  passes  between  A  and  , 
and  A  bids  B  draw,  and  they  both  dn 
(it  is  not  material  which  of  tliem  dra* 
first,)  and  they  both  fight,  and  mutual  |iaai 
are  made,  death  ensuing  from  thence  will 
oolv  manslaughter,  because  it  was  of  a  sudd« 
and  each  ran  the  haiard  of  hit  lift.    But  tin 


fir  ike  Murder  of  miUam.  Gc^^r. 


A.  D.  me. 


m 


fe  difi^Knce  between  thai  caie,  and 
ifHi  words  A  drawa  his  sword,  and 
.  pMS  at  B,  or  with  some  dangerous 
aitacb  him,  and  then  B  draws,  and 
ki,  and  A  kilb  B ;  there,  though  there 
isrel  npOD  abusive  language,  and  there 
crvirdt  a  mutual  figlitiug,  yet  since 
fai  B  with  a  weapon  or  instrument, 
■gll  haf e  taken  au  ay  B's  lite,  though 
■^afterwards,  that*will  be  murder. 
iiiwu  agreed  by  all  the  judges  in  tbe 


fcrtbe  argument's  sake,  and  it  is  only 
HKDt'siake,  and  to  give  the  objection 
}j  Ike  counsel  for  the  prisoner  its  full 
if  ii  shuuld  be  looked  on  here,  that 
kmd  io  the  former  part  of  the  verdict 
■  a  turideo  quarrel,  and  only  the  effect 
Bi;  yet,  if  it  appears  upon  the  special 
ibt  Ibere  was  a  sufficient  time  jior  this 

•  eool,  and  for  reason  to  get  the  better 
mport  of  passion,  and  the  subsequent 
r  deliberate,  before  the  mortal  wound 
ikillJiigof  the  deceased  will  lie  murder. 
dufjiMges  were  of  opinion,  that,  upon 
ioB  of  the  facts  found,  it  appeared, 
hesn  sufficient  time  for  Mr.  Oueby's 
rf  pasition  to  cool,*  and  that  he  bad 
I;  and  that  the  killing  of  Mr.  Gower 
boiie  act,  and  the  result  of  malice 
J  bad  conceived    against  the  de- 

wf  1  nsentlon  their  reasons,  I  must 
this  proposition,  to  which  they  all 
!.  that  the  Court  are  judges  of  tbe 
i  not  tbe  j  iry ;  and  that  the  Court 
dges  upon  the  facts  found  by  the 
ler  if  the  quarrel  was  sodden,  there 
Tibe  pasMuii  to  cool,  or  whether  the 
iberate  or  not. 

le  trial  of  the  indictment,  the  judtre 
jury  thus.f  If  you  believe  such 
witnesses,  who  have  sworn  such 
acts,  the  killing  the  deceased  was 

*  prepense  express,  or  it  was  with 
ied,  and^  then  ^ou  on^^ht  to  find  the 
ilty  of  murder;  but  if  }ou  do  not 
ie  witnesses,  then  you  ought  to  find 
of  roan^^lallghter  only  ;  uiid  so  ac- 
he nature  of  the  case,  if  you  }>elievc 
uch  facts,  the  act  \)ns  dohhcrute, 
erate  ;  and  then  you  ou'^ht  to  find 

And  the  jury  may,  if  they  thiuk 
'e  a  general  verdict,  either  that 
r  is  (rnilty  of  murder,  or  of  inan- 
But  if  they  decline  giving  a  general 
i  wjU  tiod  the  farts  specially,  the 
form  their  judginf^ut  from  the  tacts 
•ther  tliere  was  malice  or  not,  or 
e  fact  was  done  on  a  sudden  trans- 
ioBy  or  was  an  act  of  dehbcralion,  or 


ach'a  Hawkins's  Pleas  of  the  Crown, 

Lbl.s.  S2. 
I,  see  the  judgment  of  Lawrence, 
le  of  Dftriufbire  v.  Parker,  0  l^ajit  ^. 
VIL 


Attliougb  there  are  many  special  vierdicts  in 
indictments  for  murder,  there  never  was  one^ 
where  the  jury  find  in  express  terms  thai 
the  act  was  done  with  malice,  or  was  nol 
done  with  malice  prepense;  or  that  it  was 
done  uiion  a  sudden  quarrel,  and  in  trans* 
port  of  passion  ;  or  that  the  passion  %vae 
cooletl  or  not  cooled ;  or  that  the  act  was  de- 
liberate, or  not  deliberate :  but  the  collection  of 
those  things  from  the  facts  found,  is  lefl  to  tbe 
judgment  of  the  Court.  Hollo  way's  case« 
Palm.  545.  Cro.  Car.  131.  W.  Jones  198w 
So  in  the  case  cited  by  the  counsel  for  the  pri- 
soner, Cro.  J  ac.  1296,  tlowley's  case,  the  jury 
find  tiie  fact,  but  don't  find  in  express  termS| 
tliat  the  father,  whose  child  was  beat,  killed  the 
other  child  in  a  sudden  heat  of  passion ;  but  that 
was  left  to  the  judgment  of  the  Court,  upon  tht 
particular  facts  found. 

But  then  it  is  objected,  that  the  law  liai 
fixed  no  time,  in  which  the  passion  must  ba 
supposed  to  be  cooled,  it  is  very  true,  it  hav 
not,  nor  could  it,  because  passions  in  some  per* 
sons  are  stronger,  and  their  judgrroents  weaker^ 
than  in  others ;  and  by  consequence  it  will  re- 
quire a  longer  time  in  some,  for  reason  to  get 
tne  better  of  their  passions,  than  in  others :  but 
that  must  depend  upon  the  facts,  which  shew 
whether  the  person  has  deliberated  or  not ;  for 
acts  of  deliberation  will  make  it  appear  whe- 
ther that  violent  transport  of  passion  was  cooled 
or  no. 

But  thus  far  the  resolution  of  the  judget 
have  already  gone ;  and  it  has  been  adjudged^ 
that  if  two  tali  out  upon  a  sudden,  and  thoy  ap- 
point to  fight  next  day,  that  the  passion  by 
that  time  must  he  looked  on  to  be  cooled  ;  and 
in  suoh  casey  if  they  meet  next  dn}',  and  fight, 
and  the  one  kills  the  other  at  that  meeting,  it 
has  been  often  held  to  he  murder.  Hale  P.  C. 
48. 

To  go  a  little  farther.  If  two  men  fall  out 
in  the  morning,  and  meet  and  fight  in  the  af- 
ternoon, and  one  of  them  is  slain,  this  is  niur> 
der ;  for  there  was  time  to  nlluy  the  iioat,  and 
their  noeeting  is  of  malice.  So  is  Loggia  case, 
Kelynge  27. 

At  the  meeting  of  all  the  judges,  before  lord 
Morley'b*  Trial  by  the  i>ecr8,  for  the  murder  of 
one  Hastings,  they  all  agreed,  that  if  upon 
words  two  men  grow  to  anger,  and  atlerwards 
they  suppress  that  anger,  and  thru  fall  into 
other  discourse,  or  have  other  diversions,  for 
such  a  reasonable  space  of  time  a  J  in  reasonable 
intendment  their  heat  might  be  cooled  ;  and 
some  time  after  they  draw  upon  one  another, 
and  tight,  and  one  of  them  is  killed  ;  this  is 
niurdtr,  because  being  attended  with  such  cir- 
cumstances, it  is  reasonably  aupposed  to  be  a 
deliberate  act,  and  a  premeditated  revenge  ufion 
tbe  first  quarrel.  But  the  circumstances  of 
such  an  act  being  matter  of  fact,  the  jury  are 
judges  of  them,  Kelynge  56.  The  ineanins-  of 
which  last  words  is,*<hat  the  jury  are  judges  of 
the  facts,  from  which  those  circumstances  are 


mm 


•w«a«*a<w 


£ 


*  SceVyi.o,  p.  vry. 


51] 


If  GEORGC  I. 


eollecfeil.  But,  ai  I  nid  before,  wlfcn  Hioie 
Acts  are  foomi,  the  Court  n  to  jodge  from 
them,  whether  they  do  not  sbeir  the  act  was 
deliberate  or  not. 

liOrd  Mnrley  upon  his  trial  by  the  peers 
was  acquitted  ;  and  aAer  that,  \n  Easter  terra, 
18  Car.  2,  Broomwich,  who  was  indicted  as  a 
priucipal,  in  being  present,  aiding,  and  abetting^ 
lord  Moriey,  in  the  murder  of  Hasting,  was 
tried  at  the  Ring's-bench  bar.  The  quarrel 
was  at  a  taTem ;  but  it  was  proved,  when  the 
quarrel  was  at  the  tavern,  that  lord  Morley 
said,  if  we  fight  at  this  time,  I  shall  have  a 
disadvatitage,  by  reason  of  the  height  of  my 
shoes ;  and  presently  afler  they  went  into  the 
fielrfs,  and  fooffbt ;  lord  Noriey  killed  Hast- 
infB  :  hot  while  they  were  fighting,  Broom- 
wich made  a  thnist  at  Hasting^  and  lord  Mor- 
ley closed  in  with  Hastings,  and  killed  him ; 
and  (siEiys  the  book)  this  was  held  as  clear  evi- 
dence of  their  intention  to  fight,  when  they 
went  out  of  tlie  taveni ;  and  the  quarrel  being 
only  about  words,  and  fighting  in  a  little  time 
after,  it  was  held  nurder  by  all  the  Court.  And 
there  need  not  be  a  night's  time  between  the 
quarrel  and  the  fighting,  to  make  it  murder, 
but  such  time  only,  as  it  may  appear  not  to  be 
done  on  the  first  passion;  for  loro  Morley  con- 
iidered  the  disadvantage  of  his  shoes ;  and  the 
Court  directed  the  jury  that  it  was  murder  in 
Broomwich,  beinff  present,  and  aiding;  but 
the  jury  acquitted  him.  1  Sid.  277,  reports 
the  same  case,  and  say^,  that  the  Court,  in  the 
direction  to  the  jury,  laid  it  down,  that  after  the 
provocation  in  the  house,  they  say,  this  is  no 
convenient  place  (and  so  have  reason  to  judge 
of  conveniency),  and  appoint  another  place, 
tliougli  the  finrlit  is  to  be  presently :  this  b 
murder,  for  uie  circumstances  shew  their 
temper. 

In  ri.  P.  C.  48,  if  A  and  R  fall  out,  A  says 
lie  will  not  strike,  but  will  give  B  a  pot  of  ale 
to  t<mcli  him,  B  strikes,  A  kills  him ;   murder. 

Two  quarrel ;  the  one  savs,  if  you'll  go  into 
the  field,  I  will  break  your  head,  aud  there  one 
lulls  the  other  ;  murder.  Crompt.  95,  p.  49. 
Two  fall  out  on  a  sudden  in  the  town,  and  they 
%y  agreement  go  into  the  field  presently,  and 
one  kills  the  other ;  murder.  Crompt.  23,  fol. 
SI. 

From  these  cases  it  appears,  that  though  the 
law  of  England  is  so  far  peculiarly  favourable 
(I  use  the  word  peculiarly,  because  I  know  bo 
other  law  that  makes  sudi  a  distinction  between 
murder  and  manslaughter),  as  to  permit  the 
excess  of  anger  and  passion  (which  a  man 
ought  to  keep  under,  and  govern)  in  some  in- 
stances to  extenuate  the  greatest  of  private  in- 
juries, as  the  taking  away  a  man's  life  is ;  yet 
iu  tliuse  cases,  it  must  be  such  a  passion,  as  fbr 
the  time  deprives  him  of  his  reasoning  facul- 
ties; fur  if  it  appears  reason  has  resumed  its 
office ;  if  it  ap|iears,  he  reflects,  deliberates,  and 
considers,  liefore  be  gives  the  fatal  stroke, 
which  cannot  be,  as  long  as  the  fury  of  passion 
continues;  thekiw  will  nojonger,  under  that 
pretext  of  pasiiou,  exempt  him  from  the  pu- 


IVJU  tfMaj&F  Oiufyt 

mhnient,  which  fhmi  tlie  greatne«  o 
injury  and  heinoasnesa  of  the  crime  be  . 
deserves,  so  as  to  lessen  it  from  murder  to 
slaughter.  Let  us  see,  therefore,  whether 
this  special  verdict  it  appears  that  the  fis 
and  killing  Mr.  Gower  was  only  done  \i 
of  {lassion,  or  was  a  deliberate  act.  By 
I  obeerved  before,  it  plainly  appears  it  was 
liberate  act.  But  to  recapitnhite  in  short ; 
the  words  had  passed,  and  the  bottle  wastt 
by  the  prisoner ;  and  swords  drawn  ;  b 
interposition  of  friends  they  sat  down,  an<! 
tinned  in  company  for  an  hour  (a  ream 
time  under  those  circumstances  for  the  pi 
to  cool) ;  and  afler  that  hour  expired,  tl 
ceased  says.  We  have  bad  hot  words,  bu 
was  the  aggressor ;  but,  I  think  we  ma] 
it  over ;  aud  at  the  same  time  offered  hii 
to  the  prisoner,  which  was  enough  to  hai 
peased  the  prisoner :  To  this  Mr.  Oneb; 
swered,  No,  thimn  you,  I'll  have  your  i 
words  expressing  malice,  not  passion  :  ' 
when  the  company  went  out  of  the  root 
prisoner  stayed,  and  called  the  deceased  I 
Young  man,  come  back,  1  have  somethi 
say  to  yon :  The  door  immediately  was 
clashing  of  swords  was  heard,  and  the  dec 
received  the  morul  woand  from  the  priso 
the  bar.  The  prisoner's  words  shew,  wbi 
his  intention,  vis.  to  take  away  Mr.  Oc 
life ;  and  the  kilNiig  htm  may  properiy  b 
to  have  been  done  upon  deliberation  anil 
sideration. 

The  counsel  for  the  prisoner  in  their 
ments  insisted,  that  there  were  severs 
cumstances  found  in  the  special  verdict  i 
vour  of  the  prisorier,  which  were  a  foun< 
fbr  the  Court,  to  construe  the  other  expre 
to  be  ofdy  words  of  heat ;  and  that  what  I 
was  in  the  heat  of  his  first  passion,  whic 
never  cooled,  and  not  out  of  malice. 
It  is  found,  that  at  the  breaking  up  of  the 
pany,  Mr.  Ooeby  had  his  great  coat  tl 
over  his  shoulders ;  from  whence  it  woi 
a  strain,  to  think  he  then  intended  to  figh 
Mr.  Gower.  2.  It  might  be  Mr.  Gowe 
shut  the  door,  who  came  back  after  he  wi 
of  the  room,  the  jury  not  having  fbun4 
shut  the  door.  S.  That  it  was  found, 
was  no  reconciliation  between  them,  froi 
throwing  the  bottle  at  Mr.  Gower.  Bui 
the  first  of  these  objections,  considerin 
words  the  prisoner  used  after  this,  and  aft 
deceased  was  out  of  the  room,  and  what  f« 
ed,  since  the  jury  have  found  this  fact,  wi 
saying  any  more  about  it,  the  natural 
striiction  is,  that  this  was  only  used  by  th 
soner  as  a  blind  to  the  company,  to  oc 
from  them  his  real  intention,  till  they 
gone  out  of  the  room.  As  to  thesecoD 
stands  ouoertain  upon  the  verdict ;  hot  .il 
uncertainty  which  can  have  no  influence 
the  present  determination ;  for  if  Mr.  C 
bad  shut  the  door,  that  would  not  akme 
materially  altered  the  case.  As  to  the  t 
since  express  malice  before  appeared  to 
the  prisoacTi  the^mting  thai  net  doei  m 


far  thg  Shurier  »f  WSliam  Cower. 


A.  D.  179S> 


[^ 


M  A«  fint  beat  of  pamoD  continued 
rtlhat  the  maliGe  onolioiMd. 
counsel  for  Mr.  Ooeby  farther  objecteJ, 
Mared  there  was  a  motual  fitfiiting 
K«er  was  shot ;  for  it  is  fband  Uiat  he 
id  Area  slieiit  wounds ;  tlien  it  is  not 
.ibdrew  first,  or  made  the  first  assault, 
ktktr  was  ahut ;  and  it  was  possihte  a 
■Ha  <|aarrel  might  then  rise,  in  which 
tor  Bjffbt  be  the  aggressor,  and  there- 
jafedsT  verdict  was  uncertain  in  a  ma- 
pal.  The  answer  to  which  is,  what  is 
ilq^'s  Case,  Kelynge  S7,  cited  before ; 
'4UlsB,  and  do  sudden  qusrrel  ap- 
iiiaarder ;  lor  it  lies  on  the  iiartv  in- 
)to^Te the8uddeni|uarrcl;  audtnere- 
ijay  not  baTiug  found  anv  such  thing 
!piNoer'a  bvncnt,  it  is  to  be  took  there 
taeh.  This  u  said,  supposing  the  latter 
itrerdict  could  be  considered,  without 
iif  the  fimner  part  of  it :  and  that  when 
f|M]r  went  out  of  the  room,  the  nrtsoner 
bGowct  wcflereoanciled.  But  however 
%ht  have  been,  b«ne  it  appears  there 
wcsnrilialifin,  and  therefore  there  can 
Bigination  of  a  new,  original  quarrel  in 
■sfter  the  door  was  shut.  And  as  to 
fk  wounds  the  prisoner  received,  that  is 
nd;  Ibrhe  having  malice  against  Mr. 
(IbDugh  there  was  mutual  figbting,  and 
wer  was  wounded,  yet,  when  he  killed 
»cr,  it  will  be  OMirdcs'. 
ba  Act  in  the  special  verdict,  which 
U  on,  was,  when  Mr.  Gower  was  ask- 
iIm  destb4»ed,  whether  be  had  received 
■di  in  a  manner  among  swordsmen 
Vr?  He  answered,  1  think  I  did ; 
^  Ike  deceased  shewed,  he  was  satisfied 
Asa  fair.  The  answer  to  which  is 
'  A«  if  A  have  malice  against  B,  and 
■Mud  fight,  though  the  fight  is  never 
'Mrding  to  the  law  of  arms,  yet  if  A 
Jtvill  be  murder. 

SKs  the  counsel  for  theprisoner  princi- 
died  on  to  make  this  fact  only  man- 
V,  were  Rowley's  Case,  13  Coke  87 ; 
ner's  Case,  Comberbatch,  407,  8. 

13  Coke  87,  the  case  was,  that  two 
bting  tog^her,  the  one  of  them  was 
d  in  the  fiMse,  and  he  bled  a  great  deal 
•e ;  and  so  he  ran  three-quarters  of  a 
lis  fkxhetf  who  seeing  him  very  bloody, 
bis  hand  a  cudgel,  and  went  three- 
of  a  mile  to  the  other  boy,  and  struck 
D  the  head,  upon  which  he  died,  aud  it 

bat  manslaughter,  for  the  passion  of 
r  cnntioned.    And  there  is  no  time, 

law  can  determine,  that  it  was  so 
bat  it  ahould  be  adjudge)!  malice  pre- 
(Note,  Theae  are  the  words  of  is  Coke 

ieh  the  answer  is  plain,  for  the  reaaon 
Cro.  4ac.  396,  which  is  the  same  case, 
fiuher  having  no  anger  before,  but 
dvoked  upon  Uie  complaint  and  sight 
m'a  blood,  and  in  that  anger  beating 
vUsh  Im  died,  the  Uw  Mi^m^C^  ^  ^ 


be  u|u>n  that  sudden  passion.  But  that  is,  coi:* 
sideriagwliat  has  been  said  before,  clearly  dis- 
tinguishable from  the  present  case ;  besides  it 
may  be  added,  it  was  but  a  little  cudgrl  he 
struck  with,  from  which  no  such  fatal  etent 
could  be  reamnably  expected.* 

Turner's  Case  was  this ;  his  wife  complain- 
ed the  boy  had  not  cleaned  her  ck)gs.  upon 
which  Mr.  Turner  took  up  a  clog,  and  struck 
him  on  the  head,  and  killed  him ;  and  though 
there  was  no  oilier  provocation,  it  was  hehl 
only  manslaughter.  But  the  reason  of  that 
was,  because  the  cloff  was  so  small,  there 
could  be  no  design  to  uoany  great  harm  to  tiie 
boy,  much  less  to  kill  him;  and  a  master  may 
correct  a  servant  in  a  reasonable  manner  for  a 
fault.  And  lord  chid" justice  Holt,  in  Comber- 
balcb  408,  says,  that  iu  that  case,  it  was  an  un- 
likely thing,  meaning,  tiiat  the  dcjg  should  kill 
the  boy.  The  counsel  for  the  prisoner,  bein^ 
apprehensive  of  the  authority  of  Mawgridge's 
C-ase,  besides  the  observationa  they  had  made, 
mentioned  before,  to  induce  the  Court  to  look 
upon  that  judgment,  as  not  warranted  by  law, 
endeavoured  to  distinguish  the  present  case  from 
it,  supposing  it  io  be  Taw.  And  lit,  They  said, 
that  in  Mawgridge's  Case,  the  bottle  hit  Mr. 
Cope,  and  stuimed  him  ;  but  here  the  bottle  did 
not  hit  Mr.  Gower,  but  only  brushed  some 
powder  out  of  his  peruke.  3dly,  in  Maw- 
gridge's  Case,  the  bottle  was  full  of  wine ;  here 
it  is  not  found  to  bsve  been  so,  and  therefore 
must  be  took  to  have  been  empty  ;  and  the  size 
of  the  bottle  does  not  appear,  it  might  be  very 
small.  Sdly,  Mawgridge  drew  his  sword  im- 
mediately aller  throwing  the  bottle,  without  in- 
termission ;  here  Mr.  Gower^s  sword  was  first 
drawn.  4thly,  Mr.  Cope  nerer  drew  ;  here 
Mr.  Gower  not  only  drew  the  first,  hut  clashing 
of  swords  were  beard,  so  there  must  have  been 
fighting. 

It  is  very  true  (so  far  as  these  facts  will  make 
a  difference)  this  present  case  is  diKtinguishable 
from  Mawgridge's  Case ;    for  that  case  was 
determined  only  upon  an  implied  malice  (hut, 
as  I  said  before,  was  very  rightly  and  justly 
determined,  as  we  all  agreed),  for  strictly  and 
properly  speaking,  altlioiigh  the  word  exprew- 
malice  is  mentioned  io  the  reasons  given  for 
that  resolution,  yet  it  was  but  mahce  implied. 
But  still  this  way  of  distinguishinjr  the  present 
case  from  Mawgridge's,  will  lie ol  no  seryiceto 
the  prisoner,  because,  though  all  the  juclg*a 
heldUiis  case  was  distinguishable  from  Maw, 
gridge's  Case ;  it  was  in  respect  that  t^^^is  «  a» 
a  much  stronger  case  a.  to  the  '"""ler   th* 
jury  having  foundfiicts  which  •»J'^?. J^^'^Vj^^Jy 
U  an  expn.»  inalic^  ags.ns^  M-  ^C-wer 

Upon  the  ^^«!«  ™»"/^r\||^^^^^ 

concurrent  op""«n  f  •"  ^J^^ba^,  John  One! 

•  Vide  Foster's  lUporU,  p.  W4,  Rowle^-^ 
CMe. 


tff]  19  GEORGE  I. 

fkctioD,  but  tl  •DDther  time  and  place  lie  irniild 
be  reuily  lo  gire  it  to  him,  ind  in  the  mean  time 
dciiral  faim  to  be  more  civil,  or  to  leave  the 
csmpany :  tbereupon  Jobn  Mawgriilge  rose 
vp,  and  waa  goio^  out  of  the  ruom ;  bdiI  to  (;o- 
log,  did  (uililenly  suatcli  up  a  glasi  boille  lull 
oTwiDe  tUen  rtaiiding  upoo  the  table,  and  lio- 
Imtly  tlirew  it  at  him,  tlie  said  Mr.  Cope,  aiid 
therewith  ctrucL  him  upon  the  head,  and  im- 
mediately thereupon,  wiUiout  any  iDlermiiEi<»i, 
drew  his  ■word,  and  Ihriut  bim  into  the  led 

Ert  lit'  hit  breast,  orer  the  arm  of  one  Robert 
irtit),  nut»ith standi D[r  the  tudearour  Uied 
by  the  caiil  Martin  to  hiader  Uawgridse  firam 
killing  Mr.  Cope,  and  gave  Mr,  Cope  the 
wouod  in  the  iudiciment  meDtioned,  whereof 
beiniitantly  dieil.  Butthejnry  dofurtheraajr, 
tfaat  iuimcdialelv,  in  a  little  apace  of  time,  be- 
Iween  Mawgriii^e's  dniwiu<r  hii  anord,  and 
tiie  giving  tlie  mortal  wound  by  him,  Mr.  Cope 
did  ante  from  his  chair  where  he  sat,  and  took 
Mwther  bottle  that  then  atood  upon  the  table, 
and  ihrcw  ii  at  Slawgridge,  whicn  did  hit  and 
break  hit  head  ;  that  Mr.  Cope  bad  do  iword 
in  hit  haod  drawn  all  the  while;  and  that 
•(ter  Mawgridge  had  throirn  the  bottle,  Mr. 
Cope  tpake  not.  And  whctlier  Ihii  be  murder 
fir  mautlaugbter,  the  jury  pray  the  advice  of 
the  Court. 

A  day  being  appointed  fmr  the  retnlulion  of 
die  Court,  and  the  maralial  required  to  bring 
the  pritouer  to  the  bar,  returard  he  wai  e*- 
ctped  ;  which  being  recorded, the  Chief  Juttice 
(Holt)  gave  the  opinion  of  the  judgea  in  this 
manner ; 

Tbia  Record  being  remored  into  Ihii  Court, 
thecaae  haiii  been  argued  before  all  the  judge*; 
■nd  all  of  ut,  except  ray  lord  chief  juttit'e  Tn- 
-VOr,  arc  of  opiuiua  that  Mawgridge  it  guilty  of 
murder. 

Tliia  hath  been  a  cate  of  great  expectation. 

This  ditlinction  between  murder  and  man- 
■taujfhler  only,  is  occasiuDed  by  the  ttatate  of 
13  H .  7,  and  other  itatutet  that  took  away  the 
benefit  of  clergy  from  murder  committed  by 
mah'ce  prcpeuKd,  whiuh  tlatuiea  have  been  ttic 
DccatioD  ol  many  uire  tpeculatiops. 

The  word  "  murder"  i*  known  to  be  a  tern 
•r  a  deatriplion  of  boinicide  committed  in  the 
WOrat  manucr,  which  is  no  where  vied  but  in 
thit  itland,  tud  it  a  word  framed  by  our  Saxon 
•ncavtoraiu  ibereignof  Canutus  upun  a  pai  lieu- 
lar  occasion,  which  appears  by  an  uncontuited 
■nthorily,  Lamb.  HI.  In  the  laws  of  Edward 
the  Oonleatur :  "  Murdra  qiiidem  ioventa  fuC' 
>unt  in  diebus  Canuli  *  lUgit,  qui  pott  acqni- 


*  But  according  lo  lord  Fortescua;  "  Mnr- 
der  ii  a  Saxon  woni,  and  to  be  fbuud  in  several 
placea  in  the  aticienl  Haxoii  laws ;  and  it  of  a 
lery  aucieol  dale,  ptabably  at  old  ts  tbp  Haion 
tongue  itself,  which  it  alioul  600  yeart  older 
than  Canutut't  time.  We  frequently  in  Saxon 
aulhsra  find  the  worda  ■orttw-,  narthtr,  war- 
Mar,  vnilbsT  or  mvdar ;  Bud  tbafe  coma  from 
Ike  BDciaiil  Buon  ward  mertk ;   which  ligsi- 


3Via/  of  Major  Oiubif— 
aitam  Aogllam  et  pacificatam,  rofnto  I 
An',rliK:  TEmisit  in  Uaciam  exercilum 
Tbereupon  a  law  was  made.  That  ifai 
Itthman  ahould  kill  any  of  the  Danes  thi 
leli  behind,  jf  he  were  apprehended,  b 
be  bound  to  underijio  the  ordeal  trial 
himself;    and  if  the  murderer  were  n 

in  eight  davi,  and  alter  that  a  mii 
given,  ilien  if  be  could  nut  be  found, 
ihould  pay  46  marks,  which  if  not  abb 
it  ahonld  he  levied  upon  the  huiulied, 
ion,  130,  agrees  with  this  account. 

Tlioufih  this  law  cea*ed  upon  llie  ( 
of  tbe  Danes,  yet  William  the  Cooqt 
vived  it  for  the  aecnrity  of  hit  Normac 
peara  by  Ids  laws,  after  he  had  contira 
Edward  the  Coiifessor'B  laws.    And  I 

'  primo  regoi,  afterwards  by  hia 
appears  iu  tbe  addition  to  l.an)bc-rt)esl 
"That  if  a  man  be  found  slain,  he  a! 
taken  to  be  a  Freucliman,  if  it  was  ni 
tliat  he  waa  an  Englishoiui,  and  the 
waa  bound  to  euquire,  whether  Ibe  pet 
waa  an  EnglishmanoraFrcachman." 
inquisitions  were  taken  before  the  f:on 
returned  to  thejiittices  io  eyre,  and  if 
found  him  an  Englishman,  then  the 
waa  tn  be  discharged,  which  low  w: 
Englisbire,  and  the  justicea  in  eyre  \ 
bound  to  enquire  thereof,  until  the  stat 
E.  3,  which,  aa  it  is  mentioued  in  ii 
waa  abolished. 

Ilcrehy  a  mistake  npon  the  statute  < 
bridge  it  rectified,  which  it  cap.  36. 
drum  de  octero  non  adjudicatur  coran 
nriis,  ubi  per  infortunium  adjudicatun 
locuru  habeat  murdrum  de  ioterfect 
loniam  tanlum,  et  non  aliter."  This 
made  upon  a  supposition  that  he  tlmt  I 
person  alaiu  by  misfortune  should  ba 
but  only  to  explain,  or  rather  to  take  c 
gour  of  the  Canqiieror*t  law,  that  ilu 
should  not  be  couipelled  to  find  out  t 
slayer ;  or  if  he  were  found  out,  lie  ah 
undergo  the  penalty  of  that  law.  F< 
taw  ttood,  or  was  interpreted  before  i 
lute,  if  a  man  was  found  to  lie  slain,  it 
ways  inteuded,  1.  That  he  was  a  Ftc 
3.  That  he  was  killed  by  an  Eoxlishi 
That  killing  was  mutdtr.  4.  II' any 
apprehended  to  be  the  murdcnr,  be  i 
tried  by  fire  and  water,  though  he  ki 
liy  misfortune ;  which  was  exicndet 
raacon  and  jutticc  in  favour  of  the  M 


fie*  a  Tuilent  death,  or  sudden  destriic 
SDmelimes  significt  murder,in  the  prcs 
ofourcoinmoD  lawyers.  From  hem 
thf  barbarous  Idtin  term  wurJruM  | 
drum,  and  tba  vedjs  mordraiv,  nurd 
mordidrare  ;  which  arc  of  much  gre: 
quily  than  king  Canutut,  who  began 
but  m  lOlS.  Now  give  ne  leave  lo 
the  true  derivation  of  eur  word  m 
wb«^  I  Ihi^  maniftatly  cquuh  frooi 
morti  itn."  f onmow  iJaw'a  Pt«£ 
lUperti. 


MmKgridge^s  Cote* 

SMitttfi  frwkillfld  by  oiitforMM, 
bim  wai  not  m  danger  of  death, 
vai  DDt  M&tj,  For.  Mitb  Bncton 
e  Ibe  bltef  «ld  of  If .  S,)  fol.  1S6, 
Ufleib  a  man  by  mndbrtaDe,  nM  to 
fed."    5.  Iflheittalieraetor  was  not 

■  tbtf  csMRitTy  fi^aa  to  be  anicTMd, 
b  itatato  of  MaiMridffe,  if  it  was 
tf  dw  peraoB  alaiD  was  d  rreachitaaii, 
M 1^  mialbrloiip,  then  tho  onuntry 
I  be  amerced  if  the  mnnslayeir  was 
;  m  if  he  were  tafceti,  be  should  not 
his  ordeal  trial.  This  seems  to  be 
■sning  of  that  statata. 

Bsadly,  it  will  appcartoa  demonstra- 
kfbre  that  afatnte,  be  that  killed  an 

■  '  tier  infbrtaDinm '  was  never  in 
r  of  death  ;  for  tbb  slatme  of  Marie- 
s  made  59  R.  S.  The  statnte  of 
tarta  waa  consummate  9  fl.  S,  and 
IPS,  **  That  every  one  iwsprisoncd  ftit 
rf  a  maai,  and  riot  thereof  indicted, 
i|;ht  iHirsae  the  writ  DeOdio  et  Atia ; 
ns  roond  that  the  person  imprisoned 
I  *  se  defcndendo,'  or  *  per  infor- 
Btd  not  '  per  f^loniam,'  then  he  was 
i."  Wfaieb  shews  that  he  was  not 
sf  death  ;  for  if  he  had,  he  would  not 
let  to  bail, «  Inst.  42. 

1  bare  ^veo  a  true  aeconnt  of  the 
ke  word  M  order,  what  it  w«i  when 
e  time  of  Caniftbs)  a  Dane,  and  since 
a  the  Confjueror)  when  a  Frenchman 
I;  for,  as  it  was  then  sniiposed  in  the 
^snntns,  the  Kn<;1ishmen  hated  ihe 
•D  the  account  of  thrir  nation  thst 
iritbem,  and  would  u{K)n  all  orra- 
ktbeir  de^truriinn,  as  thr>y  did  of  a 
lUe  Dumber  of  them  in  the  time  of 
li Ike  Saxon  kin«r  ihnt  )trrrciled  Cai^n- 
veone;  so  tiie  (-oni|U«'ior  bad  the 
■i  to  suspect  the  safety  of  his  Nor- 

ads,  as  sppeara  hy  the  Confrssor's 
Bb.  141,  the  secret  or  iDKidious  killing 
m  as  well  as  a  foreigner  was  declared 
der.  Bracton,  ISO,  134,  155.  Mur- 
H  de6ffed,  *'  Est  occulta  homiiium 
m  et  fiotorum  occisio  matiu  hominuin 
frpetrata."  With  which  agrees  the 
books  of  Britton  and  Ffcta :  only  in 
brrigner  it  was  penal  to  the  country ; 
itive. 

niay  be  necessary  to  shew  what  was 
rstrKMl  by  Homicide  or  Manslanj^hter. 
'23,  mentions  the  worst  {tart  iif  it, 

vulantary  liomicide,  defined  in  this 
*  Si  quis  cx  cert  a  Rcientift  ct  in  a«isul- 
litato,  ira,  vol  odio,  vrl  causd  lucri, 
.  in  felonift,  ac  contra  pacem  Dominr 
lem  interfecpfit :"  if  one  knowinely, 
fomeditateil  a<)«aiili,  by  an^er  or  ha- 
'  hicre-sake,  should  kill  another,  this 
inted  maoslau^jrhter ;  if  it  be  done 
'  saith  Bracton,  it  is  ftmrder :  that 
e  difference  there  was  between  the 
s  otfaer: 


A.D.  1706. 


[69 


It  appearb,  that  sinee  that  of  Bracton  the  no* 
tioA  of  moider  is  much  altered,  and  coropre« 
bends  all  homicides,  whether  privately  or  pub* 
licly  committed,  if  done  by  nsalice  prepensed. 
With  this  airreea  Stam.  PI.  Cor.  18  b.  <<  At 
this  day  (saitb  he^  a  man  may  define  murder  in 
another  manner  ttian  it  ia  defined  by  Bracton^ 
Britton  and  Fleta :  If  any  one  of  malice  pre- 
pensed, doth  kill  another,  be  he  Enfflishman  or 
foreigner,  if  secretly  or  publicly,  tnat  is  mur- 
der: this  waa  the  definition  long  before  the 
making  of  the  slatntea  of  4  and  S3  H.  8,  and 
the  other  statntes  that  took  away  clergy."  To 
define  murder,  there  must  be  mafitidprsteogitatd^ 
as  also  murdravit :  so  that  if  an  indictment  ho 
thai  the  party  muiHlravitf  and  not  ex  malitU 
pracogitatA^  it  is  but  manslaughter,  Yel.  204. 
2  Cm.  98S.  1  Bid.  141,  Bradly  and  Banks.  So 
if  it  be  ejr  mnlUiS  pr^teogitaiAf  omitting  mar- 
drarity  it  is  but  manslaughter.  Dyer  S61.  PI. 
Sd->d04.  PI.  56.  Vide  Stat.  10  £.  S,  cap.  2. 
The  parliament  complained  that  mnrderers, 
&o.  Were  encooraged  to  offend,  because  nardona 
of  manstanghtefs  were  granted  ao  easily  ;  tha 
act  therefore  prohibits  the  ^nting  thereof. 
13  R.  9,  recites  the  same  mischief,  and  great 
damage  by  treasons,  mnrdera,  &c.  because  par^ 
dons  have  been  aasily  granted :  therefore  tha 
act  doth  provide,  *<  That  if  a  charter  for  tlia 
death  of  a  man  be  alleged  before  any  justice, 
in  which  charter  it  is  not  specified  that  he  of 
whose  death  any  such  is  arraigned  was  mur- 
dered or  slain  by  await,  assault  or  malice  pre* 
penscd,  it  shall  be  enquired,  whether  he  was 
murdered  or  slain  by  assault,  await,  or  malicd 
pre|)ensed ;  and  if  it  be  so  found,  the  charter  of 
pardon  shall  be  disallowed.'*  This  is  a  plain 
description  of  murder,  as  it  was  taken  to  he 
according  to  the  common  understanding  of 
men. 

Ever  since  the  killing  of  a  man  by  assault  of 
malice  prepensed  hath  been  allowed  to  he  mur- 
der, and  to  com  prebend  the  other  two  instances. 
Bnt  Ivecanse  that  way  of  killing  hy  poison  did 
not  come  under  the  ancient  definition  of  Brac-« 
ton,  (^c.  which  is  said  to  be  manu  hominumper* 
ptlrnta^  or  of  this  statute  of  13  R.  S.  There'* 
fore  by  the  statute  of  1  E.  6,  c.  13,  it  was  en- 
acted, *'  That  wilful  poisoning  of  any  person 
should  be  accounted  wilful  murder  of  malice 
prepensed." 

One  thing  more  is  fit  to  be  observed,  that  in 
all  indictments  for  murder  a  man  is  not  charged 
positively,  that  he  did  murder  the  person  slain, 
hnt  that  he  '  ex  malitift  prsBCOgital^.  in  ipsum 
'  inKultiim  fecit,  ac  cum  quoilam  gladio,'  he 
gave  him  a  wound  whereof  bed ie<l :  *  Et  sic  ex 
*  maliti^  pra:cogitatft  ipsum  murdravit,*  so  the 
mnrder  is  charged  upon  him  by  way  of  conclu- 
sion, and  as  a  consequence  from  the  antecedent 
matter  that  is  positively  alleged.  To  come 
close  to  a  state  of  the  present  qtiestion,  it  doth 
appear  that  Mawgridge  threw  the  bottle  at 
Mr.  Cope  without  any  provocation  given  to 
him  ;  for  the  diflercnce  was  betwren  him  and 
the  woman  that  was  there  in  com|tanv,  and  his 
bebaifiour  was  so  rude  and  dista^tcful'as  did  m* 


es] 


12  GE0B6E  I. 


duce  eaotain  Cope  to  desire  him  to  leave  the 
room,  wtiere  he  was  only  ajg^est  to  him,  and 
there  by  his  permission  ;  this  Cope  might  rea- 
sonably do,  which  could  be  no  cause  to  provoke 
Mawgridge  to  make  the  least  assault  upon 
him :  therefore  I  shall  maintain  these  three 
positions : 

1.  That  in  this  case  there  is  eamress  malice 
by  the  nature  and  manner  of  Mawgrid^e's 
throwing  the  bottle,  and  drawing  his  sword  im- 
mediately thereU])OD. 

S.  That  Mr.  Cope's  throwing  a  bottle  at 
Mawgridge,  whereby  he  was  hit  and  hurt 
before  he  gave  Mr.  Cope  the  mortal  wound, 
cannot  make  any  alteration  in  the  offence  by 
reducing  it  to  be  of  so  low  a  degree  as  man- 
slaughter. 

3.  1  shall  consider  what  is  such  a  provoca- 
tion, as  will  make  the  act  of  killing  to  be  but  a 
manslaughter  only. 

1.  Here  is  express  mah'ce,  that  appears  by 
the  nature  of  the  action.  Some  have  been  led 
into  a'roistake,  by  not  well  considering  what 
the  passion  of  malice  is  ;  they  have  construed 
it  to  be  a  rancour  of  mind  lodgetl  in  the  person 
kllliug,  for  some  considerable  time  before  the 
iM>mmission  of  the  fact,  which  is  a  mistake 
arising  from  the  not  well  distinguishing  be- 
tween hatred  and  malice.  Envy,  hatred,  and 
malice,  are  three  distinct  passions  of  the  mind. 

1st.  Envv  pro|)erly  is  a  repining,  or  being 
grieved  at  the  happiness  and  prosperity  of  an- 
other, *  Invidus  alterius  rebus  macrescit  opimis.' 

2dl3',  Hatred,  which  is  oc/ium,  is,  as  Tully 
•aith,  ira  inveterata^  a  rancour  fixed  and  settled 
in  the  mind  of  one  towards  another,  which  ad- 
mits of  several  deerees.  It  may  arrive  to  so 
high  a  degree,  and  may  carry  a  man  so  far  as 
to  wish  the  hurt  of  him,  though  not  to  perpe- 
trate it  himself. 

3(ily,  Malice  is  a  design  formed  of  doing 
miscliief  to  another;  'Cum  quis  dat&  opeiS 
'male  agit,'  he  that  designs  and  useth  the 
means  to  do  ill,  is  malicious,  2  Inst.  42.  Odium 
signifies  hatred,  atia  malice,  because  it  is  eager, 
aharp,  and  cruel.  He  that  doth  a  cruel  act  vo- 
luntarily, doth  it  of  malice  prepensed,  3  Inst.  62. 
By  the  statute  of  5  Hen.  4,  If  any  one  out  of 
malice  prepensed  shall  cut  out  the  tongue,  or  put 
out  the  eyes  of  another,  he  shall  incur  the  pain 
of  felony.  If  one  doth  such  a  mischief  on  a 
sudden,  that  is  malice  prepensed  ;  for,saith  mv 
hird  Coke,  **  If  it  be  voluntarily,  the  law  will 
imply  malice."  Therefore  when  a  man  shall, 
without  any  provocation,  stab  another  with  a 
dagger,  or  knock  out  his  brains  with  aliottle, 
this  is  express  malice,  for  he  designedly  and 
|iurposely  did  him  the  mischief.  This  is  such 
an  act  that  is  malicious  in  the  nature  of  the  act 
itself,  if  found  by  a  jury,  though  it  be  sudden, 
and  the  words  ex  malitH  pr^cogilatd  are  not  in 
the  verdict,  1  Cro.  131.  Ualloway's  case,  who 
was  woodward  of  Osterly-park,  in  Middlesex ; 
a  boy  came  there  to  cut  [steal]  wood,  whom  by 
obanoe  he  espying,  and  the  bov  being  upon  a 
tree,  he  immediately  calls  to  him  to  descend, 
whish  thf  boy  obeyingi  HaBoway  tiad  him  to 


Trial  of  Major  Xindf^-^ 

an  hone's  tail  with  a  oord  that  t] 
then  gave  him  two  blows,  the  hon 
and  brake  the  boy  *s  shoulder,  wher 
This  was  ruled  to  be  murder  by  ail 
and  barons,  except  justice  Huttoo 
doubted  thereof ;  and  that  was  a  si 
than  this  ;  for  there  was  some  kind 
tion  in  the  boy,  who  was  stealing  i 
the  park,  of  which  Halloway  hai 
and  it  cannot  be  reasonably  thouj 
designed  more  than  the  chastisemen 
and  the  horse  running  away  in  tl 
was  a  surprize  to  Halloway ;  yet  ii 
boy  did  not  resist  him,  his  tying 
horse's  tail  was  an  act  of  cruelty 
whereof  proving  so  fatal,  it  was  i 
be  malice  prefieused,  though  of  a  s 
in  the  heat  of  passion.  This  case 
in  Jones,  198.  Pal.  585.  And  t 
that  the  Court  could  determine  it  t 
prepensed  upon  the  special  ma 
Crompton  23.  Two  playing  at  ta 
in  their  same,  one  u|>on  a  suddc 
other  with  a  dagger :  this  was  held 
der  by  Bromley  at  Chester  assiz 
So  in  this  case,  if  the  bottle  bad  k\\\\ 
before  he  had  returned  the  bottle 
gridge,  that  would  have  been  mui 
all  manner  of  doubt. 

in  the  second  place,  I  come  uow 
whether  Mr.  Co|)e's  returning  a 
Mawgridge  before  he  gave  him 
wound  with  the  sword,  shall  have  i 
of  influence  upon  the  case :  I  hold 
Because  Mawgridge  bj^  his  throwii 
had  manifested  a  malicious  design, 
his  sword  was  drawn  immediatel; 
the  mischief  which  the  bottle  roigi 
of.  Thirdly,  The  throwing  the  ho 
tain  Cope  was  justifiable  and  It 
though  he  had  wounded  Mawgridg 
have  Justified  it  in  an  action  of 
battery,  and  therefore  cannot  be  ar 
tion  to  Mawgridge  to  stab  him  will 
That  the  throwing  the  bottle  is  a  de 
of  malice  is  not  to  be  controverted ; 
that  violent  act  he  had  killed  Mr.  C 
been  murder.  Now  it  hath  been  i 
A  of  his  owuialice  prepensed  asi 
kill  him,  an^B  draws  his  sword  i 
A  and  pursues  hun,  then  A  for  his 
gives  back,  and  retreats  to  a  wall,  B 
ing  him  with  his  drawn  sword,  A 
fence  kills  B.  This  is  murder  in 
having  malice  against  B,  and  in 
thereof  endeavouring  to  kill  him,  is 
for  all  the  consequences,  of  which 
original  cause.*  It  is  not  reasoni 
man  that  is  dangerously  assaulted, 
he  perceives  his  life  in  danger  from 
sary,  but  to  have  liberty  for  the  sec 
own  life,  to  pursue  him  that  mal 
saulted  him ;  for  "  he  that  hath 
that  he  hath  malice  against  anoth< 
to  be  trusted  with  a  (hmgerous  wc 

*  8ec  East's  Picas  of  tha  Ciowi 


Mmogridge*$  CoMe, 

bit.  ^8.  Bak  49.  And  wo  molted 
indgn,  18  Car.  9,  when  they  met  in 
ni,  in  |ireparation  for  my  lord  Mor- 
.  I>alt.  979.  If  A  of  malice  pre- 
Nharpe  a  |iwtol  at  B,  and  then  riina 
maea  him,  and  A  tanw  back,  and  in 
dfeoce  kills  B,  it  ia  murder.  Tliis  I 
ffDod  lair ;  for  A  had  a  maliciniiB  in* 
tf  B,  and  hit  retreat  after  he  had  dis- 
■  ^d1  at  B,  waa  not  becaose  he  re- 
I  for  his  own  aafety. 
tdnri,  there  are  mutual  passes  made 
bt  comhaunta,  yet  if  there  be  oricnnal 
m»  tlie  parties,  it  b  not  the  iiiter- 
'Uons  will  make  an  alteration,  or  be 
ilion  cf  the  offence  of  killing.  There- 
in if  Maw|^idge  had  thrown  the  bottle 
fi^  and  Mr.  Cope  bad  returned  ano- 

him,  and  kit  nim,  and  thereupon 
^  had  drawn  his  sword  ami  killed 

ft  would  have  been  murder.  Some 
hat  tliere  is  a  diflerence  betwocn  the 

-  that  the  assault  by  the  pistol,  and 
fa  dud  was  express  malice,  but  this 
lUce  implied.  Surelj  there  is  no  dif- 
sr  malice  implied  is  prepensed,  as 
F  there  had  been  a  proof  of  malice,  or 

-  some  considerable  time  before  the 
be  stroke  gif  en,  or  an  attempt  made 
implied,  is  as  dangerous  as  a  stroke 
a  malice  expressed,  therefore  may  be 
y  resiMed.  Thia  very  point  was  also 
i  by  the  twelve  judges  at  Serjeants'- 
hy  them  resolved  to  l>e  murder  upon 
BB  ot  my  lord  Morley 's  Case.  When 
Kieks  another  with  a  dani^^erons  wea- 
mt  any  provocation,  that  is  express 
"W  the  nature  of  the  act,  which  is 
Fk  flefinition  of  mulice  implied  is 
svx  expreaa  in  the  nature  of  the  act ; 
ranan  kills  an  officer  that  had  autho- 
»irrest  hin  iierwn  ;  the  person  v»ho 
is  defence  of  himself  from  the  nrrest, 

fe  Foster,  in  his  Reports,  p.  5rr4-5, 
Uwir ridge's  Case,  "  lie,  upon  words 
letween  him  and  Mr.  Cope,  threw  a 
]  great  violence  at  the  head  of  Mr. 
i  immediatf  ly  drew  his  sword,  Mr. 
nied  the  bottle  with  equal  violence ; 
th  lord  Holt,  lawful  and  jusiitiable  in 
so  to  do:  for,  as  he  ari^ueSh  a  little 
:,  He  that  hath  shewn  that  he  hath 
linst  another,  i«)  not  fit  to  lie  trusted 
ij^eroiis  weapon  iu  his  hand." — I'pon 
!  jud^e  observes,  '*  It  was  upon  this 

presume  (and  possibly ,  too,  u|>on  the 
ou  p.  touch ini;  the  arrest  of  a  person 
pTcn  a  dangerous  wound),  that  the 

in  that  ca«e  of  the  marquis  De 
irho  stab?>e«l  Mr.  Marley  sitting  in 
•  Annec3p.  16,)  di^chnr«^e<l  the  party 
oppoMfd  lo  have  <;ivtrn  hini  the  mor- 

iVom  all  nmiinf^r  of  pmsecntion  on 
at;  and  dechrcd  the  kiliin;^  to  be  a 
I  necessary  action/'     Forruer  Edi- 


A.  D.  1706. 


f66 


is  gailty  of  murder,  because  the  malice  is  im- 

{died,  for  properly  and  naturally  it  was  not  ma- 
ice,  for  his  design  was  only  to  defend  hirovelf 


lesign 
from  the  arrest 


S.  I  come  now  to  the  thinl  matter  proposed, 
which  is,  to  consider  what  is  in  law  such  a  pro- 
vocation to  a  man  to  commit  an  act  of  violence 
upon  another,  whereby  he  shall  drprive  him  of 
his  life,  so  as  to  extenuate  the  fact,  and  make  it 
to  he  a  manslauQfhier  only.  First,  Negatively^ 
what  is  not.  Secondly ,  Positively,  what  is. 
First,  No  wonls  of  reproach  or  infamy  are  suf- 
ficient to  provoke  another  to  such  a  degree  of 
anger  as  to  strike,  or  assault  the  provoking 
party  with  a  sword,  or  to  throw  a  bottle  at  him» 
or  strike  him  with  any  other  weapon  that  may 
kill  him;  but  if  the  person  provoking  h% 
thereby  killed,  it  is  murder. 

Jn  the  assembly  of  the  judges,  18  Car.  9^ 
this  was  a  |ioiut  positively  resolved. 

Therefore  I  am  of  opinion,  that  if  two  are  io 
company  tog;pthcr,  and  one  shall  give  the  other 
contumelious  language  (as  sup|>osc  A  and  D), 
A  that  was  so  provokeil  draws  his  sword,  and 
makes  a  pass  at  B,  (B  then  having  no  weapon 
drawn)  but  misses  him.  Thereupon  B  draws 
his  sword,  and  jmsses  at  A.  And  there  beinr 
an  interchange  of  passes  between  them,  A  kilb 
B,  J  hold  tliisto  be  murder  in  .4,  for  A'spassat 
B  was  malicious,  and  what  B  aAemt'arda  did 
was  lawful.  But  if  A  who  had  been  so  pro* 
voked,  draws  his  sword,  and  then  before  he 
passes,  B's  sword  is  drawn  ;  or  A  bids  him 
draw,  and  B  thereupon  drawing,  there  haf»pen 
to  l>e  mutual  passes :  if  A  kills  B,  this  wdl  be 
but  manslaughter,  because  it  was  sudden  ;  and 
A's  design  was  hot  so  absolutely  to  destroy  B, 
hut  to  combat  with  him,  whereby  he  run  the 
hazard  of  his  own  life  at  the  same  time.  But 
if  time  was  appointed  to  fight  (suppose  the  noxt 
day),  and  accordingly  they  do  ivjjit,  it  is  inur- 
der  in  him  that  kills  the  other.  But  if  thry  go 
into  the  field  immediately  and  fight,  then  but 
manslaughter.  Muppose  u|)on  provoking  Ian* 
guago  given  by  li  to  A,  A  gives  R  a  Im>x  on  the 
ear,  or  a  little  blow  with  a  stick,  which  hap-^ 
pens  to  be  so  unlucky  that  it  kills  B,  who 
might  have  some  imposthunoe  in  his  head,  or 
other  ailment  which  proves  the  cause  of  B's 
death,  this  blow,  though  not  justifiable  by  law, 
but  is  a  wrong,  yet  it  may  be  hut  manslaughter, 
because  it  doth  not  appear  that  he  designed 
snch  a  mischief. 

Secondly,  As  no  words  arc  a  provocation,  ao 
no  affronting  gesturt»s  are  KufK<:i<*iit,  th'^u^h 
never  so  reproachful;  which  p«i»i  "a*  *^- 
judgttl,  8  Cro.  7/9,  Wats  and  Biniui,  in  aL  ap  ■ 
peal  of  munler. 

There  having  been  aqnarnl  lMtwe.n  A  i^id 
B,  and  B  was  hurt  in  tlm  fr.i>  i  »>»!  about  i»p 
davs  after  B  came  and  iimmI.  .»  «•>  iii«»ni-  u 
A,' who  thereupon  striirk  hu"  "I""  "'*  ^  '  *^ 
the  leg,  of  which  he  iti«i..i.ilv  «»i«d  It  "t^ 
murder  in  A,  for  tin- nllM.iiin.^i  hini  in  ■  ■ 
manner  was  not  any  pinvm  ttii«Mi  to  A,  :; 

that  violence  to  B :  .  ■  l  t 

There  bath  bsen  aii'»thi-»  •■*■«.  whict  i 

F 


.1^^- 


«7] 


IS  GEORGE  I. 


halli  been  the  occasion  of  some  mistake  in  the 
dcHriiiion  of  qupstious  of  this  kind,  Jones  433, 
D.  ^Villiams's  Case,  he  being  a  Welshman, 
upon  St.  David's  day  hayin^r  a  leek  in  his  hat, 
m  certiiin  |»cr8on  pointed  to  a  Jack  of  Lent  that 
huoj^  lip  Iianl  l>y,  &ud  said  to  him,  Look  apon 
\oiir  countryman  ;  at  vihich  D.  Williams  was 
much  enras^ed,  and  took  a  hammer  that  lay 
upon  a  stall  hard  liy,  and  flung^  at  him,  which 
missed  him,  but  hit  another  and  killed  him : 
he  i%as  indicted  upon  the  statute  of  stalibing'. 
Resolved,  He  was  not  within  that  statute,  but 
guilty  of  muuklauufhter  at  common  law.  1 
concur  with  that  jodijrment,  that  it  is  not  within 
the  statute  of  stabbi  »(,>-,  for  it  is  not  such  a 
weapon,  or  act  that  is  within  that  statute,  nei- 
ther could  he  be  found  guilty  of  murder,  but 
only  «)f  manslaughter,  for  tlie  indictment  was 
for  no  more.  But  if  the  indictment  had  been 
for  murder,  I  do  think  that  the  Welshman 
ought  to  huve  hren  convicted  thereof,  for  the 
provocation  did  not  amount  to  that  degree,  as 
to  excite  him  designedly  to  destroy  the  person 
that  ga?e  it  him. 

Thirdly,  If  one  man  be  trespassing'  upon 
another,  breaking  his  hedges,  or  the  like,  and 
the  owner,  or  his  servant,  shall  upon  sight 
thereof  take  up  an  hedge-stake,  and  knock  him 
on  the  head;  that  wdl  l»e  murder,  because  it 
was  a  f  iuleot  act  beyond  the  proportion  of  the 
provocation,  which  is  sufficiently  justified  by 
llallowa^  's  Case,  who  did  not  seem  to  intend 
so  much  the  destruction  uf  the  young  man  that 
stole  the  ivood,  as  that  ho  should  endeavour  to 
break  his  skull  or  knock  out  his  brains,  yet 
using  that  violent  and  dangerous  action  of  eying 
him  to  the  horse's  tail,  rendered  him  guilty  of 
murder. 

If  a  man  shall  see  another  stealing  his  wood, 
he  cannot  justify  beating  him,  unless  it  be  to 
hinder  from  stealing  any  more ;  (that  is)  that 
notwithstanding  be  ne  forbid  to  take  any,  doth 
proceed  to  take  more,  and  will  not  part  with 
that  which  he  had  taken.  But  if  he  desists,  and 
the  owner  or  woodward  pursues  him  to  bea. 
him  so  as  to  kill  him,  it  is  murder. 

If  a  man  goes  violently  to  take  another  man's 
goods,  he  may  lieat  him  off  to  rescue  hit  gtKMls, 
9  £:  4,  :281,  b.  19  Hen.  6,  31.  But  if  a  man 
hath  done  a  trespass,  and  is  not  continuing  in 
it ;  and  he  that  hath  received  the  iniury  shall 
thereupon  beat  him  to  a  degree  of  killui^,  it  is 
murder,  for  it  is  apparent  malice;  for  m  that 
case  he  ought  not  to  strike  him,  but  is  a  tres- 
passer for  so  doing. 

Fourthly,  If  a  parent  or  a  master  be  provoked 
to  a  degree  of  pusion  by  some  miscarriage  of 
the  child  or  servant,  and  the  parent  or  master 
shall  proceed  to  oorrect  the  child  or  servant 
with  a  moderate  weapon,  and  shall  by  chance 
give  him  an  unlucky  stroke,  so  as  to  kill  him ; 
that  is  but  a  min^enture.  But  if  the  parent 
or  roaster  shall  use  an  improper  instrument  in 
the  GorrcGtioo ;  then  if  be  kills  the  ehild  or  tlie 
servant,  it  is  murder :  and  so  was  it  resolved 
by  all  the  judges  of  the  King's- bench,  with  the 
eoBoorrMoeofthe  JonI   "      "^'"  ""'' 


Trial  of  Major  Oneb^^ 

in  a  special  verdict  in  one  Grays'  Case,  lc= 

at  the  QUI  Bailey,  10th  October  18  Car.  8, 
removed  into  this  court,  Kelyng,  p.  64.  (ZI 
being  a  smithy  B  was  his  servant ;  he  c^ 
manded  B  his  servant  to  mend  certain 
belonging  to  his  trade ;  afterwards  he 
servant  being  at  work  at  the  anvil,  €hray 
his  servant  whether  he  had  mended  the 
as  he  had  directed  him.  But  B  the 
having  neglected  his  duty  acknowledged 
his  master ;  upon  which  tue  master  wt 
and  tohl  him  if  he  would  not  serve  hi 
should  serve  at  Bridewell;  to  which  the 
vant  replied,  That  he  had  as  gooil  serve  in 
well  as  serve  the  said  Gray ;  whereupon 
said  Gray  took  the  iron-bar  upon  which 
his  servant  wns  workint*',  and  struck  his 
with  it  upon  the  skull,  and  thereby  b^- 
his  skull,  of  wliich  the  servant  died.  '"T 
was  held  to  lie  inunler;  yet  here  was  a  ^ 
vocation  on  a  sudden,  as  huddeu  a  resentos 
and  as  speedy  putting  it  in  execution; 
thou(;li  he  might  conect  his  servant  X 
tor  his  neglect  and  unmunncrliness,  yet  exec 
ing  measure  therein,  it  is  malicious.  £▼« 
one  must  perceive  that  this  last  is  a  &troii| 
case  than  this  at  bar. 

First,  Gray  was  working  honestly  and  fair 
at  his  trade,  and  justly  calling  to  Lis  serrai 
Un-  an  account  of  his  business :  this  miFcreii 
was  in  the  actual  violation  of  all  the  rulni 
hospitelity. 

Secondly,  Gray*s  action  was  right  as  to  th 
striking  his  servant  by  way  uf  correction ;  kl 
the  error  was  in  tiie  degree  being  too  vioM 
and  with  an  improper  weapon.  This  uf  Mas 
gridge  was  with  u  resolution  to  do  mischief. 

Thinlly,  lie  liiul  not  the  least  provocatii 
from  Mr!  Cope,  until  after  be  had  made  tl 
first  and  daugenius  assault,  and  theu  nurwi 
it  with  thie  di-awing  his  sword  to  second  it,  b 
fore  Air.  Cojie  returned  the  other  bottle.  B 
Gray  had  a  provocation  hy  the  disappointmi 
his  servant  gave  him  in  neglecting  his  busiuM 
and  returning  a  saucy  ausiier. 

The  like  in  obstinate  and  perverse  cbildre 
tliey  are  a  great  giief  to  jmrents,  and  wb 
found  in  ill  actions,  are  a  great  provocatio 
But  if  upon  such  provocation  the  parent  thi 
exceed  the  degree  of  moderation,  and  tberal 
in  chastising  kill  the  chikl,  it  will  be  raunk 
As  if  a  cndgei  in  the  correction  that  ii  used  I 
ofa  large  size,  or  if  a  child  be  thrown  dov 
and  stamped  upon ;  so  said  the  lord  Bridgm; 
and  justice  Twisden,  and  that  they  ruled  it 
in  their  several  circuits. 

5.  If  a  man  upon  a  sudden  disappointOM 
by  another  shall  resort  violently  to  thatoth 
man's  bouse  to  expostulate  with  him,  and  wi 
his  sword  shall  endeavour  to  force  his  entraoc 
to  compel  that  other  to  perform  his  promise, 
otherwise  to  comply  with  his  desire ;  and  tl 
owner  shall  set  himself  in  opjiosition  to  hii 
and  be  shal)  pass  at  him,  and  kill  the  owner 
the  bouse,  it  is  murder,  U  Roll.  Hep.  40 
Clenent  agtinal  air  Charles  Blanl,  in  an  a 
peal  of  mordcr.    The  case  wai|  that  Cleme 


] 


Matogrid^e^s  Case, 

pnniKd  a  do^  to  xir  Charles  Blunt ;  and 
n^miH  leconliii^ly  to  deliver  liitn,  re- 
nd bni  die  dnpr  home  to  his  house :   at 
■rCbiriesBhint  fetched  his  s\7ord,  aud 
ti  CleowDt's  house  i'nr  the  dog.    Clement 
It  the  door,  and  resisted  his  eatry.   Blunt 
fcilli  Clement.      The  jury    were 
nd  fboDd  this  fart  in  sir  Charles 
II  be  bot  manslaughter.     Doddrid^^ 
«M4|>fjroroplDion  it  %vas  murder.    But  the 
"  ^  intioe  was  a  little  tender  in  his  di- 
litM  jory.    But  Holls  makes  this  re- 
Ifeilitwu  not  insisted  u;ion  by  the  a p- 
■■■AooodkI,  that  Clement  was  in  the  de- 
mm  tf  bit  bouse,  and  that  Blunt  atucked 
ttllNtein:  it  was  without  all  qnes- 
■■dcfithoo^h  of  a  sudden  heat,  for  there 
MSMBoh  made  by  Clement  upon  him  nor 
lyof  bii  friends,  but  all  the  violence  aud 
ni€p  sir  Charles  Blunt*s  side. 
tbng  Id  tbeae  particulars  shewn  what  u 
I  a  BTOfoeation  sufficient  to  alleviate  the 
^al^ng,  ao  as  to  reduce  it  to  be  but  a  bare 
'nde.  I  viJI  now,  secondly,  ^ve  some  par- 
rdtij  aucb  as  are  supported  by  autho- 
Wf  aad  general  consent,  aud  shew  what  are 
imailoired  to  be  sufficient  provocations. 

fat,  If  one  man  upon  an^ry  words  shall 

■bsBasaanlt  upon  another,  either  by  pulling 

iB^tbeiiose,  or  tillipius;  upon  the  forehead, 

■tfW  that  is  so  assaulteil  frhall  draw  bis  sword, 

■'iMDediately  run  the  other  through,  that  is 

!■  ■aasiaoi^ter ;  for  the  peace  is  broken  by 

iifOMMi  killed,  and  with  an  indignity  to  him 

itt  laerired  the  assault.    Besides,  he  that  was 

■  Aotted  might  reasonably  apprehend,  that 

bilkat  treated  him  in  that  manner  might  have 

iMifvthfr  design  upon  him. 

Tmk  ii  a  case  in  Stiles,  4G7,  Buckner's 
flat  Buckner  was  indebted,  aud  B  and  C 
■■r  to  bis  chamber  upon  the  account  of  his 
■vitBria  demand  the  money,  B  took  a  sword 
ktt  kaag  up,  and  was  in  the  scabbani,  and 
iMiattbe  door  with  it  in  his  hand  undrawn, 
I  krtp  the  debtor  in  until  they  could  send  for 
ftadiff  to  arrest  him ;  thereupon  the  debtor 
nk  oat  a  dagger  which  he  had  in  his  pocket 
id  Blabbed  B.  This  was  a  special  verdict, 
id  atfjudged  only  manslaughter,  for  the  debtor 
■a  iokulted,  and  imprisoned  injuriously  with- 
M  any  process  of  law,  and  though  witliin  the 
ardsot'the  statute  of  stabbing,  yet  not  within 
c  reason  of  it. 

fettoondlyy  If  a  man's  friend  he  assaulted  by 
oChfT,  or  engaged  in  a  quarrel  that  comes 
bhiws,  and  he,  in  the  vindication  of  his 
Old,  shall  oo  a  sudden  take  up  a  mischievous 
■rament  and  kill  his  friend^s  adversary,  that 
bat  nn«DsUught«r :  so  was  the  case,  12  Rep. 
[.  If  two  be  fighting  together,  and  a  friend 
[ike  one  takes  up  a  bowl  on  a  sudden,  and 
ik  it  breaks  the  skull  of  his  friend's  adver- 
ry,  ef  which  be  died,  that  is  no  more  than 
BHhO|{bler.  80  it  is,  if  two  be  tighting  a 
■I,  Ihougb  upon  malice  prepensed  ;  and  one 
■M  and  takes  part  with  him,  that  he  thinks 
■f  kite  tbe  dindTaiUage  in  the  combat,  or  it 


A.  D.  1706. 


[70 

I  may  be  that  he  is  most  affected  to,  not  know- 
ing of  tlie  malice,  that  is  but  manslaughter,  PI. 
Com.  101,  John  Vaughan  and  Salisbury. 

Thirdly,  If  a  man  perceives  another  by  force 
to  be  injuriously  treated,  pressed,  and  restrain- 
ed of  his  liberty,  though  the  person  abnsed  doth 
nol  complain,  or  call  tor  aid  or  assistance ;  and 
others  out  of  compassion  shall  come  to  his 
rescue,  and  kill  any  of  those  that  shall  so  re- 
strain him,  that  is  manslaughter,  18  Car.  2, 
adjudged  in  this  Court  upon  a  special  verdict 
found  at  the  Old -Bailey,  in  the  case  of  one 
Hugett,  18  Car.  2,  Kelyng,  p.  59.  A  and 
otbors  in  tbe  time  of  the  Dutch  war  without 
any  warrant  impressed  B  to  serve  the  king  at 
sea ;  B  quietly  submitted  and  went  off  with 
the  press- masters ;  H^igett  and  the  otliers 
pursued  them  and  required  a  sight  of  their 
warrant ;  but  they  shewed  a  piece  of  paper, 
that  was  not  a  sufficient  warrant :  thereupon 
Hugett  with  the  others  drew  their  sword j,  and 
the  press-masters  theirs,  and  so  there  was  a 
combat,  and  those  who  endeavoured  to  rescue 
the  pressed  man  killed  one  of  the  pretended 
press-tuasters.  This  was  but  manslaughter ; 
for  when  the  liberty  of  one  subject  is  invaded, 
it  affects  all  the  rest :  it  is  a  t>rovocation  to  all 
people,  as  being  of  ill  example  and  pernicious 
consequeuce.  All  the  judges  of  the  King's- 
bench,  viz.  Kelynge,  Twisi^en,  Wyndhaiu  und 
Moreton  were  of  opinion,  that  it  was  murder, 
because  be  meddled  in  a  matter  in  which  he 
was  not  concerned  :  but  the  other  eight  judges 
of  the  other  courts  conceived  it  only  man- 
slaughter, to  which  the  judges  of  the  Iviug's- 
bench  did  conform,  and  gave  judgment  accord- 
ingly. 

Fourthly,  When  a  man  is  taken  in  adultery 
with  another  man's  wife,  if  the  husband  shall 
stab  the  adulterer,  or  knock  out  hJH  brains, 
this  is  bare  inunsluuglit(*r  ;  lor  j(  alousy  is  the 
rage  of  a  man,  and  adultery  is  the  hii^hest  in- 
vasion of  property^,  1  Vent.  168.  Baymond 
213,  I^lanning's  Case. 

If  a  thief  comes  to  rob  another,  it  is  lawful  to 
kill  him.  Aud  if  a  man  comes  to  rob  a  man's 
posterity  and  his  ftimily,  yet  to  kill  him  is 
manslaughter  ;  so  is  the  law,  though  it  may 
seem  hard,  that  the  killing  in  the  one  case 
should  not  he  as  justifiable  as  the  other.  Lev. 
XX,  ver.  10.  **  If  one  coininitteth  aduhi^ry 
with  his  neighbour's  wife,  <'ven  he  the  adul- 
terer and  the  adulteress  shall  be  put  to  death." 
So  that  u  man  cannot  receive  a  higher  provo- 
cation. But  this  case  bears  no  proportion 
with  those  caMos  that  have  been  adjudged  to  be 
only  uianslausfhter,  and  thrrefore  the  Court 
being  so  advised  doth  determine  that  Maw- 
gridge  is  guilty  of  murder.  Mure  might  be 
said  upon  this  occasion  ;  yet  this  may  ut  pre- 

*  in  such  a  case  the  Court  of  Justiciary  in 
Scotland  admitted  the  wife  of  a  piuiuel  upon 
his  trial  for  nuirder  to  give  evidence  that  the 
pannel  discovered  the  deceased  in  the  act  of 
ndnltery  with  her.  See  Christie's  Case. 
ai'Uurin  N**  92. 


71]  12  GEORGE  L 

sent  safBee  to  Mt  the  matter  now  ia  question 
in  its  true  lii^bt,  to  shew  how  necessary  it 
is  to  ap|>ly  the  law  to  exterminate  such  noxi- 
ous creatures. 

Upon  this  confiction  the  Court  did  direct 
that  process  should  be  issued  against  Maw- 
gridge,  and  so  to  pnicecd  to  outlawry  if  he 
cannot  be  retaken  in  the  mean  time.  * 

The  case  was,  VIr.  Cope  (a  young^  branch 
of  tlie  Co[ics  of  Rrains«*l,  in  Hampshire,  harts.) 
havini;  i^ot  a  lieutenant's  c«)mmiss:on  ;in  the 
guards,  invited  some  officers  and  other  geutle- 
men  iodine  with  him  at  thu  Dolphin  tavern  in 
Tower  Kire«ft,  June  17, 1706i  in  order  to  wet 
bis  commission ;  one  of  the  gentlemen  t«K>k 
Ma^reridge  aloiiif  with  him,  telling  him  he 
would  be  as  welcome  to  Mr.  Cope  us  any  of 
the  company ;  upcm  that  he  went,  and  after 
dinner  wa«  over,  and  paid  for  by  Mr.  Cope, 
they  all  staid  a  while  longer,  and  hud  more 
wine  brouifht  in,  and  paid  half  a-cro«vn  each 
for  their  club ;  then  they  broke  up,  ami  most 
of  them  went  away ;  but  Mr.  Mawgiidge  and 
the  rest  being  invited  by  Mr.  Copt:  to  the  cuard- 
room  in  the  Tower,  went  with  him,  and  callrd 
for  wine.  Two  bottles  were  accordingly 
brought ;  and  as  they  were  dnnking,  a  coach 
came  to  i\\q  guard- room  door  with  a  woman 
in  it  (of  no  very  mudest  behaviour),  and  asked 
for  capt.  Cope  ;  whereupon  he  and  Mawgridge 
went  to  the  coach  door,  and  brought  her  into 
the  guard-room  ;  where  havinje  been  a*while, 
she  cried,  Who  shall  pay  ror  my  coach  ? 
Upon  this  Mr.  Mawgridge  said,  I  will,  and  so 
discharge<l  the  coach ;  then  he  offered  to  salute 
her,  but  she  ^rejected  him,  and  gave  him  ill 
words ;  to  which  he  made  returns  of  the  like 
kind  ;  on  which  lieut.  Coiic  took  the  woman's 
part;  and  then  Mawgridge  demanded  satis- 
laction  of  Mr.  Cope,  in  order  to  iirovoke  him 
to  tight,  &c.  iko,  and  killed  Air.  Cope.  Upon 
tliis  Mawgridge  was  tried  at  the  Old -Bailey  in 
July  170(3,  for  the  murder,  and  a  special  ver- 
dict found,  wherein  ail  the  particulars  are  re- 
lated, as  before- mentioned: — But  before  the 
arguing  the  special  renlict,  he  ma<le  his  escape 
out  of  the  Marshalsea,  where  he  was  confined  ; 
and  that  night  went  to  his  father,  major  Maw- 
gridge, who  with  his  wife  (Mawgridge's 
mother-in-law)  washed  and  rnbbed  him  all 
over  with  green  walnut  shucks  and  walnut 
Hquor  to  disguise  him,  and  then  all  three  set 
out  in  the  night,  and  walked  above  30  miles 
into  Essex,  where  the  father  gave  100  guineas 
lo  a  master  of  a  Tessel,  near  Colchester,  to 
carry  him  safe  to  Holland,  which  he  did ;  there 
be  was  concealed  above  a  year  and  half;  for 
though  he  was  a  very  hanusome  man,  he  was 
80  disfigured  scarce  any  oue  knew  him;  he 
spoke  French  and  Spanish  generally  and  mighty 
well ;  but  at  last  lieing  at  a  tavern  in  Ghent  in 
Flaudera,  and  a  little  too  merry,  he  spoke  Eng- 


Trial  of  Major  Oneby^  tfc» 


[ 


lish  so  fluently,  and  by  some  expressions 
dropi,  became  suRpected,  seized  (a  large  : 
ward  having  been  offered  for  apprebendi 
him),  and  on  examination  found  to  be  the  m 
who  killed  Mr.  Cope,  was  brought  over 
England  in  March  1707-8,  and  being  brou| 
to  the  King's- liench  bar,  received  sentence 
death,  and  was  executed  at  Tvbum,  on  \V< 
nesday,  April  SB,  1708,  with  William  Gre| 
for  high-treason.*  The  ordinary  says,  Ma 
crriilge  went  in  a  coach  with  him  (and  Gregu 
a  Klt^ge)  to  Tyburn;  ''  That  he  submit 
ivillini;ly  to  his  sentence,  owning  the  justici 
it,  though  he  declared  he  had  no  premediti 
malice  uGrainst  the  gentleman  he  so  uof 
tunately  killed.  He  said,  he  heartily  repen 
of  it,  anil  praved  that  Goii  would  wash  away  i 
stain,  and  deliver  him  from  the  guilt  of  tl 
blood  which  he  had  so  shed.  He  owned  t! 
he  had  been  a  very  great  sinner,  but  was  m 
that  he  had  any  ways  offended  God  and  m 
and  begged  pardou  of  both.  That  he  boj 
God  M'Ould  siiew  him  mt^rcy  in  another  wo 
{>ecanse  he  was  always  giieving  for  his  si 
and  particularly  for  this,  ever  since  he  I 
made  his  escape ;  and  though  he  had  no 
prehension  of  lieing  brought  lo  condeuinal 
here  for  it,  it  was  still  continually  liefore  h 
and  the  remembrance  of  it  was  painful  to  b 
He  made  strong  resolutions  to  live  i»therw 
and  was  always  prayin:;  to  God  to  pardon  h 
and  to  keep  him  for  the  future,  tie  ackn< 
lodged  the  justice  of  God  had  overtaken  h 
and  would  not  suffer  him  to  live  long 
punished  for  tliis  heinous  crime:  He  decli 
his  being  in  charity  w  ith  all  the  world,  e 
with  those  who  had  brought  him  to  this 
puniiihment,  and  prayed  for  the  conversion 
all  wicked  persons,  desiring  they  would  t 
wanting  by  him.  He  told  me,  he  was  ak 
40  years  of  age,  boni  at  Canterbury  oi  g 
parents,  and  brought  up  in  the  Church  of  E 
land;  that  b(»tli  his  father  and  ancefst«>rH 
had  the  honour  to  serve  the  crown  for  aiNive 
vears  as  drum- major;  and  that  he  him 
had  received  a  very  good  educatiiNi, 
brought  up  genteelly,  though  he  was  lor  a  c 
siderable  time  kettle-drummer  to  the  first  ti 
of  guards,  and  was  a  going  with  a  commisi 
into  the  army  when  this  melancholy  acci< 
happened." — Major  Mawgridge,  on  hi«  s< 
execotion,  which  hail  no  great  an  effect  on  I 
could  not  be  prevailed  on  either  to  eat  or  di 
for  three  nights  and  three  days,  and  n 
about  like  a  madman ;  he  afterwards  beha 
at  times  like  one  distracted,  drawing  his  8w< 
and  threatning  to  munier  his  wife,  obliging 
to  kneel  down  for  him  to  stab  her.  Sec.  and  1 
relenting.  In  short,  he  was  never  afW.r  eaa 
in  his  right  senses ;  movipg  about  from  plac 
place,  though  he  lived  to  near  80  years  of  < 


*  fieo  bit  CMe»  tqI.  U,  p.  1971. 


m 


Trkl  tfJamt  Carttq^ 


A.  D.  1738. 


C74 


4^.  TIk  Trial  of  Jaues  Caknegie,  of  Finhaven,  before  the  Court 
of  Justiciary  (in  Scotland),  held  at  Edinburgh,  July  35,  for 
the  Murder  of  Charles  Earl  of  Strathmore:  2  Gkouce  II. 
AD.  17S8. 

Cob  Jwmiim,  S. O.  N.  Bwi*  Irnta in  no- 
mtammim  Doom  Burgi  de  Eilinburgl) 
MMaaialoDM  Henui  Jnlii,  HtJIerimi 


t^lmmmtmnam  ngaitoo  ocuto,  per  ho- 
mmA»  TirM  AUaniuai  Cockburne  de 
QnaMan,  Jonimriuin  Clericum,  Dd- 
■  JaeeboiB  HuikcDSie  de  Roy*toun 
~  "  Tmmm  CaUarwood  dc  Pvlbnin, 
■  DiTidem  Enkina  Je  Dud, 
I  Gmkerain  Pringle  de  New- 
hi,  «  Hngklniin  Andmin  Fletcher  de 
KIbb  n,  CommiMiaii  trio*  J  otticiariB,  diet. 

CiiTM  legitime  affirmato; 

Ibmi  Curtice  of  FiahaTm,  prisoaer  io  tbe 
UMfa  vF  EdiDbiirgfi,  paoDcl. 


TEDa 


lofStntbrnore,  end  Mr.  James 
Ifi^  knther-gennui  and  nearent  or  kin  to 
AidMCMi  Charlea  carl  «f  Strathmorr,  with 
— aiMaadal  tbe  iiwlanceaf  Dancan  Pi>rbnr, 
^  fe  iaijriij'«  advocate,  for  hia  bigliDeai'i 
Mnttifbrlbe  crime  of  wilful  and  premedi- 
t^mmitr  committed  by  bim  upon  the  penun 
if  Ac  nid  Cbarln  earl  of  IStrallimore,  as  is 
MnfriljoiPnliunH  in  the  indictment  raiwd 
■fMhin  tbrreanent,  which  is  as  liillnwH : 
B  of  FinhaTei 


I      iiitoTdbM.ih  uf  Gdinbuttrh.  vom 
'     mittmfl.  at  ttiP  inilaiice  of  Siiinn 


icteil 


•fteilhiFiure,  and  Mr.  Jiinirs  Lyi 
l^^n  and  oenrett  of  kin  lo  tbe  dpceawil 
CMrlnnrlot  Stnilhmarc,  ntih  conrnnrseHnit 
mUtrmtttnc*  n\  Dunnn  Forbrs,  wq.  hi*  ma- 
f9j't  a^TOL-nte,  for  his  hi[{line«s'ii  inieiv«l : 
tatabere.  by  the  laws  of  Gud,  tbe  tan  ol  nn 
■vp,  tbr  rommnn  law,  and  the  manicinal  law. 
■d  practtcr  nf  ihii  kiiiKdom,  as  well  at  ilit- 
Iswt  of  all  well-if"*erD«d  realm*,  wilful  eod 
fnneditate  murder,  anil  all  mnrdcTand  homi- 
ng, or  heini{  art  and  part  ibpreol',  ere  moai 
•tpiaaiii  crime*,  and  ivrerely  punishable ;  ypl 
>*eit  t<,  and  nf  verity,  that  yvu  hare  prenumeil 
m  ciHiimti,  and  are  i;iii1iy,  actor,  art  and 
fan.uf  ill,  iir  nne  fir  other  ot  ihefnTi-said  hiirriil 
CTAra:  in  ao  tar  at,  hailnfr  BCausrlMs  ill- villi 
■d  reitentment  agaiott  (hedeeesttCliariPseiirl 
rf  Ktraihmore,  you  ganceired  a  deadly  hutred 
■d  malict!  airatuit  him  ;  and  shaking;  otf  all 
fear  of  God,  and  regard  to  theforesaiil  Iniiilalile 
hwi,  on  Tbunday  the  Wh  o)'  May,  in  thin  pre- 
■aiyear,  1738,  or  one  or  othemftlie  day*  ol 
ftr  aid  nwiitb,  about  the  Imiir  of  eight  nr  nine 
'fllic  night  of  that  day,  or  some  other  hour  iif 
lUi  day  a*  oigbl,  npon  the  alnel  of  the  town 


of  Forfar,  within  the  coanty  of  Forfar,  you  did* 
with  a  dtawD  aivord,  or  aoriie  oilier  oBeDwre  or 
mortal  weapon,  wilhoul  the  leant  cokiur  or 
cauM  of  proTOcation  then  giren  Ly  bim,  iurada 
tlie  aaid  ileceatt  earl,  who  Lad  no  weipon  )h  hta 
hand,  and  did  basely  and  felonioutly  munlCT 
and  kill  liim,  by  giving  him  a  wound  Iherewillt 
in  the  belly,  some  inches  abote  the  naTel, 
which,  by  following  (he  ihrutl  with  a  second 
push,  weDt  thruaghiheintestkiiesaDd  iheback, 
a  little  tower  than  where  the  said  weapon  ^- 
tered  the  belly :  nf  which  wound,  alter  gnat 
pain,  on  Saturday  immalialelv  thereafter,  or  ■■ 
some  abort  space  Ihereafter,  he  died  ;  aod  so 
was  cruelly  and  barbarously  murdered  by  yon. 
At  least,  althe  time  anil  place  aboie-meniioDcrf, 
with  a  drawD  iword,  or  some  other  mortal 
weapon,  without  any  juat  canie  or  pro*ocalion, 
yougaTetbeaaiildpceaslCharleaearlofBlral^ 
more  a  wound  in  the  belly,  which  reached 
through  the  iniestiDea  anil  lack,  wherelhrougb 
be  aoon  at)er  tell  down,  and  died  at  tlia  tiiM 
loretaid.  At  least,  at  the  time  arid  place  abot* 
described,  the  naid  Charlea  earl  uf  Sirothmora 
was  wi(h  a  drawn  iwonl,  or  aoine  other  ileailiv 
weapon,  feloniouKly  and  barbarnwdy  woundaJ, 
and  of  tbe  said  weuud  died  within  a  few  daya 
ihercafier ;  anil  yiiii  were  art  mid  part  io  hia 
murder.  Ity  all  which,  it  is  eviiltnt,  that  vou 
are  guilty,  arl  ami  part,  uf  the  crimes  of  wiirul 
und  premeditate  murder  and  humicide,  or  ono 
nr  other  of  them,  at  the  time  and  place,  and  in 
the  manner  abore  set  foilh.  And  which  fucta, 
or  part  tlierenf,  nr  your  beiflg  art  anil  part  of 
anv  of  the  said  rrimeR,  being  Ibunil  proven  by 
ihe  vcrdirKif.inaiiaixc,  in  iireiciii-c  of  llie  lords 
jiistice  fffMifral.  juhlice  clerk,  and  commit- 
aiooera  orjuitii-inrv,  you  iiui;hl  lo  be  exempla- 
rily  punisiieil  wiih  the  pains  of  law,  to  iho 
terror  of  others  to  commit  the  like  in  lime  coiu- 

Puriiiert. — Mr.  Duncan  Fnrhea,  his  majes* 
ly'it  advocate;  Mr,  Churles  Afeskine,  his  ma- 
jesty's siiliciti'r;  Mr.  Atex.  Hay,  advocate; 
Mr.  Patrick  (iratil,  advocate;  Mr.  Georgv 
OKilvy.  ailviH'H  e ;  Itlr.  .Ii.hn  Ut;ilvie,  advo- 
c:i(e  ;  Mr.  Hii^li  l>alr_\mple,  adviTute, 

PrivuroluFs  in  Dffenet.—yU.  ttobert  Dutf 
JlIs,  sdvucate;  Mr.  .lumps  Ft<rt;usson,  senior, 
ailviicate;  Mr.  John  Forbes,  udvncale;  Mr. 
n'illiam  (iianl,  admcule ;  Mr,  Janiea  Pater- 
son,  advocate ;  Mr.  (Jeorge  Sinolk't,  advocate, 

Tbe  libel  lM>iiig  Ofii-nly  read  in  court,  and  de- 
bate vini  race,  in  presence  of  thp  lords,  ihry 
orduioed  biiih  parliea  lo  giv«  in  their  iiilormn- 
I  tionii  tn  the  clerk  of  court,  iu  order  to  be  re- 
corded ;   tbe  pursuers  to  give  in  thein  agaioil 


»J  1  GEORGE  II. 

Sklunlay  next ;  ■nd  ihe  panDel'i  procuralon 
lo  tfive  in  bib  Kgainit  Friday  therealW:  uid 
continued  the  caoie  till  Iho  lit  dij  of  Aiignit 
next  to  cume,  at  oiDe  o'clock  ronniin^c;  and 
onttined  ivitneasefl  and  asaiBera  to  attend  alihtt 
time,  each  penoa,  under  the  paiu  of  latr ;  and 
ordained  the  pannel  to  be  carried  back  ta  pri- 
«m ;  and  granted  aecnnd  diligence  for  tbe  |iur- 
■uets  against  the  witottu*.  > 

iMrORMATION  for  So**KN«  C0UDt<«  of  ^RATR- 

HORB,  and  Mr.  James  Lton,  Brotlier- 
tferman  to  the  deceawd  Charle*  Earl  of 
Slrathmore,  and  bia  Majeily't  Advocate 
(or  Ilia  lliglinen*Blntere«l,aEaiDitJkTnes 
Caraegie  of  FlabaTen,  PanD^. 

The  said  James  Caroegie  is  indicted  and  ae- 
•iiseil  as  gnillv,  art  and  part  of  wilful  and  pre- 
neklilatc  murder;  at  least  of  murder  and  homi- 
cide :  in  so  far  aa,  upon  the  9lh  of  May  laat, 
npon  llie  atreela  nf  Furfar,  with  a  drawn  aword, 
Ik  wounded  the  deceased  CharlrK  earlof  filratfa- 
mnrc  in  the  belly,  some  mcbesBboTelhetiavel ; 
nhioh  tvouLiil  went  Ihruug'h  tbc  iotesiines  and 
the  back,  a  little  lower  than  where  the  «aid 
ffcapou  entered  the  belly;  of  which  wound  he 
died  soon  after, 

Tbe  indictment,  in  the  (int  plare,  charge 
the  fact  a*  proceeding  from  a  causeless  ill-will 
and  resentment  the  panncl  bad  cooceired 
against  tlie  defunct,  who,  at  the  time  the  wound 
was  given,  bad  done  nothing  that  could  be  pre- 
lendMl  Bs  a  colour  or  cause  of  provocation;  and 
a  circumstance  ia  noticed,  from  which  it  may 
be  inferred,  that  there  was  deadly  hatred  aorf 
malice ;  namely,  that  after  one  push  there  waa 
a  second,  whereby  the  wound  went  quite 
through  his  body. 

There  is  e  second  branch  of  the  indictment, 
in  which  the  circumstances  of  premeditate  ma- 
lice and  forethought  felony,  needed  not  to  be  li- 
belled ;  and  he  is  chargeo  only  with  murder  or 
koniicide,  aa  seiiarately  relevant.  And,  lastly, 
art  and  nart  is  charged  upon  bitn. 

At  calling  befitre  the  lorda  of  Justiciary, 
a^inst  the  first  t»«Dck  of  ihe  iodictmsnt,  it 
was  eicepted,  ■<  That  the  indictment  was  ino 
genera),  particular  circnmslancea  not  being  ex- 
pressed from  which  the  causeless  ill-Mill  or  ro- 
■eiittneot  meutinned,  and  forethought  and  pre- 
meditate malice  could  be  inlerrcJ,  whereby  the 
panoel  was  deprived  of  the  heueGt  due  lo  all 

(innels,  wheu  tried  for  their  Hie,  lo  exculpate 
ims«If,  by  shewing,  that  if  at  any  time,  prior 
Id  the  lime  [iientiuoed  in  the  indictment,  there 


reconciliatinn  and  entire  friendship :"  AuJ  it 
was  said,  "  That  general  libels  ought  not  to  be 
sustained." 

Ta  this  it  was  answered.  That  a  prctiuns 
grudge  is  charged,  and  that  the  deceast  was  in- 
*adea  without  the  least  ctdour  or  cause  of  \in- 
TOcatiou  ;  which  is  the  stroni^cat  evidence  of 
foictbougbt,  npecially  when  joiuni  witb  tbi* 
Mhir  putinilar,  that  thw  first  tbnut  wu  fol- 


Triat  ofjamet  Carnegie, 

lowed  with  a  second  push,  which  was  &.  i 
uf  inveterate  and  relentless  malice  ;  and  It 
was  sufficient  to  chargo  a  previous  qnari> 
general,  which  would  be  made  appear  Ity 

Siroof.  Nor  will  it  be  found,  that  in  Ubtr 
iirethanght  felony,  it  is  usual  ornecessDr, 
libel  all  tbe  circurostances  from  which 
forethought  may  be  presumed,  especially  w 
the  ipeciti  facti  is  chart'ed  iu  tliat  mauKr^ 
affiirds  the  presumption  of  farethought,  leM 
forth,  that  the  wound  was  given  withonl 
least  colour  or  cause  of  provocalinn  on  tbe  p 
of  the  defunct  at  tliut  time.  Neither  can  ic 
thought  unfair  with  regard  to  the  pannel,  9 
if  he  had  eny  relevant  ground  of  exculpalis 
would  hare  access  to  prove  frienilship  witb  t 
defunct,  to  take  off  any  charge  of  preeeda 
quarrels,  whereof  lie  could  nut  be  ignora 
And  still  there  must  be  less  ground  of  cot 
plaint,  where  no  good  reason  of  exculpatioa 
offered,  whereby  the  panne]  can  be  allowed 
adduce  proof,  which  it  is  believed  is,  witin 
coniraihclion,  the  case  upon  Ilia  first  bnncfc 
the  libel. 

As  tu  tbe  two  last  branches  of  the  indil 
ment,  it  was  allqied,  <'  That  several  circu 
stances  attending  tbe  fact  complained  of  m 
concealed,  which,  when  opened,  afforded  ll 
pannel  plain  and  obrious  defenoea ;  and  tba 
fore  it  was  infortnad.  That  tbe  pannel,  a  ps 
sun  disposed  to  peace,  and  in  entire  friendsk 
with  the  defunct,  chanced  to  be  in  compai 
with  him  about  the  time  chaived  in  the  indii 
ment,  with  one  John  Lyon  of  Bridgelon,  m 
others:    that  firtdgeton  gave  him  t^e  faigfai 


the  pannel  was  in  hazard  of  perishing,  bail 
extremely  drunk :  that  getting  up,  heated  wi 
liquor,  and  so  extremely  provoked,  he  drew  I 
iword,  and  pursued  Brirlgeton,  and  that  tbe  i 
funct  thrusting  himself  between  them,  casual 
received  tbe  thrust  aimed  at  another." 

From  tbeao  circumstances,  it  was  pled  I 
the  pannel,  "Thatif  he  did  kill  the  defunct, 
was  a  mere  misadventure,  raiher  a  misfortu 
as  [than]  a  fault,  and  in  no  event  could  suhje 
liim  to  the jirno  ordtnuria ;  fiirthat,  Imo.  . 
these  circumstances  had  he  killed  the  said  Jol 
Lyon  of  Bridgeton,  thepain  of  death  could  n 
"iBve  been  inflicted  either  by  the  law  of  Go 
he  common  law,  nor  by  the  municipal  law 
Chiskingdum,  neither  by  the  laws  of  other  we 
^overnM  realms  ;  pariicularly  by  tlie  laws 
our  neighbouring  nation,  in  regard  the  fact  w 
done  of  sudilenty,  by  a  peivoa  in  diink,  ai 
highly  provoked." 

And,  Imo.  As  to 'he  lavr.  of  God,  chap,  x] 

.  13,  of  Exodus  was  appealed  lo,  where  it 

lid,  "  that  if  a  man  lief  nt  in  wait,  there  w 

I  he  a  place  appointed  whiihrr  hesbould  fly 

hich  seemed  lo  require  forethought,      Ai 

IC  xxxvth  chap,  ot  Numbers,  ver.  as,  wbe 

was  said,  "  That  if  any  one  thrust  anoth 

suddenly   without  enraiiy,   the  congtegstk 

— -  to  judge  between  tiio  slayer  and  the  n 

rerofhlwd;"  fron  whick  itwtMJdiea 


fir  iktMwriiT  qfihe  Earl  nf  Strathmori* 


A.  D.  179& 


in 


dHgbterof  HuMcntj  was  not  punishable 

lAii  it  was  aniwerady  that  in  the  law  of 
Aegfoeral  rale  waa,  •'  Wboeo  sheddeth 
hmti,  hj  man  aball  his  blood  be  shed : 
iAe  hand  of  man,  and  at  the  hand  of 
^Mi*!  brother,  and  at  the  hand  of  every 
avilbe  life  of  man  to  be  required/*  Geo. 
fik  That  by  the  law  of  Muaen,  death  of 
■kf  was  plainly  capital ;  nor  had  the 
itft  the  benefit  of  the  city  of  refuge, 

etbe  slaughter  was  mere  misfortune, 
,  which  was  plainly  the  meaning  of 
■riiiB  Exodus,  **  If  a  man  lie  not  in  wait, 
H  Mirer  him  into  his  hand  ;'*  which 
iHivith  any  propriety  be  understood  of 
fhto  committed,  where  the  intention  and 
p'aHecedit  ictum  licet  non  congrcssum.' 
rflkii  matter  b  clear]  v  exphiined  in  the 
^  of  Numbers,  where  he  who  smites 
■  Bitmment  of  iron,  is  called  a  mur- 
I  lad  where  it  is  said,  <*  That  he  who 
ivitb  a  throwiufi^  stooe,  or  with  a  hand 
Btf  wood,  wherewith  a  person  may  die, 
idK,  the  marderer  is  surely  to  be  put  to 
'  And  then  the  law  proceeds  plainly  to 
f  OSes,  where  death  ensues  from  strokes 
■H  of  a  weapon  not  deadly,  and  there 
MS  indeed  hatred  and  enmity ;  but  if  it 
mddeoly  and  witliout  enmity,  or  (which 
■kible)  in  the  OSd  Terse,  «'  With  any 
■herewith  a  man  may  die,  seeing^  him 
ri  was  not  his  enemy,  nor  sought  his 
;  then  the  congregation  was  to  judge  be- 
ie  slayer  and  the  revenger  of  blood." 
ahich  it  is  plain,  that  slaughter  upon 
ij,  even  without  forethought  or  previous 
't  VIS  capital  by  the  law  of  Moses,  if 
sod  was  given  with  a  lethal  [deadly] 
I,  except  when  it  was  tlone  ny  mere 
Lu  by  throwing  a  stone  whereby  a  man 
k,the  person  who  threw  it  seeing  him 
iriso  at  no  time  was  his  enemy,  or  sought 
m.  And  this  is  the  case  mentioned, 
iz,  rer.  4,  Deut.  where  it  is  said,  **  Who- 
iflu  his  neighbour  ignorantly,  whom 
sdnnt  in  time  past"  (which  is  limited  by 
aple  immcniiately  sulijoined  to  homicide 
asiial),  <*  shall  fly  into  one  of  these 
uid  lire."  Now,  in  the  present  ca^e,  the 
of  tlie  weapon  and  of  the  wound  are 
d  clearly  exclude  founding  with  any 
upon  the  disposition  of  the  law  of  Moses, 
the  <]uestioii  were  of  the  pannel's 
i(  the  benefit  of  the  ett  v  of  refuge.  But 
is  it  an  arg^ument  of  nny  force  to  plead, 
iere  the  benefit  of  tlie  city  of  refuge 
allied,  that  by  the  Jaw  ot  nature  the 
WM  not  capital ;  for  the  revenger  of 
ould  never  hav»  been  tolerated  to  kill 
;  the  city  of  refusre,  where  innocent 
ras  spilt,  whereby  the  laud  must  have 
lluted,  and  the  stil>j(.>cts  were  permitted 
,  so  notorioiiKly  to  break  in  upon  the  es* 
d  Jaws  of  nature ;  and  therefore, 
it  is  an  argument  of  unavoidable  tbrce, 
itraver,  by  the  law  of  Moses,  capital 


Iiunishments  are  allowed,  such  punishments ara 
awfnl:  But  the  argument  is  not  of  equal 
strength,  that  where  the  powent  of  the  law  wer^ 
suspended  by  the  jui  utjfii  established  by  posi- 
tive precept,  that  therefore,  in  countries  whera 
there  is  nu  such  privilege,  either  by  tlie  laws  of 
God,  or  the  laws  of  the  land,  that  there  tha 
pnniahment  is  not  to  be  capital,  where  the  jug 
asyii  could  have  been  claimed. 

2do.  It  was  contended,  '*  That  by  the  com» 
mon  law,  not  only  dolus  bnt  propontum  wai 
necessary ;  and  that  slaughter  committed  isi- 
petu  et  rixd  were  not  to  be  punished  capitally.*' 
And  to  this  purpose,  the  authority  of  the  lean- 
ed Voet,  was  cited,  who  seems  to  say.  That 
in  rud,  if  the  person  cannot  be  discovered  who 
gave  the  deadly  wouud,  the  ordinary  punish- 
ment ahonid  not  take  place. 

But  when  this  matter  it  considered,  it  ia 
plain  there  arises  no  good  ar]gument  for  the 
pannel  from  the  common  law:  For  tbongb 
tbeva  is  a  difference  to  be  made'  between  pra» 
potiimm  and  machinaiio  prameditata,  and  aud- 
den  passion  and  beat  of  drink,  determinmg  tht 
will  to  commit  the  crime ;  yet  as  laws  were 
made  and  became  necessary,  chiefly  from  the 
depraved  passions  of  mankind,  they  cannot  af- 
fonl  a  sufficient  excuse  against  the  ordinary 
punishment  of  an  atrocious  crime ;  and  there 
IS  dolui^  when  a  crime  is  even  committed  of  a 
sudden,  although  there  be  no  forethought:  fete 
it  is  commonly  said,  that  op|M>rtunity  makes 
the  thief,  and  theft  is  committed  impetu^  never- 
theless not  without  dole.  Nor  is  it  necessary 
to  prove  or  libel  a  forethought  in  the  commis- 
sion of  the  crime.  In  the  same  manner  pas* 
sion  or  provocation  may  unfortunately  deter- 
mine the  will  to  the  commission  of  a  horrid 
crime ;  but  it  would  be  of  dangerous  conse- 
quence to  allow  of  bloodshed  under  colour  of 
passions  which  men  ought  to  subdue,  or  of 
drunkenness  which  they  ought  to  avoid,  or  of 
a  sudden  vicious  turn  or  mind ;  and  therefore^ 
in  the  Roman  law,  whoever  committed 
slaughter  dolo  malo,  whether  deliberately  and 
upon  forethought,  or  of  suddenty,  was  to  be 
punished  ex  lege  Cornelia  de  Sicariis .  And  to 
shew  that  it  was  sufficient,  that  the  design 
should  only  precede  the  act  from  which  death 
followed,  and  not  the  meeting  of  the  persons, 
as  the  acts  of  the  mind  are  only  to  be  known  by 
external  circumstances  ;  the  kind  of  weapon, 
in  the  same  manner  as  in  the  law  of  Moses,  was 
sufficient  to  found  a  presumption  of  sui!li  pro- 
potiium,  as,  joined  with  the  act  of  killing, 
brought  the  manslayer  under  the  pcena  legis 
Cornelia!:  So  in  the  1.  1,  §  3,  ff.  ad  le|vem 
Corneliam  de  Sic.  it  is  said,  **  Si  giadium 
strinxerit,  et  in  eo  percusscrit,  induhitat^  occi- 
dendi  animo  id  eum  admisisse  ;'*  and  if  prior 
forethought  had  been  necessary,  the  kind  of 
wea|K)n  could  not  possibly  have  foundinl  a  suf- 
ficient presumption  :  But  as  it  manifestly  made 
appear  the  intention  io  kill,  whether  thai  intiMi- 
tion  had  its  birth  from  passion  or  drink,  it  «%as 
voluntary  slaughter,  done  dcditd  vperd^  Hud 
tiierefora  to  be  pnniiihed  capitally.      And  the 


TO] 


9  QEOKG^E  II. 


IVial  ^Jamtt  Carni^t 


[ 


fUiMge  cited  from  the  learned  Voet,  rather  I 
lNHi6nii«  this  doctrine,  That  if  in  rixd,  which 
nuaC  auppoaeauddenty,  the  peraon  who  inflicts 
•d  the  mortal  woand  wan  diaoovered,  he  waa  to 
be  aubjected  to  the  ordinary  paniahment  And 
the  aame  author,  §  9.  of  that  title,  obaerres, 
That  though  aucb  aa  commit  alaugbtcr,  calore 
irmcundUf  may  be  aaid  impelu  deUnquere; 
yet  there,  "  neque  judicium,  neqne  aaaenaua 
•oimi,  Deque  foluntaa  deeat ;"  and  saya,  That 
A  peraon  profoked  bv  verbal  injuries,  how 
great  eoever,  waa  not  nee  from  the  p^ena  ordi" 
iiaria.  And  the  truth  ia,  if  paaaion  and  pro?o- 
eation  were  aufficient  to  excuse  alanghler,  K 
were  in  ?ain  to  lav  down  the  rulea  ao  anxioualy 
conceited  in  the  lawa  conceminfr  the  <*  mode- 
ramen  inculpate  tutel»,"  where  the  alayer 
muat  proTe  that  he  waa  "  conatitutoa  in  peri* 
culo  Tite.*'  And  had  the  caae  atood  otherwise 
in  the  Roman  law,  it  could  never  hare  been 
doubted,  when  jealousy  waa  the  rage  of  a  man, 
and  adultery  the  higheat  provocation  a-^inst  a 
husband,  and  a  real  iniury ;  the  qneatioo  could 
■ever  have  been  stated  to  be  determined  by  the 
emperor,  aa  in  L  38,  ff.  §  8,  ad  le|pm  Juliam  de 
adult.  Whether  a  husband,  **  impetu  tractus 
doioiia,  uxorem  in  adulterio  depreiienaam  in- 
lerfecerit,"  was  liable  to  the  poena  legia  Cor- 
Beli«  de  Sicariis  P  And  who,  by  that  decision, 
upon  the  peculiar  circumataucea  of  the  case 
wtta  ezeemed  [ezempteil],  and  never ihelesa 
made  auhjenl,  si  loci  kumilii,  of  being  condemn- 
ed ad  opu9  perpetuum,  and  if  honestior  was  to 
be  condemned  rtlegari  in  iusulam.  But  as  the 
case  muat  be  determined  uiion  the  law  of  Scot- 
land, il  ia  unnecessary  to  dwell  too  long  upon 
the  argnmenta  drawn  from  the  Roman  law. 

3tio,  It  was  contended  for  the  pannel,  "  That 
by  the  law  of  Scotland,  slaughter  and  monler 
were  of  old  different  apeciea  of  crimea,  and 
only  murder  committed  upon  forethought  fe- 
lony was  properly  computed  murder,  and 
punished  as  such ;  btit  tliat  alaugbter  com* 
mitted  upon  suddenty,  or  chaud  tnelle,  and  in 
rijrA^  was  deemed  only  homicidium  culposum^ 
and  not  punishable  by  death."  And  to  support 
tliia  position,  several  acts  of  parliament  were 
appealed  to,  by  which  it  was  statuted,  that 
murder  was  to  be  capitally  punished ;  kmt  chaud 
mellff  or  slaughter  comtxiitled  upon  suddenty, 
waa  to  be  punishable  according  to  the  old 
laws :  and  that  in  this  case,  if  the  pannel  bad 
even  killed  Bridgeton,  at  whom  he  aimed  the 
thrust,  in  the  circumstances  above  set  forth,  it 
waa  not  murder  u|Km  forethought,  but  upon 
iuddenty  and  high  provocation. 

To  this  it  was  answered,  That  thia  doctrine, 
so  directly  contrary  to  the  received  opinion, 
had  little  countenance  from  tite  old  lawa  and 
acts  of  parliament,  less  from  the  constant 
practice  before  the  act  of  parliament  king 
Charlea  2,  in  the  year  iG61,  and  stood  in  plain 
contradiction  to  tliis  last  law,  and  the  constant 
practice  and  repeated  decisions  of  the  Court  of 
Justkxary  from  that  time  down  to  tbia  day. 

By  the  old  kw,  particularly  chap.  3,  of  the 
ifttitalatea  of  kiag  Robert  1,  intitUed,  Men 


condemned  to  the  Death  ehonid  not  be  i 
deemed,  **  It  ia  statoted  and  ordained,  |fif  a 
man,  in  any  time  Coming  oc  bygane,  is  co 
vict  or  attainted  of  alaugbter,  reif,  or  any  otli 
crime  touching  life  and  limb,  common  joati 
shall  be  done  upon  him,  without  any  n 
some."  Here  slaughter  in  general  is  mc 
tinned,  and  justice  waa^o  lie  done  upon  t 
person  convict  of  it,  and  the  punishment 
Uie  title  was  plainly  dcAth :  tof  that,  at  coi 
mon  law,  alaugbter  in  ti^eneral  waa  capH 
The  next  Mtragraph  does  indeed  save  the  kiuj 
power  (which  muat  be  the  power  of  pardonim 
and  the  liberties  granteil  by  the  icing  to  I 
kirk  and  kirkmen,  and  other  lorda;  whi 
muat  be  underatood  of  special  immunities 
the  caae  of  manalaughter:  for  no  privilege  « 
to  protect  againat  murder  upon  foretbougl] 
and  the  exception  confirms  the  rule. 

By  chap.  43,  of  the  atatutea  of  king  K 
bert  3,  it  is  atatuted,  "  That  na  man  uae  ei 
destruction,  hershipa,  burning,  reif,  alaugfat 
in  time  to  come,  under  the  pain  of  tiuel 
life  and  gooda :"  whereby  the  pain  of  del 
ia  clearly  made  the  puniahment  of  alaugbi 
in  general.  And  in  toe  im mediate  subseqoi 
chapter,  the  aheriff  was  to  take  diligent  inqi 
aition  of  destroyers  of  tlie  country,  orencn 
had  deatroyed  the  king's  lieges  with  herahij 
slaughter,  &c.  and  was  to  take  bail  from  tbo 
if  arrested,  to  compear  at  the  next  justii 
ayr ;  and  if  bail  waa  not  given,  the  sheriff  a 
to  put  him  to  the  knowledge  of  an  aasiz 
'*  And  gif  he  be  ta^nt  with  the  assize  for  < 
an  trespassour,"  it  is  said,  "  He  shall  be  ofl 
demtieu  to  dciath  :"  which  seems  only 
relate  to  manslaughter,  and  not  to  mort 
upon  forethought  telony,  which  was  one 
the  pleas  of  the  crown,  to  be  tried  ouly  beA 
the  Icing's  justiciar ;  as  i*  evident  from  dH 
11,  kiog  Malcolm  S's  laws,  and  chap.  1 
and  15,  whereas  slaughter  might  be  tried 
the  aheriff,  where  there  was  a  certain  aocus 
as  appeara  from  book  1,  of  the  Uegiam  Al 
jestatem,  chap.  1,  §  7,  8,  9. 

There  are  sundry  others  of  the  old  statut 
that  seem  plainly  to  pre- suppose  that  alaog 
ter  was  capital,  and  particularly  these  of  Ale 
ander  2,  chap.  S,  §  3,  4,  5,  6.  And  so  Ske 
in  his  Treatise  of  Crimes,  tit.  2,  chap.  6,  sa] 
'*  Tliat  alaugbter  in  rixUf  or  chaud  meiie^' 
generally  punished  by  «leath,  and  confucott 
of  the  moveable  ;;:ooda  pertaining  to  the  tn 
pasHOur;  but  with  this  dilforfcuce,  that  t 
girth  or  sanctuary  wan  no  refuge  to  him  w 
commits  slaughter  by  torethoiight  felony,  I 
he  should  be  delivered  to  the  judge  ordmai 
to  undcrly  the  law:"  which  plainly  appei 
from  act  23,  pari.  4,  Jamca  5,  whereby  nil 
ten  of  girth  are  ordained  to  deliver  up  su 
peraDus  as  are  guilty  of  murder  upon  foi 
thought  felony.  An(l  it  is  in  vain  to  foa 
upon  Law  90,  |Nirl.  6,  James  1,  which  m 
in  the  end,  **  Gif  it  be  forethought  felony, 
shall  die  therefore;"  because  the  act  relatei 
ail  manslayers;  and  though  that  partiea' 
and  moii  atrocioai  ipeciei  be  mentmied, 


t/J  Jar  the  Murder  qfihe  Earl  of  Straihmore.       .   A.D.  1728. 


Ar  winch  the  maiJeier  shookl  die,  yet 
■ffonmC  will  not  hold,  that  therefore  no 
rad  of  sUoghter  was  capital :  for  it  is 
aaiii  iu  the  geoeral,  that  if  the  slayer  is 
with  red  hanil,  the  law  shall  be  done 
pitfaia  that  son ;.  which  cannot  be 
of  a  crime  not  capital.    And  sir 
Maefceoane,  iu  his  obserr Ations  upon 
lysg  **Tbis  may  seem   to  imply,  that 
4k  mi  for  murder  committed  wifchoat 
felony ;  but  this  holds  not  in  our 
BMirder,  though  committed  without 
-^hft  fehiny,  is  punishable  by  death, 
eem/L  k  vas  either  casual,  or  in  self-defence." 
Tie  act  51,  pari.  3,    James  1,  was  im- 
pnpsrij  fiwiided  on  by  the  pannel's  procura- 
IMS ;  Mr  that  act  does  no  more  than  extend 
Ibt  Mbesee  between  forethought  felony  and 
dmad  wteUe  to  all  transgreisions  as  well  as 
imklar;  as  sir  George  Mackenzie  obserres 
^pi  that  law,  where  he  says,  That  cJiaud 
■kar  hamieidiwn  in  rixd  commissum,  is  ca- 
lU  if  oar  present  law. 
^     crimioals  who  resorted  to,  and  took 
in  charchca,  had  protection,  thou|[h 
tnmta  were  capital,  is  eitremely  plam 
chap.  6,  of  the  statutes  of  K.  Alez- 
f,  where  it  b  said,  **  That  thie?es  and 
who  fly  to  haly  kirk,  if  moved  with  re- 
he  confess   that  he  has   heavily 
I  for  the  love  of  God  is  come  to  the 
of  God  for  safety  of  himself,  he  shall 
nee  in  this  manner,  tfiat  he  shall  not 
fife  Bor  limb,  but  restore  what  he  had 
ad  satisfy  the  king,  and  swear  upon 
Evangel,  that  for  thereafter,  they  shall 
*  BMumit  reif  nor  thef\ ;  but  if  he  declared 
"  ianocent,  he  was  to  be  tryed."    And 
ii  4i  Imi  paragraph  of  that  chap,  it  is  said, 
**U9nn»  noanslayers,  &c.  if  tbey  fly,  in 
nascr  Aresaid,  to  the  kirk,  the  law  afore- 
mHikaHhe  kept  and  observed  to  them." 

Awe  seems  to  have  been  this  other  dlflfer- 
■ee  MO,  by  the  books  of  the  old  law  between 
■arte' upon  forethought  and  slaughter,  that 
iW  Inal  of  murder  was  summar,  whereas 
■saiiaaghter  could  not  be  tried  till  af\er  forty 
^yi,  as  appeals  by  the  statutes  of  llobert  2, 
fcwa  cbap.  3,  to  chap.  9. 

After  the  Reformaiioo,  when  i\ie  jus  aiyUy 
Watffiy  given  tu  churches,  dro|ipeil,  the  dis- 
liacfaoB  between  murder  and  inauslauf^htcr 
«is looked  on  with  less  attention,  and  libels 
•cieoommonly  framed  indifferently,  for  mur> 
^,  aod  slaughter  in  general,  without  any 
■tatioo  of  furethought  felony  ;  nor  was  it 
ecr  objected,  that  malice  or  premetlitate  ile- 
^  was  requisite  to  make  the  crime  capital : 
M  erimiojiu  were  punished  to  death,  where 
the  proof  there  was  not  a  colour  or  pre- 
of  forethought,  or  any  premeditate  de- 
as  will  appear  from  looking  into  the 
. — ofadjournai.  And  many  instances  nii^ht 
wgifco,  particularly  in  the  case  of  Jean 
famt  ajFaiDst  William  Eraser,  the  last  of 
My,  ifrii ;  where  the  pannel  was  condemned 
^  as  rstrajudicial  confession,  admiiiicu- 
«UL  XVII. 


lated  with  other  circumstances ;  in  which  he 
set  forth  the  fact,  that  the  tiefunct  and  be  had 
some  little  quarrel  about  a  staff;  and  hearinir 
that  lie  had  murdered  hia  brotiier,  he  came 
into  a  house  where  the  defunct  was ;  and  that 
either  the  defunct,  or  some  other  tliat  was  by, 
took  the  pannel  by  the  arm,  to  hold  hiiu: 
having  freed  himself,  he  aimed  a  stroke  with 
a  whinger  at  the  defunct's  arm ;  but  missing 
it,  he  stmck  the  defunct  about  the  pap ;  and 
upon  this,  proof,  he  was  found  guilty,  and 
executed. 

In  the  case  of  Bruce  agrainst  Marshall,  the 
Srd  April,  1664,  slaughter  was  libelled,  and 
he  was  condemned  upon  his  own  judicial 
confession :  from  which  it  appears,  that  he 
was  so  far  from  having  any  forethought,  that 
he  suffered  not  only  the  greatest  provocation 
in  words,  but  was  even  oeat  with  hands  and 
feet  by  the  defunct  while  he  was  on  the 
ground;  but  at  last  getting  up,  and  (as  the 
confession  bears)  being  overcome  with  passion, 
he  drew  a  knife,  and  struck  at  him  in  two 
several  places  of  his  body,  whereby  be  died. 
And  upon  this  confession,  where  there  was 
tuddenty,  provocation  and  passion,  he  was 
brought  in  as  guilty,  and  condemned  to  be  be- 
headed. 

The  law  remaining  somewhat  ancertain  con- 
cerning casual  homicide,  and  there  being  no 
longer  any  beneflt  of  girth  as  formerly ;  ia 
the  year  1649,  an  act  was  passed  during  the 
usurpation,  for  removing  all  question  and  doubt 
that  might  thereaAer  arise  in  criminal  pursuits 
for  slaughter,  onlainini^,  that  the  cases  of  ho- 
micide aAer-following,  viz.  casual  homicide, 
homicide  in  lawful  defence,  and  homicide  com- 
mitted upon  thieves  and  robbers,  should  not 
in  time  coming  be  punished  by  death,  not- 
withstanding any  laws  or  acts  of  parliament, 
or  any  practick  made  heretolbr*?,  or  observed  in 
punishing  of  slaughter.  And  this  passi'd  int«> 
a  law  after  the  Jtestoration  in  the  ^car  16(31 ; 
and  at  the  same  time,  all  decisions  given  con- 
form to  this  act,  since  the  4th  of  February, 
1649  years,  are  dcrlared  to  l>e  sufRcieut  to 
secure  all  parties  interested,  as  if  the  act  had 
been  of  that  date ;  which  was  necessary,  be- 
cause the  acts  tiurin^f  the  usur|>ation  had  been 
rescinded:  and  tiiis  law  has  ever  been  looked 
upon  as  the  standard.  And  the  practice  of 
the  Court  of  Jusiiciury,  since  that  time,  clearly 
deuionstrates,  that  slaughter  of  suddenty,  and 
slaughter  upon  provocation,  which  could  not 
be  brought  under  one  or  other  of  the  particu- 
lars there  mentioned,  have  been  taken  to  be 
capital. 

The  procurators  for  the  pannel  here  <d)serv- 
ed,  **  That  though  in  the  cases  there  mention- 
ed, the  law  oi-dained  slaughter  not  to  he  capital, 
yet  it  neither  SHid,  nor  supposed,  that  the  for- 
mer law,  whereby  paunels  were  entitled  to 
plead  afi;ainsi  a  capital  punishment,  was  there- 
by abrogated,  but  only  statuted  in  the  caves 
there  mentioned." 

Tu  this  it  was  answered,  that  the  iiarrativs 
of  the  statute  was  for  removing  ot  all  ^utfttioa 

6 


88] 


1 6EOR6E  IL 


Trial  of  Jamei  Canui^ 


[81 


•Bd  ionU  thit  may  Mmt  thereaAor  io  eriumial 

riuits  fortlaughier,  nd  oooKqoently  cumol 
nppottd  to  liATe  left  doabCfol  cases,  ihat 
the  paimel'f  proeonton  Hiiist  adnil  were 
not  so  dear  as  easaal  bomieide,  and  homicide 
ia  defeace:  nay,  the  law  seems  to  suppose 
prdty  plain ly,  that  all  slaoghter  by  the  laws 
and  actfc  of  parliameDt,  or  practicks,  was  capi- 
tal, not  declaring  what  was  law  from  any  other 
period  than  the  year  1640,  but  eiiactiog'  the 
same  with  a  nan  obftmnttf  and  judging  it  neces- . 
sary  to  confirm  the  decisions  that  had  past, 
conform  to  that  act  dnriog  the  usurpation, 
which  would  bare  been  rain,  if  it  bad  not 
been  at  least  doubtful,  whether  casual  homicide, 
homicide  in  lawful  defence,  and  slander  com- 
miitod  upon  thieves  and  robbers,  did  not  sub- 
ject those  guilty  to  the  pain  of  death :  and  if 
those  degrees  of  homicide  were  so  much  as 
doubtliil,  it  is  not  possible  to  conceire  that 
ekaud  melUf  or  slaughter  committed,  dedM 
oper£t  though  without  IbrKhought,  was,  by  the 
law  of  Scotland,  not  capiul.  Or  if  it  should 
be  supposed  to  hare  been  doubtful,  whether 
tliese  last  dej^rMS  of  homicide  were  capital : 
that  the  legutlature,  upon  a  narrative,  that  all 
question  and  doubt  that  might  arise  hereafter 
in  criminal  pursuits  for  slaughter,  should  be  re- 
moved, would  have  enacted  in  the  clearer  cases, 
with  a  fion  obiiante,  and  left  the  more  difficult 
In  the  dark,  as  surely  the  greatest  advocates 
lor  slaug^liter  on  snddenty  must  admit,  that,  at 
least,  it  is  more  culpable  than  either  homicide 
Bicrely  casual,  or  homicide  in  lawful  defence. 

The  argument  drawn  from  the  rubrick  of  the 
act,  which  mentions  degrees  of  casual  homicide 
only,  can  conclude  no  more,  than  that  the  title 
Is  imperfect ;  and  it  would  be  resting  too  much 
upon  an  argumeot  d  rubro,  to  make  it  defeat 
what  is  said  in  the  law,  that  all  questions  con- 
eeminfi^  slaugliter  were  thereby  to  be  removed, 
and  which  opposes  casual  homicide  to  homi- 
cide in  lawful  defence ;  and  conseouently  can- 
not under  the  u'ords,  '*  casual  homicide,"  com- 
nrtlieiid  all  slaughter  not  upon  forethought  fe- 
lony. And  sir  George  Mackenzie  in  his  ohser- 
yations  upon  the  act  takes  notice,  that  the  title 
is  very  ridiculous,  and  consequently  no  argu- 
ment can  be  drawn  from  it. 

One  thing  it  may  not  be  improper  to  notice, 
9s,  that  if  killing  by  forethouglit  felony  was  the 
only  species  of  slaughter  capital,  the  crown 
was  disabled  from  pardoning  any  capital 
slaughter  w  hats«f mover,  which  does  not  appear 
to  have  been  tlie  o|iinioii  of  our  lawyers. 

As  to  the  drcisious  subsequent  lo  this  law, 
they  will  he  found  entirely  agreeable  to  tlie 
doctrine  now  laid  down ;  sir  George  Mackenzie 
observes,  that  though  many  lawyvrv  are  jiosi- 
tive,  that  though  homicidium  in  rira,  even 
where  the  author  of  the  plea  {»  known,  may 
by  ihii  rigor  of  law  hv  punishcil  by  death,  yet 
that  no  contitr}'  ii^c^  litis  rii^or ;  yet  he  remem- 
brrcd,  that  in  William  [ioiigluss*s  case,  this 
was  urged,  and  albeit  it  was  not  proven  that 
he  was  the  killer,  Vf^  the  assize  found  him 
4(oiIty,.aiid  ht  thcc«i](iuD  died.    This  is  a  case 


nsore  fiivooraUe,  than  where  the  peraon  thil 
gave  the  mortal  woond  is  known,  tfaMHi^h  gtwm 
suddenly,  and  even  upon  provocation;  wai 
therefore  shews  what  our  law  is,  and  with 


little  reason  the  procuratora  for  the  nan»d 
maintain  their  argnment  upon  the  law  of  Seat* 
land. 

In  the  case,  his  majesty's  advocate  agwMl 
Nioulsoo,  the  24tb  June,  1673,  murder  «ad 
slaughter,  without  forethought,  were  cbaifd 
upon  Nicoisoo,  the  pannel  $  and  hia  pioo— 
tors  pleaded  the  benefit  of  the  act  of  parliaml 
anent  casual  homicide,  in  the  aef  eiml 
thereof,  he  being  in  a  condition  that  he 
not  able  to  remmiber.  To  this  it  was 
ed,  that  the  defence  was  not  relevant,  in 
the  homicide  could  not  be  said  to  be 
such  as  Uie  case  of  throwing  of  stones  mm 
dikes,  and  accidentally  killing  a  paasesfvi 
and  the  pannel  having  afterwards  propooed  € 
defence,  that  being  in  use  to  carry  a  gwB  ss'ii 
fowler,  and  calling  accidentally  for  meat  ts  li| 
dogs  at  a  mill,  the  defunct  fell  upon  himy  sal 
offered  to  secure  him  as  a  French  soldier,  sslt 
to  be  one ;  in  the  stm^e,  his  gun  being  km 
bend,  went  off,  and  killed  the  defnnct:  ~~^ 
the  libel  and  defence  were  found  relevant, 
it  appeared  upon  the  proof,  that  Nicolsea 
drunk,  and  that  there  was  no  previous  qiisnrii 
but  taking  exce|»tion  at  somewhat  the  drfsMl 
said,  he  shot  him  with  his  gun ;  and  bv  ihi 
verdict  of  the  assise,  '<  he  was  fonml  gnfty  d 
the  slaughter  committed  u|M>n  the  defqncl/j 
and  sentenced  to  have  his  bead  struck  off.lv 
the  Grass-market ;  which  shows  that  nsilh^ 
drunkenness  nor  suildenty  is  a  relevant  dffiMJ 
against  the  jMtaa  ordinana  in  slaughter. 

And,  in  the  case  of  Murray  contra  GiM 
10th  June,  1678,-  Uie  lords  ''  found  the  IM 
relevant,  and  that  there  was  no  necessity  of  sq 
distinct  probation  for  pro?  ing  precogitate  atij 
lice;"  which  clearly  shows  that  slaughM 
other  than  upon  forethouglit,  was  capital.  Am 
to  show  that  provocation  and  passion  ars.  ail 
received  as  defences  against  the  ptma  9rdmm 
ria,  a  multitude  of  decisHHis  might  be  bremi^ 
particularly  in  the  case  of  Aird,  who  was  m 
dieted  in  1693,  for  the  slaughter  of  AgWi 
Bayne,  having  given  her  some  strokes  oo  ds 
side  and  belly  with  his  foot,  by  which  sb 
fell  into  fainting-fits,  and  immediately  disd 
The  defence  was,  **  great  provocatkm  and  e» 
sual  homicide  :*'  provocation,  in  as  far  as  shi 
threw  a  chamber  pot  in  his  face ;  and  whea  hi 
gave  her  hard  words,  she  and  her  neighboM 
fell  upon  him,  and  beat  him  ;  upon  which  % 
gave  her  the  strokes  above  mentioned.  And  i 
that  trial  it  was  argued,  there  was  no  snisil 
occidendi^  no  previous  malice,  no  mortal  wea 
pon;  and  the  texts  from  Scripture  urged  I 
ticfencc  of  the  present  pannel,  and  the  arjga 
ineuts  from  the  civil  law,  and  from  onr  m\ 
acts  of  parliament,  were  urged :  neyerthcb 
Uie  lords  <*  found  the  liliel  relevant,  rsfil 
the  defences ;"  and,  upon  the  proof,  he  i 
sentenced  to  die. 

In  the  case  of  Williaa  Ganaichael  ie  108| 


•]         Jar  the  Mturierofthe  Bart  ofStratltmore.  A.  D.  17S8. 


[W 


WM  fonnded  mi  to  excuse  a  p€mm 

and  Ibffethoagbt  wst  neither  libelled, 

I ;  and  the  loide  found  the  libel  rele- 

L  ■poB  the  proat'y  he  was  sentenced  to 

1095,  Qeoige  Cnnring^,  writer  in 

raa  indicted  for  the  crime  of  moro 

lUffhtcrof  Patrick  Falconer;  the 

'  oBeted  for  the  panael,  upon  the 

tba  old  law,  between  forethou|rht 

rl/e,  were  offered;  nevertheless  the 

Wbh  foond  relevant,  and  tlie  assise  re- 

lariavcrdietgniltyof  manriaughter;  upon 

sAiih  ha  was  coodemncd  to  die. 

MthacBseaf  Burnet  of  Carlops,  the  S2d 

htmru  17  llf  thosgh  adefonce  was  sustaiued, 

l<*siftsl  withowl  foretlioni^t  was  found  re- 

ImsI:  md  in  thai  of  Hainiltoa  of  Green,  the 

Sib  Jane,  1716,  the  pannel  offsred  to  prove, 

An  ha  was  aeddeBtally  at  the  house  of  Tho- 

.  of  whose  murder  he  is  accus^i,  at 

iihellcd,  with  some  of  his  acquaint- 

p  .ad  had  no  deadly  weapon  aloo||f  with 

tof  that  hm  became  inebriated  to  a  great  de- 

pBbSBd  havii^  left  the  house,  and  returned  to 

itti  the  slip  or  cover  of  the  sheath  of  a  sword^ 

ii  drfanct  gave  him  most  indecent,  injurious 

■i  HBrrihuH  laugnage,  and  persisting  in  it, 

poshed,  or  struck  at  him  with  his 

having  the  scabbard  thereon,  that  he 

•  to  beKeve  had  a  crampct  upon  it: 

_  nil]  more  and  more  provoked  by  re- 

IM^s^iioaa  words,  to  protect  himself  from 

Mhv  iiwalfiice  he  had  reaaun  to  look  for,  the 

pssi  tfiU  raosaiiiiii^  on  horseback,  the  de- 

mm  iwhad  bimseU  upon  the  sword.     And 

tkii  orcHBistantiate  fact  was  offered  to  be 

f.     Nevertheless  the  libel  was  fouod  rc- 

IwM^aaA  the  pannePs  baill  dcfencus  re|>clled, 

■^ spOB ibe  prcMif,  was  sentenced  to  have  his 

^ud  swwcd  from  his  body  :  and  was  accord- 

t'Uaded. 
iheeaae  of  Thoouis  Rots  and  Jaifrey  Uo- 
kM%  the  SOth  July,  1716,  it  was  pled  tor  the 
isneli,  that  being  recruits  lately  come  from 
Mi^mi  to  Scotland,  and  not  knowing  the  way, 
Ihey  Mkcd  the  defunct  tbe  road  to  ^inbun^h, 
^'      '    '      to  shew  it,  and  one  of  tbe  |Min- 


Mb  cxp(«talating  with  him,  why  he  treated  a 

th( 


c: 


so,  that  came  to  serve  the  king  ?  He 
very  disrespectful  words  with  respect 
lahis  saajesiv  ;  and  one  of  the  pannels  having 
'  bioi  Tiflain  for  such  opprobrious  ezpres- 
be  caoie  up  to  Ross,  and  with  his  fist 
bin  a  blow  on  tbe  face,  and  then  pulled 
down  to  the  ^ond,  and  beat  him  with  a 
slidi,  to  the  immioent  danger  of  his  life, 
f.  That  he  should  never  go  alive  out  of  bis 
c  and  Roberts  having  come  to  his  assist- 
,  aad  lesooed  him  a  little  ;  Ross,  tbe  pan* 
fate  the  dcAioet  a  wound  with  a  knif^, 
Mof  be  died.  Ross  pleaded,  there  neither 
■ar  eoald  be  forethought  fokm  v,  or  nreme- 
■  Baliee,  agahist  a^  person  whom  lie  bad 
V  sees  before:  thai  it  was  committed  upon 
ttiinty  :  thai  be  had  the  highest  provoca- 
t^bnh  iMhal  mi  mIj  Neveitiw)M>  by  tbe 


interlocutor,  Ross,  the  pannel,  his  giving  the 
wound  was  found  relevant  to  infer  the  pain  of 
death.  And  tlie  defence  from  provocation  by 
words,  and  receiving  a  blow  on  the  face^  bch 
ing  pulled  down  to  Uie  ground,  and  beat  with 
a  great  sticJc  to  the  danger  of  his  life,  jointW 
sustained  relevant  to  restrict  the  libel  to  an  arbf* 
trary  punishment,  was  found  to  be  elided  by 
the  reply,  that,  at  the  time  of  giving  tbe  woand 
te  the  defunct,  the  defunct's  bands  were  behi 
by  Jafirey  Roberts,  the  other  pannel.  From 
whence  'tis  evident,  that  slaughter  upon  sud« 
denty,  in  rvrd  or  chaud  melle^  and  by  a  person, 
who  had  received  the  greatest  verbal  and  real 
injuries,  even  beyond  that  of  being  thrown  into 
the  kennel,  of  the  nature  that  is  set  forth  into 
which  the  present  pannel  was  tbroi^Hi  is  by  that 
interlocutor  found  homicidium  doloium^  ami  not 
cuiposttm^  but  capital. 

And,  in  a  very  late  trial,  in  the  case  of  Da- 
vidson, the  soldier,  slaughter  n|Hin  the  greatest 
soddenty  was  sustained,  and  he  was  upon  the 
proof  executed. 

And  the  judgment  given  in  1717,  in  tbe  rase 
of  Brock  and  Lindsay,  determines  this  point  be- 
yond all  dttipute.  These  pannels  were  ac- 
cused of  the  murder  of  one  Anderson :  and  ai 
the  libel  did  expressly  set  forth  a  quarrel  and  a 
struggling  betwixt  the  two  pannels  and  tlic  de- 
funct, which  made  it  ilirectly  an  homicidium  in 
rix&  ;  80  the  pannels,  at  least  Lindsay,  offered 
a  pretty  strong  defence,  namely,  |liat  the  de- 
funct, without  any  provocation,  just  led  them, 
and  struck  at  Lindsay,  and  beat  liini  down  to 
the  ground  ;  and  it  was  while  thi'y  were  on  the 
ground,  the  wound  was  given.  And  tbe  de- 
fence was  pled  for  two  several  pur|iotics  :  First, 
that  the  crime  was  not  capital,  because  no  fore- 
thought felony.  And,  3dly,  to  entitle  them  to 
the  act  of  indemnity,  under  which  all  homi- 
cides were  included,  except  willul  murder,  and 
slaughter  of  forethought  felony.  And  the  in- 
terlocutor uiion  the  relevancy  v%asinthir  words, 
"  Find  the  pannels,  or  either  of  them,  at  the 
place  and  time  libelled,  their  giviug  Archibald 
Anderson  a  cut  or  wound  in  the  neck  or  throat, 
or  other  mortal  wound,  with  a  knife  or  other 
mortal  weapon,  where<if  he,  the  defunct,  soon 
thereafter  died  ;  or  that  the  said  pannels,  both 
or  either  of  them,  were  art  and  part  therein,  re- 
levant to  infer  the  pains  of  death,  and  other 
pains  libelled  :  and  re|)cl  the  liaill  defences  for 
the  ]>annel,  excepting  that  defence  pled  u|>on 
his  majesty's  graciouti  act  of  indemnity  ;  nuent 
which  the  said  lords  8upersede«l  to  give  their 
judgment,  till  the  conclusion  of  the  probation, 
and  return  of  the  verdict." 

This  then  is  an  undoubted  authority,  that 
homicide  may,  by  the  law  of  Scotland,  infer  the 
|iain  of  death,  though  it  be  neither  wilful  mur- 
der, pro|Hfrly  so  Hpeuking,  nor  furethonsrlit  fe- 
lony ;  otherwiKe  the  Court  could  not  have  found 
the  crime  relevant  to  inter  the  pains  of  death, 
and  at  the  same  lime  reserve  the  consideration, 
whether  tliero  was  any  forethought  felony,  or 
not. 

Upon  this  interlocutor  a  proof  wna  adduce4e 


87]  4  GEORGE  II. 

and  a  verdict  returned,  finding  Lindsay,  one  of 
the  panneh,  guilty ;  and  yet  the  Court  havinj; 
returned  the  cousidcratiun  of  the  indemnity, 
found  him  inlitled  to  the  benctit  of  it :  that  is, 
in  other  uronlv,  they  found  the  crime  was  nei- 
Ibrr  voluntary  munler,  nor  slaughter  of  fore- 
thought ielony.  80  that  it  m  plain,  had  not  the 
indemnity  intervened,  Lindsay  must  have  suf- 
fered death  for  killing,  though  there  was  no 
previous  design  of  forethought. 

And  an  iiitcrlocntor  H)>on  the  relevancy, 
nmch  to  the  same  purpose  with  the  former  one, 
was  also  pronounced,  the  31st  of  August,  1721, 
in  the  case  of  Samuel  Matthews,  a  soldier  ; 
where  the  libel  was  found  relevant  to  infer  the 
pain  of  death,  reserving  the  consideration  of 
another  act  of  indemnity  then  pled  for  the 
pannel. 

It  would  be  in  vain,  and  lengthen  a  psper  al- 
ready too  long,  to  run  through  all  the  decisions 
which  shew,  that  neither  the  drunkenness  of 
the  nannel,  nor  provocation  given  him,  nor  the 
suddenty  upon  which  the  fact  was  committed, 
can  afford  a  defence  to  the  pannel,  to  exculpate 
the  slaughtei',  or  lessen  the  ordinary  punish- 
ment ;  and  therefore  the  pyrsoers  shall  leave 
the  first  branch  of  the  defence  with  the  lords, 
with  this  observation,  that  if  it  is  really  founded 
in  law,  by  looking  into  the  books  of  adjournal, 
one  would  think  our  law  has  hithertp  been  very 
ill  understood. 

Sdo,  It  was  ofi*ered,  what  indeed  is  alone  ap- 
plicable in  the  present  case,  "  That  if  the  pan- 
nel intended  only  to  wound  or  kill  Bridgeton, 
and  by  misadventure  the  deceast  earlof  fiSrath- 
more  was  wounded,  and  of  that  wound  died, 
the  pana  ordinmria  was  not  to  be  inflicted.'^ 

It  was  answered,  that  according  to  the  rules 
of  the  civil  law,  he  who  intending  to  kill  one, 
kills  another,  is  nevertheless  subject  to  the 
p<na  ordinaria  ;  so  Julius  Clams  delivers  his 
opinion  in  his  Receple  Sententifs  lib.  5.  § 
homiciilium,  N.  6.  where,  aAer  having  taken 
notice,  that  the  contrary  was  indeed  the  opinion 
of  some,  adds,  **  8ed  cert^  ego  si  casus  contin- 
geret,  illi  facerem  caput  amputari."  And  the 
learned  Mathipus,  lib.  48.  lit.  de  Sicariis,  §  12. 
^ives  the  same  opinion,  observing  that  the  act 
18  consummate,  there  is  animus  or  design  of 
killing,  and  death:  tliatit  would  be  aridiculoua 
defence,  that  the  pannel  intended  to  steal  the 
goods  of  one  man,  but  happened  to  steal  those 
of  another ;  or  against  adultery,  that  he  in- 
tended to  defile  one  man*8  wife,  and  happened 
to  light  upon  that  of  another «  and  he  thinks  it 
is  as  unrcusonable  to  hope  for  safety  from  this 
defence,  tlint  the  iiiraniug  was  to  kill  one,  but 
another  receiveil  the  stroke  and  died. 

Voet  in  his  commentary  agrees  with  them, 
lib.  48,  tit.  K,  ne.  2,  where  he  says,  that  there 
is  ro  diilemct;,  "  Sive  vulnua  in  titium  di- 
rectum ab  eo  declinatum,  Mievio  in  proximo 
•tanti  Jethale  fuerit,  sive  dianiqne  oocidatur  qui 
csedis  impediendcB  causa,  aese  medium  inter 
agressorcm  et  defendentem  interposuerit :  quia 
pnevalet,  quud  principale  est,  nee  error  talis 
t^Ui^iBt  96cide&di  aBioioDi  amcadea  kge 


Trial  of  James  Camegief 

Cornelia  vindicandam."  And  for  this  ne 
founds  upon  the  I.  18,  §  3,  et  §  ull.  ff.  de 
and  1.  5,  s.  1,  ff.  de  servo  corrupto ;  bn 
the  authorities  of  Farinacius,  qua»t.  1 ' 
15G,  et  157,  as  also,  that  of  Fachinseus, 
zovittsand  fierlichius,  and  others.  An 
opinion  obviates  the  defence,  as  put  in  it 
favourable  light,  which  however  would 
very  delicate  proof,  that  the  defunct 
himself  between  Bridgeton  and  the  p 
and  receivcMi  the  stroke  aimed  at  the  othc 

The  learned  Sande,  lib.  .5,  ti^.  9,  dc 
which  has  this  title,  **  Qui  alium  pi 
occidit,  nihilominus  ordinaria,  leg.  C 
poBn&  afficiendus,"  says,  after  agreeing 
according  to  the  Roman  law,  such  error 
not  have  excused  the  murder,  **  Hoec  sei 
ubique  usu  obtinuit,  et  secundum  eam,  r 
mortem  condemnatus  etdecapitatus  est,' 
November  anno  1621;  and  there  alleii^ 
authority  of  Gomesius,  Emanuel,  801 
Carolus  Moliooeus,  "  Qui  alios  cumuli 
his  book  ad  consnetndines  Parisienses. 
sir  George  Mackenzie  in  his  Criminal 
Murder,  i  9,  says,  after  stating  the  qu 
"  Yet  1  think  he  should  die,  seeing  the  > 
of  killing  a  man,  and  not  any  particular  r 
murder ;  and  the  killer  intended  to  defac 
Almighty 'a  image,  and  to  take  from  the 
subject." 

It  is  nothing  to  the  purpose,  that  some 
authors  who  write  upon  the  Roman  la 
of  a  difi*erent  opinion,  in  a  case  not  detci 
in  words  by  the  text,  when  the  bulk  1 
commentators  are  of  the  other  side,  th( 
recent  and  of  greatest  authority ;  and  v 
appears  to  be  received  as  a  rule  by  the  p 
of  nations,  that  the  ordinary  punishment 
be  indicted.    And  it  may  not  be  impro 
observe,  that  the  cases  where  lawyers  < 
from  the  received  opinion,  are  generally 
tifiahle  homicide,  that  is,  where  the  bys 
was  killed,  when  the  killer  intended  to  e 
his  purpose  in  lawful  defence,  and  not 
micidoi  culposo,  which  is  the  highest  tlu 
nel's  case  could  possibly  be  pled  upon  pn 
tion,  according  to  any  opinion  delivered 
strongest  advocates  for  the  question  the 
pleads. 

That  it  is  not  always  necessary,  that  \ 
tention  should  be  directed  towards  the  ro 
done,  in  order  to  inflict  the  pain  of  death,  n 
evident  from  looking  to  the  xxi.  chap,  of 
ver.  22,  and  83,  where, "  If  a  woman  will 
is  hurt  when  men  are  striving,  and  m 
follow ;  life  is  to  be  given  for  life.'*  A 
kind  of  killing  now  in  question  was  plain! 
as,  according  to  the  law  of  Moses,  woii 
have  intitled  the  slayer  to  the  benefit  • 
city  of  refuge:  For  thouirh  in  the  xir 
of  l>eut.  ver.  4,  "  Whoso  killeth  his  neif 
ignorantly,  whom  he  hated  not  in  time 
is  said  to  be  intitled  to  that  privilege ;  y 
is  limited  immediately  with  an  exam 
manaUugbter  merely  caaual.  - 

The  proenrators  fiir  the  pannel  in 
«« That  Ibia  kind  of  kiUing  wai  inttrdy  < 


m 


Jar  the  Murder  of  the  Earl  of  Strathmore.  A.  D.  17^  [90 


bfwd,  and  witboat  the  intentioD  of  the  party : 
1m  m  the  caw  of  Musod,  in  the  year  1674, 
T  CariopB,  ami  several  otheni,  where  it 
there  was  do  intention  to  kill,  the  pu- 
mitiieateii." 
k«iaaanrered,That  where,  from  the  nature 
I,  and  meant  by  which  the  wound 
^ivtai  taking  all  the  circumstances  to- 
hoe  was  no  eridence  or  presumption 
fsancl  intended  death  to  any  person 
;  and  the  propontum  was  neither 
■or  oonld  be  presomed,  as  in  the  case 
jind  in  that  of  Burnet  of  Carlops, 
having  swords,  only  struck 
,  h  was  held  as  approaching  towards 
homictde.  But  tliat  can  never  be 
I,  when  the  wound  given  as  libelled 
swas  clearly  mortal,  and  the  instrument  the 
Mrt  Icfbal  [deadly];  and  the  decision  of 
Mipa,  cfCD  with  that  difference,  stands  single 
kftabsaks  of  adjournal. 

Ilvas  fiirtber  contended  for  the  pannel, 
^Hkh  animuM  oceidtndi^  and  death  follow* 
1%  tn  admitted  to  be  necessary,  in  order  to 
in  the  highest  punishment ;  so  as  from  the 
mentioned  in  ezculpation,  it  is 
there  was  no  intention  against  the  de- 
Aod  it  cannot  be  known  whether  the 

ei  dea^irn  was  to  kill  Bridgeton,  since 
not  killed,  or  if  the  wound  w<Mild  have 
liMBvtal,  bad  thesword  reached  him ;  and 
MH^BOCly  the  necessary  reqnisites  to  const i- 
ftiiaaBnler,  were  not  to  be  found  here." 

h  was  answered,  that  the  invasion  with  a 

—Id  weapon,  with  which  the  defunct  was 

yu,«as  a  sufficient  proof  in  law  that  the  iii- 

ndw  iolraded  to  kill,  since  death  followed ; 

■i  ibtt  there  is  no  wounding  by  measure, 

HtcRtuiy  not  to  kill.  The  act  implies  chlus 

isdndice,  which,  with  death  following,  makes 

■■ds;  inihout  any  farther  proof  of  an  act  of 

lirai^jlikill ;    and  tbere  would  have  been  as 

Uretideoce  that  the  pannel  intended  to  kill 

Bri^noo,  if    be  bad  actually    received  the 

■•viand  died,  because  it  was  possible  the 

tsvri  night  have  pierced  farther  than  he  in- 

fesdid ;  and  if  lie  did  not  design  to  kill  Bridge- 

l"a.  Mil  killed  the  defunct,  he  must  have  been 

6eper>6n  against  whom  the  mischief  was  di- 

icned.    As  indeed  it  may  be  argued  from  the 

fi^and  drunkenness  pled  in  excuse  and  de- 

nee,  it  is  possible  that  er  rabie  he  intended  to 

Ul  vhomerer  he  met  with ;    and  if  rage  from 

fiKino  3Ri|  drink  is  alloweil  to  palliate  iininier, 

I  iiioipouible  any  one  can  be  fiafe.     And  tiiet^e 

wif  drciimstances,  without  which  the  defence 

bs  Bot  a  colour,  roust,  at  the  same  time,  give 

that  the  |innners  intrniion  o\'  {uir- 

Bridgeton  with  a  sword,  was  to  kill  and 

him  ;    for  be  pleads  them  to  excuse  his 

of  the  defunct,  as  sufficient  provocations 

feisdte  him  to  it. 

Tbc  law  of  England  was  freqiirntly  inen- 

^fi  by  the  procuraturs  for  the  |tannel  in  the 

llHdiag,  as  what  won  hi  Justify  Mic  orgnnients 

^a^^htfor  tbem  ;  and  |>aiticularly  it  was  said, 

^TkA  lU  kiiliog  of  a  suddenly' by  tliat  law, 


was  only  manslaughter,  and  not  mnrder."  But 
the  contrary  will  appear,  by  looking  into 
Hawkins's  Pleas  of  tiie  Crown,  book  1,  cliap. 
31,  of  Murder,  where  he  clearly  distiaguishes 
between  deliberate  murder,  audi  murder  con- 
mitted  on  a  sodden :  And  in  this  last  case,  ma- 
lice prepensed  is,  by  the  law  of  England,  often 
implied,  as  lord  chief  justice  Keylinge*  lays  it 
down,  Begina  v.  Mawgridge,  and  justifies  it 
by  the  case  of  Hollo  way,  who  espying  a  hoy 
that  came  to  cut  wood,  took  him,  and  tied  hiio 
to  an  horse's  tail  with  a  cord,  and  then  gave 
the  horse  two  blows,  whereby  he  run  away« 
and  broke  the  boy's  shoulder,  whereof  he  dieo; 
which  must  have  been  sudden,  and  was  ad- 
judged murder.  And  p.  130,  he  supposes  A  to 
have  been  provoked  by  B,  and  to  have  drawn 
his  sword,  and  made  a  pass  at  him,  when  B 
had  no  weapon  drawn,  but  missed  him  ;  there- 
upon B  draws  his  sword,  and  passes  at  A,  and 
tliere  being  interchange  of  passes  between  them^ 
A  kills  B.  I  hold,  says  the  author,  this  to  lie 
murder  in  A,  for  A's  pass  at  B  was  maUdooa^ 
and  what  B  aflerwards  did  was  lawful.  Here 
is  both  suddenly  and  provocation,  and  yet,  in 
the  opinion  of  that  great  lawyer,  it  would  have 
been  held  murder.  And  in  the  present  qoestioOy 
neither  Bridgeton,  nor  the  deceased,  had  any 
weapon  drawn. 

And  to  shew,  that  according  to  the  law  of 
England,  the  aiming  at  one,  and  hitting  ano- 
ther, does  not  make  death  follo\«ing  man- 
slaughter ;  in  the  end  of  the  next  page  he  sets 
down  the  Case  of  Dr.  Williams,  a  Welsbmsui 
who  having  a  leek  in  his  hat,  upcm  8t.  David's- 
day,  a  certain  person  pointeil  to  a  Jack-of-Lent 
that  hung  up  hard  by,  and  said  to  him,  *'  LOok 
upon  your  countryman!"  At  which  Dr» 
Williams  being  enraged,  toftk  a  hammer  that 
lay  u|K>n  a  stall  hard  by,  and  flung  at  him, 
wliirh  liitanotlier,  and  killed  him  :  An<l  though 
being  indicied  upon  the  statute  of  stalibing,  it 
was  resokeil  he  was  not  \«iiliin  that  statute, 
because  of  the  kind  of  weapon ;  **  Yet,"  says 
the  author,  *'  if  the  indiiiiiient  had  been  for 
niunler,  1  do  think  that  the  Welshman  ought  to 
have  been  convicted  thereof. "f 

And  since  the  pannel's  procurators  insisted 
so  much  upon  the  law  of  England,  the  pursuers 
cannot  but  mention  the  authority  oi  one  of 
those  lawyers,  as  to  one  of  the  cases  they  them- 
selves stated  in  the  debate  ;  Hawkinv's  Picas  of 
the  Crown,  chap.  31,  in  fin.:  The  case  is. 
That  a  |)erson  shooting;  at  tame  fouls  with 
intent  to  steal  them,  arcideutally  killa  a  man  ; 
that  Jiithor  .".ays,  ^'  TliHt  it  is  agreed  it  would  be 
murder.  i\\v\  not  mnn«l:night**r." 

*  So  in  the  Furinn  Edition.  But  it  appears 
that  chi<'f  justice  HoU  is  intended  SceMaw- 
griilpe's  Case,  p.  57,  of  tins  Volume.  » 

f  Ixinl  Chancellor  Bacon  is  in  this  opinion 
of  Hawkins  expressly  :  See  Vol.  4,  (Edit. 
1740)  p.  41,  on  explaining  this  maxim  offing- 
lisli  \\\v\  **  In  criuiinalibus  sufticit  generalis 
maliiia,"  &c.  \%here  he  states  cases  very  similar 
to  the  case  here  argued.    Farmer  Editum^ 


91]  2  GEORGE  IL 

It  is  troe  iodeed,  that  it  would  appear  by  the 
law  of  Eogland,  as  laid  down  in  tnese  reports, 
thai  if  there  is  pro?ocatioD,  io  some  partica* 
lar  cases,  sufficient  to  alleviate  the  act  of  kill- 
ipg,  it  reduces  it  to  a  bare  homicide.  But 
then  DO  pro? ocation  from  words  is  ever  sus- 
tained, nor  CTen  assaults,  hst  upon  this  ground, 
that  he  who  was  affronted  or  asssaulted,  might 
reasonably  apprehend,  that  he  that  treated  him 
in  that  manner  might  have  some  farther  de- 
sign upon  him,  which  resolves  the  matter  into 
a  kind  of  self-defipuce ;  and  in  this  the  law  of 
England  differs  from  tlie  law  of  Scotland, 
which  requires,  in  order  to  lawful  defence,  and 
killing  under  the  notion  of  danger  from  the 
assailant,  **  ut  quis  sit  constitotus  in  periculo 
▼itse."  But  then  there  is  no  pretence  of  ap- 
prehending dangerous  consequences,  when  the 
party  killed,  or  intended  to  be  killed,  was  flving, 
and  had  no  weapon,  as  in  this  case,  and  the 
passion  in  such  circumstandes  resolves  itself 
simplv  into  revenge,  which  no  law  ever  sos- 
tained  to  alleviate  or  palliate  murder ;  for  there 
the  malice  prepensed  is  clear  and  evident. 

But  then,  if  it  be  conridered  in  the  present 
ease,  that  the  party  affronting  or  invading,  is 
not  only  set  forth  to  have  fled,  and  to  have  had 
BO  weapon  in  his  hand,  but  that  he  escaped ; 
what  colour  is  there,  upon  these  principles,  to 
alleviate  the  killing  of  a  person  interposing  to 
prevent  the  mischief,  when  there  was  no  re^ 
aistance  upon  the  part  of  any  person  wliatso- 
ever,  as  in  the  case  of  a  combat,  and  where 
it  was  voluntary  as  to  the  person  giving  the 
wound,  in  regard  he  could  have  stopped  when 
Bridgeton  fl^,  which  cannot  be  said  with  re- 
gard to.  the  Welshman  who  threw  the  hammer. 

To  (conclude  this  matter,  it  appears  pretty}evi- 
dent,  the  circumstances  offered  in  exculpation 
afford,  by  the  law  and  practice  of  Scotland,  no 
relevant  detence,  suppose  the  person  kilted  had 
been  the  provoker,  much  less  m  the  case  where 
the  person  killed  ^nerously  interposed  to  pre- 
vent the  mischief,  having  given  no  colour  or 
cause  of  pn>vocation,  having  no  weapon,  and 
where  the  person,  against  whom  the  invasion  is 
said  to  be  meant,  was  without  drawn  sword, 
and  flving :  the  murder  in  these  circumstances 
must  nave  proceeded  either  from  rage  and  re- 
Tengc,  which  no  law  can  ever  favour,  since 
laws  were  made,  and  judges  appointed,  that 
private  persons  should  not  attempt  judging  in 
their  own  case,  and  to  Inridle  the  unruly  pas- 
sions of  men,  or  from  set  purpose  and  design 
to  kill  tlie  defunct,  from  former  resentment 
And  what  adds  to  the  presumption  of  the  last, 
is  the  nature  of  the  wound,  quite  through  the 
body,  and  that  the  sword  went  tlirough  tlie 
back  lower  than  where  it  pierced  the  belly ; 
which  excludes  all  possibility  of  pleading,  that 
the  pannel's  stumbling  might  have  pushed  il 
forward,  because  by  the  nature  of  the  thing, 
bad  he  stumbled  after  the  sword  bad  pierced 
the  defunct's  body,  it  must  have  raised  the 
foint  of  the  sword,  so  that  it  eoald  not  bare 
pieroed  loaier  in  the  hick  than-in  the  belly. 

VpoatiM  fist  kMch  eC  the  libdi  thepor 


Trial  of  James  Carnegie^ 


c 


\ 


suers  think  it  unnecessary  to  open  the  pu 
cular  circumstances  from  whicli  the  panne 
causeless  ill-will  and  resentment  may  appi 
against  the  defunct ;  that  is  matter  of  evidea 
and  upon  which  no  interlocutor  in  the  rm 
vancy  can  pass,  and  must  lie  in  tlie  breasv 
the  assize;  and  against  this  relevancy  no 
ception,  or  colour  of  exception  can  bepretena 
to  lye.  And  as  to  the  separate  relevancy, 
art  and  part,  vi  bat  is  offered  to  be  proven,  ■ 
the  defunct  thrust  himself  in  a  manner  a. 
the  pannel's  sword:  as  it  is  of  too  ddia 
proof,  and  was  repelled  in  the  case  of  Hamta 
of  Green,  it  is  believed  the  lords  can  hava 
regard  to  it  And  as  for  the  drunkenness 
provocation,  especially  where  the  provoc^ 
IS  said  to  have  been  given  by  a  thinl  partir 
it  were  sustained,  it  must  turn  up  wliati.:: 
been  thought  tlie  foundations  of  the  laap 
Scotland,  and  stand  in  opposition  to  all 
practice  that  can  be  discovered  from  the  b^ 
of  adjournal.  And  the  allowing  such  defea 
as  might  possibly  have  some  colour  in  th» 
of  England,  to  be  proven,  would  be  of  daa 
reus  consequence  in  the  law  of  Scotland,  w  fa 
the  pursuers  are  tied  up  to  a  precise  relevanc 
so  that  the  procedure  in  that  part  of  I 
island,  in  trials  of  this  kind,  unless  the  wbi 
form  of  trial  were  adopted  in  our  law,  won 
open  a  door  for  leaving  murders  unpunishe 
The  law  of  Scotland  alone  can  be  the  rols  i 
this  case ;  though,  at  the  same  time,  it  is  h 
lieved,  that  the  ipecUsfacti,  as  set  forth  by  ik 
|»annel,  would  be  suliicient  warrant  for  a  va 
diet  of  murder,  even  according  the  laws  ai 
practice  of  England.    In  respect  whereof,  b 

CllA.  Ar£skins. 

Information  for  James  Carnegie,  of  Finiiati 
Pannel ;  against  Susanna,  Countess  i 
Stratliniore,  the  Hon.  Mr.  James  I^ 
Piirsuere,  and  his  Majesty's  Advocate,! 
his  llighness's  interest 

The  said  James  Came<iie,  of  Finliata 
stands  indirted  before  your  lordships  of  wiM 
and  premeditate  murder  andhonucide;  ini 
far  as,  having  a  causeless  ill-will  and  resH 
meut  against  the  deceased  Charles,  earl  i 
Strathmore,  he  couceivc^d  a  deadly  hatred  si 
malice  against  him ;  and  (on  the  day  libelle 
"  did,  with  adrawn  sword,  without  tlie  leasts 
lour  or  cause  of  provocation  then  given  by  Ui 
invade  the  said  deceased  Earl,  and  diil  oase 
and  feloniously  murder  and  kill  him,  by  i^vii 
him  a  wound  therewith  in  the  belly,  when 
he  soon  aUer  died.  At  least,  at  the  time  ai 
place  described,  the  said  Charks,  earl  of  Stva^ 
more,  was  with  a  dmwn  sword,  feloniously  ai 
barbarously  wounded,  and  died  of  the  sa 
wound  within  a  few  davs  thereafter ;  and  th 
the  pannel  was  art  and  part  in  this  murder 
And  the  Indictment  concludes,  **  By  all  wbii 
it  is  evident,  that  you  are  guilty,  art  and  pii 
of  tlie  orimes  of  wilAil  and  premeditate  mupi 
and  homicide,  or  ene  or  other  of  tliem»  aV  II 
timeandplait|.aMlui  tbttnuner  abof*  i 
l«th.« 


If/* 


fjfiU  Murder  of  the  Eari  ffSitaihmore.  A.  D.  IVxh. 

pMd  «M  ti— Mbt  to  ym  ImMuf^  alwi j«  ymmmiM,  nnd  iAi»i  «M  *.^f* 

■*f  Uibcf  Joljciinvatfto^lctti  tA  woht  mymi^ymft,  m^tim  i/#  a^  IvHif  tiM  «* 

be  sppcand  — rfer  ibat  um  m  •  faukty,  «r>l  b<M  •  ^^mj^u   ;iih^*mi  m«4 

of  apinl  »ivk  4mj  tul^wi  o^  Umm^  W  if***  p««.#  w*«fc  ••• 

!■■  aifJilmaaB  Bort  be  Um^mi^  wmmiot,  wa^M  t*^  mpMI^  h^^f4  •*•  »»m»»# 

•beU«Dd«f'Eoe.         TWk  ImS.  «■  Wi^«*tiM  MM  «••*  '•^'jr  |(^«* 

CMC       fv    1H»     flbUl^     »*^*    iHli^aai    %k     1^    (V^  !«« 

ial  «r  1  aM  ^  ma  mi  fii—  «iia     iir^«  i-ji  {:•««»  :A*'nii      «u^:ft  «^f  ^^^   ^« 

*l^-.    W  tfMUilMiqf  c-vaa   fMA»   l«^:«     •  *-^^/ 
1»  tut       in»   M»    »   HB—<««       Mil  1*^  W^JUtt  K-tf^oft  «/  4 


•ff 


t.t 


»5-.         «..S-. 


•  AM'rf 


95] 


2  GEORGE  11. 


used  ?ery  great  rudeness  to  the  lady 
in  irhose  houwtliey  were  ;  particularly,  when 
ahe  in  cif  ility  offered  him  a  glass  of  brandy, 
he,  seeing  the  nannel  already  overtaken  with 
drink,  desired  the  lady  to  *j^ve  it  to  him,  her 
lirother  ;  and  upon  her  saying  that  her  brother 
did  not  seem  to  want  it  at  that  time,  he  grip- 
ed lier  by  the  arm  so  rudely,  as  to  make  her 
complain,  and  swore,  by  God,  her  brother 
aitlier  should  drink  it,  or  she  should  drink  it 
herself;  and  persisted  in  this  way  of  doing, 
tall  the  lord  Strathmore  thought  it  proper  to 
break  off  the  visit,  and  so  went  out  of  the 
house. 

*'That  Finhaven  and  Bridgeton  followed 
the  Earl ;  and  when  they  came  to  the  street, 
some  words  passed,  and  Bridgeton  used  the 
ezpreision,  *  God  damn  him,*  meaning  the 
pannel,  and  with  that  gripped  him  by  the 
breast,  and  pushed  him  into  a  dirty  kennel  two 
feet  deep,  over  head  and  ears,  where,  in  the 
condition  he  was,  he  might  have  been  smother- 
ed if  a  servant  of  the  Earl's  had  not  helped  him 
out,  who  at  the  same  time  expressed  his  indig- 
nation at  the  action  he  had  seen,  by  these 
words  addressed  to  Bridgeton,  *  Sir,  though 
*  you  be  a  gentleman,  you  are  uncivil.' 

"  That  Bridgeton,  after  having  so  flung  the 
paonel  into  the  kennel,  leaving  him  there, 
walked  forward ;  at  the  same  time  turning 
about,  and  folding  his  arms  across  his  breast, 
acomfully  laughed  at  him  in  that  condition. 

*<  That  the  paonel  being  helped  out  of  the 
kennel  in  manner  foresaid,  immediately  drew 
his  sword,  and,  in  a  just  passion,  pursued 
Bridgeton  with  a  staggering  pace:  and  Bridge- 
ion  ran  towards  the  earl  of  Strathmore,  whose 
back  was  then  to  him,  and  endeavoured  to  pull 
out  his  sword ;  at  which  time  the  pannel 
coming  up  with  Bridgeton,  made  a  push  at 
him ;  in  which  instant  the  Earl  turning  hastily 
about,  pushed  off  Bridgeton,  and  threw  him- 
aelf  in  tne  way  of  the  sword,  by  which  he  re- 
ceived the  fatal  wound." 

These  are  the  unlucky  drcnmstances  of  the 
fact,  as  the  lalvyers  for  the  pannel  have  been 
instructed  to  plead  :  and  from  it,  as  so  stated, 
the  defence  iunsted  upon  for  the  pannel  was, 
that  the  act  of  killing  is  not  murder,  nor  capi- 
tal, where  there  is  no  malice  nor  forethought 
•gainst  the  person  killed,  either  prored  to  have 
been  conceived  and  retained  at  any  time  pre- 
ceding the  act  of  killing,  or  presumed  from  the 
circumstances  to  have  preceded  the  act  imme- 
diately before  the  committing  of  it :  but  that 
in  this  case  there  is  no  antecedent  malice  spe- 
cified or  lybelled ;  and  therefore  it  must  be 
taken  for  granted,  that  there  was  none.  And 
as  to  presumed  malice  immediately  preceding 
the  act,  that  the  circumstances  entirely  exclude 
that  presumption ;  first,  because,  as  the  fact  is 
laid,  any  blow  or  push  that  was  intended,  was 
made  at,  and  designed  for  Bridgeton,  and  not 
against  the  earl  of  Strathmore  ;  and  since  the 
imtium/acti  is  to  be  considered,  as  well  as  the 
•rent,  a  push  begun  and  intended  against 
BridfUBPi  «ould  otrar  be  tha  fouBdatioa  of  a 


Trial  qfj^mes  Camegle^ 

^  presumption  of  malice  against  the  lord  St 
more,  the  person  killed  without  wbicb 
killing  could  not  be  capital,  but  in  tfaia 
was  merely  casual  and  accidental,  it  hi 
bapnened  by  the  Earl's  imluddly  tumilig 
in  the  time  of  the  pannel's  very  act  of  poa 
against  Bridgeton,  wherd>y  the  Earl  rec 
the  fatal  wound.  3do,  That  the  pannel 
never  be  more  criminal  in  having  kiUed  tfa 
of  Strathmore  by  a  thrust  directed  at  Brid| 
than  he  would  have  been  if  be  had  killed  Bi 
ton  himself;  but  that  so  it  was,  that  if  Im 
killed  Bridgeton,  after  the  provocation  m 
manner  above  set  forth,  that  it  wouul 
been  construed  ouly  as  casual  or  culpaU 
midde,  without  forethought,  because  don 

*  incontinent!,  et  ex  aubito  impetu,  et  i 

*  justse  iracnndise ;'  yea,  in  some  mea« 
self-deleucc;,  since  the  pannel  having 
thrown  into  the  kennel,  even  to  the  dasai 
being  suffocated,  he  had  reason  after  tl 
expect  the  wont  from  Bridgeton,  since  ofl 
tieman  will  throw  another  into  a  puddle,  vt 
not  supposed  to  be  ready  to  go  further,  i 
cannot  but  expect  the  strongest  retortion  c 
injury ;  and  that  the  pannel  bad  the  more 
son  to  think  so,  that  Bridgeton  immediately 
took  himself  to  the  earl  of  Strath  mere's  ai 
and  endeavoured  to  pull  it  out,  having  M 
his  own,  by  reason  that  the  known  ferodi 
his  character  and  behaviour  is  such,  that 
country-gentlemen  of  bis  acquaintance  del 
to  keep  company  with  him,  if  he  wear 
arms :  in  such  case  the  pannel  was  to  a 
the  worst,  and  so  was  in  some  measure  ii 
own  defence,  although  he  may  have  exoa 
the  *  moderaroen  inculpatoe  tutels ;'  wl 
excess,  in  such  circumstances,  would  no 
punishable  by  death,  but  only  by  an  arbiO 
puniahmeiil. 

And  in  support  of  this  dcfeure  the  con 
for  the  pannel  shall  now,  in  this  informal 
endeavour,  though  somewhat  out  of  the  c 
of  their  pleading,  to  follow  the  inforoii 
given  in  for  the  pursuers.  And  first,  to  i 
your  lordshifis,  that  killing  in  such  circ 
stances  was  not  capital  by  the  divine  Ian 
law  of  Moses.  2do,  That  it  was  not  capita 
the  common  law,  which  we  in  great  mei 
follow  in  matters  of  that  kind.  Stio,  Th 
was  not  capital  by  our  own  ancient  law. 
That  our  ancient  law  in  that  particular  is 
altered  by  the  statute  of  Charles  2.  5to, ' 
the  practice  of  the  Court  is  not  inconsitf 
but  agreeable  to  what  is  here  pled.  And 
That  the  laws  of  our  neiglibouritig  nations 
for  tlie  most  part  consonant  to  tliose  princij 
as  well  as  the  judgment  of  ibreip^u  courts. 

And  to  begin  with  the  divine  law,  it  ma 
divide<l  into  two:  First,  the  law  of  nal 
which  is  the  first  of  all  laws,  and  hath  no  € 
author  than  God  Almighty  himself.  Sdo, 
will  revealed  by  writing,  particujariy  in 
Uws  delivered  by  Aloses. 

And  as  to  the  law  of  nature,  one  of  the 
principles  seems  to  be,  that  every  action  i 
be  constroed  and  regulated  from  tbo  iotii 


fofr  the  Murder  of  the  Earl  of  Strathmore.  A.  D.  1728. 


[98 


.  Everjr  action  whatever,  except  io 
is  coDJo'iDed  with  the  will  and  inten- 

•  a^ent,  cliflTeri  in  nothio^f  from  the 
irrational  cremtnre ;  yea,  if  we  may 
s  to  call  the  o|ienition  nr  impulie  of 
te  creature  an  action,  the  actions  of 
led  from  his  intention  and  design  as 
sntnre  differ  in  nothing  from  the 
ftrntes,  or  the  impalse  of  things  iu- 
aod  consequently  that  action,  be 
I, cm  neither  be  crime  nor  virtue; 

*  impulse  or  motion,  not  properly 
laws  or  rules.  But  then,  indeed, 
im  to  be  conjoined  with  tlie  inten- 
Mk  is  the  same  thini^,  considered  as 
rf"  a  rational  a^ent,  there  it  comes  to 
to  bus,  to  be  considered  as  criminal 
i :  or  if  it  appear  to  be  accidental,  so 
depended  upon  no  will  nor  delibera- 
isoo,  then  it  returns  to  be  of  the  na- 
ict  of  an  irratioOal  crcatur6,or  inani- 
iDce,  and  is  subjected  to  no  penalty, 
pable  of  receiving^  a  reward.  The 
)aence  of  which  is,  that  it  is  the 
De  that  determines  the  nature  of  the 
'the  animuM  or  intention  was  crimi- 
ij  the  law  of  nature,  the  action  itself 
a  crime.  On  the  other  hand,  if  ii 
i  f  irtnous,  the  act  is  laudable  by  the 
tore,  supposing  even  a  bad  consc- 
old  follow.     But,  in  the  third  place, 

0  truly  arise  from  no  intention  or 
(oreming  that  action,  it  is  neither 
K  punishable,  it  returns  to  be  of  the 
Ij  mentioned,  the  same  with  the  like 
srational  creature,  or  the  impulse  of 
ite  substance,  moved  by  a  cause  in- 
itself.  And  the  consequence  of  all 
a  by  the  primary  law  of  nature,  the 
Mat  make  the  crime ;  and  therefore 
fear  no  intention  to  commit  that  par- 
X  which  happens  to  be  complained 
t  a  crime,  uot withstanding  of  a  bad 
ee ;  it  is  considered  as  a  tatalit}-. 
'application  is  plain  to  the  present 

tiiat  if  the  unfortunate  act  of  killing 
td  lord  did  not  fluw  from  any  intention 
Kted ;  then  that  net  is  not  bv  the  law 
a  cr.minal  act,  however  the  antece- 
directed  airaioat  another  may  he  cri- 
t  is  another  question,  hoiv  far  a  ra- 
nt, vcrsans  t><  illicito,  is  bound  for 
ces  that  did  not  lall  umler  liis  iiiten- 
'.  shall  afcer^vards  endeavour  to  shew, 

1  neither  a  question  iu  the  law  of  na- 
D  the  divine  law  ;  but  is  a  question 
m  the  municipal  laws  of  particular 
,  or  at  farthest  from  the  law  of  na> 
letimes  called  the  secondary  law  of 

point,  that  the  intention  directed  to- 
act  committed,  must  govern  the  ac- 
to  render  it  criminal  or  not,  accord - 
first  principles  of  the  law  of  nature, 
be  pretty  plain,  if  we  retire  our 
torn  other  aher  laws  ;  so  indeed  it  is 
and  illustrated  by  the  written  law  of 
iVIL  / 


God,  as  delirered  by  Moses,  with  rmrd  parti- 
cularly to  the  question  of  manslaughter.  It  is 
almost  unnecessary  to  o)»serve,  that  whether 
the  remedy  against  the  penal  consequences  of 
actious,  committed  without  intention,  was  in 
form  of  an  absolvitor  upon  the  trial,  or  by  bar- 
ing access  to  a  city  of  refuge ;  it  is  the  same 
thing :  the  question  is,  what  was  to  he  the  pu- 
nishment that  was  to  take  eflfectP  If  the  pu- 
nishment was  to  be  stopped  in  that  form,  by  fly- 
ing into  a  city  of  refuge,  the  principle  of  law  is 
the  same,as  if  the  effect  had  been  to  be  stopped  in 
any  other  way.  And  just  so,  as  we  will  after- 
wards have  occasion  to  notice,  it  is  the  same 
thing  as  to  our  law,  whether  the  manslnyer  was 
to  be  safe,  by  flying  into  gyrth  or  sanctuary, 
according  to  the  old  law,  or  now  to  be  safe  by  a 
judicial  absolvitor  or  restriction  of  the  punish- 
ment. And  just  so  with  regard  to  the  law  of 
neighbouring  nations ;  it  is  all  one,  whether  a 
man  is  to  be  freed  by  beneflt  of  clergy,  or  such 
other  form,  if  he  is  to  be  free.  The  foundation 
question  is  only,  what  was  the  panishmenr  that 
necessarily,  cum  effectu^  falls  to  be  inflicted 
upon  a  homicide  orsnch  and  such  a  kind ;  and 
as  in  this  case,  upon  a  homicide  dommitted 
without  tbrethoufifht  Or  malicious  intention  di- 
rected agamst  tiie  person  that  hath  suffered  ? 
And  therefore  if,  by  the  Mosaic  law,  one  in  the 
pannel's  circumstances  was  to  have  the  benefit 
of  a  city  of  refuge,  the  argument  concludes, 
that  by  that  law  he  would  not  have  been  sub- 
jected to  the  pain  of  death.  Indeed  we  believa 
we  will  be  able  to  go  a  little  farther  to  shew 
your  lordships,  that,  according  to  the  opinion 
of  the  most  learned  interpreters  and  doctors  of 
the  Jewish  law,  the  l)enentof  the  city  of  refuge 
was  scarce  necessary  in  such  a  case  as  that 
which  is  now  bel'ore  you. 

In  the  19th  chap,  of  Deut.  the  cities  of  re- 
fu{ve  are  appoint^^d  to  be  separated  io  the  midst 
of  the  land,  that  every  slayer  may  fly  thither : 
"  And  this  is  the  case,"(«ays  thetext)  "  of  the 
f«1ayer,  which  siiall  fly  thither,  that  he  may 
live:  whoso  killeth  his  neighbour  i^norantly, 
whom  he  hated  not  iu  time  past;"  or,  as  it  is 
said  to  be  more  literally  in  the  original,  '*  from 
yesterday  the  third  day."  By  this  text  your 
lordships  see  those  two  are  conjoined  as  expli* 
catory  of  one  another,  *'  ignorantly  whom  he 
haten  not  in  time  past;"  and  so  the  word  *'  ig- 
norantly"  is  put  in  opposition  to  "  hatied  iu 
time  past,"  and  by  that  means  the  sense  is 

tilain,that  by  ** ignonintly" is not|nieant,  without 
Knowing  that  he  kills  his  neighbour,  but  with- 
out a  fure- knowledge,  a  foresight,  a  former  ra- 
tiocination and  design  :  in  which  sense,  know- 
ledge is  most  frefjuently  taken,  because  it  is 
imiKtssible  to  maintain,  that  if  a  mau  i^norant- 
ly  kill  his  ueighbour,  even  whom  he  hated  be- 
fore, taking  the  word  "  is»iorantl\\"  in  that 
sense,  of  his  not  knowing  that  he  kills  him,  or 
killing  him   by   mere  accidviu,    without    his 
knowledge,  can  he  liable  as  a  luurdcier;  be- 
cause it  is  impossible  to  conjoin  e\c»  preuous 
enmity  wiUi  accidental  iguoraiu  killing,  «<>  ■" 
to  make  out  a  crinie  ol  luuv^^v  •,  \W\  >^*:^<i  *^' 
11 


99] 


2  GEORGE  II. 


cccdiotf  inconsistent  with  every  |>rinci|jle  of 
reason,  tur  more  uith  a  law  fluiviiig^  from  infi- 
nite perfection.  But  then  the  matter  is  fully 
explained  hy  ?er.  11,  of  that  same  chapter, 
which  determines  when  a  man  is  not  to  have 
the  benefit  of  the  city  of  refii^ ;  "  But  if  any 
man  bate  his  nei{;hhour,and  he  in  wait  for  him, 
and  rise  up  against  him,  and  smite  him  mortal- 
ly that  he  die,  and  flieth  into  one  of  these  cities: 
then  the  elders  of  his  city  shall  send  and  fetch 
him  thence,  and  deliver  him  into  the  hand  of 
the  avenger  of  blood,  that  be  may  die."  Here 
are  both  sides  of  the  question  put,  the  one  fully 
to  explain  the  other ;  the  last  to  explain  what 
is  meant  by  <*  i(;norantly,  whom  he  hated  not 
in  time  past.*'  The  last  text  does  bv  no  means 
•ay,  that  if  a  man  smites  his  neighbour  whom 
he  knowcth,  ahhough  without  hatred,  and 
without  lying  in  wait,  and  without  rising  up 
against  him,  that  he  shall  surely  die  ;  but  ou 
the  contrary,  puts  the  issue  of  his  dying  upon 
his  liating  uf  hhn  whom  he  killed,  and  u|x>n 
his  rising  up  against  him  whom  he  did  kill ; 
and  u(K>n  his  lying  in  wait,  that  is,  in  other 
words,  n|>bn  bis  designing  to  take  his  opnortu  - 
nity  from  a  premeditated  malice:  for  indeed 
the  meaning  cannot  be  that  of  a  formal  lying  in 
wait,  or  lurking  in  a  pussage  where  the  person 
was  to  pass ;  but  he  who  debi^ns  the  thing, 
and  takes  bis  opportunity,  lies  in  wait  in  the 
plain  sense  of  the  text  Besides,  the  word  *  *  ig  • 
Donntly"  ?ery  plainly  imports,  and  carries 
under  it  that  case  of  a  man's  killing,  by  mis- 
adventure,  one  whom  he  did  not  intend  to  kill, 
that  is  plainly  ignorance  ai  to  him  who  was 
killed  ;  and  yet  it  will  be  true,  that  if  he  de- 
signedly kill  one  in  place  of  another,  mistaking 
the  [>ers<)n,  but  designing  to  kill  that  person,  as 
aup|K>sed  to  be  the  other,  he  does  not  ignorant - 
ly  kill  the  man  whom  be  does  slay,  he  kills 
him  knowingly,  although  he  mistake  the 
man. 

Nor  is  it  of  any  importance,  that  the  exam- 
ples immediately  subjoined  in  the  5\\i  verse, 
are  instances  of  slaughter  entirely  accidental ; 
and  where  the  slayer  did  really  not  know  that 
he  killed,  that  is  an  example,  but  not  an  ex- 
ample exhausting  the  rule,  which  the  lltli 
verse  fully  clears,  as  not  extending  the  capital 
punishment  to  all  who  caiQe  not  under  the  de- 
acription  in  the  5th  verse,  but  to  those  alone 
who  ^*  bated  their  neighbour,  lay  in  wait  for 
him,  and  rose  up  against  hiiii." 

And  though  this  is  plain  vnough  from  that 
part  of  the  law,  yrt  the  matter  is  indeed  more 
fully  exjdained  in  xxxvtli  chap,  of  Numb, 
where  there  is  another  ordinance  as  to  cities 
of  refuge,  and  thev  are  appointed  to  be  six ; 
and  the  general  mlc  is  set  down.  That  every 
one  that  kills  any  person  unawares,  may  fly  to 
thote  cities.  Nothing  can  be  plainer  than 
the  meaning  of  killing  unawares,  tnat  is,  with- 
out deliberation,  unexpectedly,  without  fore- 
tboaght,  ex  improvito,  es  inconsuitu:  these 
are  bW  aynonymous,  and  accordingly  the 
Septnigict  translntioD  to  renders  tbo  words 
n9fm,UiA  iS|  **  hivoiumarily  ;*'  and  lo  like- 


Trial  of  James  Carnegie^ 

wise  the  Jewish  doctors  have  expl 
will  afterwards  be  noticed. 

Ader  this  the  text  goes  on  with 

meiit   or  amplification   of  that  y 

"  And  if  he  smite  him   witli  an 

of  iron  (so    that   he  die)  he  is  i 

&c.    And  if  he  smite  him  with 

stone  (wherewith   he  may   die)  ; 

he  is  a   murderer,  5cc.    Or  if  he 

with  an   hand- weapon    of   wood 

he  may  die)  and  he  die,  he  is  a 

These  are  the  amplifications ;    bi 

lows  the  limitation  in  the  20th  ve 

if  he  thrust  him  of  hatred,  or  I: 

by  lying  of  wait,  that  he  die ;  < 

smite  him  with  his  hand,  that  he  < 

smote  him  shall  surely  be  put  to  dc 

is  a  murderer,"  &c.     Here  is  th< 

he  that  killeth  or   thrusteth    wi( 

weapon,  is  a  inunlerer,  under  th 

introduced  by  the  particle  '  but,'  as 

tory  exception  to  the  generality 

but  if  he  thrust  him  w  ilh  hatred ; 

other  wonls,  that  he  is  a  murderer 

him  in  hatred :   and  therefore  cc 

refer  from  this  text  to  the  other 

nomy,  already  cited,  for  explicat 

where  it  is  stalutcd.  That  if  a  ni 

neighliour,  and  rise  up  against  hiii 

him  ;  whereby  they  plainly  uudersi 

ing  him  of  hatred,  as  the  same  w 

against  him,  and  smiting  him  witi 

as  to  comprehend    every  maune 

witli  any  weapon ;  and  conse<|ui.  n 

is  not  a  distinct  manner  of  killiii'^ 

is  expressed  in  the  IGth  verse,  b 

adjected  to  the  manner  of  killing,  s 

it  capititl,  viz.  That  it  must  he  doi 

And  this  is  yet  more  elearly  ex  pi: 

32nd  and  fblloivin<>[  verses,  y^  here 

tion  is  Ntated  lietuixt  thrusting  s 

of  enmity,  with  a  direct  rcferi'iieii 

17th,  and  18th  vei-scs,  *'  But  if  h< 

suddc'niy  without  enmity,  or   ha% 

him  any  thing,  without  laying 

with  any  stone  whercwiih  a  man  uk 

him  not,  and  cast  it  upon  hint  tha 

was  not  his  enemy,  neither  soii<;l' 

then  the  coiigrc;4ation  shall  jmi;. 

shall  deliver  the  slayer  out  (d  the 

avenger    of   blood. *'      There    ril 

methods  of  killing  before-inentit 

ferred  to  :  thrusting,  properly  apf) 

killing   with  a  sword,  but   \viih< 

casting  any  thing  upon  him,  uitl! 

wait,  or  forethought,  or  with  any  « 

with  a  man  may  die,  the  very  ihii 

inlhe  17th  verse,  and  from  which 

to   be   a    murderer ;   yet,  it  he 

enemy,  neither  sought  his  harm, 

munlerer,  he  is  not  to  die,  but  lu 

from  the  avenger  of  blood.    2So  tin 

last  vcri«8  are  a  plain  limitatioi 

went  before ;  the  instrument,  w  ha 

was  to  raise  a  presumption,  it  a 

but  yet  if  itapiiear  the  pervon  %va 

or  hurled  at,  or  smitten  in  euui 


I]      fir  the  Mwrier  fjfihe  Earl  of  Siraihmore.         A.  D.  1 72& 


[102 


'ffv  to  be  ddifcred  ffrom  the  aTengrr  of 

ctn  it  stnmble  jour  lordihipt,  tlitt 
Hid  ferse  are  thew  words,  '*  teeing 
iwtC  **  if  this  were  one  of  the  renuisites 
ftr  the  ilayer^t  safety*  that  he  did 
taan  whom  he  thm8tat,or  killed 
iMtttthiragh  not  done  in  enmity:  for, 
til  impOBnble  tn  imagine,  that  the 
'nag  him  not,"  however  they  miq^ht 
iccMe  of  throwing  a  stone,  can  hare 
10  the  words,  **  thrusting  with- 
How  can  a  man  thrust  at  him 
Mfth  not?  Or,  How  can  he  smite 
I  he  seeth  not,  in  any  proper  sense  of 
f  Aad  therefore  it  is  plain,  that  as  to 
'^*  '  the  only  limitation  b,  that  it  be 
Mtat  enmity.  But,  Sdo,  your  lord- 
tiB  obaerre,  that  tlie  word  *•  him**  in 
"  seeing  him  not,"  is  not  at  all 
;  itisau  ailjeclion  of  the  trans- 
,  as  such,  is  distinguished  in  different 
in  any  correct  editions  of  onr  bibles, 
I  is  an  erroneous  adjection  :  the 
inrid  be  only  •*  seeing  not ;"  and  per- 
il translations  ou^rht  not  at  all  to  be  by 
-:-■-•,  c«  aecinjj,"  but,  according  to  the 
Latin  language,  by  an  adjectire, 
M,  impmidui  imprudent^  or  the  like  \ 
iBBiiduig  to  oor  langua^,  by  a  substan  • 
■lidvcre,  such  as,  *  without  foresight :' 
^isBeptnagint  does  translate  it  in  these 
■mlm,  which,  in  our  language,  is  di- 
'viibool  foresight,*  that  is,  without 
iisD  or  anterior  design  to  give  the 
Aad  so  the  sense  comes  out,  that 
tthroft  or  blow  of  that  kind  is  given, 
'  lity,  foresight  and  premeditation, 
words,  $ine  dolo^  that  there  death 
^  y> fellow,  but  the  slayer  to  have  the 
.■••''ibe  city  of  refuge.  And  that  the 
■nent  lawyers,  and  Jeuish  doctors 
.  have  understood  the  scofke  of  the 
it  liv  to  be  such,  is  the  next  point  we 
'ttdettonr  to  shew  your  lordships. 
'Mio  ibe  first  place,  we  heg  leave  to  refer 
"Wincifnt  treatise,  called  Mosaicarum  et 
■^htrum  Leirum  Collatio,  last  published 
W^  letnied  Schulten,  with  his  own  notes 
m\i\  in  tbe  first  Tit.  of  which,  De  homi- 
■■Jewu,  V.  voluntate,  §  5,  are  those  words, 
f||M  dr  casualibns  homicid'iis  Moises  Isga-  | 
KfciuSiautem  non  per  inimicttias  immi- 
^ItBper earn  aliquod  vas  non  insidians,  vel 
JJ*i  qoo  moriatur,  non  per  dolum**  (your 
*^pi  will  please  mark  those  last  words) 
"ftftcMcrit  Miper  eum,  et  mortuus  fuerit,  si 
^  inimicus  ejtis,  &c.  liberabitis  percus- 
^•**  Here  is  directly  set  down,  by  way 
'pnpbrsse,  the  sense  of  the  93rd  verse  of 
r'^ib  chap,  of  Numb,  before  cited ;  and 
Riy  of  these  words,  *  seein||^  not,'  the 
n^nie  of  thb  ancient  collator  is  expressed 
V*ewocds,  <  noo  ner  dolom ;'  which  shews 
JfiMefHanding  ne  bad  of  tbe  words,  di- 
2%coBgnioo8  to  what  we  have  above  set 
m%  ■ppnhciidi  to  be  the  Sep- 

/ 


tuagint  translation ;  and  this  paraphrase  the 
annotator  approves  of  as  the  just  meaning  of 
the  text. 

But  we  beg  leave  to  give  your  lordships  ano- 
ther great  authority,  who  founds  his  opinion 
up«in  the  notions  of  the  Jewish  doctors,  or  rather 
sets  forth  what  they  all  a;;rpe<l  on  to  be  the 
import  of  the  Mosaic  law  on  this  head,  and 
that  is  the  ^ve^i  and  learned  Selilen,  in  his 
treatise,  De  jure  naturali  et  gentium,  jnxta 
disciplinam  Hebneorum,  lib.  4,  cap.  9.  The 
title  of  which  is,  '*  De  homicidio  involuntHrio, 
sen  quod  casu  factum  aut  errore."  Theie  the 
learned  author  takes  notice  of  all  the  texts  upon 
this  subject,  and  of  the  Jewish  doctors  \iho 
hail  wrote  upon  it,  whose  names  we  need  not 
trouble  your  lordships  to  refieat,  but  retVr  to 
tlie  quotations  Selclen  makes.  That  learned 
author  takes  notice  of  three  sorts  of  homicide, 
which  he  and  the  Jewish  doctors  reckoned  to 
be  involuntary,  acording  to  ihe  Mosaic  law, 
and  not  to  be  punished  with  death  :  the  first 
is,  What  is  merely  accidental.  Tlie  second 
is.  Where  the  killing  was  not  merely  acci* 
dental,  but  as  he  expresses  it,  "  prope  acce- 
dens  ad  violentiam."  The  third  we  beg  leave 
to  set  down  in  his  own  words,  as  commg  up 
directly  to  our  case:  '*  Tertia  aqtem  homicidii 
involuntarii  species  est,  ubi  qui  alium  occidil 
ex  errore  quioem  aut  ignorantift,  quae  tanieo 
prope  accedit  ad  id  quod  spontaneum  est  sea 
voluntrium ;  veluti  uoi  quis  alterum  occidero 
volens,  alterum  jactu  aliterve  perimit,  aut  ubi 
jactu  sive  saxi  sive  teli  in  hominiim  cietum, 
ciijus  nee  ignarus  qui  jecerit  quis  occisos: 
adeoque  intervenerii  culpa  latissima.  £x  tribua 
hisce  homicidii  involuntarii  s|)eciebus,  nulla  eat 
que  morte  ex  sentent  ft  tbreusi  ordinarily,  sive 
in  Ebneo  aliove  circumciso,  sive  in  proselyto 
domicilii,  aut  gentili  alio  puniretur.  Nam  in 
nniversum  pronunciant,  homiuidium  nullumi 
seu  qui  non  sponte  seel  us  patraret,  sic  foro 
puniendum."  Yea,  he  goes  farther,  that,  in 
this  last  case,  according  to  the  Jewish  doctors 
opinion,  there  was  no  need  of  going  to  the 
cit^  of  refuge,  for  that  the  avenger  of  blood 
had  not  a  power  in  that  case  to  kill. 

We  apprehend,  nothing  can  be  more  direct 
or  strong  to  the  present  case,  than  that  autho« 
rity  which  is  laid  down,  as  the  universal  opi- 
nion of  the  Jewish  doctors,  which  we  hope  does 
deserve  some  regard  in  the  interpretation  of  tbe 
Mosaic  law. 

And  this  naturally  leads  us  farther  to  observe 
to  your  lordships  what  we  insinuated  before^ 
that  the  question  started  by  Roman  and  mo- 
dem lawyers,  how  tar  a  person  that  intends  to 
kill  one  man,  is  liable  to  the  pain  of  death  if 
he  kill  another,  hath  no  foundation  in  the 
Mosaic  law,  either  from  the  texts,  or  the  opi- 
nion of  those  Jewish  doctors.  As  to  the  last, 
your  lordships  see,  that  Seldeu  from  them, 
directly  states  the  case,  **  ubi  quis  alterum 
occidere  volens,  altorum  jactu  aliterve  peri- 
mit;" and  he  and  thej^  determinoil  that  to 
be  an  involuntary  homicide,  not  punishable 
with  death;  and  \s^  »ppreti%Y^^  Vbal  \^  tkk\a 

\ 


103] 


8  GEORGE  U. 


Triat  of  James  Cant^ie, 


[ 


tbey  are  firanded  in  the  words  of  all  the 
texts,  **  If  any  man  hate  his  neighbonr,  and 
}ye  in  wait  for  him,  and  rise  np  afifainst 
him,  and  smite  him  mortally,  that  he  die :" 
Not  one  word  here  of  rising  up  against  one 
and  killing  another ;  not  a  word  of  hating  one, 
and  in  consequence  of  tliat  hatred  killinff 
another :  that  was  a  case  which  did  not  fall 
under  that  law.  The  hatred  and  the  rising 
up,  W88,  by  that  Isw,  to  be  against  the  man 
who  was  killed ;  if  another  by  fatality  happen 
to  be  killed,  that  was  a  different  case,  it  was 
an  inToIuntary  homicide ;  the  crime  there  was 
not  the  killing,  but  stood  upon  the  rising  up 
against  him  who  was  not  killed ;  and  so  the 
punishment  was  for  invasion,  but  not  for  kill* 
log.  The  texts  in  the  book  of  Numbers  are 
all  to  the  same  purpose :  «  If  he  smite  him 
who  is  killed  of  hatred,  or  hurl  at  him  by 
laying  of  wait  that  he  die,  or  in  enmity  smite 
with  his  hand  that  he  die,"  &c.  where  all  the 
rules  are  still  directed  towards  the  person 
alone  that  is  killed ;  and  that  of  killing  another, 
when  the  stroke  was  not  designed  at  him,  is 
ijjuite  left  out  of  the  case.  And  the  applica- 
tion of  this  reasoning  to  the  present  unhappy 
accident,  is  too  evident  to  need  enlargement.  If 
it  appear  that  the  push  was  aimed  at  Bridgeton, 
that  the  enmity  was  againat  him,  and  not  against 
the  deceased  lord ;  then,  whatever  bo  the  con- 
stitution of  the  Roman,  or  more  modern  laws, 
the  present  case  is  quite  out  of  the  description 
of  tne  Mosaic  law  concerning  this  article  of 
manslaughter. 

What  hath  been  already  said  at  so  great 
length,  does  fully  obviate  what  is  offered  in 
the  pursuers'  information  in  way  of  answer.  It 
is  true,  that  the  general  rule  in  the  divine 
law  is,  <*  That  whoso  sheddeth  man's  blood, 
by  man  shall  his  blood  be  shed  ;**  and  so,  by 
the  sixth  Commandment,  the  prohibition  is 
general,  <«  Thou  shalt  not  kill  :'*  yet  even  the 
Commandment  itself  ad  mite  of  exceptions ; 
such  as,  killing  in  self-defence,  and  killing  in 
execution  of  justice,  and  killing  in  prosecution 
of  just  war,  and  the  like.  The  other  rule  like- 
wise admits  of  exceptions,  not  so  as  entirely  to 
t'ustity  the  killing,  and  to  make  the  act  lawful, 
>ut  yet  so  as  to  excuse  from  the  |»ain  of  death. 
The  texts  already  noticed  are  express,  that  a 
man's  blood  may  be  sheil,  and  yet  the  blcxNl 
of  the  shedder  not  be  required  en  that  account. 
The  question  is,  Whether  this  misfortunate 
panners  case  comes  not  under  the  exceptions  ? 
And  that  we  have  already  discussed. 

The  positiou,  that  by  the  law  of  Afnses, 
M  Death  of  asuddenty  was  plainly  ca)Mtal,  and 
that  the  slayer  had  the  bcoeiit  of  ibecity  of  re- 
fuge, only  where  the  slaughter  was  by  mere 
roi»fortune,"  is  assumed  wituoutsuHicieutfouu- 
dation.  It  is  plain,  that  he  who  thruMts  without 
enuiitv,  does  not  kill  the  man  by  mere  casual- 
ty :  the  act  I'rom  which  death  tbllowa,  is  a  vo- 
luotanr  act,  although  without  euiuity  :  andal^ 
ihougfa  the  killing  is  involuntary,  and  so  can 
never  be  said  to  So  merely  casual  in  the  sense 
4ho pmuan  would laktt the wordf;  neUherva 


the  words  in  Exodus,  *'  If  a  man  lie  n 
wait,  but  God  deliver  him  into  his  hand,"  i 
least  contrary  to  what  bath  been  advsn 
for  it  is  roost  properly  said,  that  where  tb 
is  without  the  de^i^Q  of  the  killer,  withou 
mity,  and  without  hatred  ;  that  there,  in  i 
as  concerns  the  killing,  God  hath  delivcre 
man  into  the  hand  of  the  slayer.  The 
meaning  is,  that  where  a  man  is  killcc 
with  design,  but  that  the  thing  happens  b 
over- ruling  hand  of  Providence,  pcroM 
things  of  that  kind,  in  his  sovereign  wii 
and  from  hia  supreme  power ;  that  ther 
person  is  delivered  to  death  by  the  over-c 
hand  of  God.  And  where  could  ever  th 
more  properly  applied,  than  on  the  presen 
lancholy  occasion,  when  the  providential 
ing  about  of  the  unfortunate,  dcceaseil  loi« 
casioned  his  receivuig  the  fatal  wound  ? 

It  is  likewise  a  position  assumed  w 
reasim,  *'  That  wherever  a  man  was  kill 
a  mortal  weapon,  that  was  murder  by  the 
saic  law."  vfe  hope  we  have  already  da 
strated  the  contrary.  If  enmity  and  foretia 
was  required,  (and  we  need  only  repea. 
one  teso,  which  expresses  the  kilHng  ■ 
with  a  stone,  wherewith  be  may  die)  the' 
text  declares  the  stone  to  be  a  mortal  we^ 
yet  for  all  that,  in  case  of  the  circums 
mentioned  in  the  other  verse,  the  slayer  vb 
to  die,  but  to  be  delivered  from  the  aven 
blood  :  and  this  single  consideration  m  i 
sufficient  to  refute  such  a  position.  I» 
possible  for  a  man  to  use  a  mortal  w  • 
where  there  is  no  enmity,  nor  design  to  k 
person  who  is  slain?  If  it  be  possible,  as 
tainly  is,  tlien  can  we  imagine  thatal^ 
perfect  as  the  divine  law  itself,  could  dp 
man  guilty  of  murder,  because  of  the  ' 
such  a  weapon,  where  he  really  intend 
more  barm,  than  a  man  that  used  a  wea] 
another  kind?  Besides,  that  in  truth 
weapon  is  a  mortal  weapon  with  which  s 
may  be  killed :  and  therelbre«  to  iniagio 
the  divine  law  laid  such  a  difference  b 
an  instrument  of  iron,  and  one  of  another 
is  certainly  to  go  too  far.  The  law  of  Gc 
put  the  matter  upon  a  much  juster  tbi»ti 
wit,  the  intention  of  the  person,  which 
can  distinguish  his  actions. 

The  pui-suers  also  say,  "That  thoo( 
argument  is  grod,  that  wherever  the  beut 
the  city  of  refuge  %vas  not  competent,  the 
crime  was  capital ;  yet  it  does  not  fulloH 
where  the  power  of  the  laws  were  susp 
by  the  jut  a»yli^  that  the  punishment  is 
be  capital  iu  a  country  where  the  jiuofy/i 
DO  place." 

but.  with  submission,  this  is  no  solid  v 
arguing :  the  question  hitherto  treated  is, 
was  tlie  Uw  of  Moses,  with  regard  to  pi 
inents  in  the  case  of  manslaughter  ?  If  tl 
Disbmeni  in  any  case  was  not  ca)Ntal«  be 
of  the  privilege  of  the  asylum,  tlie  cone 
isjiist,  that  the  all- wise  G<nI  did  not  inteiM 
puniskmenta  should  be  mflictcd  for  such 
taaoe^  aiid  tht  fiwm  of  granting  the  pnH 


MS]       Jor  the  Murikr  of  ike  Hart  of  Strathmore.  A.  D.  1726. 


im 


irike  BUKhant,  does  not  alter  Ihe  subsUnce 

fht  MSt  poiii  lodertakeo  to  be  illastrated, 

m,  TWt  MBclauglUer,  under  sucb  circum- 

gtaMHW  occur  in  tbe  present  case,  was  not, 

Iviha  SMUBOo  law,  pnaisbahle  by  death  :  and 

M  isfBMBi  ami  indeed  be  divided  into  se- 

•iieh  as,  Imou  Tbat  culpable 

sw  not  so  ponishable,  and  tliat  bo- 

■aittsil  opoo  sucb  high  provocation, 

WPfcRfifeQ  by  Bridgeton,  coiiM  amount 

^flUli  hooMtdt  only.    Sdo.  That,  by  that 

ki^aidnucd  lord  not  having  beeu  intended 

UltkiiilMttbe  invasion,  whatever  it  was, 

lajiiBit  another;  Uie  killing  the  earl 

*,ortl  worst  culpable,  not  puniahable 


r: 


iiitftB  the  first  of  these  points,  we  shall 

"  Jior  lordships  with  infinity  of  laws 

■of  lawyers  that  might  be  adduced 

Ae  poiot,  but  ooly  take  notice  of  some  of 

iMl  raairkible,  and  which  seem  most  ap- 

*'  II  tbe  present  case.      And  in  the  first 

faoodationof  the  Roman  law  on  this 

to  have  heen  laid  down  as  early 

Aidijief  N'uina ;   tor  the  Roman  writers 

■iiiiieeof  a  Itwof  his  in  these  wordu ;  *«  Jn 

felvbul  ciiitum  est,  ut  si  quis  imprudens 
■  lecidittet,  pro  capite  occisi  et  natus 
RiieBMiooeofferret  arietem.''     This  law 
bisMieeof  by  Pithaeus,  in  his  annota- 
W^tliefore-citeil,  ancient  treatise,  cfim- 
pHf  ibe  Monir  and  Roman  Uw,  with  refl^ard 
MiMofinaiiUaugbter,  w  agreeing  pre- 
M^aitfcthelaw  of  Aloses;  and  tho  plain 
■■■■Ci^it  is,  that  where  a  man  kills  ano- 
■>,ilihosgfa  cul|iahl^,  yet  if  if  ho  sine  doh 
f^yn^tiam,  hi  is  not  to  Riiflcr  death,  but 
*■■*•*«>  thracnl  til  the  n»»arest  rehitions 
"•fViOii  killi-d:    and  the  same  treati»e 
'■■'•Beof  a  rescri  pt  of  Adrian's  to  the  same 
^^•.directed  to  TauriniKs  I'^iintius,  approv- 
^'^ 'Moment  given  in  ihc  cawe  of  one  Ma- 
•^nMUf,  whereby  the  prucunsul  had  nii- 
^P'Bdi^lMjnishment  of  manslantrhter  upon 
•tpMJwJ,  thai  suppose  it  was  done  per  las- 
«*«i  wd  culpably,  yet  il  ivas  sine  doio.  The 
■*die*  Ihe  rescript  are,  **  Pcenatn  Marii  Kva- 
nbrccie,  l^atc  Taurine  moileratus  es  ad  mo- 
^Mi  rni[n; ;  relert  cnim,  et  in  majoribus  de- 
w  cuosuiio  alio  quod  admiltatur  an  casu  ;  et 
■xisooioihuM  criminibus  distinctio  hcec  pcc- 
■uiiMjiistitiam  provo<:aredel>etaut  tempera- 
■wtom  adniittere."     And  ^»chuIten,  in  his  an- 
•Wmss,  explains  what  is  meant  by  casu  in 
■»«  aords,  ♦*  Per  casum  hie  intellis^itnr  fieri 
^  iioo  fit  dolo,  quomodo  et  quod  impetu  fit, 
•^  Jicittir  fieri,"  I.  1,  sect,  a,  ad  leg.  Cornel. 


Lbi  pro  causa,  editiones  veteres 
^fbttsm  recte  haberi  casu  certi»imum  est.'* 
•fcefc,  by  the  bye,  shows  how  erroneous  the 
^|ars'  isterpretatioo  of  the  words  casus  and 
Ijssi  •  M,  » hen  they  w«Mild  reslrict  them  to 
^  ii  done  by  mere  acciilent. 
'  1W  ReacTid  rules  or  the  civil  law  arc  plain 
2|^ paint,  tlMt  it  is  the  **  animus  qui  male- 
wildiHiBguU ;"  %kMi  tlMre  can  be  uu  wuiiler, 


^*  aine  aniiso  occidendi."     But  tibeao  gononl 
topics  need  not  be  insisted  on,  whore  the  texto 
tbiemaelvea  are  so  express,  auoh  as  not  ooly 
these  already  mentioned,  but  even  tJJMt  1.1,  sect. 
S,  ad  leg.  Corn,  de  Siccar.  "  Divus  AdriMUif 
rescripsit,  eum  qui  honiinem  oocidit,  ai  noo  oc* 
cidendi  animo  hoc  admiait,  absolvi  poAU».''  And 
a  little  after,  **  £t  e|t  re  coostitueadum  boc^ 
nam  si  gladium  strixerit,  et  in  eo  percttsserit^ 
indubitate  occidendi  animo  id  eum  aduiiaisso.** 
But  then  he  adds  the  exoeptiou,  "  &:d  si  olavi 
percuasit.  aut  cuccum^  in  rixi :  quamvis  terra 
percusserit,  tamen  non  occidendi  animo,  lenieii« 
dam  poanam  ejiia  qui  in  rixa  caau  magis  quana 
voluntate  homicidium  admisit."    It  is  truo  that 
the  pursuers,  and  indeed  several  of  the  doctors, 
endeavour  to  turn  this  text  the  other  way,  hy  a 
plainly   erroneous  interpretation,  and  wrong 
pointing  of  the  text.     They  pretend,  **  Thai 
where  a  wound  is  given  by  a  sword,  there  th« 
awmus  is  undoubtedly  presumed ;"   and  ao  far 
right  as  to  the  rule.    But  then  the  law  aeta 
down  the  exceptions ;  first,  if  the  stroke  bo 
**  clavi  aut  cuccuuift/*  suppose  these  be  mortal 
weapons  wherewith  a  man  may  die,  yet  be* 
cause  they  are  not  instruments  exiiressiy  mada 
for  death,  the  presumption  is,  that   **aberat 
animus  occidendi."  uoleMs  i-ireumstancesmaka 
it  appear  otherwise      Then  the  seconil  excep* 
tion  is  **in  rixa,  qnamvis  term  percusserit,'^ 
although  a  mHu  strike  witli  a  swoni,  yet  if  it  ba 
in  rixa.  suddenly, or  ujion  a  provooaiiou  giveD, 
*'  tanien  non  occidt-ndi  animo,  leniendam  pca- 
nam  "   because  ^'  in  rixa,  casu  magis  quam 
volnntate  homicidium  admisit."    Thoiie  doo« 
tors,  inrleed,  who  go  wrong  in  the  interpreta- 
tion of  tliis  text,  pretend,  that  the  meaning  of 
quumris  fcrro  is  not,  although  he  strikb  with  a 
awiini.  lint  would  make  the   meaning  to  be, 
*'  Although  he  strurk  witli  an  instrument  of 
iron,"  and  so  make  the  word  J'errum^  and  also 
those  words  im  rijrci,  refer  to  other  words  "•  clave 
aut  curcuma  ;'*  so  as  that  the  sense  should  be, 
if  a  man  strike,  "  clave  aut  cuccunia  in  rixa," 
althoutrh  these  be  instruments  of  iron,  he  is  not 
presumed  to  ha\e  had  the  animus  occidendi. 
But,   with    submission,  as  t)oih   the   learned 
Noodt  and  Sciuiltun  observe  upon  that  law,  the 
interpretation  is  strained,  and  imleed  illiterate : 
for  the  word  /rrruw  is  never  used  in  law  in  that 
sense,  but  always  does  sii^nify  »  sword,  and  so 
the  expres^un  is  the  same,  hut  ornately  repeat* 
ed  in  other  words,  as  if  the  emperor  liad  said, 
**  in  rixa  quainvis  gladio  percuatserit :"    and  so 
the  sense  is,  that  the  animus  is  in  (general  pre- 
sumed from  the  using  a  sword,  that  it  is  not 
presumed  where  the  instrument  is  not  an  in- 
strument made  for  death  ;    hut  if  the  killing 
happen  in  rixa,  the  animus  is  not  presumed,  al- 
though the  stroke  be  given  with  a  sword. 

And  this  is  likewise  the  opinion  of  the  learn- 
ed tirotius,  in  hiii  annotations  upon  the  text,  in 
Numbers  aiiove  cited,  verse  16,  which,  in  the 
l^tin  translation,  is  rendered  **  Hi  quis  ferro 
pcrcussriit ;"  on  which  Grotiiis  hath  Uiisnote, 
'^  Mos  Khraiorum  luultis  verbis  rem  circumlo- 
qui.    iStiiikUb  e^ ;   mortis  esse  poiuam  quali- 


1 


107] 


fi  GEOHGB  IL 


cooqae  ti\o  <|uia  homiDem  ocdderit.  Ex  telo 
pnnuinitur  malam  cofwilium,  nisi  oontrariiifn 
appareat.*'  Tbero  your  lordtbips  see  that  au- 
thor's epinion  is  as-we  plead,  thiat  the  using  a 
mortml  weapon  presumes  the  design,  hut  not 
'*  preesumptione  juris  et  de  jure ;"  for  he  adds, 
**  mm  contrariuin  appareat." 

The  rescript  of  the  emperor  Antonine  b  like- 
wise as  express  on  this  head  as  can  be,  1.  1, 
Cod.  de  Siccar.  "  Frater  vester  rectius  fecerit, 
si  se  prcesidi  prorincisB  obtolerit.  Qui  si  probt- 
terit,  non  occidendi  animo  hominem  a  se  per- 
cussum  esse,  remissIL  homicidii  pcaiill,  secun- 
dum disciplinam  militarem  senientiam  profe* 
rit;  crimen  enim  oontrahitur,  si  et  voluntas 
oocendi  intercedat,  csterum  ea  qnie  ex  impro- 
vise casu  potius  qnam  fraude  accidunt,  fato 
plerumque  non  noxos  imputantur."  Here  the 
emperor  plainly  sets  down  these  two  things, 
first,  Ths!t  "  pcsna  homicidii  est  remittenda,  si 
animum  occidendi  non  habuerit/'  2do,  That 
where  the  thing  is  done  ex  imprcrvt90j  there  is 
no  animui ;  that  it  is  to  be  looked  upon  as  clone 
colli,  by  fatidity ,  rather  than  crime :  but  never* 
theless  that  in  such  a  case  there  may  be  an  ar- 
bitrary nunishment. 

The  doctors  of  the  Roman  law  seem  to  be 
unanimous  on  this  general  point.  Carpzovius, 
one  of  the  severest  criminalists,  is  most  express 
upon  it ;  *'  Ceasat  porro  pcena  ordinaria  bomi- 
culii,  si  culpa  vol  casu  fuisset  commissum  ho- 
roiddium  ;'*  and  goes  on,  '^  quod  adeo  verum 
Ml,  ut  m  homicidio  lata  culpa,  dolo  non  sequi- 
fwretur."  Clams  is  likewise  as  express  upon 
this  general  head ;  and  such  shoals  of  others 
are  by  them  quoted  and  referred  to,  that  it  were 
vain  to  repeat  their  names,  or  trouble  your  lord- 
ships with  quoting  their  words.  We  don't 
know  that  any  lawyer  of  reputation  differs  upon 
the  general  point 

But  then  indeed  the  question  comes,  What 
is  culpable  homicide?  And  whether  the  pre- 
sent case  fiills  under  that  description  ?  Which 
is  next  to  be  illustrated.  And  here  we  humbly 
insist,  that  where  the  homicide  is  committed 
upon  a  sudden  quarrel,  and  provocation  given, 
cspeciallv  by  real  injury,  and  that  quarrel  be- 
gun not  bv  the  killer;  that  this  is  no  more  than 
culpable  homicide:  and  for  this,  in  the  first 
place,  we  oppone  the  law  already  cited,  **  in 
rtxa  quamvis  ferro  perctisserit."  And  to  the 
same  porpose  is  the  first  law,  §  5.  ff.  ad  senat. 
consult.  Turpilianum,  the  I.  S.  Cod.  de  abolit. 
and  the  §  9,  1.  iG,  de  pcenis ;  the  words  of 
which  we  shall  not  trouble  your  lordships  with 
rtpeating,  because  they  are  the  common  texts 
founded  upon  by  doctors  on  this  head.  We 
have  likewise  lor  us  the  authority  of  all  the 
ancient,  moral  philosophers ;  such  as  Aristotle, 
Plato,  Plutarch,  and  many  others,  likewise  com- 
Monly  taken  notice  of  by  the  lawyers  on  this 
aabject.  It  is  true,  some  of  the  severest  cri- 
ninalists,  such  as  Matthssiis  and  Carpsovios, 
Am't  admit  the  role  in  general,  but  still  they 
admit  aa  mach  as  is  necawary  in  the  prewnt 
qucttinn:  tbey  doo't  allow,  that  where  the 
killcc  ii  muiv  rixm^  tliat  he  it  at  all  to  be  a- 


Trial  qf  James  Cart^lef 

cased,  although  the  killing  happ 
iracundia ;  but  then  most  of  tlicm 
if  the  killer  be  not  the  auctor  rixa 
person  provoked,  to  whom  a  just 
has  been  giv.en,  especially  by  a 
and  so  particularly  Carpzovius,  on 
verest,  after  he  has  argued  at  Ion 
the  general  point,  concludes  in  lii^ 
§§  14  and  16.  '*  Nihil  quoque  ad 
gula  adducta,  quod  scilicet  delictu 
missum,  mitins  puniri  soleat ;  quia 
de  ira  ex  justa  causa  proveniente  ac 
duplex  etenim  ira  est,  alia  ex  justa 
venit,  que  si  non  in  totum,  tamen  e 
cusat,  ut  delinquens  mitius  puniatu 
non  provenit  ex  justa  causs,  qus  i 
cnsat."  Then  he  adds,  **  Hsec  dis' 
mnniter  recepta  est  ah  interpretibus 
severals.  And  then  concludes,  **  H 
causa  calorem  iracundioe  pneceda 
quia  ah  alio  fuerit  provocatus,  au 
offensus,  time  is  qui  ir&  et  intenso 
motus,  provocantem  seu  offendenti 
absque  dtibio  a  poena  ordinaria  libera 
vero  si  quis,  absque  justa  et  pml 
iratos,  aliqnem  occidat,  dc)  ^no  ci 
loquimur,  qui  p<ene  homicidii  ordii 
quam  est  eximendus."  And  then  t 
that  the  practice  in  the  court  of  J 
agreeable  to  this. 

There  is  an  adjudged  case  vei 
published  in  a  book,  called  Alpho 
Neapolitanl  Consultationes  Decis 
learnedly  resolved.  It  is  the  Decis 
shall  state  the  case  in  the  words  of 
'*  Quidam  nobilis  Ragusinus  fuisset 
extra  (sed  prope)  ecclesiam  sanctee 
tri  Gravosa,  a  quodam  alio  nobili  F 
eodem  pacto  evaginavit  puguiuncm 
tum  verberantem,  ac  in  fu<>;am  jam 
et  ipsum  insequens,  unico  vulnere 
in  dicta  ecclesia  (qnam  ille  intj^ret 
dictam  ecclesiam  egrediens  sese  in  I 
et  cum  dictus  verberator,  ex  dicto  u 
vulnere  intra  dictam  ecclesiam  mor 
The  case  came  to  be  tried,  at  leasi 
tions  upon  it  to  be  resolved,  by  the  s 
sus;  where  several  questions  occ 
those  which  are  most  applicable  to 
case  are  two :  First,  '^  An  hujusin* 
diiim  in  ecclesia  perpetratum,  turra 
vduntarium  necne,  eo  quinl  dictii 
secutus  fuisset  ilium  cessantem  a  vt- 
ferendis,  ac  aic  unico  vulnere  inflict 
set?"  The  second  question  is,  * 
nobilis  pnedicto  modo  ac  de  causa 
tam  immunitatem  ccdesiasticaiu,  V( 
seculari,  et  ecclesiastico  pccna  nidi 
tendus,  vel  solum  mitiori  pcenal*" 
tion  upon  the  first  question  is.  That 
first  view,  the  homicide  might  seen 
<*  £o  quod  dictus  nobilis,  neinine  i 
pellente,  fugientem  hominem  vuln^ 
bilominus  nullo  pacto  fore  judicand 
dinm  voluntarium,  aut  pro  tali  diet 
nm.^  The  reasons  fi>r  this  n 
down  with  great  laamiDg  and  ju* 


W]      >r  the  Murder  of  the  Earl  ^  atratJmore.  A.  D.  17S8. 


[IW 


MM  hif,  that  h  iiimpoisiUe  to  repent  them : 

fnliTkey  ire  taken  from  the  defiuiiion  of  vo- 

kmrf  bomiodr.    Stlo,  From  tlie  texts  of  the 

iNOilnr,  ond  the  opinioD  of  doctors.    Stio, 

Fiaalbt  particular,  that  the  noblemau  had 

'     '      "^    ]y  itruck  before;  ou  which  the 

ruble,  "  £z  hoc  ergo  articulo, 

clidtur  hoDiicidium    hujusmodi 

et  mm  voluotarium,  nam  Quli& 

■■iiiMqMnte,evaginato  pugoioDe,  ipse  do- 

percusaus  iosecutus  fuit  dictum 

jam  fugieotemy  et  hoc  pro  honoris 

DMinDe,  ut  sic  se  tueretur  ab  in- 

flnonli  recepta  ex  verberibus :"   after 

■W  Mm  a  kwg  reasoning,  all  in  the  pan- 

lAAfMn.  And  this  case  we  take  tbemore 

t0M  d,  kcaose  the  parsaers  pretended  to 

■baAliictiMi  betwixt  the  case  of  a  wound 

^mA§  rcrjT  moment  a  real  injury  is  done, 

■Uifilwgifen  after  the  iqjurer  has  desisted 

talaUBi,  and  retinsd  to  some  distance ;  but 

jjiiap  difference,  except  the  interval  be  so 

1^  kcao  be  supposed  the  thought  of  the 

TJared  iru  cool.    The  other  question  is 

loolfed  in  favour  of  the  arciuied,  that 

a  ene,  not  the  ordinary  punishment, 

ladaiaiticslor  civil,  ought  to  take  place, 

■ftttif  llie  pana  mitior^  and  conlirmed  by 

■7  itaf  reaaons,  which  we  cannot  recite, 

"  '  to. 

jtt  oilier  authors  that  might  be  cited 
^fP"^  ^ifl  opinion,  is  the  learned  Voet, 
biaTcr^asciioo  cited  by  the  pursuers,  ad. 
^tikf,  eon,  de  Sic.  n.  9,  where,  after  he 
iWjMiwiiat  is  cited  for  them,  that  onekilliug 
ttikr  whs  has  provoked  him  only  by  a  verbal 
vii|hiiajiry,  "  vix  est  ut  ab  ordinari^  pcend 
*■*•*"»*;"  he  adds,  that  if  the  provo<.'a- 
ii}'  ao  atrocious  real  injury,  tliat  would 
to  mitigate  the  ordinary  punish* 
lei  U>  confirm  that,  cites  Matlm:us, 
&c.  And  the  reason  given  by  these 
fur  making  tliis  allowance,  in  case  of 

Bfm»ocalioo,  is  expressed  in  these  words  by 
H^nd,  ad.  1. 17,  d.  t.  *'  Quod  ei  sit  igiios- 
■rfsmff^iiiprovocatus  seulcisci  vuluit,  tjuiquc 
■*■  Mortm  prosequitur." 
M  iodeed  we  a|>preljend  this  opinion  is 
■ssAnl  in  the  first  principle  of  nature ;  for 
Vttas}  JiunaQ  constancy  can  suflersuch  high 
al injur  jr,  without  the  passions  being  inflamed : 
d  afdKia<;h  killing  is  no  doubt  an  excess  in  the 
isnitiA  of  •  rpal  iujury ,  yet  still  it  is  but  an  ex- 
■«  SAil  the  iujury  shews  the  thing  done 
Afiut  de«ii(a  ;  ano  iherufore,  becnusc  of  in- 
■raU«,  human  weakness,  the  punishment 
it  to  be  mitigated.  And  the  application  to 
IprtMrDt  case,  as  we  apprehend,  is  obvious ; 
ii|t«i«  had  given  the  highest  provocation, 
My  by  a  track  of  verbal  injuries  and  en- 
vavs  lu  pick  a  quarrel,  but  had  committed 
taosi  provokint;  and  real  injury,  to  throw  a 
rinaa  over  head  and  ears  in  a  dirty  puddle, 
ftf  aiddle  of  a  town,  and  «ight  of  so  many 
kakcra ;  do  injury  oould  be  more  pmvoking. 
I  lafeul  there  was  Diore  in  it  than  an  in- 
fmkf :  one  thmt  waa  abU  to  throw  thepaa- 


nel  into  the  puddle  in  that  manner,  was  like- 
wise able  to  have  suffocated  him  there ;  tha 
pannel  had  no  reason  to  expect  otlierwise,  and 
therefore  do  wonder  if  he  betook  himsell  to  hia 
sword.'  And  the  other  circumstance  noticed, 
that  Bridgeton,  immediately  upon  the  doing  the. 
thing,  endeavoured  to  draw  and  make  himself 
master  of  my  lord  Stratlimore's  sword,  ga\e  the 
iiannel  ground  to  expect  the  worst ;  and  so  it  may 
be  doubte<l,  if  he  was  obliged  to  wait  till  Bridge* 
ton  should  have'an  opportunity  to  give  him  the 
blow,  even  with  a  mortal  weapon.  And  when 
this  is  considered,  the  fact  goes  fartlier  than  a 
retortion  of  the  highest  injury:  the  pannel 
was  in  some  measure  put  upon  his  delence ; 
and  granting  that  his  pushing  at  Bridgeton 
was  an  excess,  yet  still  that  excess  falls  only  to 
be  punished  pand  extraordinaria. 

All  lawyers  distinguish  excesses  of  that  sort 
into  three  kinds,  tliat  of  time,  place,  and 
weapon  that  is  used ;  and  excess  in  point  of 
time  is  punished  even  with  death,  where  tha 
interval  is  great;  because  that  interval  pre- 
sumes fraud  and  deliberation :  but  here  waa 
no  excess  of  time  ;  the  thing  was  doneer  ia- 
continentiy  when  the  injury  was  fresh  and  re» 
cent.  There  is  likewise  excess  m  point  of 
place,  when  the  injurer  is  allowed  to  retire  to  a 
considerable  distance  from  the  place  where  the 
injury  is  given;  aud  this  in  some  measure 
coincident  with  the  other,  because  it  implies  an 
interval  of  time :  yet  if  it  be  not  great,  tha 
lawyers  hold  it  to  ble  only  punishable  arbitra- 
rily. And  then  the  third  is  the  excess  in  tha 
use  of  the  wea|Min,  where  there  is  no  interval 
of  time  or  place  ;  and  that  is  always  agreed  to 
be  punishable  only  arbitrarily,  where  the  pro- 
vocation is  high.  * 

From  what  is  said  it  seems  plain,  that  if 
Bridgeton  had  received  tlie  thrust,  the  homi- 
cide would  have  been  culpable  only  ;  and  so 
it  remains  to  be  considered,  ii'  the  case  conies 
out  worse  for  the  pannel,  because  it  was  uiy 
lord  Sirathniore  that  received  the  wound,  and 
not  Bridgeton.  And  we  apprehend  it  does  not, 
but  ou  the  contrary,  that  this  gives  a  great 
strength  to  the  detence:  And  that  because, 
Inio,  The  push  being  designed  at  Bridgeton, 
shows  that  there  was  no  malice  at  my  lord 
Strath  more,  neither  prcnicditated,nor  presumed 
from  the  giving  of  the  wound:  for  admitting 
it  to  be  true,  that  in  an  ordinary  case,  the 
giving  a  wound  with  a  mortal  weapon  presumes 
the  dole  or  inalcvolous  intention  ;  yet  that  can 
never  be  where  the  push  is  pointed  at  another 
than  him  w  ho  by  fatality  receives  it.  And  so 
the  case  comes  out  thus,  that  the  [lanncl  in 
making  one  push,  could  not  design  it  at  two  per- 
sons ;  and  so  if  he  designed  it  at  Bridgeton,  it 
is  impossible  to  say  he  had  a  design  against 
my  lord  Strathmoie.  It  is  plain  in  the  nature 
of  the  thinfl^,  that  the  design,  though  presumed 
from  the  giving  the  wound,  yet  in  point  of  time 
it  precedes  the  actual  recei%  ing  ox  the  wound, 
although  that  preceding  or  precedence  be  but 
momentary  ;  and  therefore  if,  in  the  very  act 
of  pushing,  the  design  appears  to  have  beea 


ILl]  2  GEORGE  11. 

agarnBt  Brid|(etoii,  it  excludes  all  pretence  oF  > 
any  animus  a^inst  another  who  received  the 
i^ouud  hy  fatality,  in  the  very  moment  that 
the  design  was  pointed  afi^inst  the  other. 

And  here  your  lordships  will  likewise  ob- 
lerve,  that  there  can  be  no  animus  Decidendi 
presamed  at  all  atprinst  anv  man,  not  eren 
against  Bridgeton  himself;  because  the  draw- 
innf  a  sword,  and  pirshingf  at  a  man  with  it,  does 
nut  of  itself  presume  a  design  to  kill  the  man 
pushed  at,  eaccept  the  woand,  and  death  ac- 
tnally  follow:  for  it  is  from  theerent  of  the 
wonod,  anil  death  following  alone,  that  the  in- 
tention is  presumed.  Therefore  since  death 
did  not  happen  to  Bridgeton,  the  law  cannot 
presume  an  intention  to  kill  him ;  since  the 
foundation  of  the  presumiitio^  is  removed,  or 
did  not  happen.  If  the  blow  had  missed  him, 
or  had  not  killed,  but  wounded  him;  the  in- 
tention would  not  be  presumed ;  and  therefbre 
it  cannot  here  lie  presumed,  as  the  case  hap- 
pened ;  for  there  is  no  such  presumntion  in 
law,  as  that  killing  one  presumes  a  design  to 
kill  another;  except  where  it  appears  that  the 
slayer  killed  one  man  by  mistake,  taking  him 
to  be  another :  as  for  instance,  killing  Cains  in 
the  dark,  when  the  killer  really  beliefe<l  him 
to  be  Tilius;  there  indeed  the  killing  of  Caius 
iH«sumes  the  intention  of  killingTitlus,  although 
he  was  not  actually  slain  :  and  thercfoi'e  in  that 
case  the  killer  is  indeed  guilty  of  murder.  But 
it  is  quite  another  case,  where  one  man  is 
killed,  not  by  mistake  for  another,  but  by  fata- 
lity, when  the  push  was  intended  at  another, 
whom  the  killer  knew,  which  is  the  case  in 
band.  And  therefore  we  do  humbly  insist, 
that  it  cannot  be  said  there  was  an  intention  to 
kill  Bridgeton,  since  his  death  did  not  follow. 
Neither  can  it  be  said  there  was  an  intention  to 
kill  the  earl  of  Strathmore  ;  liecausc,  though 
his  death  did  roost  unluckily  happen,  yet  the 
tni/itcm,  upon  which  the  intention  roust  be 
founded,  did  not  happen,  the  push  being  made 
at  Bridgeton  ;  for  those  two  must  always 
concur,  the  push  made  at  iUe  man  who  dies, 
and  the  actual  death :  and  wbiere  it  happens 
otherwise,  the  death  is  a  mere  fatality  ;  not 
Intirely  innocent,  because  the  killer  was  so  far 
fiittlty  in  invading  the  other ;  but  then  it  is  no 
more  than  an  invasion ;  it  is  not  murder  from 
malice  presamed.  No  presumption  of  law  can 
get  the  better  of  contrary  evidence  :  the  pre- 
sumption of  law  may  be,  that  where  a  man  is 
killed,  he  was  intended  to  be  killed :  but  if  from 
the  circumstances  the  direct  contrary  ap|K>ar, 
that  there  was  no  intetitinn  against  hi:n  ;  this 
is  evidence  which  excludes  the  presumption  ; 
and  so  there  can  be  no  murder  in  the  case. 

It  is  indeed  a  case  stated  by  the  lawyers, 
what  should  l»e  the  consequence,  if  a  person  in- 
tending to  kill  one  man,  kill  another  ?  And  we 
acknowledge  they  are  greatly  divided  among 
themselfes  upon  theqneition ;  a  great  many  of 
the  sMest  of  thesn  ure  in  all  cases  clear,  that 
where  one  man  is  killed,  and  another  was  de- 
signed, it  cannot  be  murier,  because  of  the 
want  of  tn  intention  against  him.     Bartolus, 


Tfial  of  James  Carnegie^ 


I 


Farinacins,  Gomcsius,  Menocliius,  and  r 
bers  of  others  quoted  by  them,  are  pla 
that  opinion,  and  give  an  account  of  se 
judgments  of  the  courts  of  Mantua  and  Na 
and  others  to  that  purpose;  and  Farin: 
says,  that  it  is  tlie  common  opinion,  "  £t  a1 
sentpntiu  in  judicando  nun  esse  recedend 
And  however  other  lawyers  may  seem  to  c 
yet,  in  the  first  place,  the  divine  law,  for 
thing  that  can  be  found  in  it,  is  on  this 
because  it  pliinly  speaks  only  of  beating 
and  rising  up  against  him  who  hap|>ens 
ally  to  be  killed,  and  mentions  no  suchcai 
deserving  death,  as  this  is  of  rising  tip  a( 
one  man,  and  by  fatality  killing  another. 
That  this  was  the  opinion  of  the  Jewish  do 
is  plain  from  the  quotation  already  br< 
from  8elden,  where  this  very  thing  of  k 
one  man  in  place  of  another  is  made  part 
third  case  stated  of  involuntary  homicide 
determined  not  to  be  capital.  But  3tio,  ^. 
lawyers,  who  at  first  view  seem  to  diflF 
reany  not  differ,  when  the  cases  are  d 
guished :  for  what  they  plainly  mean,  is 
where  a  man  by  mistake  kills  Titi us,  beli 
him  to  lie  Mevius.  This  we  admit  is  ca 
for  reasons  before  given  ;  hut  not  the  oti 
killing  one  by  fatality,  and  not  for  anothe 
directing  the  blow  at  the  other. 

But  then  your  lordships  will  observes 
all  lawyers  agree  in  this,  that  wherever  a 
is  to  suffer  tor  killing  one,  when  ho  intend 
kill  another  ;  that  ran  only  be  where  the 
tliou^'litand  duluse  intention  to  kill  the  otI 
certain,  but'not  where  the  invafiinn  is  ex  imp 
And  therefore,  supposing  one  invade  anu 
with  an  intention  to  hurt,  or  prtruUre,  ai 
lawyers  call  it,  hut  witlumt  a  c«>rtain  evid 
that  his  thorough  intention  was  to  kill ;  t 
supposing  the  blow  intended  for  one  do 
another,  the  killer  cannot  suffer  death : 
which  by-the*bve  shows  your  lonishifis, 
there  is  no  snch  presumption  in  law,  as, 
because  the  push  killed  the  earl  of  Strathn 
therefore  the  pannel  intended  to  kill  Bridge 
for  if  that  were  law,  then  the  question  i 
never  occur,  but  would  be  inept,  wlietl 
man  intending  t(»  kill  one,  and  killing  an< 
with  that  blow,  is  guilty  of  murder,  or  is 
sumed  to  have  intended  to  kill  that  oth 
whom  the  stroke  was  intended?  We 
trouble  your  lordships  only  with  two  autho 
on  this  point,  which  are  very  direct  to  ihei 
the  fi riit  is  that  of  Htrlichius,  which  w< 
rather  notice,  because  he  seiMns  to  be  ag 
IIS  on  the  general  point ;  after  discussing  w 
he  hath  these  words,  speaking  of  his  own 
nioii,  "  Fallit,  si  quis  ali(|U('iii  iion  oirciden 
percutere  tanlum,  volens,  aliutn  prater  ii 
tioneni  i>ercutiat  iit  moriatur."  From  this 
lonlslii]is  see,  that  it  is  no  consequence, 
because  the  thrust  killed  my  lord  Strathi 
therefore  it  should  be  ptesunied  the  pann 
tended  to  kill  Bridgetun :  if  thai  were 
that  lawyer's  poiiitiun,  from  whom  nolKxh 
fers,  must  be  direct  nonsense.  And  thei 
fince  there  is  no  other  eridence  of  a  fartbi 


theMttrdero/theEarto/i 

*  BrMgtIM  tirati  pcrcnlcrt,  er- 

Btttlmlmhoriiir  lunl^trarb- 

ll  hk  ib*th  cannot  |>rmiiiire  it ; 

■  "(T  ifae  iwsition  Ui«  lawyer 

i[ti  tny  I     ' 

ir  Itiirt  lie  iulviiitnl  to  ito 
■'inn  at  rtqiluiD, 
.-wLill. 

■'■iiiatiis,  oajl. 
"■ly  (luCEtinnt  be 
tt'  lb*  kilJcr  VM  oeeupatuc  in 
■l«ny  H^^irres- 
the  CMC  her«, 
Mliabl«>,  altbongh  he  r.lianee 
If :  bnt  tliFD  he  goes  riirtlter, 
nplinailreiaextrinlariius,  reus 
""  «IB,  orcapaiiis,  tali  tHiiien 
il,  DtMCuuin  iaterferissel, 
rtam  tiitiatA,  ijnii|urtiKO 
ipmoioslBtbalcin  ncpperii 

'  '   ftl :  com  CDitii  Coii 

errurtiMifn  enm  4 

debvl:  atqueCainpo- 

fbnit,  *el  iracuoiliam 

erit,  id  quoil  induwcii- 

Here  joiir  lardshi|]S 

:  of  a  rixa,  wh^re  one 

n  BriJfreioji  iliit;    he 

«ach  a  COM  killing  the 

lninf«r  ileaih  ;  much  l«u, 

killing  of  a  third  (wiiy : 

'  olMerTa  be  ancrls  fur- 


*wilt 


r,  l»<i 


of  theslaii^hlcr. 

omeiyet  i-lowr  Id  iht 

latnea  Caium  idTersa- 

I,  Kd  illi  tautum  norare, 

impnidenlGr  st  ictui  oliji- 

torcnl,  tune  certe  im|iru' 

ii  4HieliUD  rel  agfp-aTare  noi 

il  ipodvralorem  rixie  se  noo  nb- 

umaiibiiort  ex  propiDquo 

a  nedrnle  forte  remutior, 

re  naxuni  inde  reporiaMPt, 

rs  obiala  eat :  excusandiii 

,*TC(umr  tunc,  cum  occi' 

«i«dfui*Map]>iiift." 

lie  M  the  preirent  questioDi 

h  h  were  ■  rcMluiion  on  ih( 

ir  lnn<«lM[i«  see,  that  not- 

11^  killed,  theauthor  say« 

se  an|war,  ihai  there  «  n^ 

t  Mlier :    the  olbpr,  who, 

■naancc,  migbi  doi  ban- 

e  bMn  bprt  anrf 

a  tliat  came 

vltabehilM.  This 

H  itHiK  not  ap- 

B  kill    UcMirelnn, 

~  n  killed,  Ihii  he 
indeiJ ;    and 


tare.  A.  D.  172S.  [114 

bnnuse  «f  tlin  fblalily  of  killing  the  (leceued 
loni,  '■  qui  "tibito  rorpiM  siintu  ex  pnipinquu 
objecil.*'  An<l  ii|>Qd  nil  tbnse  groiiriiis.  wb 
humbly  b9ial,  tbatilBriUgelOTi hail  Weu  killed, 
there  WAuld  bare  been  nu  place  tor  a  CHpltal  pu- 
nish mctrf :  bnt ibenBeparalely,  whatever  be  id' 
that,  that  since  it  doee  Dot  appear  (nnr  cauunt^ 
rieaih  ffitt  not  follow)ihnt  there  wB«  a  cer- 
tain intcniicn  to  kill  bim,  tho  casual  kilting  of 
the  earl  ofStrathnHiv  cannot  bp  puniabable  ivilLi 
death. 

What  has  been  saii),  fully  rcmoTca  any  ar- 

Kment  that  may  lio  drawu  from  air  Geor^ 
ickoLisie'e  opinion,  "  Thui  lie  who  by  dim- 
lake  kills  one  tor  aitnlUer,  should  die:"  For 
your  Wilsbipsaee,  that  be siieaks  only  of  that 
cose,  wlien  one  man  ia  certanily  iittended  to  b« 
killeil,  but  another  is  killed  by  mistake,  bein^ 
)iiipitoierl  10  be  him  :  that  ia  not  the  case  noir 
bctora  v4>iir  lordships. 

And  til  this qiieaiion,  concerning  thepauml's 
iDtcnlbn  and  iteaigii-  'lie  cin^uniBtaDce  of  hi« 
bein^  overtaken  nilh  drink,  is  a  circa inMalica 
tliHl  ivninta  in  the  arf ument.  We  do  oot  say, 
thai,  heiiig  drank  affords  a  deftrnce  for  killing ;  DO- 
verlheleaK  it  isa  cireuinitatKC  whereby  tDkbow, 
there  wna  no  malice  or  dole,  especially  agoinat 
the  earl  of  Stmllimore;  since  erery  boity  raay 
conceive,  howes&y  ilin  for  a  nraii  that  Is  drimk, 
pDsbiBi;  nt  ODe,  even  to  atagger  upon  aootbeTf 
or  not  to  hare  the  judgtnent  and  presence  of 
mind  lo  draw  back,  when  thai  otlier  auddeoljp 
IhroWB  himself  in  t|ie  way  of  ihe  tbrusl. 

Wh.it  ia  laid  duffn  by  the  piinuen,  in  op' 
(HMition  to  all  this,  in  Iheir  int'ormaUon,  i*  ao 
fully  obviateil,  tbat  il  is  quite  needless  to  repeat 
ilieirnrgument;  only  whereas  they  say,  "That 
if  killin'^r,  notwiihilanriiii^  of  provocation,  bad 
not  beet!  capital,  il  ooiild  not  hare  been  a  doubt 
in  the  common  law,  wtictlier  a  hntbaud  oui;hl 
to  NufTer  deaib,  who  kitlad  his  wile  taken  io  ibtt 
actofailuttery  r"  But  we  apprehend,  that  tha 
direct  contrary  conieqiienee  ti)llow«.  that  if  liigli 
prOTocatinii  bad  not  affonled  a  iletence,  then 
mdeed  (here  could  nnl  hari^  been  a  doubl  ih« 
busbaml  must  have  died,  berause  high  proTO- 
cation  wa*  ail  that  be  had  to  plead  :  but  lti« 
doubt  was,  whether  a  provocaiion  of  that  kimH 
where  there  was  no  real  corporal  injury  lo  the 
husliand  bimsetf,  wua  aufficietit?  Aud  ilie  Ini* 
rfetermiues  that  it  waa;  and  couseqiienlly  c^la- 
blishes  the  rule,  tlial  hi^h  and  grievous  prura* 
cations  ought  to  alleviftle  ibe  piioi'^binenL 

The  br-ortnl,  that "  veranos  in  re  ilticila  te- 
nelur  <le  omai  evenia,"  olTordB  no  argument 
agaioit  ibe  panncl  in  this  oa«e  ;  nor  indeed 
hatb  il  been  much  insiittod  on  by  the  pursuer*. 
luii>.  It  IS  not  true  in  many  cases.  Uut,  ado^ 
It  holde  in  no  case,  except  with  regnnl  to  con- 
seqiitnees  or  evenU,  thai  happen  with  rrgar4 
lo  that  siiltjpct  or  oliject,  agaiart  »lK«n  or 
H  hich  Ihe  unlawftil  act  is  tlirecieil  =  aa  for  in- 
utance,  if  one  aeisfire  to  u  liouse,  be  is  giidty  of 
murder,  Ifa  tieraon  h«pi>cii  lo  bcbiirtii  id  tlirt 
hnure;  orifheunderiumea  hwisi*,  he  i«  linlile 
for  all  ihe  Bloods  iknt  m»y  he  dwlroyed  by  it> 
Ml ;    hot  be  ■•  not  liable  for  any  uitruMi* 


1 

i 


I 


1 15J  2  GEORGE  IT. 

damafi^e  tliat  may  happen  to  another  subject 
casually  and  by  areideut:  and  ihereforei  sup- 
pose it  were  proved,  that  one  unlawfully  inrad- 
in{?  another,  without  a  desifj^n  to  kill,  might  in 
some  eases  be  liable,  it' death  followed ;  yet  that 
can  only  be  with  reflrard  to  the  person  he  in- 
vades, but  never  with  regard  to  what  acciden- 
tally happens  to  another  person.  And  so  Carp- 
zoviiis  explains  the  matter,  an.  ].  §.  ult.  in 
these  woras :  **  Supra  dicta  enim  (quod  nempe 
dauti  operam  rei  illicits  iroputari  defaieat, 
quicqoiu  tuerit  prceter  ejus  intentionem  ex  eo 
actu  secutum)  procedunt  tantum,  quantum  ad 
subjectuni,  circa  quod  rersatur  ipsa  malitia  il- 
Hcite  operantis,  et  quantum  ad  ea  quee  illi  ob- 
jecto  per  se  et  immediate  junguntur,  autneces- 
sario  sequuntur ;  non  auten  quoad  illaquee  per 
accidensoriuntur,  a  re  ilia  mala  cui  opera  datar." 
ttesides,  it  is  certain,  that  the  brocard  is  no 
rule  at  all  in  the  matter  of  manslaughter,  other- 
wise there  never  could  be  such  a  thing  as  cul- 
pable homicide  ;  which  it  Is  plain  tliereis. 

The  next  thing  to  be  considered  is,  what  was 
and  is  the  law  of  Scotland  concerning  this  mat- 
ter P  and  first,  as  to  our  ancient  law,  the  pur- 
suers seem  to  be  the  first  that  ever  disputed, 
that  according  to  it  there  was  a  distinction  be- 
twixt slaughter  and  murder.  Sir  George 
Mackenzie  is  express  upon  it.  By  our  law, 
says  he,  slaughter  and  murder  did  oVold  differ, 
as  "  homicidium  simplex  et  premeditatum*'  in 
the  civil  law  ;  and  murder  only  committed,  as 
we  call  it,  upon  forethought  felony,  was  oidy 
properly  called  murder,  and  punished  as  such  ; 
for  which  he  quotes  the  express  statute,  pari. 
3,  cap.  51.  K.  James  1,  appointing  that  murder 
be  capitally  punislie<l,  but  chaud  melie^  or 
slaughter  committed  upon  suddeuty,  shall  only 
be  punibluble  according  to  the  old  laws,  and  se- 
■  veral  other  acts  of  parliament,  to  which  we 
beg  leave  to  refer  [See  the  abstract  of  them  at 
the  end  ;]  which  expressly  make  the  distinc- 
tion betwixt  forethought  felony,  and  slaughter 
^f  suddenty :  and  though  none  of  all  these  laws 
particularly  express  the  punishment  of  inau- 
slaughter,  as  they  could  not  will  do,  becaube 
that  wa:(  arbitrary  according  to  circumstances ; 
yet,  as  sir  George  observes,  the  opposition  and 
distinction  is  established  betwixt  slaughter  by 
forethought,  and  chaud  tutlle,  hud  the  punish- 
ment of  the  one  to  be  less  than  that  of  the  other : 
and  therefore,  we  apprehend,  we  may  leave 
tbui  point  as  clear  and  undoubted. 

The  pursuer  has  endeavoured,  to  no  manner 
of  purpose,  to  set  up  others  of  our  ancient  laws, 
in  opposition. to  those  obser\ id  by  sir  George 
Mackenzie,  such  as  the  third  siatatc  of  king 
Kobert  1,  which,  with  submission,  is  nothing  to 
the  purpose :  for,  first,  It  does  not  concern  ca- 
pital Climes  only,  but  any  crime  touching  limb, 
as  well  as  life,  iido.  Though  the  word 
slaugliter  is  mentioned,  without  adding  ^  bv 
forethought  felony,'  yet  the  same  thine  is  ada- 
ed  in  other  words,  when  it  says,  touching  life 
or  limb,  to  which  alone  the  act  relates,  that  is, 
forethought  felony ;  because  slaughter,  by 
Qhmud  milUf  touobad  ueitlier  life  or  limb.    Tm 


Trial  of  James  Carnegie^ 

title  of  the  act  is,  **  Alen  condemned  t< 
should  not  be  redeemed."    But  what 
to  the  purpose,  in  a  question,  who  sht 
condemned  to  death,  and  who  not? 

The  43rd  chap,  of  the  act  of  king  Re 
is  as  little  to  the  purpose ;  for  as  it  sp< 
hairships,  burnings,  reif,  and  shinghte 
very  plain  it  means  only  wilful,  prem 
slaughter,  otherwise  it  would  follow,  tl 
only  wilful  fire-raising,  but  burning  of  a 
by  neglect,  or  lata  culpa^  would  infer  tl 
of  death,  which  noboav  ever  dreamed, 
the  next  paragraph  makes  it  further  cle 
pointing  sheriffs  to  take  diligent  inqu 
*'  gif  any  be  common  destroyers  of  the 
try,  or  hath  destroye<l  the  king's  liegi 
hairsbip,  slaughter,"  &c.  Can  a  mai 
common  destroyer  by  slaughter,  except 
the  slaughter  is  supposed  to  be  by  foretl 
felouy  ?  Jt  is  certain  he  cannot ;  and  tht 
the  pursuer's  procurators  fall  into  a  grei 
take  in  law,  when  they  say,  that  ^if 
kenM  with  the  assize,  ^*  Si  attentus  tin 
assisam  tanquam  talis  malefactor,  condei 
tur  ad  mortem,"  must  relate  to  manslai 
because  the  sheriff  could  not  judge  of  nr 
It  is  directly  otherwise :  if  be  be  attaii 
the  assize  as  such  a  malefactor,  that 
eommon  oppressor- by  slaughter,  &c.  I 
be  condemned  to  deatli.  This  is  an  ex( 
from  the  rule,  that  murder  was  to  be  t 
the  justice-ayr:  this  law  appointed  ii 
tried  in  that  way,  in  case  the  person  a 
could  find  his  barras  or  borgh  to  com] 
next  justice-ayr ;  but  if  he  could  not,  th 
riff  was  immediately  empowered  to  trj 
by- the- bye,  this  does  not  concern  pai 
fact,  but  concerns  that  general  accusation 
ing  a  common  oppressor,  like  to  the  ca 
sorncr,  or  one  habite  and  repute  an  Eg 
Nor  can  the  lawyers  for  the  pannel  fi 
word  in  the  statutes  of  Alexander  2,  wh 
pursuers  refer  to,  that  docs  in  the  lea 
su])pose  that  niauslaughter  was  cap 
them :  the  direct  contrary  appears,  tha 
slayers  were  to  be  tried,  wiiethcr  ^u 
murder  or  not;  and  if  found  not  guilt 
they  were  to  have  the  benelit  of  the 
And  accordingly  Skccu,  in  his  annot 
refiTs  directly  to  the  acts  of  pari! 
which  sir  George  Mackenzie  takes  not 
establishing  the  distinction,  and  to  some 
English  acts  to  the  same  purpose. 

As  to  the  passage  cited  from  Skeen, 
Treatise  of  Crimes,  tit.  Slaughter,  there 
tainly  a  direct  blunder  in  the  printing  ;  o 
stead  of  these  words,  **  or  casually  by 
melle,"  probably  it  ought  to  have  beeUj 
casually,  or  by  chaud  melle ;"  for 
wise  he  directly  contradicts  himself,  an 
acts  of  parliament  which  prove  the  vcr 
trary  of  what  the  pursuers  would  mali 
assert:  yea,  the  very  next  paragraph 
blisheth  the  distinction  in  these  wonis, 
that  the  gyrth  or  sanctuary  is  nae  ref 
him  wha  commits  slaughter  be  foretl 
fekNiy ;"  trgo^  it  was  t  refuga  to  him  tha 


fff]      firtht  Murder  of  Ike  EaH  of  Slrathmore.  A.  D.  1728. 


[118 


and  chaudmelle  ceased;  and  that  it  Vftm  nerer 
objected,  that  malice  or  premeditate  desigi'n  was 
requisite  to  make  the  crime  capital."     And  for 
this  they  take  notice  of  two  cases,  Ctirric 
a^inst  Fraser,  July  1641,  and  Bruce  against 
Marshal,  April  1C44.     But  in  the  first  place, 
the  procurators  for  the  pnnnel  with  reason  say, 
that  i£  that  happened,  it  was  an  error  in  judg- 
ment ;  for  since  the  distinction  was  established 
by  the  old  laws,  an<l  that  there  was  no  law  at 
that  time  altering  or  repealing  those  old  laws, 
the  abolition  of  popery,  and  of  the  flying  to  th« 
kiik  in  consequence,  was  no  reason  for  jutli^infj 
contrary  to  tbecif  il  law's  that  wore  still  standing; 
and  if  an  esca|)e  of  that  kind  happened,  it  must 
be  attributed  to  the  over-great  zeal,  anfl,  if  ne 
may  be  allowed  to  say  it,  a  sort  of  cnthusiastie 
keenness  of  those  times :   And  we  do  appre- 
hend, that  the  act  1649,  and  the  act  of  Charles 
S,  were  intended  to  correct  the  errors  that  by 
too  great  zeal  bad  then  crept  in. 

At  the  same  time,  as  to  the  two  cases  cited, 
they  are  nothing  to  the  purpose;  for  as  to  the 
first,  which  is  Fraser's,  there  was  not  one  cir- 
cumstance pled  or  proTcd  which  could  make 
the  slaughter  chaudmelle:  But,  on  the  con« 
trary,  it  appeared  direct  premeditate  murder, 
DO  real  provocation,  but  a  quarrel  about  a  staff; 
a   murder  committed  in   revenue,  upon  the 
slayer's  hearing  the  person  killed  had  murdered 
his  brother,  which  plainly  implied  a  preme- 
ditate design.     What  argument  this  can  afford, 
is  submitted.    This  indeed  may  he  remarked, 
that  the  case  gives  some  notion  of  the  spirit  of 
the  times;  the  presbytery  took  evidence  whe- 
ther the  murder  wus  accidental  or  wilful,  they 
found  it  to  be  wilful,  and  no  ways  ac<'idcntal ; 
their  having  done  so,  was  taken  us  evidence  in 
court,  and  even  the  wife  of  the  deceased  was 
sworn  as  a  witness :    things,  it  is  hoped,  not  to  * 
be  drawn  into  example  ;  only  so  far  it  shews, 
that  even  then  it  was  a  considi-ration  i»y  the 
presbytery  themselves,  whether  it  was  a  wilful 
murder  or  not  i*   Which  seems  to  point  at  an 
establishment  of  the  distinction.     But,  in  short, 
there  is  not  one  circumsttiuce  in  the  \«  hole  case 
that  could  exclude  the  premeditation  or  fore- 
thought, but  all  quite  on  therontrary. 

The  other  ease  of  Marshall,  in  the  year  164 1, 
is  as  little  to  tiie  purpose;  he  was  lib*  lied  tor  wil- 
ful murder,  and  he  confessed  it,  without  pleading 
remains,  that  according  to  the  law    any  defence,  because  indeed  he  had  iimmo.     Jle 

in  his  confession  adjected  some  cirruiustances 
which  might  have  o'lfeu  sonieroloiir,  hut  in- 
deed very  little  for  a  ddcnce:  !*nt  he  otlere<l 
nopniof  even  of  those  circunistauers ;  and  his 
own  declaration  could  be  no  evith  nee  of  ih'Mn. 
They  were  not  inlrinsie.  but  «\iriiiNie  qualities 
of  the  dec'laratitm.  lie  \\iu\  {.nveii  rt'penti'd 
stabs  with  a  knife.  W  here  k  ouuI  1m*  th"  f|iu>*i- 
tion  that  that  was  murder  f  AudtlieNt'  tieiu^;  :ill 
the  instances  the  pursuers  bring  heiore  the  :irt 
of  Charles  2,  ii  is  plain  they  prove  nothni:;'  by 
them. 

As  to  the  act,  Ch:ules  2,  [Sec  tlic  net  at  tho 
end]  it  is  humbly  insi<4ted  for  tin;  paii:iel,  that 
it  introduces  no  new  law  against  any  perkoa 


ihlrtter,  not  by  forethought  felony, 

d  hn  eten  from  the  arbitrary  ponisli- 

rfouibughter.     And  Skeen  himself, 

h  hii  OfGeitioD  of  tbe  words  chaud  melted 

Igil  Mil  ii  I^tio  rirft,  **  an  hot,  sudden  tuilzie, 

vMili*  which  isopponed,  as  contrary  to 

Ifdony ;  and  cites  the  act  James  1. 

.kntteontrary  in  our  law,  if  the  effect 

■kMot  be  tbe  'same  ?   And  upon  the 

'Miooglit  felony,'  he  in  like  man- 

b  tke  just  distinction,  and  supports  it 

MfHttwity  of  Cioero,  in  his  treatise  De 

flU^  skre  be  is  writing,  as  a  moralist, 

■latiiai  orator. 

Hi  pmaen'  answer  to  the  8th  act,  6  pari. 
X  tifBte  trifling;    for  nothing  can  be 

eki  tbe  opposition  there  stated  betwixt 
fh  fekmy  and  other  slaughter :  and 
*e  let  statutes,   ••  that  if  it  be  fore- 
fUMv,  tbe  slayer  shall  die  ;'*  tbe  con- 
tliobrioiis,  according  to  the  plainest 
rkric,tliat  if  it  be  not  forethought  felo- 
MH  not  die,  otherwise  tbe  act  is  ab- 
id  IS  to  sir  George  Mackenzie's  ob- 
ipn  these  words,  it  is  certainly  not 
iely  placed  as  an   observation  upon 
keime  it  plainly  relates  to  the  act  of 
fyiod  therefore  falls  to  be  considered, 
KCDme  to  argue  the  import  of  that  act. 
tfnoen'  observation,  by  way  of  an- 
il Ik  Slit  act,  pari.  3,  James  1,  is  en- 
■vkt;  for  if  it  extend  the  difference 
■  wHhooight  and  chaud  tneile  to  all 
^'ni  u  well  as  manslaughter;  then 
it  establishes  the  distinction  in  the 
tf  MBilaaghter ;  and  so  sir  George  I^Iac- 
HkVkfwise  says,  in  his  observations  on 
^"^vell  is  in  his  Criminals.    And  as  to 
■■fc  observation,  that  chaud  vielle  is  by 
''pBM  law  punishable  by  death ;    that 
■ifalotheact  of  parliament  Charles  2, 
■w lie  examined  with  it. 
l*"  pvraers  have  further  pled,  "  that  the 
j*^l  if  the  sanctuary  might  he  competent 
Vwcnnei  were  capital ;"  which  he  founds 
^  tbe  statutes  of  Alexander  2.     But  this  is 
disputing ;  for  if  the  flying  to  the 
joioed  with  repentance,  and  so  forth, 
the  crime  not  capital,  it  is  all  the 
■wfhiof ;  that  is,  in  effect,  to  render  the  crime 
"apiujooty  by  another  form,  but  still  the 


^piffl  of  death  was  to  be  inflicted.     At  the 
^*  buie  that   statute    concennng    reifs, 
■kwhy  repentance  abs4dves  from  the  punish  • 
JM|  is  somewhat  |»eculiar,  and  docs  not  at 
I  CSDtradict  the  other  laws,  which  make  or 
JpK  chfiud  mtlU  not  to  lie  capital ;  and  the 
■  pin  nf  thesutate,  ap|>ointing,  *'That  if 
NUjUB  fly  to  the  kirk,  the  law  shall  l>e 
Mild  observed  to  them,"  establishes  the 
K  that  if  they   were  not  found  murderers 
Ifcrtbought,  I  bey  were  to  be  returned   to 
pdMry,  and  frecil  from  punishment. 
niionamsaj,  "That  after  the  Reforma- 
^■Mfhe^KS  onr/s  was  in  effect  abolished, 
^ii  irtiocttoo  brtwixt  forethought  felony 


119]  2  GEORGE  II. 

accused  of  slaughter,  but  ascertains  somewhat 
in  their  favour,  viz.  **  That  casual  homicide, 
homicide  in  lawful  dt^fence,  and  homicifle  com- 
mitted upon  thieves,  Ace.  shall  not  be  punished 
by  death.  And  then  further  statutes,  That 
even  in  case  of  homicide  casual,  it  shall  be  lei- 
some  to  the  criminal  judge,  with  advice  of  the 
counsel,  to  fine  him  in  his  means,  &c.  or  to 
imprison  him."  This  law  seems  introduced 
to  correct  some  abuses  that  bad  been  ;  whereby 
homicides  falling  under  some  of  those  descrip- 
tions, either  had  been  punished  with  death,  or 
at  least  that  it  had  been  made  a  doubt  of,  if 
they  might  not  be  so  punisbed.  W  hat  those  cases 
were,  does  indeed  nut  appear  frotu  tlie  records, 
80  far  as  the  pannePs  procurators  l^now ;  hut  it 
seems  such  cases,  at  least  such  doubts,  were. 
But  then  the  act  does  not  determine  what  was 
meant  by  casual  homicide,  and  does  by  no 
means  say,  that  oothinff  was  to  be  reckoned 
casnal  homicide,  except  that  which  was  merely 
accidental ;  but,  on  the  contrary,  it  leaves 
casual  homicide  to  be  explained,  accortling  .to 
the  construction  of  former  laws,  wliether  our 
own  laws,  or  the  laws  of  other  nations. 

2do.  It  is  plain  from  the  act,  that,  by  casual 
homicide,  something  is  understood  quite  dif- 
iereikt,  at  least  beyond  slaughter  merely  acci- 
dental ;  for  the  act  is  concerning  the  several 
degrees  of  casual  homicide :  And  so  even  ho- 
micide in  defence,  and  homicide  committed 
upon  thieves,  &c.  are  brought  under  that  ge- 
neral description  of  casual  homicide ;  and  these 
last  kinds  are  given  as  exemplifioations  of  the 
general  description ;  which  shews,  that  casual 
homicide  was  intended  to  be  opposed  only  to 
slaughter  dolote  committed  either  by  preme- 
ditate forethought,  or  malice  presumed  to  be 
Uken  up  from  Uie  circumstances  immediately 
'preceding  the  act;  and  therefore,  however 
critisal  exceptions  may  be  taken  to  the  rule, 
yet  materially  there  is  no  strong  objection  lies 
to  it,  because  when  '  casual'  is  taken  in  the  ex- 
tensive signification,  as  opposite  to  fraudulent 
and  dolose  slaughter,  all  the  species  mentioned 
in  the  art  do  properly  enough  fall  under  it, 
and  are  degrees  of  casual  homicide.  And  in- 
deed it  is  worth  observing,  and  makes  in  this 
case  for  the  panuel,  that  the  rubric  cannot  be 
said  to  have  been  iiuligested  or  adjected  by 
mere  inadvertency,  since  the  same  rubric  is 
maile  use  of  in  the  act  1649,  and  again  repeated 
in  the  act  1661,  so  many  years  af\er. 

And  this  rubric  afTonls  another  plain  argu* 
ment,  that  the  legislative  did  at  least  consider 
that  there  might  be  degrees  of  casual  bomt- 
cide,  and  consequently  they  could  not  under^ 
stand  by  that,  onlv  merely  accidental  slaughter, 
strictly  so  callca :  Since  there  can  be  no  de- 
grees of  that ;  it  is  but  one,  and  does  not  admit 
of  decrees.  And  therefore  this  is  sufficient  to 
shew,  that  more  was  meant  than  the  pursuers 
incline  to  admit ;  and  if  more  was  meant,  that 
can  allow  of  no  other  construction,  than  to  bring 
under  these  words  what  the  lawyers  call 
**  culpalde  homicide,"  so  as  that  your  lordships 

•ad  tae  juiy  moy  JQ^gv  fiwa  oiwTnwwmwt^ 


Trial  of  James  CamegUf 

whether  the  slaughter  is  to  be 
casual,  or  really  malicious,  from 
pense. 

The  last  part  of  that  act  of  par 
ther  enforces  that  matter,  which  g 
not  only  to  fine  for  the  use  of  the  : 
tions,  but  even  to  imprison  for  cast; 
Now,  how  is  it  possible  to  believe,  it 
with  anyju8tice,tbata  man  might  b 
for  a  fiict  intjrely  innocent,  and  no 
culiHtble  or  criminal?  Yet  such  hone 
accidental  is :  And  tlierefore  this 
monstration  that  the  legislator  und 
under  the  description  of  casual  ho 
a  fact  might  eome  as  carried  a  culf 
it,  and  was  not  absolutely  accid 
nocent. 

And  this  being  the  phiin  meanin 
it  must  remain  only  to  consider,  ^ 
pable  homicide,  or  more  particular! 
case,  does  not,  in  a  true  and  legi 
under  the  words  *'  casual  homicid< 
hope  we  can  he  under  no  difficulty 
good,  from  what  has  been  alread; 
that  even  by  the  Jewish  doctors  a 
ters  ofthe  Mosaic  law,  homicide  w 
and  foresight,  hath  beeu  called, 
micide;'*  the  passage  above  cit< 
collation  of  the  Mosaic  and  Ronr 
pressly  shews  it.     8do,  all  that  b 
from  the  texts  of  the  civil  law,  i 
prove  it;  since  they  directly  ca 
**  ex  subito  impetu,  ex  calore  ii 
rixa,"    where   there    was  just 
casual ;  '*  casu  magis   ^uam  v( 
casui  magis  ouam  noxae  imputam 
all  the  rest  or  their  expressions  | 
nominating  all  slaughters  casual 
sense,  except  that  which  is  done 
occidendi.    Slio,  The  expressions 
old  laws  prove  the  same  thing ;  t 
slaughters  are  called  chaud  meii 
medley^  which  is  casual :  And  so  S 
in  the  very  place  the  pursuers 
manslaughter  committed  voluntar 
thought   felony,  or  not  (which 
degrees  be  received)  casually  by 
There  your  lordships  see  cAaiMf 
pressly  brought  mider  the  descripi  i 
and  so  that  being  the  case,  we  a 
letter  of  the  act  Charles  9,  we  i 
under  the  first  branch  of  casual  ho 

And  as  we  apprehend  this  hoU 
so  it  holds  more  particularly  in 
case,  where,  whaterer  was  de«i| 
Brtdgeton,  yet,  as  to  my  loni  Stn 
killing  was  casual,  and  therefore 
nnder  the  words  of  the  statute. 

It  affbixls  DO  solid  argument  ag 
the  act  of  parliament  bearn  these  v 
removing  of  all  qiieatioD  and  dow 
arise  hereafter  in  orioiinal  pursuit 
tpr."  For,  Imo,  Those  wonls  i 
understood  with  r^ard  to  the  parti 
ed  Dpon,  that  it  is  for  removing  at 
thooe  partieiiUars ;  for  it  can  nexar  I 

thai  Ibif  or«py  M  of  i^iriiafMit  1 


ft/the  EarinfStTnlh: 

en  B{t«i  DDfoivseta  casra,  mkoy 
'illupjmn  that  roulil  --'  ''"  — 

of  tb>[  law :  I'ur  in 


A.  D.  1728. 


e,  ho- 
ifiutfamob,  Btrkitlj 
^■■^,  ii.li  iiiini'i'  iiiFiiF  nf  tlie  noi^i;  or 
kaaa^  cniiiEiititi!  ill  ^iii.'ii>abDK  Uie  mcspc 
rfklWKiuillj  j in |jr ironed,  Bndeuilem- 
■■nfiaia^iti :  anil  mtoy  other  caw!  mn; 
kl%«i  fii'i  Jito,  AccunlrDK  lu  tlie  inter- 
iili^n,  Ibe  *clof  parlianienl 


Cl-J 


ihcwnae  we  give  ihem;  sod,  ou 
i>  t  dnta  aM  reinote  all  ^iieslionH, 
'luwiicidn,  anil  lliis  tpry  case  be  not 
bilmi  tlie  law  ha« •Uiutsil  (iiithinB: 
B)b«r  inie  <*■;  or  other,  but  hsth 
-I  upon  murder  merely  accideolal, 
kitUint,  and  the  ol'liers  lliprein 
,  thai  it  may  he  pl?<l  with- 

.   B  culpable  lioiFiicide  ta  a 

||f  iHarioide  in  deteuce  ;  lliouj.'ti  oat 
■"  ^"*llre  (if  life,  it  is  in  dof'ence 
'  h^vry  thrcKteotd,  and  ex- 
jwior  injury  alreaily  i^feu  : 
noaideratinna,  ue  humbly  a  |>)ire- 
181  of  obrlunieiit  makea  DMhiii|i|' 
^DM,  hut  ratlier  favuui'M  him, 
nl  a  hnmidilt^  imrely 
tlint  waa  killed  :  and 
irely  diiiingiushe$  hi* 
'  olber  cue  that  hnih  been  tried 
parliainenl-  And  it  may  not 
lu  ii»Upe,  ihut  air  Geoi^e  Mac- 
"  Tb»  wurd  "  cbhuU,'  ia  the  ru- 
terfik^ia<i,  I*  ukeu  in  the  bx  W|n>>fica- 
'>Kk."  Aad  »  >-y  not  Iheu  tali*  it  in  tbe  tAtae 
lw%lfcali   n'in  tlic  alatutnry  )Mrl  f 

jttivw  ptwin  tu  [akr  ludice  d'  sir  George 
lil^Mw'a  DbaervaliniiB  upon  the  5tM  act, 
^mn.  AnJ  in  itu)  fir«l  (ijacr,  it'cir  Georce 
liflffiHBd  lo  go  aa  far  in  hi«  niiininn  tw  tEe 
■IMa  pIraJ,  we  must  beg  leave  to  oiiiioDe 
lfli«,i«l  sAoiit  thoiiitvrprelaliiiD  ol  il  lo 
W0  ImMiI^'  Judgment,  as  ntil  suffidiently 
■nanng  hM  opinion.  2iIo,  sir  George  saya 
"  "  '  ~  "  U  ihe  alauKhter'f  hetii^  cmduI  in 
•e,  where  the  lilotv  was  inlended 
■er  MTiuk  by  Iktatity.  3tio, 
Il  (0  Hu  liir  aa  the  ]iurauen 
Id  auMdi  tU«»i ;  Ibr,  in  hit  tibHTTBtion  on 
M  ut4  ilu  uri,  liB  nnly  «ayi  in  |^neral, 
Tbal  cA^itd  mtiit  at  Aomicidiiun  in  rixa  com- 
^iMw,  II  npital  Ijy  our  [ireMUl  kw :"  and  kii 
im  aamaaj  v^'Mni  Ibr  iuMaace,  where  the 
A*  m  tJio  priiTokor,  wlit<ra  he  reilffatre 
ktAv>  )■  auch  a  maimer,  as  to  shew  a  Ibre- 
bvkt  a^  rnriBCil  deii^n,  although  not  ni'e- 
■UU«d  lor  a  lonj;  intvrtat  ut  lime  betore : 
m  m  tiwrce  dnm  l>v   »u   mtuuiq  uy,  that 


4ltcraarda  I'l  l«  iioIiC(nI. 
rtatiuo  liji  III  till'  OOlh  act  il  no  wayi 
'    "  That  uuirder. 


il  piiQuhatite  nilh  death :"  by  which  lie  n 
mr-an  pretiivdiiatcil  tnatice,  and  that  ta  t 
liir  no  doubl  malice,  wlieiv  it  oui  be  pri-iu 
IVoin  Ihe  iict  ithelt',  anil  where  tli«  counary  _ 
not  >|ipear  from  circiiuislances,  ii  puiiisbl 
by  death,  without  further  lurellioi^hl ;  '■ 
then  he  aubjoins  an   esce|ilio.  '  '  '     ' 

the  mailer  where  it  was,  "  exoepi,"  sajBta 
"  it  be  fMUoJ  j"  that  is,  aecordintr  lo  Ihe  i 
of  I  lie  law :  and  so  the  gueslion  remaiut,  w 
caaiial  in  Ihe  nense  ol'  that  law  ? 

The  pursucra  u«o  an  argument,  which  t( 
to  lie  or  no  force,  "  That  if  inaae1aught*r  *■■ 
not  capital,  llien  the  crawn  could  nnt  parilon 
any  capital  slau^terj  because  by  »ur  Uw  the 
crown  could  not  paidon  murder."  IVe  mit;ht 
easily  ailmit  the  whole,  wilhoul  biiniog  our 
argument ;  for  if  it  be  true  that  the  crown 
could  not  nanloD  murder,  then  ii  in  likewice 
true  that  ne  coiiJd  not  panluu  any  shiiighter 
tliat  was  cftpital ;  because  no  daughter  m'aa 
capital  but  murder:  neierihelesii  the  puskion, 
that  llie  crown  could  nol  pardon  murder,  ii  nM 
supported  by  practice,  and,  we  doubl,  not  by 
nor  law;  because  iu  aereral  caaei.  cten  ok' 
murder,  Ihe  very  thiutc  statuted  is,  "  That  lb* 
|ierB(in  of  the  criminnl  slmtl  be  in  the  kisg'a 
will ;"  consequenily  ihe  kii^  caji  pudon,  u 
well  aa  order  to  he  put  to  deaui. 

The  pursueri,  in  their  InfutmatJuii,.  next  gw 
on  lo  nienlion  a  ^enl  many  caaeii  ihii  bavft 
been  judged  by  the  Coui'i  since  tlie  act  IfiGI  ; 
anil  the  first  menlioned  is  ihitt  of  Wm.  Dou^- 
la>i,  which  appears  iu  the  Ilecords,  and  i»  no- 
lie^  by  sir  George  Atackeozie,  and  is  indeed 
nuticedbv  hiui  u  afoihtdulinnfor  saiui-ihinga, 
wherein  be  leema  tn  go  tun  far.  But  Ihi*  ewe 
will  iieief  deicj'ie any  regard;  it  \ias  ilwaja 
been  linked  uprm  as  a  liaril  one,  end  we  ars. 
ulV-iId  a  tejiroach  on  the  justice  of  the  nation. 
But  at  lh«  same  lime  the  fdulidid  not  lye  oa 
IlieCourij  il  uas  tiuly  Ihejiiry  ;  fur  ihe  Irial 
went  in  i^eiieral  upon  tlie  url  and  {larl ;  awl 
there  Mppears  no  piiriicahir  pleadings  to  this 
purpose  un  record  in  thut  case :  tu  that  what 
sir  GeoT^  Bays  of  il  must  he  froin  mere  me- 
mory of  tbiuifs  ont  thouKix  Ri  to  be  recorded. 

The  next  case  mentioned  i»  that  ol  >'ico|. 
son,  in  the  year  1GT3,  which  can  never  tnajM 
for  the  piirsuem,  Iiei-aiise  there  your  lordships 
aiulained  boih  tiie  libel  and  the  defeuoe,  Iboiigli 
indeed  Ibe  defciioe  wa»  not  prated :  and  ihm* 
fure,  if  the  pursuers  say,  Ihnt  the  dclience  waa 
U|>on  chauj  mtllr,  or  culpalde  homicide ;  the 
case  is  witli  us,  because  your  lordships  aui' 
taiaed  Ibe  defence.  And  eiUuiugJi  i|i  reality 
Ihe  crinie  was  (trored  to  be  ttilfut  murder,  and 
the  derciiie  noi  proved  ;  yet  so  far  it  is  on  th« 
paunel's  side,  ihni  ihc  advitLate  iiuisied  Nicol- 
son.  was  vcnuni  in  re  iltkita,  by  varrjins  a 
gun.  which  be  ncknuwledued  uaed  lu  gu  naou 
haH'-beud;  yd  y»ur  lordsiiip<i  •usiained  tba 
ilef^iioe,  •'  That  the  gun  weui  offiu  a  slruiT* 
gle,"  Aud  if  an  arguneol  from  a  Uwycr'a 
pIcBdiug  be  Kood  for  any  l1>ing.  sir  George 
ftliLuktuixic  idi-d  for  the  pannel,         ''    ' 


'  123]  2  GEORGE  IL 

•n,  *'  That  there  was  no  prejudice  against  the 
|>er8on  killed,  and  that  the  gun  went  off  in  a 
■trufr^e."  But,  indeed,  the  case  is  naught  in  the 
argument,  and  it  seems  ?ery  strange  why  it  is 
cited :  it  is  true  the  man  was  said  to  be  drunk, 
and  there  was  not  a  pre? ious  quarrel ;  but  then 
there  was  no  provocation,  no  justa  causa  ira- 
cundiay  and  no  iracundia  at  alt ;  but  the  gun 
was  twice  deliberately  snapped,  and  the  third 
time  the  man  was  killed. 

The  third  case  mentioned,  is  Murray  contra 
Gray,  yet  less  to  the  purpose  than  any  other : 
for  there,  the  giving  the  wound  was  libelled  so 
far  premeditate,  that  the  slayer  followed  the 
person  out  or  the  house  where  he  was,  and 
killed  him  without  an^  provocation :  and  not  one 
single  fact  was  pled  \n  defence,  but  a  strange 
demand  made,  that  the  lords  should  make  an 
inquisition,  in  order  to  discover  who  was  the 
first  aggressor ;  but  it  was  not  once  pled  that 
the  defunct  was  the  aggrressor  or  provoker. 
What  can  be  the  meaning  of  citing  such  cases? 

The  next  case  cited  is  that  of  AinI,  in  the  year 
1693 ;  which  indeed  is  something  more  to  the 
|mr(K)se,  but  yet  does  not  answer  the  pursuers' 
intention :  for  the  lords  did  not  there  find,  that 
every  homicide  was  capital,  except  what  was 
merely  accidental ;  they  indeed  sustained  the 
libel,  and  repelled  the  defences,  which  were 
mainly  founded  U|M)n  provocation  hy  ill  words 
from  a  woman,  and  her  throwing  a  chamber- 
pot at  the  pannePs  face,  who  was  a  soldier : 
which  the  lords  did  not  find  sufficient  to  excul- 
pate from  the  libel,  which  bore  reiterate  strokes 
to  have  been  given  the  woman  in  her  own  door 
(which,  by  the  b^re,  tvas  hamesucken)  she 
thrown  over  ihe  stairs,  and  pursued  by  the  then 
pannel.  That  case  was  very  singular :  first, 
an  attack  upon  a  woman  by  a  soldier,  who 
ou};ht  to  have  contemned  insults  from  the  fe- 
male sex,  at  least,  not  returned  them  with  any 
blows :  DO  injury  of  that  kind  from  a  woman 
can  justify  blows  given,  much  less  reiterated 
blows,  and  deliberately  trampling  to  death, 
throve  ing  her  over  her  stair,  and  still  continuing 
to  pursue  her :  there,  the  presumed  difference 
of  strength,  and  difference  of  the  sex,  made 
such  an  attack  a  barbarous  murder ;  just  as  an 
invasion  by  a  much  stronger  man  a^inst  a 
weaker,  or  by  a  man  against  a  woman,  although 
not  with  a  mortal  weapon,  would  make  a  blow 
with  a  mortal  weapon,  given  by  such  a  woman 
or  weaker  person,  come  within  the  description 
of  self-defence :  which  is  a  case  that  lawyers 
state,  although  the  same  thing  would  not  be 
good,  if  they  were  of  equal  strength,  or  that 
the  invasion  was  by  the  won'.an,  or  person  of 
weaker  strength. 

Another  case  mentioned,  is  that  of  Carmi- 
•hael  in  the  year  1694.  But  sure  your  lord- 
ships must  l>e  weary  of  so  many  cases,  so  little 
to  tlie  purpose ;  for  neither  there,  is  there  one 
circtimstance  pled  upon  to  exclude  forethought, 
or  to  show  that  the  thine  was  casual  in  any 
sense ;  but  some  trifling  dyjections  against  the 
firm  of  the  libel :  only,  indeed,  drankeDntss, 
by  itself,  was  foandcd  on,  which  your  kirdships 


IVial  of  James  Carnegie^ 

did  not  sustain.    And  who  can  doubt  i 
be  sop 

The  seventh  case  mentioned  by  the  pii 
is  that  of  George  Cuming,  in  tlie  yeai 
And  upon  locking  into  the  case,  it  n 
owned,  that  it  seems  a  very  narrow,  bar 
but  then  the  whole  burden  of  the  pi: 
pleading  turns  upon  this.  That  supposin 
was  a  rtxa,  and  that  the  thing  happenc 
a  sudden  quarrel ;  yet  Cuming  himself  < 
first  provoker,  and  the  aucior  rixa,  and 
fore  could  not  plead  the  benefit  even  < 
defence ;  whicn  indeed  brings  the  case 
what  all  lawyers  ag^e  on.  And  had 
been  for  that  circumstance,  it  is  imposs: 
decision  could  have  gone  as  it  went :  fo 
feet,  the  kingf's  advocate  admitted  the  d 
barring  that  circumstance ;  but  insistei 
that  as  what  governed  the  case.  Yet  s 
decision  is  narrow. 

The  pursuers  also  mention  the  case  o 
net  of  Carlops,  anno  1711.    But  it  is 
ajgainst  them ;  and  it  being  to  be  noli 
the  pannel,  shall  not  be  dwelt  upon  here 

The  next  case  is  that  of  Hamilton  of 
anno  1716 ;  which  does  not  all  meet :  fo 
a  plain  murder  was  libelled,  that  the 
first  made  several  pushes  with  his  swo 
scabbard  upon  it ;  and  not  content  wit 
drew  the  sword,  and  gave  the  defunct  th 
tal  wound.  And  no  provocation  was  ple« 
on  the  part  of  the  pannel,  except  what  w 
bal  only.  And  the  only  real  injury,  by  s 
with  the  sword  and  scabbard,  was  ad  mi 
have  been  given  by  the  pannel.  And  i 
it  was  there  pled,  that  the  defunct  I 
rushed  upon  the  sword,  that  was  ronti 
the  libel.  And  if  the  fact  had  come  so  c 
libel  would  not  have  been  proved.  And 
fore,  that  case  does  not  all  meet;  foi 
were  not  sufficient  circumstances  to  c 
the  dole,  or  so  much  as  to  make  a  honn 
euiposum. 

Another  case  they  mention,  is  that  ol 
mas  Koss,  and  Jeffery  Roberts,  20th 
1716 ;  which  makes  against  the  nursuei 
is  set  forth  by  themselves :  for  there  tli 
did  sustain  the  defence  of  provocation  by 
receiving  a  blow  on  the  face,  being  pullet 
to  the  ground,  and  beat  with  a  great  s 
car- rung,  relevant  to  restrict  the  libel  tos 
trary  punishment.  And  thongh  the 
**To  tne  imminent  danj^erof  his  life,*' 
sert,  as  they  were  pled  m  the  defence ;  ^ 
was  not  a  fact,  but  a  consequence  inferrc 
the  being  struck  with  a  sticK.  And  if  th 
culum  vita  bad  been  the  foundation  on 
the  interlocutor  went,  then  it  must  hav* 
unjust ;  because  no  man  alive  ever  dc 
that  a  man  in  self-defence  might  lawful 
without  being  subject  to  any  arbitrary  p 
ment  whatsoever :  but  the  case  was,  th« 
lordships  found  the  provocation  and  real  i 
reduced  the  fact  to  a  homicidium  cul 
Yon  indeed  sustained  the  reply,  that  tl 
funct  was  held  by  Jeffrey  at  the  time  of  i 
ing  the  wound,  becaoM  tbit  oxdodcd  tl 


for  the  Murder  of' the  Earl  of  Strathmore.  A.  D.  172S. 


[125 


oT  the  pinnel's  being  unon  the  ^iinJ 
be  gave  the  wound,  and  made  the  fact 
It  to  murder ;  because  it  never  was 
d,  but  if  one  stab  another,  especial iv  with 
*,  which  is  stabbin|^  in  the  must  baruamus 
when  that  otiier  is  held,  and  so  put  oot 
ilaie  of  Joine  further  injury,  that  is  mur- 
jf  the  la  w  of  all  nations. 
tfonoers  likewise  mention  a  case  of  Da- 
i^  without  noticing  either  date  or  circum- 
■;  and  therefore  the  pannel  must  con- 
Ibere  was  no  defence  projiosed,  exclusive 
Me  or  forethought, 
caaeof  Lindsay  and  Brock,  the  Greenock 
I,  is  very  far  from  nutting  the  ca^e  out 
k,  or  indeed  touching  it  at  all.  The 
18,  that  the  defunct  was  enticed  out  of 
Be,  and  was  attackefl  by  two  at  the  same 
asd  when  he  and  they  were  on  the 
Ij  one  of  them,  which  came  out  to  be 
y,  slahhed  him  in  the  throat  with  a  |)cn- 
Tbere  your  lordships  did  not  sustain 
■e  as  capital  against  them  both,  even 
ae  art  and  part,  but  only  against  the  one 
Nokl  appear  to  have  given  tlie  stab,  and 
■K  ont  to  be  Lindsay :  but  tlien  indeed 
ood,  not  without  difference  in  opinions, 
vcriheless  he  had  the  benefit  of  the  in- 
y^  upon  this  foundation,  ihatthongh  the 
MM  was  dolosumy  because  of  the  cir- 
laers,  yet  it  was  not  from  malice  preme- 
:  and  the  majority  were  of  opinion,  that 
JRBnity  excluded  nothing  but  prcniedi- 
■nier,  and  did  not  touch  any  case  done 
a,  notwithstanding  tlie  person  guilty 
W  the  auclor  rixa.  This  does  by  no 
I  ^etertnine  any  question  lietvrixt  a  dolo- 
ai  cklposum  homicidium  ;  for  that  fact 
safitd  to  be  do'osnmy  and  indeed  so  found. 
ne.  u  proves  that  an  indemnity  may  reach 
l^ameiJium  dolosum^  ^^  here  the  dole  arose 
^ely,  and  not  ex  iutcrvallo  ;  hut  that 
oth.ng  to  this  question,  nor  is  it  proper  to 
ipiiii  the  argument  about  the  iudenniity, 
lai  the  judgment  is  given. 
r%<e  of  Mathews,  the  soldier,  the  pur- 
idmit,  was  of  the  same  nature,  and  so 
no  other  answer;  only,  that,  in  that 
hirre  were  no  circumstances  sufficient  to 
e  the  dole,  or  make  it  only  a  culpable 
de. 

M  are  all  the  cases  the  pursuers  have 
'ned.  and,  if  numbers  would  do,  no  doubt 
is  enough ;  but  your  lordships  are  to 
bow  far  to  the  purpose :  and  one  thinj^r  is 
Uible  with  regnrd  to  them  all,  that  not 
them  touches  the  cn*i**  in  iiand,  in  so  far 
?erDS  the  slaughter's  being  casual  as  to 
d  Strathmore,  the  invasion  being  intend- 
iDfl  Bridgeton. 

DOW  the  <xiunsel  for  the  pannel  be;;  leave 
notice  <d'  several  decisions,  even  binre 
vhich  directly  establish  the  point  pled 
pannel ;  ami  thc^  first  is  I\Iason's  case  in 
ar  1G74,  to  he  seen  in  the  Itecord  ;  and 
iffrred  by  sir  George  Mackenzie.  Ala- 
is  accuitd  of  killing  Halnton  j   tlia  de- 


fences were  three,  first.  That  Ralston  had  fol- 
lowed Mason  from  house  to  house,  at  last  put 
violent  hands  upon  him  ;  whereby  Mason  was 
forced  to  throw  him  off*,  and  that  he  fell  against 
a  stool.  2do,  That  the  wotmd  was  not  mortal^ 
but  Ralston  died  ex  maloregimine.  3tio.  1'hat 
the  homicide  was  merely  casual,  and  io  self- 
defence,  RaNton  being  the  aggressor.  The 
lords  sustained  the  litiel  only  rete\ant  to  infer 
the  panam  extraordinariam^  and  separately 
sustained  the  other  defences  to  assoilzie  in  tO" 
iuntf  and  remitted  all  to  the  knowledge  of  tbs 
innuest.  Here  your  lordships  sec,  the  killing 
only  sustained  ad  panam  extruordinariam^  with- 
out regard  to  the  three  deft: noes  of  casual  ho- 
micide, self-defence,  and  dying  ex  malo  regi'^ 
mine  ;  for  they  are  all  sustained  separately  to 
assoilzie,  even  from  the  pana  extraordinaria  : 
here  then  was  a  culpable  homicide,  sustained 
only  ad  panam  cxtraordinariam^  though  neither 
merely  casual,  nor  in  self- defence ;  and  so  thera 
can  be  no  judgment  more  direct  upon  the  point 
now  pled. 

And  here  the  pannel  must  notice,  once  for 
all,  that  it  makes  nothing  to  this  question,  that 
iu  that,  and  other  like  cases  to  be  mentioned, 
a  mortal  weapon  was  not  used ;  for  it  is  one 
question,  what  is  sufficient  to  make  a  liomicidt 
only  culpable  P  And  quite  another,  whether,  ii| 
our  law,  there  is  such  a  thing  as  culpable  ho- 
micide, though  neither  merely  casual,  nor  iu 
self-ddence  P  That  of  the  using  a  deadly  wea^ 
|>on  enters  into  the  argument,  whether  a  homi- 
cide is  dolose  or  culpable  only  ?  But  it  makes 
nothing  to  the  other  question,  since  homicide 
may  not  be  merely  casual,  although  no  mortal 
weapon  is  used,  as  appears  both  from  this  de- 
cision, and  the  case  of  Bain,  cited  for  the  pur- 
suers. 

Another  case  is  that  of  Cricrson  and  others, 
12th  March,  168 1 ;  where  the  paunels  being 
accused  of  murder,  for  killing  the  defunct  in  a 
scuffle  ;  the  defence  proponed  was,  that  the  de- 
funct was  the  first  aggressor,  and  did  invade 
the  pannels,  or  one  or  otiier  of  them  ;  and  that 
William  Crierson,  or  one  or  other  of  thera,  be- 
ing standinuf  hefore  the  fire,  the  defunct  threw 
the  said  William,  or  one  or  other  of  them,  iu 
the  fire,  and  fell  upon  him  himself;  and  then, 
after  the  scuffle  was  over,  the  defunct  did  rij^e, 
walked  up  and  down,  discoursed,  and  of  new 
aga>n  heat  the  said  William  (srierson,  and 
threatened  to  kill  him  if  he  would  not  be  gone; 
that  the  defunct  went  in  goo.l  health  to  the 
door  thereafter.  These  the  lords  sustained  re- 
levant to  liberate  from  the  ordinary  pain  of 
death.  Here  is  another  decision  in  point ;  the 
crime  was  not  found  merely  casual,  or  the  ('ourt 
must  have  assoilzied  ;  at  least,  could  only  have 
imprisoned,  and  could  have  iiillicted  no  other 
arbitrary  punishin.  iit.  But  that  was  not  the 
case,  it' was  Ibund  culjiable,  and  not  merely 
casual ;  and  therefore  the  punisiiment  rcbtriei- 
ed.  Sure  then  it  is  not  true  in  law,  that  all  ho- 
micides arc  cajiilal,  un1e»>s  the}-  be  merely  ca- 
sual. 

A  third  case,  is  thi^t  of  3Iaxwell  and  otiiar- 


131] 


2  GEORGE  IL 


ftlaui^hter;  for  the  peace  is  broken  by  the 
penton  killed,  and  with  aR  iudignity  to  him 
that  received  the  assault :  besides,  he  that  was 
so  aflTi-onted  miffht  reasonably  apprehend,  that 
he  that  treated  nim  in  that  uianner  might  have 
some  further  design  upon  him/'  Your  lord- 
ships see  how  close  this  is  to  the  case:  the 
insult  ^nd  indignity  done  by  Bridgetou  was 
?ast1v  stronger  than  any  thing  here  mentioned, 
and  having  received  such  an  affront,  the  panuel 
had  reason  to  expect  worse ;  more  especially 
when,  as  we  offered  to  .prove,  Bridgeton  was 
endeavouring  to  pull  out  my  lord  Strathmore's 
sword. 

We  must  likewise  humbly  ref^r  to  several 
cases  set  down  by  serjeaut  Hawkins,  in  his 
Pleas  of  the  Crown,  which  fully  agree  with 
what  we  now  plead ;    and  particularly  take 
notice  of  what  he  says,  pag.  84.    "  If  a  third 
person   hap|>en,    accidentally    happen,  to  be 
killed  by  one.  engaged  in  a  combat  with  ano- 
ther, upon  a  sudden  quarrel,  it  seeiqs  that  he 
^ho  kills  him  is  guilty  of  manslaughter  only." 
And  it  would  seem  that  there  is  even  a  diffe- 
rence made,  betwixt  killing  a  person  that  en- 
deavours to  interpose,  if  he  tell  that  be  comes 
for  that  purpose,  and  killing  one  who  acci- 
dentally is  interposed  betwixt  the  two  contend- 
ing parties;  which  was  my  lord  Stratlimore's 
case.    The  killing  him  who  interposes  to  se- 
parate, if  he  give  notice  what  he  is  doing,  is 
reckoned  worse  than   the  killing  the  other. 
And  this  obsjervation  shews  that  the  present 
case  is  stronger  than  the  above-cited  case  of 
Graham,  where  your  lordships  restricted  it  to 
an  arbitrary  punishment.    And  what  that  au- 
thor observes,  confirms  a  distinction  we  have 
made,  betwixt  a  man  quarrelling  with  another, 
and  killing  a  third  party,  where  it'  is  proved 
the  killer  had  a  felonious  intention  to  marder 
the  other,  and  the  case  where  that  does  not 
appear;    for  however,  in  the  first  case,    he 
might  be  guilty  of  the  murder  of  the  third 
party,  yet  if  a  design  to  murder  the  person  he 
quarrelled  with  is  not  proved,  then  he  can  never 
suffer  capitally  fur  killing  the  third  party :  and 
we  have  already  endeavoured  to  prove,  that 
that  must  be  the  case  as  to  Bridgeton,  where 
he  ga\e  the  provocation,  and  no  act  followed 
againsi  him  sufficient  in  law   to  establish  a 
desi^  of  murdering  him. 

The  pursuers  have  cited  the  same  books, 
and  Mawgridge's  Case,  as  for  them  ;  but  that 
we  submit.  The  particular  cases  of  Hollo  way, 
and  Williams  the  Welchraan,  spoke  of  by 
Keyling,  are  not  at  all  to  the  purpose :  the 
Weli-hman's  case  was  no  judgment;  but  nei- 
ther in  that  nor  in  Holloway's  was  there  any 
reul  |)ersonal  injury,  on  which  a  great  stress  is 
laid  in  all  these  questions. 

The  pursuers  mention  another  case  stated, 
but  never  adjudged;  a  person  shooting  at 
fowls  with  an  inteut  to  steal  them,  accidentally 
kills  a  man ;  that  will  be  murder.  This  per- 
haps may  be  justly  doubled.  Sure  it  wouM 
be  too  severe.  But  supposing  it  were  so,  it 
iiof  M  lioportmot:  tttaliBg,  treo  of  fbwliy 


Trial  of  James  Caruegie^ 

by  the  law  of  England,  is  felony  of 
prepense ;  and  where  a  roan  attemp 
commit  one  felony,  does  another,  there 
doubt  but  in  strict  law  he  is  guilty  of  the 
committed.*  But  what  is  that  to  the  a 
provocation  by  a  real  injury  ? 

The  pursuers  have  quoted  the  auth< 
V<iet,  and  a  decision  observed  by  bin 
Sande,  to  prove,  that  where  one  man  i 
tended  to  be  killed,  and  another  sla! 
crime  is  capital :  in  which,  no  doub 
differs  from  many  as  learned  lawyers,  i 
of  the  other  side.  But  his  opinion,  a 
of  Sande,  is  obviated  by  what  is  ahead 
it  is  only  in  the  case  of  no  provocation 
injury  on  the  part  of  him  who  was  desi 
be  killed.  And  Sdo,  It  is  always  ta 
granted  by  Voet,  and  all  who  are  of  tl 
nion,  that  the  design  of  murderins^  the 
intended  to  be  inviuled,  do  appear  and  is 
but  we  have  already  shewn,  that  cannot 
in  the  present  case. 

The  pursuers  pretended,  that  then 
circumstance  in  the  libel  which  implied 
against  the  earl  of  Strathmore,  viz. 
the  thrust  given  was  followed  by  a 
push."  But  as  there  is  nothing  in  this 
may  be  the  subject  of  imagination,  1 
never  be  the  subject  of  proof,  unless 
pretended,  as  it  is  not,  that  the  uanut 
back  or  out  his  sword,  and  made  a 
thrust ;  which  will  appear  not  to  be  tri 
the  nature  of  the  wound ;  and  the  thr 
be  found  to  have  been  so  momentary, 
was  impossible.  Sdo,  Jf  any  thing  11 
happened,  it  will  appear,  tfiat  there 
more  in  it,  but  the  pannel's  staggei 
moving  the  sword,  by  his  weight  Icanin 
it.  Stio,  There  is  no  relevaucy  in  it 
the  fact  being,  that  the  pannel  push* 
Bridgeton  :  and  no  circumstance  will  i 
appear,  that  he  knew  he  had  touched  i 
of  Strathmore  till  some  time  after  the 
was  perfected. 

The  pursuers  further  pretended,  "  ' 
they  had  libelled  malice,  they  would 
from  other  antecedent  facts  that  had  hi 
some  time  before,  whereby  it  would 
that  there  was  enmity  betwixt  the  deft 
the  pannel." 

It  is  answered  for  the  pannel,  Imo, 
such  facts  being  libelled,  nor,  to  this 
condescended  upon,  cither  in  the  deba 
formation,  they  can  by  no  means  er 

*  At  the  Lent  assizes  at  Chelm 
Essex,  1763,  two  sailors  were  convi 
the  murder  of  a  farmer :  the  case  v 
sailors  came  to  steal  the  farmer's  foi 
farmer  with  his  son  pur^iued  them  ;  on 
sailors  struck  the  farmer  several  blowi 
arm,  which  (though  not  likely)  kill 
This  was  held  to  be  murder ;  tit*cause 
they  were  about  was  unlawful ;  but  thi 
after  several  respites  from  execution, 
his  majesty's  most  gracious  pardon. 
Edition. 


2  GEORGE  II. 


ISfiJ 

CuuA  JuRicuBu,  S.  D.  N.  KcnK  tenU  in 
novoSeHioiiudanMBargi  de  Kdiobui^b, 
wcuDda  die  tncnaw  Augurti,  muUmjoio 
MptiDgoiteaimo  Tigninw  octavo,  per 
boDorabile*  finM  Aduunm  Cockburvs  d« 
OrmiUoun,  Jwticitriuni  Clericum;  Do- 
tuiniim  Gulielmani  C&lderwiwd  de  Pol- 
'  tnim;  H»([i(trilm  DiviJein  Erikine  de 
Dud,  Dominum  Giitlunim  l:>riDKle  de 
Nrwhall,  et  lUigiMraD)  Aodream  FTBteher 
de  Blilloun,  CarainiaiiouriM  Jiulidvic 
dicL  8.  D.  N.  Regia. 

Cuiu  kgitime  affirmata. 

JiMKt  Cam«jt«,of  ElDbiven,  pannd. 


Tbe  Lordi  proceeded  lo  make  choice  of  the 
ftUowiog  Anizen : 


Sir  Robert  DickBMi,  of  loTenak. 
Geonce  Loch,  of  Drylav. 

*Jotin  Wiiioa  of  Slumja. 
'  Watt.  Riddel,  of  GraDton. 
Geor|re  Warrender,  of  Burntafteld. 
Tho.  BioKOfOf  Bonin({Uin. 
•Geoive  Haliburlon,  of  Fordel. 
Jtmrt  Bftlfour,  of  Pilrig-. 
Robrrt  Duodat,  merchaat,  in  Ediabnrgfa. 
Darid  Inglis,  aier^aiit,  there. 
David  Burd,  mercbaot,  Uiere. 
Alex.  Blackwood,  raerchaol,  there. 
,   'John  Couls,  mercheni,  there. 
Julia  Slereo,  merchaat,  there. 
James  Iter,  ^IJsmitli,  there. 


The  aboTe  asaize  beini;  all  lawfully  ■worn, 
•od  no  lanfiil  objectiau  in  the  cootrary,  tbe 
punueis  for  prabatioa  adduced  tbe  wiioccin 
■Iter  de[ii>niD<:,  vii. 

Riitrt  Hipburn-c,  hammennau,  in  Forfar, 
flolenm'y  tw^rn,  ixirfreil,  cximiacd  and  inter- 
rugate,  de|ioneu,  Tuat  lie  vat  io  tbe  lii.in  of 
Vorfar,  the  9:\i  ilay  of  Aluy  last,  betwiiLt  the 
hours  of  i'ii{ht  and  cine  o'clock  at  nigbt,  where 
be  ilid  liee  the  decvaaed  earl  of  Strathinore,  loril 
Roifrhitt,  aod  Mr.  TLoniai  Lyoa  my  lord 
Siratbmore's  brolher,  nalkiofr  ia  tbe  tlreeti; 
and  al  thf  amu  lime  did  see  Lyon  «f  Bcidge- 
lOD,  and  Fiabnreo  the  paimel,  Elandiuii  uear  lo 
the  lady  Auchiahoaic  her  houic,  upon  the 
alrecl;  what  words  pa-sed  betwit^t  then),  Le 
being- si  a  ilisuucu  could  not  hear;  iiw  firidge- 
* —    ---  e  Fiuliaven  a  |iii£h  with  hit  band;    and 


Triat  ofjamet  Carnegk, 

oot  know  irbelber  be  got  it  drawn 
law  Fin  haven  draw  bif  iword  befor 
offered  to  drai*  my  Ion)  8tialhni 
when  Bridgeton  wa>  coming  upfTo 
where  FinhoTen  fell,  he  lookei 
ihonkler,  and  seeing  Flnharrn  wil 
drawn,  be  went  fatter  up  to  my 
more,  aiiaid  is  ;  and  when  Finbati 
my  lord  Strathmore  being  standing 
of  butts  from  the  place  where  Fii 
ud  when  Bndgeton  came  op,  and  i 
to  draw  my  lord  Strath  more' i  hw 
LI,  my  lord  turned  bim  about,  and 
Ion  aaide,  and  made  tome  tte^S  to 
haTcn,  who  would  be  at  that  (irae 
eight  ells  from  my  lord;  and  he 
lord  endeavour  to  take  Fiuhaven 
when  they  roet,  and  in  a  little  all 
he  did  tee  my  lord  withdraw  himse 
the  rest  of  the  company,  and  sa 
down  his  breeches,  and  (ifl  up  hii 
heard  him  say  be  had  got  a  woui 
pealed  llieie  words  three  titoes,  ai 
pat  op  hia  shirt,  ond  in  a  sliorl  tin 
taw  Riy  lord  fall  lo  the  ffrouiid.  A< 
lerrogale,  ifbe  taw  Finlia*en  the  f 
a  thrust  at  niy  lord  Slralhmurc  ivii 
Deponed,  he  did  not  tee  him  maki 
but  al  that  time  did  see  no  other  s 
but  Finhaven's ;  and  after  uiy  Ion 
taw  several  other  twords  drawn. 
That  there  was  no  other  compai 
with  my  lord  but  uiy  lord  Ro^el 
OHO  brother  Mr.  Thomas,  bcfure  lb: 
and  Finliareu  eame  up :  AoA  tliai 
this  that  be  has  deponed  U[H)D,  fr 
abop-door,  which  was  about  teveii  i 
dikiance  from  that  port  of  tlic  si 
my  lord  Siraibmore  wa*  standin";. 
ioierro^Ie,  if  he  knowt  n  hat  cam 
ton,  after  he  came  up  to  my  lord  \ 
That  he  knew  not  wliat  bccume  a 
ader  my  lord  put  him  aside :  \i 
wat  at  much  day-light  s«  he  could 
has  deponed  upon :  And  that  F 
naanel  wo*  in  boutt ;  aud  Ihal  he 
fast  up  after  Bridgelon,  but  Brii 
flitter  lotiards  my  lord ;  and  thai  v 
Strathmore  felt,  he  saw  Thomiu  . 
man,  lake  up  my  lord  from  the  i 
saw  no  other  body  assisting.  ] 
taw  the  piinnel't  sword  tttisled  oul 
bv  Sir.  Thomas,  or  my  lord  Ri 
which  of  I  hem,  he  koon's  not; 
was  after  my  lord  fell.  And  depoi 
.  did  see  the  »ound  in  my  lopj't  b 
I  below  the  navel;  and  that  it  iv 
Deponed,  Tlial  he  taw  Finhavc 
iword  wat  twitted  out  of  hit  band 


Fiabaveii  fell  in  tbe  Ktiiler ;  and  be  taw  a 
▼ant  of  the  ilcceucd  earl  of  Strathmore  help 
Finhaven  up  out  of  the  (^Herj    awd  when 


JeTy;   but  that  Bridgctoo  comii^f  up 

ftaler  ikaa  Finhaven,  he  taw  Bridgetun  offer 
••4M>BjlotdbinibBan'iiwatdi  bMdw 


And  thia  ia  tbe  tratk  •*  he  ihoul 

U«d.  noBLrr  I 

Ad.  Coci 

Xal*,  Thtynemttta  for  the  p 
Oaefsn  pwgtDg)  olgcctad  to  ^  i 


\Si}     finieiiimltrB/lheEarlqfStratlaion.         A.  D.  17«S. 


[13S 


^M  HrftaM,  why  he  oi^ht  out  to  be  k  I  Bridsetoo  riUiliDg  tM[elb«r  near  Is  the  Mj 
■■Miitbiieue-,  beciuM,  •ince  hit  citation    Aui'literhonu  berbdginf;    and  mi  ontherc- 


ke  km  left  to  ibe  cuiwilenlwu  of 


•IWllclbBkedGiid^he  had  now  an  opuor- 

aM  ku|  bin,  and  would  dO  it  if  bo 
'  U  tMog  iheae  cxptMHOo*  were 
Mf  (HNS  igaiiiit  him,  by  two  coQcurring 
vHMkia  MeoM  of  the  court  and  jury, 
taABN^lM  aune  niKht  be  lo  luarkM  in 
iiWi(f  aOMtmal.    Whicli,  and  iliii  de- 

t."' 

laif  hrd  RiatkiU,  Bo)«nnly  aworD,  pDrt^ed, 
hWhJ  inlerroirate,  depooH,  (beinrin- 
■Wnh-  the  paonel)  That  the  time  libeled, 
fcfamU  «n  tltK  Kccnioo  of  ■  borying,  wai 
iMliieMnpaay  with  the  decnsol  carl  of 
HMir,  the  pnonpl,  and  olb?r«  ;  and  loge- 
■iifdiwd  in  Mr.  Cirncfrii!  nf  Loun*a 
Ip^  mt  after  dioDcr  and  the  burying  was 
"^rj  Iweiher  w*ot  to  the  haiue  of  Mr, 
l,titA  ofPor^,  where  t)iejr  conttDUfd 
(MMdenble  lime,  drinking  a  gUw  of 
and  after  tfiej  letl  that  hooK, 
in  the  hooae  of  my  lady  Aocb- 
in  the  same  low 0,  the  panncFi  Bitter, 
I  deceased  Eari  had  g«De  to  make  a 
k  Dffwneil,  That  during  all  (bat  day.  and 
Itwreral  nlicei  where  tlic  deceannl  Eari, 
iMad,  and  tbe  reat  of  the  company  were, 
jitdrponent,  ohaFrred  nothing  but  grent 
inaadfrimdahip  betwixt  the  deceaaed  Earl 
lit  iianiiel.  Deponed,  That  before  Ihey 
nam  the  lady  Auchterbouie'a,  the 
la|ipeared  lo  iIig  df|inDeDt  tu  be  drunk, 
I  br   gune    in    drink,   to  tbe    degree  of 

tiirii;;  and  he  ubs  erred  the  pa  unci 
plrutifully  ill  thc&e  several  houcea.  De- 
ll. That  he  the  di'poucni,  during  the  time 
bbrin^with  the  said  compaov,  wanmoatlv 
Htd  ID  con  venial  ion  with  the  ileceiMd  Earl, 
■  bd    not    the  occakinn  to    oLierre   vvliat 

Biri  in  convcrSBliuu  bctwJNt  the  poiincl  aud 
Lyno  of  IJridt^tun  :  iinil  beiug  interrogate 
■  ahat  be  knew  of  ilie  char.ieler  and 
^a  of  the  pauoul  ?  Deiwned,  That,  ac- 
Meg  to  ilto  ilrpaurnt'it  kuowlcdgo  of  him, 
U  bail  bi'i'ii  of  Uing  cnntin nance,  aud  |>ar- 
iag  to  tlie  characler  Im  the 

RMdWein  the  country,  be  waa  thought 
taaite  ftiarrelmnie  in  lii^  temper,  but  lo  be 
ll  peacriitilc  and  t;n<id  dispomtiou.     Causa 
tMtipultt.    And  ilii«  na»tlie  Iruih  as  I 
nld  unvrt  lo  God.  Rosehill. 

D.  EasKiNG. 

ViUiaai   Dmi;lai,  lawful    aon    to  William 

^(lu,  )a1e  proTOft  nod  chirurgeon-apolhe- 

4n  Forfar,  solemnly  utrnrn,  purged,  en- 

M,  and  intarroifite  tor  the  pursuen,  De- 

^d.  That  on  that  day  wher^un  the  deceait 

if  litnthmore  wan  woumled,  he  the  dppo- 

*aa  at  Forfar,  and  on  the  itreels,  wlicrt 

4  tee  ibe  Earl  with  my  lord  llmchill  and 

n. Lyon  bi«  brother,  and  at  the  aaiiiE 


aAer  lookinir  about,  ba  obeerred  FinbuTm 
leaning  and  falling  backwardi  into  a  keonel  i 
-~  I  alter  getting  oitt  of  it,  which  he  anppared 
the  deponent  to  do  very  ioon,  he  drew  Ilia 
award,  and  with  it  went  up  to  the  oonpany 
where  the  Earl,  Bridgeton,  and  the  real  were  i 
and  at  tbe  flnt  aight,  upnn  the  patutel'a  m> 
proachiog  to  ilie  Earl,  Bridgeton  and  Ik 
reft,  Bridgeton  was  then  inlerposed  bclwist 
the  Earl  and  the  pannel ;  but  all  of  a  auiMea 
and  a  clap,  the  Earl  came  to  be  interpovad 
betwikt  Bridgeton  and  the  punuel  ;  and  i|t  lli* 
time  iif  the  aaid  Earl's  in terpnaiiion,  tliepaond 
was  within  the  length  of  bin  anord  at  the  plac« 
where  Bridgeton  was  atanding ',  that  ii  to  lay, 
had  been  atanding.  Deponed,  That  he  did  o»> 
aerre  tbe  pannet  make  a  thrust  with  hii  aword, 
and  at  the  time  of  to  duing,  the  Earl  wai  ataod- 
iug  next  tbe  paonel,  and  hit  face  lowarda  bin. 
Deponed,  That  the  Ear)  teceired  a  wouod  in 
hit  belly,  and  aJUr  receir iug  it,  heaaw  him  poll 
hii  ahirt  from  under  bi«  breecbet,  aud  at  thn 
same  lime  taw  him  blooding,  and  toon  tbere- 
after  hit  lordship  tell  down,  anil  be  heard 
him  say,  that  he  hail  got  it ;  and  before  th* 
Earl  fell,  and  while  he  waa  upon  the  ground, 
he  did  otwerre  his  brother  Mr.  Thoma*,  with 
hi«  drawn  swori),  twist  Finhateo'i  tnord  oot 
of  his  band,  after  seeing  and  hearing  aoDM 
clashing  of  tlieir  swordt :  but  tt  the  time  when 
Finliaven  made  tbe  piuh,a*  taidis,heabserTcd 
no  other  aword  drawn  but  Fiiibareo'i ;  and  at 
the  time  when  thepinocl  recorered  liislhrilil, 
the  pannel  aod  the  Earl  were  vrry  near  aneaiH>< 
ther :  and  all  this  time,  the  dejiooeDt  waa 
about  the  length  of  this  room,  or  tome  more, 
distant  from  the  said  Uarl  aod  the  pannel, 
whose  aides  were  oppmite  to  the  deponent;  nod 
aRcr  the  earl  uf  Strathmnra's  I'all,  and  that  liit 
bnither  Mr.  Tliomas  twilled  the  sirord  out  of 
the  pannel's  hand,  the  iiauDtl,  who  waa  in 
lioots,  ran  towards  bis  si»tf  i  's  dnnr :  uftcr  the 
deceived  Euil  was  carried  Ut  a  house,  and  bia 
wuuoil  WHS  driDl,  he  heard  his  lontship  say, 
th^tuHer  the  sword  eniNcil  hit  helly,  he  tho 
pannel  gave  it  a  second  thrust.  Dejuined,  That 
when  he  observed  Finharen  liiiliug  into  tho 
piHldle,  at  ahnvehuiil,  there  was  none  stauding 
with  biinor  by  liim  NutMr,  LyouorBHilgeton, 
And  wlint  he  lias  above  ilepoucd,  hsppened  on 
ibcQibday  of  May  last,  alwiit  the  hour  of  nine 
id  niglit.  CuM(t  i;ci«ari.r^<ifef.  And  this  hm 
truth  as  he  should  answer  lo  <iud. 

^ViLL.  nouci.a*. 
1>A.  Erskine. 

AndrtK  Douglai,  alto  lawful  son  to  the  aaid 
William  Douglas, iiultmn1y8iTurn,pui\:ed,exa- 
miiii'd  and Inti^rrogate,  Uipo'iPil.'l'hat  the  lim* 
Mid  p lure  libelled,  thedi'|>ciiii-[ii  taw  JoboLyon 
ul  Uriil:;('ioD  push  the  |iBniie!  upon  tlie  breatl, 
whereby  the  puniicl  tell  ioihe  gulter.which  tbs 
deponent  ajiprehendril  would  have  taken  liim 
up  to  the  kui«i    that  it  Has  a  very  natty 


!■  nkiinrt  Finharcawd  Air.  Lyon  of    gutter;  and  that  lit  utr  tbe  punel  uiatoot 


1S9] 


?  GEORGE  II. 


7'rial  qfJamet  Cartiegie, 


«iriIieffiiUer,  ■«(!  immeiliately  drBwhiaiword,  | 
by  vbicli  lime  BridKeioti  tris  walking'  off 
towards  my  lord  Slralbmora  and  Dthen,  who 
were  ikiDdTng  u|ii)ii  the  atrecl  ftbnul  ttie  diMmce 
of  tiie  length  of  lhi«  Toom  fivm  the  forefaid  i 

? utter :  and  drponed,  That  be  fullowed  at\er  I 
inharen  immixtiBlely,  after  ataudintr  a  little  i 
while  with  bin  comrades;  and  llint  before  the 
tfeiMBeat  came  up  to  the  place  wbere  my  lord 
SUBthmoreaml  the  other  genllemni  were  stand- 
ing', my  lord  Stnthmore  h^id  tkllen  upon  the 
streeL  Am)  tbe  de)>onant  being  nslced,  how 
■oon  that  ba|^ned  f  De|>ODed,  That  it  was 
in  ■  moment ;  and  that  wbco  the  deponent 
«ame  up  as  atbresaid,  he  raw  Mr.  Thomaa  I.yon 
and  FiohaTcn  eoeaged,  and  making  panes  at 
each  other  with  their  rirairn  awotds ;  which  the 
deponent  explainol  to  be  odIv  a  clashing  with 
their  awords ;  and  that  Mr,  Thomas  Ijyon  did 
1  twist  the  sword  out  of  Finbaren'a 


C* 


pattt.    And  this  was  tlie  truth  as  he  abould 
snswei  In  Giid.  Anorew  Douaua. 

And.  Fletcueb. 

John  Fefricr,mideBter  ID  Forrar,  solemnly 
nrom,  purged,  examined  and  interrogate,  de- 


Ened,  That  at  the  time  and  place  hbeRed,  the 
pcnent  baTtnc  occasioD  to  go  to  water  bia 
master'!  horse,  ne  mw  Bridgetou  and  the  peU' 


Li  they  came  out  from  tbe  lady  Auctiter- 
nouse's  tod^ng,  about  the  briilee^une  near 
the  shambles,  and  there  heard  Bridgeton  say 
to  the  jiaunel.  You  mnst  gi*e  me  an  answer  to 
my  queaiion,  which  tlieileponent  beard  was.  If 
the  pannel  would  give  his  iJaugliter  to  the  lord 
Rowhill?  And  upon  the  psnuel'a  saying.  Ho ; 
Briil^ton  asked  nim,  If  he  would  drink  a  bot' 
tie  ot  wine,  and  if  he  would  drink  the  king's 
health  ?  And  u]Kin  the  panuel'a  refusing  to  do 
either,  the  deponent  saw  Bridgeton  take  hold  cf 
the  pannel  by  tlie  breast,  and  Tioleotly  push  him 
into  the  kennel;  and  heard  Bridgeton  at  the  same 
lime,  saj.  Go,  and  In  damned,  and  your  king 
George,  whom  you  love  so  well.  And  thereatter 
Bridtieton  walked  towards  mv  lord  Brrallmiore, 
Hr.  Thomas  LyoD, and  my  lonl  llotebill,  who 
were  standing  upon  the  street  at  aonie  little 
distance ;  and  that  Finhsren  was  helprd  out  of 
the  gutter  by  a  footman  of  my  lord  Stratb- 
toore's:  and  that  upon  the  pannel's  getting 
unon  the  streets  again,  he  immediately  drew 
his  sword,  and  ran  up  the  street  afler  Bridge- 
ton  ;  and  before  Bridgeton  had  come  the  length 
of  the  place  where  the  lord  Stratiimore  and 
otiiers  were  standing,  he  looked  over  his  shoul- 
der, and  seeing  FiribaTeii  following  him  in 
manner  abore  mentioned,  be  run  up  to  my  lord 
Strathmore,  who,  and  the  rest  of  the  company, 
had  still  their  backs  tiimeil  to  the  place  from 
whence  Fiohaf  en  and  Bridgeton  were  coming : 
•nd  that  Bridgeton,  upon  his  coming  up  to 
6tralhmoTe,laid  hold  upon  my  ktid  Siralhronre's 
•word,  and  eadeafoiired  lo  pull  it  onl ;  upon 
wUeh  my  lord  Sintliiiiore  latniug  aboul  pushed 


Bridgeton  off,  and  in  tbe  mean  time  FlohaTa 
made  a  pnsh  with  his  swoni  at  Brii%pton,  aw 
at  that  instant  he  obaerred  my  lord  ^atbmon 
pnshing  Bridgeton  aside,  and  make  a  step  to 
wards  Finha*en  ;  and  obserred  at  aame  IIm 
Finhaven,  going  on  with  his  piMh,  to  Msgm 
liirwarO  with  the  thrust  upon  my  lord  HtrSm 
more ;  and  thereafter  thu  company  west  a] 
through  other,  sn  that  the  deponent  could  iM 
see  where  the  thrust  landed  :  and  »ery  sooi 
thereafter  the  deponent  saw  Mr.  Thomas  I^ol 
with  bis  sword  ra'  Finharen's  sword  out  of  U 
hand,  which  lighted  at  a  good  distance  upa 
the  street:  u|)On  which  FinbaTcn  runoff,  Mif 
gering,  towards  the  lady  Auclilerbouse's  ittf- 
iug,  and  bad  almost  fallen  upon  the  atreel  |^ 
lbr«  hegot  inattiiegate  ;  and  much  abontthl 
aame  time  the  deponent  aaw  the  earl  of  Stntb< 
more  fall  down  uiion  the  street,  and  al\erinidi 
carried  off,  and  that  Thomas  Adam  and  JuM 
Binnie  wet«  (ho  first  that  came  to  his  assirt 
ance.  Deponed,  That  the  kenoet  was  dasf 
and  dirty,  and  that  the  panuel  itas  deep  in  i^ 
but  not  treely  covered  :  that  when  he»Tosa,Kl 
face  wBsalmost  as  Uack  as  his  black  coat ;  ui 
that  while  tbes*  things  past,  the  deponent  wM 
riding  upon  the  side  of  the  street,  betwixt  Ikl 
gutter  and  the  place  where  the  earl  of  Stralb< 
more  and  othera  were  standing ;  and  upon  sM> 
ing  the  b^iuuiog  of  this  accident,  he  stoppri 
his  horses  little,  till  ha  saw  naalmve-menliuDci 
Couio  scientiie  palet.  And  this  was  the  truth  M 
he  should  answer  to  God.  John  FEiiaitR. 
And.  Fleti^ueb. 
David  Barclay,  lawful  son  to  Dntid  Bardif) 
brewer  in  Forfar,  solemnly  sworn,  purged,  ^ 
amincd  and  interrogate.  Deponed,  That  attbl 
time  and  place  libelled  he  saw  Bridgeton  put! 
the  pannel  into  a  gutter,  oud  saw  a  serraal 
raise  bim  outof  the  gutter  :  and  when  ihn  pal- 
nrlgotlo  the  street,  he  saw  him  draw  his  sword, 
and  go  towards  the  rest  of  lljc  company,  an4 
Bridgeton  was  beyond  the  earl  of  Stmthmor^ 
his  brother  and  lord  Rosehill,  who  were  inter- 
lerpoBed  belwiiLt  llie  jiannel  anit  BridgeUa, 
and  did  not  see  the  panne]  push  with  llM 
sword,  and  saw  a  little  after  my  lord  Strait 
more  fall  upon  the  street ;  aod  immedialdj 
;  aller  that  saw  Mr.  Thomas  Lyon,  with  I 
j  naked  aword,  beat  the  psnnel's  sword  out  el 
his  hand,  and  the  psunel  immediately  nil 
toward  the  lady  Auchlerliouse's  house,  ad 
got  in  at  the  dour.  And  deponed.  That  wbcl 
Bridgeton  thrust  the  pannel  into  the  gutter,  iIm 
servant  who  lillud  him  up,  aaid  to  Brid|;eton,  n 
some  other  serrant  standing  by,  that  be  was  nn- 
civil,  though  lie  was  a  gentleman  :  and  iha' 
what  tbe  deponent  saw  ami  heard,  as  aforesaid 
was  betwixt  eight  and  nine  o'cloek  of  the  eveO' 
iug  of  the  day  tbresaid.  Canto  itienlitr  palet 
And  this  wa*  the  truth  as  he  should  answer  ll 
God.  Di^ia  BtocLnr. 

y/t,  Caldkkwood, 


Eluahtth  fimnte,  anoine  to  Andrew  Gray 
bazter  in  Dnwlae,  pelemnly  sworn,  pnrg<4 
(xiuuncd  ui  iBleirroyale,  daposvd,  Tfauilii 


W]        Jbrae  Murder  of  ihtEnrt  of  Strathmort.  A-D.  1788.  [M« 

tiD  uiile,  tad  my  lonl  Stntbmora  bmd  ulTanccd 
liifciliiHliii  a  pnib  to  the  panDfll,  wFicreby     n atep or hftlfa alep toward Fiohaven ;  and  tben 
kdia  ibc  gutter,  tnd  irairoiaad  out  of  it  by    tbey  went  all  id  kurowdtbroiigh  other,  and  b« 
ijkd  not  know  what  wa*  duiofc  amoDgtt  them, 
hit  did  H«  hU  mailer's  snord  ilruck  out  of  bw 


teiod  place  lifelled,  ihe  nvr  John  Lyon  of 
•  *  iM  five  a  pnib  to  the  panDfll,  whereby 
■  IM  gutter,  and  iraa  roiaed  out  of  it  by 
it  Iwi  flUsifafflore'i  wnaat ;  and  when  he 

Ctt  Ifec  ttrwi,  law  him  drav  bU  anorJ,  aod 
ikJB  Dttar  BD  oath,  but  did  DOl  know  what 
Atawkware:  and  then  the  deponent  turned 
kthdl,iad  did  not  ate  FiDha*eti  puih  with 
:   Ac  twmL    Catua  Ntmli«  pattt.    And  tliii 
I   TM  the  Inlh  aa  ahe  ahould  anawei  to  God  : 
'le  could  Dotwrile. 

W.  CtLDoatooo. 

a  JbrJt)p,  Mnaut  )o  Mr.  Robert  Nairn, 

'■fcraiaa  to Nairn  of  Drurokilbo, 

I  MaalT  *WOn>,  purged,  examined,  and  iuter- 
NMt^taoBed,  that  at  the  time  and  place  li- 
I  kb,  be  dU  aee  WiUiam  Mu^lish,  my  lord 
I  IMwK^  aeiTast,  take  FinbaTen  the  pannel 
!  arfdw  piUer,iTbeic  the  deponent  fawbim 

tl  ad  did  aee  FinhaTen  dr«w  hia  aword  after 
iBont:  aaddidbearoneoftheKentiemeD, 
■iii|in  tbe  place  where  my  lord  si  rath  more 
^Hmded,  call  out  to  Fin1iB*en,  Stand  off, 
#}Hda1illleBpaeetfaereaflerhesaw  the  dc- 
■Mdaait  of  Strathmoretakennp,  Coniii  ici- 
atgfaltt.  And  tilie  ia  tbe  truth  ai  bcBbouid 
MiB  IB  God ;  and  deponed  he  could  not 
wAn  W*.  Pmssle. 

Jma  Barrie,  lerranl  to  Jamea  Carnegie  of 
^ImB,  aolennly  sworn,  pui^;ed,  examined, 
M  istampte,  deponed,  That  at  klie  time  and 
|lMe  kkeUed,  the  depnnent  «(m  hoUling  hia 
■Mar'a  borara  upon  ihc  slrrrls  of  Fcrfar,  ntar 
kihekdj  Anrhierbousit's  tud^ng:  tliat  he 
Wacea  weaaid  earl  ofStratbiuore,  and  other 
cajaD]'  witli  him,  ki  aluiiir  ilte  Klrcet  froiii 
<fecuai  iDdgioir,  knil  Ijis  niiutcrand  llrjitfjclua 
IJkfii  It  a  little  distnucc  ;  beard  tbcin  coii- 
■wnaf  together,  and  iboiiKiit  tliat  Itrid^eliOi 
MiiiJ  ■imjI.c  angry  at  Wii  ma«lcr,  a.tid  dv- 
■•Miliat  he  ahiiuld  give  him  au  answer; 
Hmn  will  liear  what  liiv  iiinklcr  said,  c.TcepI 
Am  wwdi.  That  be  inteiidnl  lo  be  of  ihat  re- 
alitioo  ttill :  whcrriijion  Ktidgcioo  with  his 
tn  hand*,  puiheil  his  mnslcr  into  the  giiUt.'r, 
i>  ibc  nme  lime  exprL-ntng  himself.  Go  liv 
hma'i,  and  lt(  thai  man  take  liitii  up  tor  whom 
kehadu  great  a  farimr.  And  (he  dqwiii-iit 
■Mg  hit  iDMter  lytntr  in  the  gutler,  quit  liii 
Wk*,  and  came  li)  relici*  him,  but  luund  tlint 
■j  k(J  Ijtrathmorc's  scrranl  had  lidpcd  liiin 
MnWfure  he  cjmc.and  then  be  did  sec  his 
■Wtr  draw  Km  anord,  and  go  nrrlly  fast  fur- 
inl.  flaggcring,  and  Esying,  riiis  cannot  bb 
Mend;  ibcii  hiimaoteruimeup  tulhecom- 

Cj.  and  saw  bim  make  a  puili  at  I)riil[;eton ', 
tLar  klurr  hi«  muter  came  u]i  to  llicm,  he 
M  we  Brldtri'*'!"  malic  an  allcmpt  tn  draw  my 
hrilkiathiDorc's  iirord ;  und  as  Ilridgcton  tvad 
9t^  lowatti  ni_*  lord  .Siraihmore,  be  did  six 
Mjelnn  louk  "Tcr  hitiibnulilcr  lo  Finliafcn, 
MLnklatitbe  had  hecnlautjhinK.  OWrnd, 
hi  vIwd  his  master  madi'  tlie  pu^li,  nii  iH't^ire- 
kaaiucd,  be  Mcmcd  a*  if  lie  had  beun  filling, 
■(■w  bim  cloae  upon  lord  Stralbm<>ie;  bui 
Uh  lliii^  my  iapl  ittialhuiore  kud  put  lliiJ^- 


band  by  another  swoid,  and  then  did  aee  hia 
— 'nr  go  down  ta  hii  aister'a  lodging.  De- 
yoned,  that  aj  hia  master  was  thrown  upon  the 
back  iu  tbe  gutter,  and  was  covered  near  oref 
the  belly,  and  saw  hia  face  all  bespattered  witk 
Jirt,  and  aaw  the  mire  run  out  of  fail  boot- tops 
uabe  went  up  theslreet ;  and  deponed  hii  mas- 
ter at  that  time  was  very  drunk.  Being  inter- 
rogate further,  deponed, Tliat  hehasfreiioently 
feet)  his  master  drink,  and  propose  the  deceaaed 
earl  ofStralbmore's  health  at  his  table,  and  ihia 
A  short  time  before  tbe  unlacky  accident  liap- 
pene«I.  Deponed,  that  about  a  manlh  before, 
the  [ate  earl  and  hia  master  was  tocher  at 
Bnmside't  burial,  and  heard  the  Earl  iDvite  his 
inasIertohiBiiouBe,Bnd  beard  bim  aniwer, That 
lie  intended  ihot  very  soon.  Deponed,  that  bis 
master  rode  with  pistols  that  day,  but  deponed 
there  was  not  so  much  as  a  stone  in  tbem* 
Deponed,  that  ai^tit  or  ten  days  before  tbie  un- 
tnctcy  accident,  his  master  bid  the  deponent  g* 
m  the  taylor,  and  get  his  clothes  ready,  for  be 
intended  aa  soon  aa  he  got  bia  chaiaa  borne,  to 
go  with  his  lady  and  make  a  Tiail  to  my  lord 
tttratbmore  at  Glaromis.  Cavia  leienti*  patet. 
And  this  is  tbe  truth  at  lie  ahould  answer  t» 
Ood.  JiMEs  Buuua. 

W*.  Pbikols. 
Eluahth  Vilant,  lerraDl  to  Margaret  Car- 
D^c,  relict  of  tlie  deceost  Air.  Patrick  Lyon, 
of  AuchlerhouEe,  solemnly'  sworn,  purged,  exa- 
mintil  and  interrogate,  (le|H)iif  J,  Thai,  on  the 
<>ili  I.!'  Slay  last,  slie  did  sec  my  lord  Slrath- 
murc  Btid  t  iiihaven  in  (be  lady  Auclilerhouse'c 
lion^'e,  anil  did  see  nor  hear  iioihing  pasa  be- 
tween them  but  what  was  kind  and  civil ;  and 
slie  wa6  much  of  the  time  in  tlio  mom  before 
I)rid''eton  came  iu :  but  at\er  he  came  in,  abe 
M-ns  but  ciimiug  and  going;  and  when  mj 
U-Iy  railed  for  a  glitsitof  bruiidy,  Iho  de|)onent 
brou[;ht  it  in,  ami  luv  lady  set  it  by,  uid  saw 
nobody  drink  il,  and  I'hst  mv  lady  tuM  in  tbe 
cnmpBny,  That  Urid|(cton  liad  taki^n  her  by 
ivriat,  and  that  Khc  bnd  not  been  so  ill  usM 
ly  man,  and  complained  uf  pain.    And 

Ctiuia  irientia  pattt. 
she  shotild  answer  !• 


de[Kined,  that  that  allevi 


Al>.  CuCKDi;il!IE. 

Isaifl  Meik,  servant  to  the  before-named 
and  designee!  jtlnii^aret  Cnrnetlie,  anlcinnly 
sworn,  mirged.examiucd  and  inlerrogale,  de- 
poned, Tliat  in  thi!  evciiiui;  on  llie  9th  of  Miij 
last,  Finbavcn  came  up  lo  llie  lady  Auchlcr- 
bouse's  house,  ami  ibe  donr  being  shut  after 
bim,  she  came  ii|i  srtvr  into  tbe  said  hou*e  : 
and  she  turning  iiIhiuI  upon  sonic  |)<>u pic  knock' 
ingat  the  door,  and  opniin:;  the  B:ime,  there 
CBmc  in  tiro  nr  three  luthU'inen  or  (;eutlemrii 
«iili  drpwu  sHords ;   and  I'inbaTen  tieiug  Ibta 


147J             2  GEORGE  II.  Trial  of  James  Carnegie, 

till  tbeir  bodies  were  close  together.    Deponed,  but  she  said  n6,  for  it  did  appear  to  l 

That  Bridgeton  is  a  good  deal  taller  than  my  not  want  it,  fur  be  was  then  ?ery  dri 

lord  Strathmorewas:  and  that  my  lord  Stratli-  that  Bridgeton  took  her  the  deponeo 

more  wore  a  fair  wig,  and  Brid^eton  wore  a  wrist,  and  squeezed  it  bard,  and  said 

black  one  usually.     Causa  scientue  valet.  And  be  no  difficulty  to  break  it ;   and  di 

ibis  is  truth  as  he  shoald  answer  to  God.  same  time,  Bridgeton  took  Finharei 

Tug.  Cbichton.  arm,  and  struck  bis  band  down  to  ' 

And.  Fletcher.  and  said,  Will  ye  not  agree  to  gire  one 

T^     r  I    Twr  jj    i          L*-      ^rkj  daughters  to  Itosehill  ?   And  Bridsfeto 

Dr.  John  Wcddcrburn,  physicuin  m  Dundee.  ^^"^  ,f  ,,^  ^^  ^                     ^J-^,  j 

solemnly  sworn,  purcBd,  examined  and  mterro-  refuiedhimoneofhisdaughte;*,hewc 

gate,  depon^,  T^atTie  wsb  ca"ed  to  wait  on  ^-      ^j  ^^^  thatshooE  his  hand  < 

the  earl  of  Strathmore,  when  he  reoeired  the  a«*i  *i««rt«oj  .h^  i^.^...  l..^.,  ^^^  u^, 

wound  upon  the  9tb  of  Ma^  last;   and  the  de-  broUierrtn^q^ 

ppnent  saw  him  uert  morniiy  «riy  ;  w^^^^  And  this  Is  the  truth  as  she  si 

▼lewmg  the  wound,  it  appeared  to  the  depo-  ^^^^  ^^  ^^                Maroaret  Cai 

nent  to  have  been  given  by  a  three-cornered  '                *•>   r>/^^.rnrtB^ 

sword,  which  had  entered  about  three  inches  ^'^*  i^ocKBURN 

above  the  navel,  and  went  out  in  the  back  on  Dr.  John  Kinloch^  nhysician  in  Du 

tb^  left-side,  some  inches  from  the  back-bone,  lemnly  sworn,  purgeo,  examined  am 

and  about  two  inches  lower  than  where  it  had  ffate,  utftipra,aeponed,Tbatontbe9l 

entered ;  and  the  wound  was  to  the  deponent's  last,  after  Lours's  daughter's  burial, 

apprehension  mortal ;  and  accordingly  the  earl  nent  was  in  clerk  Dicluon's  house  in  1 

of  Strathmore  died  of  that  wound  upon  Saturday  a  room  with  the  pannel,  who  asked  t 

night,  about  two  davs  after  he  had  received  it ;  nent,  if  he  would  go  into  another  rooi 

and  the  deponent  thereafter  saw  the  defunct  the  earl  of  Strathmore  was,  to  see  his  I 

•pened,  whereby  it  appeared,  that  the  weapon  and  accordingly  they  went  into  the  ro€ 

had  passed  through  the  caul,  the  gut  colon,  and  the  Earl  was,  and  stayed  there  about 

the  plexus  mesentericus.    And  deponed,  that  and  drunk  several  bottles  of  wine  toget 

the  defunct  told  him,  that  he  bad  an  impres-  during  that  time  he  saw  nothing  bi 

sion,  that  the  person  who  gave  him  the  wound,  civilities  in  tlie  company,  without  the 

had,  by  applying  his  belly  to  the  pomel  of  the  pearanoe  of  quarrels.     Causa  scient 

tword,  posned  it  forwlird  upon  him.    Deponed,  And  this  is  the  truth  as  he  should  < 

thatBndgeton  is  of  a  mncn  taller  stature,  than  God.                                John  Kinl 

my  lord  Strathmore  if  as ;   and  that  my  lord  W.  Caldei 

^thmore    usually    wore   a  fair  wig,    and  David  Denune,  sadler,  in  Canoni 

Bridgeton  a  black  one.     Cania  scientuc  patet,  lemnly  sworn,  purged,  examined  am 

And  this  is  the  truth  as  he  should  answer  to  jjate,  ut  supra,  deponed.  That,  in  U 

God.                             John  ^  edderburne.  February,  or  beginning  of  March  lasi 

And.  Fletcher.  ceased  Charles  earl  of  Strathmore,  j 

Dr.  CharUs  FolheringAame,   physician    in  *»aven  the    pannel,  with  another  ire 

Dundee,  solemnly  sworn,  pui^ged,  examined  '^^^o™  ^l>«  deponent  did  not  know,  car 

and  intenrugated,  deponed  conform  to  Thomas  deponent's  house,  called  for  a  dram,  \ 

Criditon,    the  former   witness,  tn   omnibus,  deponent  served  them  with  himself: 

Causa  scUnt  lit  patet.    And  this  is  the  truth  as  Eari  first  drunk  to  Finhaven  and  his  fai 

be  should  answer  to  God.  **>en  Finhaven  drunk  the  eari  of  Stni 

Cha.  Fotheriwguamb.  ^^i>^  and  his  family's;    and  at  sev< 

Ad.  Cockburne.  times,  when  the  Eari  was  not  present 

^  ,                                 -      .      «^        ,     «  ponent  saw  and  beard  Finhaven  drin 

Follows  the  Witneswss  for  the  Pannel's  Ex-  gaid  eari  of  Slmthmore's  health.     ] 

culpation :  h^  lias  hail  occasion  often  to  see  Finhi 

Margaret  Catnegie,  lady  Auchterbouse,  so-  ^  "»  company  with  him.  and  observe 

lemnly  sworn,  purged,  examined  and  interro^  ^ay«  to  be  of  a  good  temper,  and  no 

gate,  ut  supra,  deponed,  That  on  the  afternoon  «*'««>«»  to  quarrels.     Causa  saentta  pat 

Sf  the  9Ui  of  May  last,  the  earl  of  StraUimore,  tbis  is  the  truth  as  be  should  answt^r  t 

Bridgeton,  and  rinhaven,  were  in  the  depo-  «t*^*?  ^ 

Dent's  bouse ;  she  observed  no  manner  of  dif-  ^*  ^-ald 

lierencc  betwixt  the  earl  of  Strathmore  and  Fin-  David  Ogihie,  son  to  sir  John  Ogil< 

haven;  and  that  the  pannel  and  the  other  com-  verquharnty,  solemnly  sworn,  piir(> 

pany  drunk  my  lady  Strathmore's  health  twice  mined  and  interrogate,  ut  supra,  depot 

over,  and  the  pannel   tossed  up  the  glass ;  be  has  bad  frequent  occasions  uf  beini 

during  that  time  Bridgeton  was  usin^  roii|fh  !  pany  with  the  pannel,  and  has  oft- tin 

expretsioos  to  the  pannel»  and  was  taking  him  !  aim  testify  'his  respect  and  regard  foi 
by  the  breast,  and  verv  rude  to  biro ;  and  that ;  earl  of  Strathmore,  by  naming  and  dr 

viieD  a|rlassof  brandy  was  brought,  she  de-  i  his  heahh;  and  particulariy  did  bear  hii 

•ired  Bndgeton  to  take  a  dram»  and  be  desuned  |  bis  own  house;  in  the  month  of  Marcl 

ll  fboiild  be  giYCD  to  FmhafcOt  ber  hraUicr ;  ■  list,  when  the  deponent  ^ae  visiuog  h 


firtiie  Murder  nftht  Earl  of  Sirathnure. 

■r,<Jkcw  him  drink  botb  to  the  EifI'b 
miik  mmtco'a.  Deponed,  Thai  for 
ktiirfear  ynra  pAxt,  he  hui  beeiiiu- 
}j  HMuina  with  tho  psnurl,  tind  ob- 
Munn  to  be  of  a  goei  am)  peact)- 
fff;tMlbechar«cterLea1wayi  heirtl 
ti  Um  couDliy,  »u,  That  he  was 
M^leand  good  temper,  and  uo  waja 
■t.  Caiua  Kienlmpattt.  Andthii 
rt  n  be  •faould  aiuwer  to  God. 

David  Ooilvie. 

Dl.    EUKIKB. 


A.  D.  17S8.  [!.W 

aqd  Mine  liaen*  of  bu  «ini  to  put  on,  at 
leattthe  coat  was  hi*  own,  vrhieb  he  helped  to 
pnt  00  him,  and  to  wuh  aod  clean  hit  face.' 
The  deponent  tpnke  to  him  aaiiably  to  the  oc- 
casion of  his  villi,  both  in  mperi  tobndrunlc- 
enoeu,  *nd  what  wan  tiubtiihed  atHroad  lie  iiad 
enminiUed  upon  the  earl  of  Strathmore,  by 
giviafK  him  a  wouad ;  upon  heariniC  whereof, 
and  tbe  depooeot  further  iaviny,  Tliat  he  iiail 
to  bisgreataatiaftctionbetrdtbe  earl  of  Strath- 
more praj  to  God  lo  fo^ive  fainri :  upon  lh« 
the  pannS  fetl  into  tbo  greateat  diaorder,  toH- 


l>  Jfarfj'ne,  mbisler  of  the^pd  at 
mnly  Kivorn,  pur^d,  ezmnined  and 
',  at  aipra,  depooed,  That  he  the 
«vii)(!  had  (nme  affair  tndo  with  the 
«rl  of  Strathmore,  as  one  of  the 
ibla  the  deponent's  jiariiih,  on  which 
I  dcpODCDt  went  lo  trail  of  hU  tord- 
boiiM  of  Glaminit,  hut  had  the  mia- 
aiaa  him  ;  and  upon  his  return, 
ud  of  the  pannri,  ami  spnke  li>  him 
■,  Ictlins  bim  how  be  had  missed  my  , 
deaired  that  the  jiannel  would  fall 
npedieni  to  bring  either  his  lard-  I 
nc  from  bim,  lo  meet  with  ihe  rest 
ora.  Upou  which  the  pannel  ad- 
leponeDt  once  more  lo  wait  of  bis 
Biiuiiniia;  and  t<)r  hisrecommeoda- 
itrodoctioD,  be  would  write  a  letter 
I.  and  acquunt  him  in  it,  that  he 
«rer.  Aciwrdingiy  the  pannel  did 
Her  to  the  Earl  to  the  foresaid  pur- 
I  ht!  delifercd  lo  the  deponenl ;  and 
ibe  deponent  did  igaia  t(a  to  Glam- 
lliat  tune  also  had  the  misfortune  to 
irdibip;  upon  which  he  ihe  depo- 
tfd  the  letter  to  one  Mr.  Greenhill, 
servant ;  and  the  meeting  of  the 
<ldin|T  upon  tbe  Wednei^dny  there- 
said  Mr.  Greenhill  came  irom  his 
ind  ntleniled  Ihe  meelinfr :  and  de- 
tt  the  writing  of  the  foresaid  lutler, 
rin^  of  it,  was  about  the  end  of 
hc;;inDiD^  of  April  last.  Deponed, 
Irpooent  has  tor  these  ihree  years 
ntiinalely  acquaint  with  the  pannel ; 
:  the  wbule  CDuise  of  his  acqiiainl- 
bserTed  him  always  to  be  regular  in 
d  of  a  [leaceahlc  temper  and  disposi- 
h  i<i  Ihd  character  he  bears  in  the 
Cuuu  icicuftf  palel.  And  Ibis  is 
a  be  atioald  answer  to  God. 

John  Martine. 

D*.  Ekskinl. 


«f    MaztLtll,  ^     , 

solemnly  sworn,  purgjcd,  examined 
tgate,  ut  tupra,  deponed,  Thai  «oon 
sriofStralbmore  received  his  wound, 
rat  waited  of  bim,  aod  from  him  be 
iIm  prison  and  visited  the  pannel, 
fiMwl  in  (freat  disorder,  and  under 
— iuna  of  drunkenness,  his  cluaihi 
',  and   hi)   face 


...jle,  and  hanging  his  head  downwards,  cried 
out,  Good  God  I  liave  1  woimded  the  earl  of 
Strathmore,  a  person  for  nhuiD  I  bad  ^at 
kindness,  and  against  whom  I  had  no  deai^i  7 
CoHfa  tdenl'ut patet.  Aud this  ti  ibe  tnilh ■• 
be  should  answer  to  God. 

Ja.  HaxwuxL. 

Da.  Ebskikb. 
The  Lords  Jnstice  Clerk  and  Coram isaioaerB 
of  Justiciaiy,  ordaioed  the  Asuseto  iodnae  in- 
stantly, and  return  their  Verdict,  in  Ibia  plsoe, 
against  tO' morrow  at  twelve  o'clock,  aod  the 
baill  fifteen  to  be  then  present,  «ach  under  tbtt 
pain  of  law,  and  tbe  pannel  to  ha  carried  back 
to  prison. 

CoBU  JusTicuBu,  8.  D.  N.  Be^  lenla  id 
novo  Sessioiua  Domo  Burgi  do  Edin- 
burgh, tertio  Die  Hessis  Augnsti,  Uilto- 
simoseptingenie^mo  rigeaimo  oetaro,  per 
honoiabiles  Viros  Adainum  Coddiunieda 
Urmistuun,  Justiciarium  Clericum  ;  Do- 
minum  Gulielroum  Calderwood  de  Pol- 
touQ,  Magistrum  Davidem  Erskine  <!« 
Dun,  Dominum  Gualierum  PrioKle  de 
Newhall,  et  Alagistrum  Andreani  FTctcher 
de  MiltouD,  CnmmiiisiunBrias  Justiciaria 
diet.  8.  D.  N.  Regis. 

Curia  legitime  affirinula. 

Jamet  Carnegie,  of  Finhaven,  pannel, 

Indicted  and  accused,  as  in  all  tbe  former 
sederuuts. 

The  tbregoiog  peruins  who  passeil  upon  the 
Assize  of  the  abive  nannel,  returned  their  Ver- 
dict in  presence  of  the  said  lords,  and  whereof' 
the  tenor  follows: 

Edinburgh,  Ihe  Bid  of'  Auguit,  1798. 

The  shore  Assize  haling  inclosed,  did  chooH 
sir  Kniiert  Dickson  uf  Inveresk  l»  be  their 
of  the  gospel  chanccllur,  and  George  Halibiirtoo  of  Fordel 
'  lobe  their  clerk;  Ami  baring  considered  lb* 
in'liclmeiit  pursurd  at  the  inMauce  nf  Soranna, 
cuunteksot  Strathmore,  anil  Mr.  Jameg  Lyon, 
brolher-german  and  iienrest  of  kin  l<i  the  de- 
ceased Charled  earl  of  Strathmore,  with  con- 
courst^,  and  at  thu  inttatire  of  Duncan  Forbes, 
FM).  his  majesty's  ailrocote,  for  his  highnnB*a 
'  ilerest,  agaiutt  Jaui«i  Carnegie  of  FiuhaveR, 


vith  dirt;  the  deponent  helped  him     pannel;  the  lords  juslice-clerk  and 


r  hia  ckitbes,  aud  seat  for  a 


siuneti  of  juMtdary  tbcir  iuleriocutor  tbtr*- 


151] 


2  GEORGE  II. 


upon,  vith  the  wHnetMs'  depontioni  aiUncfd 
twT  prOfin^  thereof;  with  tbe  witneMM'  dcpo- 
Biljocu  Mliluced  for  the  pannel'i  exculpation  : 
Tbey,  bv  plurality  of  roicei,  fiad  tbe  pannel 
Not  Guilty.  Id  witoeM  whereof  ttiir  pmenta 
are  subacrihed  by  oor  naiil  chancellor  and  okrk, 
iu  our  namea,  place,  day,  munlb  anil  year  uf 
God  above- written. 

"  Ro.  nirKsiN,  Chancellnr. 
'•  (JEO.  ll.AUDiiBTON,  Clerk." 
'  TbeLordaJualice-ClerkandCommiwioners 
of  Juaddtry,  faaTiD^  cousidered  the  foregoing 
Verdict  of  Amize  relnrned  against  Jsmes  Car- 
upgje,  of  Finhareo,  pannel:  They  a&suilzied, 
and  hereby  HEioilzie  nim  simpliciter,  and  dis- 
Diiued,  and  hereby  dismiis  him  from  itie  bar. 
Ad,  Cockbubne. 

AaSTBACT  OF  SOM£  AcTt  OF  PaRLIAMBNT' 

IN  THB  VK«Y  Words  op  the  Statutes 

TRSMSELVBS,     REFKKRSD     TO     IN     THB 
rOREGOING  AruUMXHTS. 

Jaim*  1,  pari.  3,  act  51,  intitled,  <'  Of 
fbrethonirhl  FetoBy  and  chaud  metla ;"  ala- 
tutec,  "  That  aa  loon  a*  any  camplaJDt  ii  made 
to  Justices,  ■heriffs,  baillies.  Sec.  they  iliall  en- 
quire diligently  (i.e.)  without  onie  laTuur,  gif 
Uiadeed  waa  done  upon  foretbonglit  fetony, 
or  throw  aiidden  chaud  mella :  and  0{  it  be 
fomd  ftirethotight  felooy— the  life  and  goods 
oftbetreipaaaerlobein  thekiug's  will:— and 
gif  the  treipaa*  be  dime  of  8u<ldeu  efiaud  mella, 
ibe  parly  ikaitbed  shall  follow,  and  the  party 
IranagreiMir  defend,  stler  tbe  coune  of  the  old 
lawa  of  the  realm." 

ilamcE  1,-pnrl.  6,  act  05,  intitled,  "The 
Uanslayer  luld  be  punued  until  be  be  put  furtb 
of  the  Realni,  or  brought  again  to  the  PJace  of 
theHlauchter;"  ((he  act  appointing  (he  ine- 
Ihod  of  pursuit^  manslayers)  statutes,  "  That 
quhaireTer  he  hspjienia  to  be  takin,  that  achi- 
reSe,  aluart,  or  bailie  of  the  regality,  sail  send 
bim  to  the  schireSe  of  (he  nixt  schirefrdoin,  the 
qnbilk  sail  receire  him,  und  send  him  (0  the 
Dint  suhirefTc,  and  swutimrth  from  schirefTe  to 
Mhireife,  quhill  be  be  put  to  the  achirefle  of  the 
pobire  where  the  deede  was  done,  and  (here 
■all  tbe  luw  be  miiiistred  (o  (be  party  ;  and  git 
it  be  fbre(hDUght  lelouy,  he  sail  die  iherefnre." 

Jumes  1,  pari.  G,  act  05,  iuliiled,  «  Of  In- 
quisition of  forethought  Felony  lo  lie  taken  by 
an  Awice;"i(statutea,  "That  (he  officiate  (i.e. 
ihejurlKi-s  ordinary)  sliali  give  them  tlie  know- 
ledf^  ul  an  ashize,  wlietlivr  it  be  li]re( bought 
ftlony,  or  sildJcnly  duuc:  and  gif  i(  be  sud- 
denly dune,  deruain  iliem  as  (he  law  (read  of 
belure;— and  gif  it  he  forethought  felony, — 
iteuiaiD  Ihein  as  law  will." 

Jamea  3,  pari.  5,  act  35,  intitled,  "  Of 
Slauchler,  or  foretJiought  Felony,  of  Sod- 
dutje,  and  Flying  to  Girili."  Item,  "  Because 
of  tbe  eschewing  of  great  ilaueliter  quhich  Inm 
baw  tigtat  caiumauDRiaMXtt  the  kia^'a  Ueg**! 


Trial  of  JmtKM  Carnegie,  [ISf 

DOweof  late,  baith  of  foretho light  felony,  mat 
of  auddantie  :  and  hecausa  monie  peraoos  co^ 
Riit  tUuch(er  upon  foretbeoght  felaoy,  in  tmota' 
they  sail  lie  deiiPDded  throw  the  inamunilw  af 
(he  halie  kirk  and  girth,  and  paMia  and  rrrmsiaii 
insanctiiaripa;  it  u  tbonght  expedient  ia  tbi» 
prBKul  psrliameot  tor  (he  stanching  of  ibo 
Slid  slouchten  in  time  coming,  quhaiterv 
slaiicbter  is  committed  on  forethought  felenf,' 
and  the  commiiter  of  the  said  sUuchter  po^w 
und  puUii  kim  in  girth,  for  the  safiie  of  bii 
|>erson,  the  schireSe  sail  come  to  the  ordinoTi 
III  places  ^ubair  he  lie*  under  hia  jiiriadidiia, 
and  in  places  exempt  to  the  lords  maintentf 
the  girth,  and  let  them  wit,  that  sick  a  ■■■ 
has  coniinitled  sick  a  crime,  on  fbrelhoi|bt 
felony,  "lanijuam  insidiutor  etpcrindustriim," 
for  qubilk  the  law  grants  nut,  nor  learei  oat 
sick  persona  In  joyis  the  immunities  of  tha 
kirk.  An.l  the  schirafle  sail  require  tbe  or- 
dinar  to  let  a  knowledge  be  taken  be  an  SMua 
on  15  dayi,  quhidder  it  be  forethought  felony, 
or  not :  anrl  if  it  be  tbundeo  foretliuught  felony, 
to  be  puniKhfd  after  the  king's  laws :  and  ifit 
be  fuundej)  suddantie,  to  be  restorid  agais  Ml 
the  freedome  and  imniuaiiy  of  balie  kirkai^ 

James  4,  pari.  S,  act  18,  intitled,  "  AdmI 
Manslayeritakeu  or  fugitive  ;"slatuiea,"'lW 
where  any  happens  to  he  slain  within  (be  reah%'' 
tbe  mantlayer  shall  be  puraued  (in  a  certlW 
manner),  and  wherever  be  happena  to  be  over^' 
lane,  that  tbe  ichirelle  tall  incontinent  ant 
him  Iu  (he  nixl  ichireiTe,  and  to  forth,  qoUl 
he  be  put  to  tbe  ichirelfe  of  the  scfaire  quMM 
the  deed  waa  done ;  and  (here  sail  justice  hi 
iiicoD(inent  dune.  And  gif  it  be  furetbonglt 
felony,  to  die  therefore." 

Jamea  5,  pari.  4,  act  23,  intitled,  ■'  no 
Haisters  of  the  Gii1h  suld  make  depute*,  qoko 
suld  deliver  Malefacture*,  thai  may  not  biwb 
(he  priviledgc  thertuf ;"  ststiiies,  "  That  tlMy 
should  be  huldrn  in  all  time  comeing,  to  da* 
liver  all  committera  of  sUuchlir  upon  foro> 
tliaught  felony,  that  (lira  to  trjnb,  and  nlbcM 
Iresiiai>seni  that  breaks  the  same,  and  may  oM 
biuik  tbe  privileilge  thereof,  conform  to  ibl 
.  common  law  sud  (be  act  of  parliament  ma^ 
thereupon  of  before,  to  the  king's  official^ 
atktiod  and  desireaod  tliero  tounderlythelaw.** 
Follow*  the  intire  act  of  Charles  3,  pari.  1, 
I  chap.  23,  intitled,  "  Conreming  the  Wt- 

i  vetal  Degreea  of  caiual  Homicide." 

"  Our  sovereign  lord,  nitli  advice  and  con- 
i  sentof  ilie  estates  of  this  pres'-ut  parliament, 
I  for  reniuviug  uf  all  quektinn  and  doubt  that  inay 
'  arise  heraatter  in  criminal  pitrsuila  for  slaogh- 
\  ter ;  Btatulei  and  ordains,  Tliot  the  rasca  i( 

I  homicide  after  liillowiDg,  via.  casual  1 iiifc. 

liomicide  in    lawful    defence,    and    iiominido 
conmiltad  upon  Ihievet  and  robbers  bra>kia|f 

bouaaa  in  the  night ;  or  in  case  of  1 in  J 

(be  liffie  of  maatprtul  doficdation,  or  in  t ho  p 


orimea,  w  of  nek  who 


dedared  rebela  br  coaiBl 
rho  asaiat  owl  Miad  DM 


m 


Cote  of  Edmund  Curil. 


A.  D.  1727. 


[154 


■Wtacrf  nuftcrful  depredators  by  armi,  and 
fe|  firce  0|ipoae  ibe  piinuit  and  appreheadio^ 
tfihiB,  wluch  abalt  happen  to  tali  out  in  time 
mmiai^t  aor  anv  of  them,  shall  not  be  punished 
hf  daili ;  and  tbat  uotwithstandinfl^  of  any  Uws 
«  arts  of  parliament,  or  any  practie  made 
himfais^  or  observed  in  punishing  of  slaugh- 
tv:  h«thil  the  BWDslajer,  in  any  of  the  cases 
asaoilaied  from  any  criminal  pur- 
'  aninst  him  for  his  life,  for  the 
r,  before  any  jud|fe  criminal  with- 


JiiifHsginna,     Providing  always,  That  in 
AfCHtsf  hooaicide  casual,  and  of  homicide 
lotwithstanding  that  the  slayer  is 


by  this  act  free  from  capital  pmsishment ;  yet 
it  shall  be  leisum  to  the  criminal  judge,  with 
advice  of  the  council,  to  fine  in  his  means, 
to  the  use  of  the  dehinct*s  wife  and  baimf,  or 
nearest  of  kin,  or  to  imprison  him.  And  hb 
majesty,  with  advice  foresaid  declares,  that  all 
decisions  given  coiiibrm  to  this  act,  since  the 
13th  of  February,  1649  years,  shall  be  as  suffi- 
cient to  secure  all  parties  interested,  as  if  thia 
present  act  had  lieen  of  that  date :  and  thataH 
cases  to  be  deciiled  by  any  judges  of  this  king- 
dom,  in  relation  to  casual  homicide  in  defence^ 
committed  at  any  time  heretofore,  shall  be  de- 
cided as  is  above  expressed." 


470.  The  Case  of  Ed  if  und  Curll,*  Bookseller,  in  the  KingVBench, 
for  publishing  a  Libel :  1  George  II.  a.  d.  17^7. 


Mich.  Term.  1  Geo.  3. 


L's  Rex  v.  Eomuno  Curll. f 

Jn6BllATION  exhibited  by  the  AttomPT 
against  the  Defendant,  Edmund  Curll, 
Itie  '*  ezistens  homo  iniquns  et  scele- 
M  oeqiiiter  machinans  et  intendens  bonus 
■Mi  snfaditonim  hujus  regni  corrumperc  et 
dMsl  iMi|nitiani  inducere,  quendam  tnrpem, 
bpMi  et  obscoeoum  libellnni,  intitulat  Venus 
is  a  Ckyster,  or.  The  Nun  in  her  Smock,  im- 
■r^niter  impressit  ct  publicavit,  ac  impri- 
■t  poUjcari  causaTit,"  (sett I u^  forth  tlie 
I  lewd  uassageft)  **in  malum  exem- 
,**  &c.  atko  of  this  the  defendant  was  found 

Trinity  Torm  last,  it  was  moved  in 
ivfjodgineothy  Mr.  Marsh,  that  huwever 
'  ml  may  lie  punishable  fui*  this  in  the 
Conrt  as  an  offence  *'  contra  honos 
vet  it  cannot  be  a  libel  for  which  he  is 
in  the  Tcmi)oral  Court.  Libeliu^ 
I  a  diminutiTe  of  the  won!  liber ^  and  it  is  /i- 
Je/Ztfi  from  its  bein<7  a  book,  and  not  from  the 
■ttirrofits  contents,  in  the  Case  De  Libel- 
b famous,  my  lord  Coke  says,  that  it  must  be 
l^auHC  the  iiublic,  or  some  pnvatc  person,  to  be 
a  bbel,  ami  1  do  not  remember  ever  to  have 
heud  this  opinion  contradioted.  Whatever 
itads  to  corrupt  the  morals  of  the  people,  ousfht 
ti*  be  censured  in  the  Spiritual  Court,  to  which 
properly  all  such  causes  belong.  What  their 
pcuerediDgs  are  I  am  a  stranjjrer  to :  But  for 
■e  u  insufficient  to  say,  I  do  not  find  any  case, 
■herein  they  were  ever  prohibited  in  such  a 
uDse.    In  the  reign  of  king  Charles  2,  there 

*  Probably  the  iiotorions  bookxeMcr.     As  to 
«b<Mn,see  the  Duaciad.    See,  al^,  vol.  1>, 

t  Nlraiige*s  Reports,  vol,  Q,  p.  7^3.  See  1 
IMi.  t9.  Nee  Annett's  Case,  1  niackst.  395, 
%a^  Ecclesiastical  Li*.v,  tii.  Prolaiiencss, 
flialogiw  3,  p.  113.  See,  a1<*^».  Kast'tf 
ef  the  Crown,  c.  1,  §  I,  and  WUkes^s 
fm  publishipg  the  Kssay  un  Womuu. 


was  a  filthy  run  of  obscene  writings,  for  which 
we  meet  with  no  prosecution  in  tiie  Temporal 
Courts  ;  and  since  these  were  things  not  fit  to 
go  unpunished,  it  is  to  be  supposed  that  my  lords 
the  bishops  animadverted  upon  them  in  theii; 
courts.  In  the  case  of  the  Queen  o.  R«ul, 
6  Ann.  B.  R.  there  was  an  information  for  a 
liltel  in  writini;  an  obscene  book,  called.  The 
Fifteen  Pluuues  of  a  Maidenhead ;  and  alW 
conviction,  it  was  moved  in  arrest  of  judgment, 
rhat  this  v«as  ni»t  punishabli:  in  the  Temporal 
Co'Tts;  and  (he  opinion  of  shief  justice  Holt 
was  so  striiiig  w'\i\\  the  oltjection,  tliat  the  pro- 
secutor never  tiiiiught  fit  to  stir  it  again. 

Attotnfjf  General  coutra.  I  do  not  observe  it 
is  pretemlcil  ihere  is  any  other  way  of  punibhing 
the  (i«:fen(iaiii  :  for  if  the  S|)iritual  Court  had 
done  It,  instances  miglit  be  given  ;  and  it  is  no 
argument  to  say,  we  meet  with  no  prohibitions : 
such  a  way  of  argument- would  constnie  ihem 
into  all  sorts  of  jiirisijictions.  What  I  insist 
u|M>n  is,  that  this  is  an  offence  at  common  law, 
as  it  tends  to  corrupt  the  morals  of  the  king's 
subjects,  and  is  against  the  peace  of  the  king. 
Peace  includes  {2;ood  onler  and  govern tneot, 
and  that  peace  may  be  broken  in  many  in- 
stances without  an  actual  force.  1.  If  it  be 
an  act  against  the  coiKtitution  or  civil  govern* 
mem.  2.  If  it  be  against  religion.  And,  3. 
If  against  morality. 

1.  Under  the  H'stliead,  fall  all  the  cases  of 
seditious  words  or  uriiiiigs,  2  Roll.  Abr.  pi.  S  ; 
Vent.  *61\\Z  Kelile  ^*4li  and  the  Case  of  the 
Quern  v.  Bedford,  Mich.  \1  Ann.  whose  trea- 
tise of  Hereditary  Ri^ht  was  held  to  be  a  libel, 
though  it  contained  no  reflection  upon  any  part 
of  the  government. 

2.  It  is  a  libel,  if  it  reflects  upon  religion,, 
that  great  basis  of  civil  government  and  liberty ; 
and  it  may  be  both  a  s|)iritual  and  temporal  of- 
fence, Cro.  Jac.  4'21  ;  2  Koll.  Abr.  78,  pi.  2  ; 
1  Venl.  293.  3  Keble  (507, 021.  In  Tremayne's 
Entries,  ri26.  there  is  v.  sentence  to  have  a 
priper  fixed  upon  the  defendant's  head,  iiittmat- 
in;^,  tIi:U  he  had  uiiered  blasplieraous  words, 
tending   to   the   subversion    of  government. 


135J 


1  GEORGE  11. 


There  U  one  Hall  a 


Pucb.  10  Adu.  UeKini  s.  Clcndon,  tberc 
special  rei'Jict  on  a  libel  abuul  the  Trinity,  ind 
it  wu  Dot  made  a  doiihl  of  in  that  case. 

S>  As  to  tnonUilj.  Ueatroying  the  peace  nf 
the  gOTemiuent ;  Tur  j^ernracDt  ii  du  more 
than  public  order,  wbich  is  muulil]'.  My 
lordchierjuiticeHolt  uiieil  lossy,  Christianity 
if  pan  dI' the  lair:  Andnbynol  morality  too? 
I  do  not  iDsiit  tbat  ererj  iinioDral  act  ii  ia- 
tlictaUe,  ancb  as  telliog  a  lie,  or  Ibe  like :  Bat 
if  ilisdeatriicliveof  morality  in  eeoenl;  if  it 
4oet,  M  may,  affect  all  tbeltinga  sabjectf,  it 
then  is  an  ofience  of  a  |juhlic  nature.  And 
upon  this  distinction  it  is,  that  particular  acttot' 
fornication  are  not  nunisbaUle  m  the  Tem|>onl 
Courla,  and  bsirdy  houses  are.  In  sir  Charles 
tSedley'a  caic*  it  tva*  said,  that  this  eourti* 


Case  lifEdmuud  Curtl, 

the  eurtos  tnorum  of  the  kins' 
Hid.  16il,  and  U|H)n  this  fbundatit 
been  many  prosecutioDS  against  t 
obscene  plays,  Ihonjfh  they  liari 
enough  <o  get  the  proceedings 
juilgraent,  Treniayne'a  Enlri^,  i 
315.  Lord  Grey's  Case,  [Vol. 
this  Co1Ic<:lion.]— Mich.  10  Wil 
Hill,  the  defendant  nas  iudiete 
some  obsceue  poems  of  my  lord 
tending  to  the  corruption  of  ; 
which  he  nent  abroad,  and  w 
which  he  wouiil  not  havo  done, 
bad  tbonght  it  no  libel.  The  Sj 
punish  only  iierBonal  spiritual  i 
words  ;  if  it  is  reduced  to  writiii| 
poral  offence,  Salk.  553;  ftlo.  tiS; 
iiishable  as  a  libel.  Uy  lord  Col 
De  Libeilis  famosis,  had  nothin 
acandalouB,  defamatory  libels. 


naoD  law  lor  aerenl  mitdenieuiora  againit  the 
kbff'a  Mac«,and  which  vera  to  the  great  scandal 
of  Chmtiaiiity ;  and  the  cattle  fas,  for  tbat  he 
•hemd  his  nidied  body  in  a  balcony  in  Corent 
Garden  to  a  great  multitude  of  people,  and 
there  did  sach  things,  and  apcke  such  words, 
ju.  mentioning  some  particaUrs  of  hii  misbe- 
faarionr,  as  throwing  davo  bottles  (pissed  in) 
vi  el  armit  among  the  people^  Keble's  Iteporta, 
lot.  1,  f.  SSO.  Fortescue's  Reports,  99,  100. 
And  thii  indictment  was  openly  read  to  him  in 
court;  and  thejuilices  told  him,  that  notwilh- 
Handing  there  was  not  then  any  Star-chamber, 
yet  they  would  hare  him  know,  tbat  tbe  Coart 
iif  King's- bench  was  the  aulot  morunt  of  all 
the  king's  subjects;  and  that  it  was  then  high 
time  to  punish  such  profane  actions,  commilled 
against  all  modesty,  wbich  were  as  frequent, 
as  if  not  only  Cnristianity,  but  morality  also 
had  been  neglected.  Alter  be  had  been  kept 
in  court  by  recognizance  from  Trinity  term 
to  the  end  of  MichaelniBS  term,  the  Court 
required  him  to  tuke  his  trial  at  bar :  but 
being  advised,  he  sulinitied  himself  to  the 
Court,  and  confesaed  the  indictment,  15  Car. 
9,  1643.  Tbe  Micliadjnas  term  fullowiiig,  the 
Court  considered  what  judgment  to  give;  and 
inasmuch  as  he  was  a  gentleman  of  a  very  an- 
cient family  (in  Kent,]  and  his  estate  incum~ 
bered,  (not  intending  bis  tuin,  but  his  reforma- 
tion] they  fined  him  only  3,000  marks,  and  tn 
be  imprisoned  a  week  without  bail,  and  to  be  of 
guodbebariour  for  three  years,  Sid.  lliti,  ul.  29. 

TtSawit    nf  thn    (.aai    ■>    fid  anrl     I  in  Kirnii-,- 


See  the  Case  of  Wilkes,  in  this  Collection, 

flUl. 

Wood  (Athence  p.  1 100)  reporla,  with  evident 
incorrcctueu  hnwerer,  tbe  case  of  sir  Charles 
Sedley,  as  follows : 

"In  the  montli  of  June,  liiGS,  this  our  au- 
titer,  sir  Charles  Bnlley,  Charles  lotil  Buck- 
fctntt  (aRerwanls  earl  nf  Miihllesex)"  [more 
eommonly   mentioned  by  his  title  of  t«rl  of 


Dorset!  "  air  Thomas  Ode,  4 
cook's  liouse  at  the  aign  of  the  < 
street,  i^ear  Cnvent  Garden,  will 
of  Westminster,and  being inflaDi< 
liquors,  they  went  into  the  baico 
1o  that  houae,  and  putting  down  i 
they  eKCremeotixed  in  the  street 
done,  Sedley  atriiiped  bimselt'  na 
eloquence  preached  blaspliemy  1 
whereupon  a  riot  being  raised,  (h 
came  very  clamorous,  and  wouli 
tbe  door  next  the  street  open  ;  hi 
dered,  the  preacher  and  his  ci 
pelted  into  their  room,  and  the 
longing  thereunto  were  broken 
being  soon  spread  abroad,  especii 
natical  party,  wbo  aggravated  it  i 
by  making  II  the  most  scandaloil 
tnre,  and  nothing  more  reproach 
than  that ;  the  said  company  Ve 
to  the  court  of  Justice  in  Wet 
where  being  inilicted  of  a  riot  b 
bert  Hyde,  lord  chief  justice  ot 
Pleas  were  nil  fined,  sir  Charle 
live  bunilri^d  pounds." 

Aflcr  relattnif  the  insolent  and  i 
haviour  of  Sedley  in  court,  Wt 
thus: 

"  The  day  fur  payment  being 
Charles  desired  Mr.  Henry  K 
another  gentleman,  to  apply  the 
majestv  to  get  it  off;  but  insteai 
l>eggea  tbe  said  sum  of  his  majes 
not  abate  sir  Charles  twn-|>ence  o 
"  Mark,"  exclaims  Johnson  in  hh 
let,  *■  tbe  friendship  of  the  dissoh 

Sir  John  KereHby  in  his  Memoi 
7}  indicates  that  at  that  period 
highest  rank  and  station  were  ii 
begging  from  tl)«  crown  the  estat 
accused  of  forfeitable  offences  in  i 
their  conviction  :  and  from  his  ac 
likely,  that  false  a< 

obtaining  sudi  futfeiiorca.    The 


i5n 


forpublithittg  a  Lib^. 


A.  D.  17C'7. 


[I5S 


ahajrutokuknisatecbnicol  word;  id  this  sayinc*  Why  doirt  yon  go  to  the  Spiritual 

OS il  mj itUMi  R8  an  obscene  little  book.  Court?   Which  was  ^^ing  a  false  reason  lor 

iliiittiMcawofRrad,*  there  was  no  judg-  that  sudden  opinion :  Now  it  ap^iears  there  ia 

,  htt  il  went  off  upon  the  chief  justice's  do  instance  of  the  spiritual  court's  intermed- 

"  Who  b  libelled  here  ?  This  may  be  said  to  be 
a  temptation  to  incontinence ;  and  therefore 
why  not  punishable  in  the  ecclesiastical  court  f 
This  tends  to  bawdry,  as  well  as  soliciting  qf 
chastity ;  but  they  do  it  only  to  get  money." 

Lord  Forteseue,  at  the  end  of  his  Report, 
mentions  this  case  of  the  King  and  Curil, 
'^  which"  he  says  "  was  an  indictment  for 
printing  and  publishing  a  libel,  called,  The 
Nun  in  her  Smock ;  which  contained  several 
bawdy  expressions,  but  did  contain  no  libel 
against  any  person  whatsoever :  the  Court  gaTt 
judgment  against  the  defendant,  but  contrarr 
to  my  opinion  ;  and  I  quoted  this  case.  And, 
indeed,  1  ihought  it  rather  to  be  published,  on 
purpose  to  expose  the  Romish  priests,  the  fa- 
ther confessors,  and  Popish  religion." 

But  since  this  case  of  the  King  v.  Curll,  the 
Court  of  Kind's  -bench  without  iiesitation  ex- 
ercises jurisdiction  over  such  publications,  and 
over  other  oflences  contra  bonos  mora^  which 
are  not  attended  with  breach  of  the  peace. 

Upon  an  attempt  (8  Geo.  8,)  to  move  in  ar- 
rest of  judgment  in  the  case  of  Woolston,  who 
was  oonvicteil  on  four  informations,  for  his 
blasphemous  discourses  on  the  miracles  of  our 
Saviour,  the  Court  ilcclared  they  would  not 
suffer  it  to  be  debated,  whether  to  write  against 
Christianity  in  general,  was  not  an  offence  pu- 
nishable io  the  TemjKiral  courts  at  common 
law  :  it  having  been  settled  so  to  be,  in  Taylor's 
case,  1  Vent«  29^;  3  Keb.  607,  621;  and  in 
the  case  of  the  King??.  Hall  (see  1  Str.  416,  [419, 
cd.  of  1781-2.])  They  desired  it  might  be 
taken  notice  of,  that  they  laid  their  stress  upon 
the  word  *  general,'  and  did  not  intend  to  in- 
clude disputes  between  learned  men,  upon  par- 
ticular controverted  points.  2  Str.  834,  [8v^0 
ed.  of  1781 -a] 

In  the  case  of  the  King  against  sir  Francis 
Blake  Delaval,  and  others,  which  was  a  prose- 
cution for  a  conf!piracy  to  transfer  a  female  in  - 
font  apprentice  for  the  purpose  of  prostitutioni 
lord  MuiisiWId  said  :  **  1  remember  a  cause  in 
the  Court  of  Chancery,  wherein  it  appeared, 
that  a  man  had  formerly  [ipi.  formally]  as- 
signed his  wife  over  to  another  man  :  and  lord 
llardw  icke  directed  a  prosecution  for  that  trans* 
action,  as  lieing  notoriously  and  grossly  against 
public  decency  and  good  manners.  And  so  is 
the  present  case. — **  It  is  true,  that  many  of- 
fences of  the  incontinent  kind  full  properlj 
under  .the  jurisdiction  of  the  ecclesiastical  court, 
and  are  ap|iroprinttd  to  it.  Hut  if  you  except 
those  appropriated  cases,  this  court  [H.  R.] 
is  the  cusfoa  morum  of  the  people,  and  has  the 
superintendcncy  of  offences  contra  Ifonus  mores : 
and  upon  this  ground  both  sir  Charles  Sedtry 
and  Curll,  who  had  been  guilty  of  offencr's 
against  good  manners,  were  prosecuted  here.' 


At  mmk  of  Soodind,  bear  ample  testimony 
ti  iht  fRiaknoe  of  practices  of  this  sort  in 
tet kiipH,  during  the  reigns  of  Charles  the 

Jlf  jM.  21  Jac  cap.  3,  it  is  declared  and 

'  Iht  all  commissions,  grants,  &c. 

KMde  or  granted,  of  any  grant  or 

•    M  jf  *^  l*n€fit»  profit  or  commodity,  of 

mf  Mtee,  penalty  or  sum  of  money,' that 

*""-'^  te  Ai  bv  any  statute  before  judg- 

!<V^  bio,  are  altogether  contrary  to 

^  thb  realm,  in  no  wise  to  be  put  in 

>•  What  was  said  by  the  judges  in 

iuMrfpnal  statutes  (Hil.  8  Jac.  7  Co. 

VfHI  mdily  be  believed ;  that  in  their  ex- 

|9M>  Mdi  grants  made  the  more  violent 

y "j*  ptactcdiag  against  the  subject,  to 

S^f^  ^  jmtice,  and  offence  of  many. 

2"^'"y*  lord  Coke  (3  Inst.  187,)  <  such 

VnaeoKoders  worthy  of  severe  punish- 

IB.-*  ad  to  "  these  hunters  for  blood"  he 

mm  Ijm  esdamation  of  31icah,  •'  Thev  all 

Mnil  Ar  blood,  and  every  man  huntetb  his 

Wbtidaih."  [Our  translation  says,  with  a 

'ihftecBse  of  the  Queen  against  Read,  11 
Ai  Itf,  h  was  held  that  a  crime  that  shakes 
l%bi  (see  l  Hawk.  ch.  fi,)  as  profaoencss 

■  At  itage>  [u  to  this,  see  stat.  3  Jac.  1,  c. 

a  fa.  is  indictable ;  but  writinjgf  an  obscene 
■  aoi  indictable  ;  but  punishable  only  in 
kipnual  court. 

Kiaie  of  the  Queen  v.  Read  (Fortesc.  98,) 
Misadictment  for  printing:  a  lascivious  and 
ftnBittel, enUtlpd, «« The  Fifteen  Plagues  of 
AHfcibead."  The  defendant  was  tried  be- 
kM  chief  justice  Holt,  and  convicted  :  and 
n  notion  io  arrest  of  judgment,  it  appears, 

■  jo'l^^roent  was  given  by  the  whole  court 
ribedetefjditnt.  And  by  Holt,  C.  J.  '*  There 
iceeMa&tical  courts:  why  may  notth'uibe 
■nhcd  there  'f  If  we  have  no  precedent  we 
loot  punish.  Shew  me  any  precedent.'' 
«rU,  J^  *•  This  is  for  printing  bawdy  stuff,  , 
It  reflects  on  no  person  :  and  a  libf  I  utu:;t  ha  I 
unit  some  particular  pei'son  or  iic-rsons,  or 
kiofl  die  government.  It  is  stuff  not  fit  to 
Bratjuoed  publicly.  If  there  is  no  remedy 
the  Spiritual  court,  it  dues  not  follow  there 
M  b«  a  remedy  here.  There  is  no  law  to 
aiih  it :  I  wiih  there  were  ;  but  we  cannot 
^  law.  It  indeed  tends  to  the  corruption 
|Md  manners,  but  that  is  not  sufficient  for  us 
piMh.  As  to  the  case  of  sir  Charles  Setllcy, 
■V  was  something  more  in  that  case  than 
■■ii^  bis  naked  body  in  the  balcony ;  lor 

■  tMe  was  tfvod  vi  et  arm'u  he  pisseil  down  ' 

a  Ike  people's  heads."  And  he  cited  lady 
ek's  case,  which  was  in  llie  Star-cham- 
<^*bcre  tfae^  "  quashed  the  indictment  be- 
"^  ■"  lor  Batters  of  bawdry."    Holt. 


159]             1  GEORGE  U.  Case  of  Edmund  CurlL 

dliogr,  wliere  it  it  reduced  to  writings,  or  in  Sedlej's'caie,  who  only  expowd  bimtdf 

print.  people  then  present,  [nalced,]  who  might 

Chief  Justice  Roymond.    I  think  this  is  a  whether  they  would  look  upon  him  ot 

case  of  Tery  great  consequence  ;  tliough,  if  it  whereas  this  book  goes  all  over  the  kin( 

was  not  for  the  case  of  tlie  Queen  v.  Read,  1  Drunkenness  and  swearing  were  panishi 

should  make  no  great  difficulty  in  it     Cer-  tlie   Spiritual  Court,  before  the  Acts  ' 

tainly  the  Spiritual  Court  has  nothing  to  do  made  them  temporal  ofieoces,  and  in  ' 

with  it,  if  in  writing:    And  if  it  reflects  on  re-  the  jurisdiction  of  the  Spiritual  Court  is  \ 

ligioo,  virtue,  or  morality ;  if  it  teodsto  disturb  Probyn^  J.  inclined  this  to  be  punii 

the  civil  order  of  societv,  I  tliink  it  tB  a  tcm-  at  common  law,  as  an  otfeoce  against  the  | 

poral  ofience.    I  do  not  think  Ubellus  is  always  intending  to  weaken  the  bonds  of  civil  so 

to  be  taken  as  a  technical  word.    Would  not  virtue,  and  morality. 

Trover  lie  *«  de  quodam  libello"  iutitulat  the  «„. .. .  .,_  ^  ^^    -  ^^^^.  ^«.^„^ 

Fartetcue^  J.     1  own  this  is  a  great    of 


^^uT^aI  Z^Z^iZiSuZZr^  ^^^  Generd  and  my^lf.  'But  Curft  not 

irression.     At  common  law,  druokenness,  or  :^^  «*.„«  j^i  ^^  •    .:„  »  <.^«    :  *.  j^i. 

Kg  and  .wearing.  we4  not  puniahabte,  '^^f^f^^^Z^Zli ^^^^^ 

andyet  IdonotftodtheSpiri.«a|  Coort  look  LlS? SaSTfcm  bU^o^^ :Su5 

nouce  of  ihem.    Tbui ..  but  a  general  iohcita.  ^^      .^^  ^j          ^           ^ 

t.on  of  chaaUty,  and  not  indictable.    L*dyPur.  «  two  or  three  aaya.  they  ga»e  h  a«  then 

beck's  case  was  for  procnriDir  men  and  women  _;_,-.^  „„:„:»„    'AL,  .kL  1..  .  71— Zl 

to  meet  at  her  bous^.  and  blld  not  indictable.  S™*'"  X  ^.^H  ft  J«  „Ui^  ?K^J^ 

icular  facte  to  make  feu-^^I^' 'f^^P^.i*-'^ 


MMIIIIV40  n,  m  WDicn  were  is  noiuinir  in  ins  _■    , ,  ,■  „  ,k«™  ^..  »»  n^...:..  .«  *-ii. 

*«  i-i7i  •       ^ L  •    I      -J    »    went  upon,  tnere  was  no  occasion  to  talk  I 

case.    A  libel  IB  a  technical  word  at  common  n^„.,,riJ, ^!c  *il    i-     i. 

i._ .  —J  I  _..^  ._-  (k^  ^..  «f  >k<.  rk..^«  Court's  being  cenior  morum  of  the  king' 

•^    •    Bij!JS5.r.i.  L^,  .Wo^r«  i^^-    They  said,  if  Read's  case  was  to! 

Charts  SedleySi^cnhere  was  a  for«^  of  tt? '  aSN^^S  S.S  wi^'iSS 

tbrowinc  out  boldes  upon  the  people's  beads.  ^  ;„  jg^  ^^^^^^y^  ^  ^^  ^^„  j,^^^ 

HtffnoldSy  J.     It  is  much  to  be  lamented, 
if  this  is  not  punishable :  1  agree  there  may  be        This  Edmund  Curlt  stood  in  the  ptik 

many  instances,  where  acts  of  immorality  are  Charing- Cross,  but  was  not  pelted,  or  usi 

of  spiritual  cognizance  only ;    but  then  those  for  being  an  artful,  cunuiog  (though  w; 

are  particular  acts,  where  the  prosecution  is  fellow,  he  had  contrivinl  to  have  printed  | 

pro  salute  anima  of  the  offender,  and  not  where  dispersed  all  about  Charing- Cross,  teltin 

they  are  of  a  general  immoral  tendency ;  which  people,  lie  siood  there  for  vindicating  Um 

1  take  to  be  a  reasonable  distinction.    Read's  mory  uf  queen  Anne ;  which  had  such  i 

case  is  indeed  a  case  in  point :    but  I  confess  V  feet  on   the    mob,  that  it  would  have 

should  not  have  been  of  that  opinion.     Libelius  dangerous     even    to    have    spoken    a. 

docs  not  ex  vi  terminU  import  defamation,  but  him :  and  when  lie  was  taken  down  out 

is  to  be  governed  by  the  epithet,  which  is  added  pillory,  the  mob  carried  him  off,  as  it  vr 

to  it.    This  is  suituy  worse  than  sir  Charles  triumph,  to  a  neighbouring  tavern. 


1 


Trial  if  WmamHaUt. 


A.  D.  1728. 


[let 


I.  The  Trial  of  William  Hal^s,  for  forging*  a  Promissory 

Note  for  6,400/.  in  the  Name  of  Thomas  Gibson,  esq.  and 

PartnerSit  ^^^  f^r  publishing  the  same  as  a  true  one,  knowing 

it  to  be  false  and  counterfeit,  at  the  Session  of  the  Peace, 

ad  Oyer  and  Terminer,  for  the  City  of  London,  held  at  the 

Old  Bailey,  before  Mr.  Justice  Page, J  and  Mr.  Baron  Carter: 

SG£OUG£  II.  A.  D.    1728. 

December  9,  1728. 

ftw.  OyEZ  !  Oye« !  Oyez  !  All  manner 
vnin,lhitbaTe  any  thing  to  do  at  this 
••rf  Oyer  and  Terminer,  holden  for  the 
ft«LBBd<m,Bnd  eaol-dclnery  of  Ncwgrate, 
n>ftrlhf!city  of  London,  and  county  of 
dnwnear,  and  giye  your  attend - 
^n\  Yon  good  mm  of  the  ciry  of 
^--^MBmoDed  to  appear  here  thisdoj', 
•J  "e  trill  between  our  aovereign  lord  the 
Wl  vd  William  Hales,  answer  to  your 
piia  and  peril  that  shall  coiue 


Scynoari  Samael   Cranmer,    &c. 


toSSiUl^"^^*-   William  Hales,  look 
f?|Meagw.    Hamnel  Cranmnr 

•9**9»«-  My  loni,  I  have  a  paper  deli- 

There  are  three  worthy  persons 

I)  We  desire  may  be  set  aside. 

'^Hf'  Yoii  know  what  the  law  isjl :  if 

r •  ""»*)•  consent  they  should  he  with- 
■■^  W  well. 

■^Icyflcj.    Wc  know  there  Are  enou^'i, 

jtt  jMrr.  Richard  Knollys. 

g-  S^V"*"-  He  is  related  to  Mr.  Gibson. 

wal^«''ifccr.  Prove  it. 

■jwa  C«rkr.    Pray,  how  is  Mr.  Gibson 

fcrj.  Diinili    n  jg  for  ^  notg  ^p  j^Ir,  ^jij,. 


kiaHLf^^i'    '  ^^^^^  recommend  it  to  Mr. 
*womey.    IwpuH  have  this  trial  without  any 

■hi  ^.^"**V*^-  ^^-  ^^'  ^^'  "»  7'  ^-  J  «««. 
"^uw  iwowing  cases  relative  to  the  traiis- 

■^  **)'<i»0«ve  rise  to  tliis  Trial. 

«lr  J  %!."'•  **»•  ^^^^  »n  short  hand  hv 

•  Z.  V  ■  ^J^^'-tWner  Edition,        " 

JAM^'.r'*"'-  "'"'t.  vol.7,  p.  691;    and 

2^^*^ Lues  cf  Pope,  and  of  Havajje,  as 


colour  of  unfairness  whatsoever ;  and  as  Mr\ 
Gibson  is  concerned,  if  he  be  really  a- kin,  I 
would  advise  Mr.  Attorney  to  v\aive  him. 

Attomcif  General^  (sir  Philip  Yorke.)  My 
lord,  1  am  sure  it  is  our  desire  that  this  trial 
should  proceed  with  all  the  fairness  iraaj^ina* 
ble ;  therefore,  without  entering  into  the  ques* 
tion  how  fur  Mr.  Gihsou  is  concerned,  or,  if  h« 
is,  what  consequence  thai  may  have,  1  waive 
this  gentleman. 

Then  the  twelve  Jnrors,  who  were  sworn, 
were  counted,  and  their  names  were  as  fol- 
low, viz. 


Samuel  Cranmer, 
William  Howard, 
Thomas  Swayne, 
Thomas  Port, 
Ralph  KnoY, 
Cornelius  Alason, 


.  A.  11  \u:^  ?r'  *"**»  »o  T^o"™  ''^ncs,  (book  R, 
i  1^  i«l!'T''  *^fy  a^"^  niy  'Of**  justice 
^iS^      ^^"^  ^^^  ^^^^"^  ^'"^^'"  ^"■ 

^,*ii^'*e  the  celebrated  *  Letter  con- 
>jy*^^Warrants,  Seizure  of  Papers,' 


•  ■*■  aicribed  to  lord  chancollf»r 
to  the  first  lord  Asliburton. 


John  Pott, 
RichanI  Chauncy, 
Jame^  Coulter, 
Harvey  S|)ragge, 
Joseph  Jackson, 
Robert  Knaplock. 

CL  of  Arr.  Crier,  make  proclacnatioo. 
Crier.  If  any  one  can  inform,  &c. 
ChofArr.  opened  the  Indictment,  which  is 
as  follows,  viz. 

**  London,  ».  Juratori^  pro  Domino  Rega 
super  sacranientum  suuui  pra>sentant,  quod 
Willielmus  Hales,  nu|K*r  de  London,  Aurifa- 
bcr,  Anglic^  Goldtmith^  existens  persona  ma- 
lorum  nomiuis  et  famiB,  ac  ronversationis  in* 
lionestflc,  ac  injust^  et  fraudulentf-r  niachinans 
et  intendens  quendam  Tlioniam  Gibson,  uec- 
non  quosdam  Johaunem  Jacob  et  Rohiertum 
Jaconib,  participes  ejuKdcm  ThomsB  Gibson, 
ac  diversos  alios  dicti  homini  Reyfis  nunc  ligeos 
ct  suliditos,  de  iiisfrnis  deuariorum  summis 
fraudulenter  et  iniqub  decipere  et  def'niudere, 
septimo  die  Septeuibris,  anno  regni  Domini 
Georp^ii  Secundi,  nunc  Rep^ig  Matj^i.&e  Britan- 
niee,  &c.  sccundo,  apud  Loudon  pnedict,  scili- 
cet, in  nnrochia  Ss^nrti  Dunstani  in  Occident', 
in  waniri  de  Farringdon  extra,  vi  et  nriiiis,  6cc. 
tiilso,  fraiiduleiitcr,  et  decrptiv^  i'abricavit  et 
rontrafin;,  ft  fiibriciri  rt  coutralifri  r ausavit, 
quoddam  scriptum  in  verbis  et  iiguris  sequent!- 
bus,  videlicet, 

"  Aiifiu$t  27, 172R. 

"  I  promise  to  pay  to  Geornfe  Watson,  esq, 
or  hearer,  the  sum  of  six  llioitsand  four  hun- 
dred p(»unds,  at  tlem-.ind,  the  like  value  recciv-* 
cd.     For  myself  and  pai  titers, 

**  Tno.  GmscLN." 

«*  £. «,  100. 


31 


163]  2  GEOllGE  II. 

ad  frmwe  (lamniim  pncfat'  Tlioroft  GibMn,  et 
pnctJicl'  Joliannis  Jacob  et  Uoberti  Jacomb, 
particip^itn  ejusdem  TliumiE  Gibson,  in  malum 
excmplum  omnium  aliorum  in  hujusmodi  casu 
delinqucntium,  ac  contra  pacem  dicti  Domini 
Itesfis,  coron'  et  di^nitat*  suas,  &c.  £t  jura- 
tores  pnsdicti  super  sacrainentum  suum  prsc- 
dictum  ulterius  praesentant, quod  pr«dictus  WiK 
lielmus  Hales  neqiiiter  et  deceptive  macbinans 
et  intcndens  prst'at*  Thomam  Gibson,  necnon 
pncdict*  Johannem  Jacob  ct  Robertnni  Jacomb, 
participes  ejusdcni  Tbomse,  ac  diversos  alios 
subditos  et  lifi^eos  dicti  I>f»mini  Re^  nunc,  de 
ma^nis  dcnanornm  sumrois  fraudulentcr  et  ini- 

aul*  decipere  et  defraudare,  postea,  scilicet  pne« 
icto  septimo  die  l^ptcmbris,  anno  secundo  su- 
pradicio,  apud  Lon4lon  pnedicl',  scilicet,  in 
parocliia  et  warda  praedict',  vi  et  armis,  &c. 
<|uodilam  scriptum  falso  fabricaturo  et  coutra- 
fiictum  in  verbis  et  figuris  sequentibus,  Tide- 
licet, 

«  August  27,  1728. 
**  I  promise  to  pay  to  George  Watson,  esq. 
or  bearer,  the  sum  of  six  thousand  four  hun- 
dred pmmds,  at  demand,  the  like  value  receiv- 
ed.   For  myself  and  partners, 

«»  Tho.  Gibson.'* 

j;,  6,400. 


Trial  of  tVaiiamHaleSt 


c 


scienter,  illicit^,  et  fraudulenter  produxit  et 
piiblicavit,  et  product  ct  publicari  causa vit, 
tanquam  verum  et  legitimum  scriptum,  (dicto 
Willielmo  Hales  adtunc  et  ibidem  beu^  sciente 
scriptum  ult'  mentionat'  per  ipsum  Willielmum 
Hales  sic  ut  preef'ertur  product'  et  publicat', 
falso  fabricat'  et  contrafact*  fniasc)  ad  grave 
damnum  pncfat'  Thorns  Gibson,  ct  praedict' 
Johannis  Jacob  ct  lloberti  Jacomb,  participum 
igusdcin  Thomtc,  in  malum  exemplum  omnium 
aliorum  in  hujusmodi  casu  delinquenlium,  ac 
contra  pacem  dicti  Domini  Regis  nunc,  coron' 
•t  dignitat'  suas,  &c.  Et  jnratores  praedicti 
super  sacrameutum  suum  nrtcriuit  pnesentant, 
<|uod  prtcdictus  Willlelmus  Hales  niachinaus  et 
fraudulenter  inteudens  prcpfat'  Thomam  Gilison, 
occnon  precdict'  Johannem  Jacob  et  Robertum 
Jacomb,  participes  ejusdem  Tliomie  Gibson, 
ac  diversos  alios  dicti  Domini  Regis  nunc 
•ubditos,  de  magnis  denariorum  sunimis  frau- 
dulenter et  iniqu^  decipere  et  defraudare, 
preedicto  septrmo  dieSeptembris,  anno  secundo 
•upradirto,  apud  London  predict',  scilicet,  in 
parocbid  et  wardft  pnedict',  vi  et  armis,  &c. 
ialso,  fraudulenter,  et  deceptive  fabricavit  et 
contrafecit,  et  fabricari  et  contrafieri  causa  vit, 
quoddam  scriptum  gerens  tfat'  vicesimo  sep- 
timo die  Augusti,  anno  Domini  millesimo  sep- 
tingentesimo  vicesimo  octavo,  in  se  purportans, 
quod  pnedictus  Thomas  Gibson  pro  seipso  et 
participibus  promisit  solvere  Geor^^io  Watson, 
arm',  aut  latori,  summam  sex  mille  quadrin- 
gent'  librarum,  super  demand',  consimili  valore 
recept'  ad  grave  damnum  pnefat'  Thomas 
Gibson,  et  predict'  Johannis  Jacob  ct  Robcrti 
Jacomb,  participum  ejusdem  Thomee  Gibson, 
in  malum  exemplum  omnium  aliorum  in  hu- 
jiitmodi  otia  deuo^aeotiuiDy  ac  contra  pacem 


dicti  I>omini  Regis,  coron'  et  dignitat' 
&c.  Et  iuratores  prseiHcti  super  sacram( 
suum  ulterias  prsesentant,  quod  pmM^ 
Willielmos  Hales  nequiter  et  deceptive  vdm^^ 
nans  et  intendens  prsfat'  Thomam  GibsOB^ 
prsedict' Johannem  Jacob  et  Roberium  JaooiP 
participes  ejusdem  Thomoe  Gibson,  ac  divei^ 
alios  subditos  dicti  Domini  R^s  nane,  ftufl 
dulenter  et  injust^  decipere  et  defrandmd 
magnis  denanorum  summis,  postea,  feilte 
pruraicto  septimo  die  Septenbris,  anno  aecadfl 
supradicto,  apnd  London  pnedict',  adliceti  i 
parochi^  et  warda  pnedict',  vi  et  armis,  ta 
quoddam  scriptum  falso  fabricat'  et  conlrafad' 
gerens  dat'  vicesimo  septimo  die  Anguiti,  hh 
Domini  millesimo  septingentesimo  vienM 
octavo,  in  ae  purportans,  qaod  predictos  TW 
mas  Gibson  pro]  seipso  et  participiboa  proairi 
solvere  Gcorgio  Watson,  Ann ,  aat  latffl 
summam  sex  mille  ^uadringent'  librarM 
super  tfemand',  consimili  valore  recept',ad6aM 
illicit^, -et  fraudulenter  produxit  et  publioaril^l 
produci  et  publicari  causavit,  tanquam  TcnM 
et  legilimum  scriptum,  (prefato  Willielai 
Hales  adtunc  et  ibidem  bene  sciente  tcriplHj 
ull'  mentionat',  per  ipsum.Willielmum  HaMt  d 
ut  procfertur  product'  et  publicat',  falso  fabrioil 
ft  contrafact'  fuisse)  ad  grave  damnum  praM 
Thomee  Gibson,  et  prsefat'  Johannis  Jam  ■ 
Roberti  Jacomb,  participum  ipsius  ThdM 
Gibson,  in  malum  et  pemiciosum  exemphl 
omnium  aliorum  in  consimili  casu  drlinqnia 
tium,  ac  contra  pacem  dicti  Domini  K^ 
nunc,  coron'  ct  dignitat*  suas,"  &c. 


N.  B.    This  Indictment  vras  found 
the  commission  of  Oyer  and  Termioer,  wk 
not  U|K)n  the  gaol  delivery. 

CI.  of  Arr,  Upon  this  indictment  tha  4e 
fendant  hath  been  arraigned  and  pleaded  Ni 
Guilty ;  and  for  his  trial  he  puts  himself  opM 
God  and  his  country,  ivhich  country  yoniM^ 

Your  charge  is  to  inquire,  &c. 

Mr.  Strange.  May  it  please  your  lordship 
and  you  gentlemen  of  the  jury  ;  this  is  an  in 
dictment  against  William  Hales,  of  LondM 
The  indictment  sets  forth,  that  he  being  < 
person  of  ill  fame  and  reputation,  and  intendin| 
to  deceive  and  defraud  Thomas  Gibson,  Join 
Jacob,  Robert  Jacomb,  and  divers  others,  did 
on  the  7th  of  September,  forge  and  coantcrftil 
and  caused  to  be  forged  and  counterfeitcNl,  i 
certain  note,  viz.  <*  August  27,  1728.  I  pn 
mise  to  pay,"  Sec,  This  is  laid  to  be  to  tb 
great  damage  of  the  said  Thomas  Gilison,  Ba 
and  to  the  e?il  example  of  others  in  like  cai 
offending,  against  his  majesty's  peace,  &c.  1 
sets  forth,  tliat,  from  the  same  evil  intentioai 
he  did  produce  and  publish,  and  caused  to  h 
produced  and  pnblished,  a  certain  note  follow 
mg,  viz.  <*  August  27, 172B,  I  promise  to  pay,' 
&c.  That  he  published  this  as  a  true  aw 
lawful  writing,  knowing  the  same  to  be  hha 
forged,  and  counterfeit,  it  sets  forth,  tlnit  k 
forged  and  counterfeited,  and  caused  to  tn 
forged  and  counterfeited^  a  certain  wiiiim 


for  a  Misdemeanor. 

■pHl  f7|  17  S8,  piirportins^  that  the 
I  Ihomu  GUmoo,  for  himstflf  and 
,  pmiMed  to  pay  Georf^e  Watson,  or 
Moot  GeDtleneo,  the  indictment  sets 
In  on  the  same  7tli  of  September, 
dly,tbe  said  William  Hales  did  pro- 
d  ctoMd  to  be  produced,  a  writini^, 
fiipted  that  the  said  Tliomas  Gibson 
MMd  to  pay  Geunre  W^atson,  or 
,§0X>1,  and  published  this,  knowing  it 
iifid  at  the  same  time.  And  this  is 
i  to  the  great  damajire  of  the  said 
»Gib«Hi,  &c.  and  to  the  evil  example 
icn  io  like  case  oflTendini;-.  To  this 
iithe  bath  pleaded  Not  Guilty.  But 
live  the  fact,  it  becomes  your  duty  to 
bin  thereof. 

tOL  May  it  please  your  lordship,  and 
iemen  of  the  jury ;  1  am  of  eouoael  in 
for  the  king.  The  Charge  against 
^t  Mr.  William  Hales,  is  for  forg- 
e  in  llie  name  of  Mr.  Gibson,  pavable 
t  Watson,  esq.  or  bearer,  for  no  less  a 
6,400/.  and  publishing  this  note  as  a 
knowing  it  to  be  false  and  counter- 
though  the  fact  is  laid  different  ways 
lictment,  yet  it  is  upon  one  and  the 
^f  and  the  difference  consists  only  in 
»f  alleging  it. 

eotlemeu,  is  the  first  case  of  the  most 
lary  scene  of  forgery  that  hath  come 
unioation  in  this  place,  committed  in 
anoer,  and  attended  with  such  cir- 
ei ,  as  make  it  necessary  to  be  prose- 
b  the  greatest  weight  and  solemnity, 
imple  and  terror  to  others.  AW  kinds 
'  are  crimes  of  a  most  pernicious  oa- 
bey  tend  to  weaken  and  destroy  that 
commerce  which  ought  to  he  main- 
oDgst  men :  but  forgery  in  the  case 
able  notes,  which  have  a  particular 
giren  to  them  hy  act  of  parliament, 
priTate  credit  is  greatly  assistetl,  and 
ied  no,  is  one  of  the  most  dangerous  ; 
t  should  prevail,  the  consequences, 
ot  eiisy  to  be  foreseen,  would  certainly 
ive  and  destructive.  8uch  is  the  na- 
le  offence  whereof  the  prisoner  stands 
bot  howsoever  heinous  that  may  he, 
will  depend  entirely  u{>on  the  evidence 
i. 

men,  the  advantage  taken  to  commit 
ery  was  from  an  act  of  kindness  and 
one  to  the  defendant.  He  some  time 
tiled  with  one  Mr.  Booth,  book-keeper 
ibsoo,  to  accommodate  him  with  two 
r  letters  franked  by  Mr.  Gibson,  in 
be  pretended)  to  send  news  into  the 
a  practice  which  1  fear  is  too  com- 
t  1  hope  this  instance  will  have  some 
nake  it  less  frequent.  It  will  appear 
rom  several  circumstances,  that  the 
ucstiqn  was  made  on  one  of  these 
K,  gentlemen,  it  is  a  promissory  note, 
,  For  myself  and  partners,  lliomas 
The  body  of  the  note  ia  all  of  one 


A.D.  1728.  [166 

hand- writing,  not  pretended  to  be  Mr.  Gilison's* 
When  we  come  to  the  subscription,  there  is  a 
rasurc  at  the  end  of  the  word  *  for,'  which, 
upon  holding  the  peper  against  the  light  in 
plainly  to  be  seen.  The  HiannerofMr.  Gib- 
son's writing  being, pretty  wide  and  loMe,  tlie 
letter  o  in  the  word  *  for  appears  to  have  been 
crowded  between  the  other  two  letters  /  and 
r,  and  is  of  a  remarkably  different  cnarac* 
ter  and  fresher  ink  than  the  others.  From 
hence  the  manner  of  making  the  forgery  seeine 
to  have  been,  by  rasing  out  the  two  e's  at  the 
end  of  the  word  *  free,'  or  at  lea&t  the  greatest 
part  of  them,  and  inserting  an  o  in  the  manner 
1  have  mentioned,  and  then  ailding  in  the  same 
line,  aHer  this  word  thus  made  to  be  '  for,' 
these  other  words,  *  Myself  and  partners ;' 
which  standing  a  little  above  the  name,  Tho. 
Gil»son,  serve  as  a  proyier  suliscription  to  this 
note.  It  will  appear  likewise,  that  the  stroke 
at  the  beginning  of  the  m  in  the  word  '  my'  ia 
of  the  older  kind  oi  ink,  and  probably  was  at  first 
fiartof  one  of  thee's  in  the  word  '  free.'  There 
is  something  observable  in  the  figure  and  ap- 
pearance of  the  paper  itself:  the  ohl  foidingy 
which  is  most  worn,  answers  to  that  which  pro* 
bably  might  have  been  the  fold  of  a  cover  of  a 
letter,  and  the  pa|ier  is  torn  off  at  one  side  and 
at  the  top. 

This,  gentlemen,  being  the  nature  of  tlie 
writing,  and  the  manner  in  which  it  was  trans- 
formed from  the  direction  of  a  letter  to  a  iiote 
of  this  value,  we  shall,  in  the  next  place,  lar 
before  you  the  use  which  was  matle  of  it.  And, 
gentlemen,  tlie  time  pitched  upon  for  this  pur- 
pose will  lie  material  for  your  considerattoD. 
Mr.  Gib&oo  was  gone  to  Bath,  and  it  was 
ihougl.t  proper  to  date  the  note  the  day  U-fore 
he  went.  No  u^e  was  made  of  it  till  some  time 
afler  he  m  as  gone,  tliat  there  might  he  no  r<Him 
for  applying  to  tlie  p«  nnn  himself.  The  day, 
and  lime  oljhe  day,  which  were  choMru  to  out 
it  off,  were  Saturday  at  night ;  when  orobahty 
there  wou'd  lie  no  ^ipfiortumly  of  riiaain:;  in- 
qtiiries  till  tli«  Monday  m'^rniiig  loll  owing,  :ind 
consequently  a  wh'4e  d:iy  luigUi  be  gairK-d. 
This  being 'the  opiKirt'iiniy  r#'s#iKi'd  up«>n,  it 
will  appear  that  cu  Kaiarday  tlie  7ih  of  .Sep- 
tember, Mr.  lUle^  made  u**-  of  an  iii*i/uff»^fi% 
that  hath  confessed  himv-lt  vt  hat*- 1>«*  u  lin** 
in  hy  him,  one  Thomas  ICum*«'y,  a  w/»,'..r  ?•*>- 
low  bred  to  the  sea,  who  wa«  a»iv>l»n*'  y  u-.'i^r 
his  influence;  told  him  lie  mi; -t  fg'i  w.'  f  tint 
into  the  city,  bid  hiin  pnt  on  a  j.*-t.o.  »-  •**«' 
of  clothes.and  observing  th^t  In-  '.*i;  »  «-*■ 
hat  upon  his  head,  advised  him  "'  ^i*'^  *7'' 
behind  him,  and  gave  him  *  p4.-.  •<»-  ' 
make  him  appear  still  Morelk*-  ^  rjan  ••  ''•• 


ness,  Mr.    Hales,    as  th^    w^« 
Strand,  bought  biin  a  ifr^\^'  ^^ 
case.     Tlience  becaimt-:    .-*<**-'"" 
and  bought  him  a  dark  y-  *'l 
it  on,  and  said,  it  ^ 


•». 


equipped,  he 
in  8hire-laae; 
Bumsey  net 
employed,  • 


teok  hi*. 


■/i'X  * 


167]  S  GEORGE  11. 

Without  the  porter*!  sayioflT  one  word,  Hftles 
asked,  If  be  did  not  want  Ruqasey  P  The  por* 
ter  answered,  Yes ;  and  pmduoed  a  letter  di- 
rected to  Rumsey,  which  Mr.  Hales  took,  and 
readily  found  inclosed  in  it  tlris  note  for  6,400/. 
fmyalile  to  George  Watson  or  bearer.    In  the 
letter  were   two    names  written    with  sums 
aq[ain5;t  them  thus,  lady  Harriot  Elliot  4,S00/. 
8ir  John  Hyndc  Cotton  2,100/.  and  under- 
neath, *  payable  to  them  or  hearer.'    These 
names  only  being*  in  the  letter,  Mr.  Hales  took 
upon  him  to  order  Uurasey  to  write  under 
them,  <  James  Morcton,  esq.  or  bearer;*  and 
when  this  was  done,  that  part  of  the  letter  with 
the  names  was  torn  off,  and  nut  into  the  pocket- 
book  (which  bad  been  bou^i^ht  for  tlie  purpose), 
together  with  the  note  for  6,400/.  and  a  Bank- 
note of  20/.  and  two  of  S5/.  each.    Then  the 
|>ri8oner  gave  it  to  Nr.  Rumsey,  with  direc- 
tions to  carry  these  notes  to  the  shop  of  Mr. 
Snow  and  Poltock  without  Temple- bar,  and 
there  take  their  cash -note  payable  to  James 
Moreton,  esq.  or  bearer,  fur  70/.  the  produce  of 
the  Bank-notes ;  and  in  exchangfc  for  this  for^r- 
ed  note,  to  take  one  of  their  notes,  payable  to 
the  lady  Harriot  £lli()t,  or  l>earer,  (or  4,300/. 
and  another  to  sir  John   Hynde  Cotton    or 
bearer,  for  2,100/.    The  prisoner  gave  strict 
instructions  to  Rum^sey,  that,  if  at  Mr.  Snow's 
he  should  lie  asked  where  he  lived,  he  should 
answer,  at  the  upper  end  of  Bond-street;  if  he 
shouUI  he  asked  hij  name,  he  should  say,  Tho- 
mas Fowler,  or  any  other  name  besides  his 
true  name ;  thair  it  was  indifferent  what,  so  it 
was  not  the  right  name.    Rumsey,  thus  in- 
structed, went'  immediatfly  to  the  house'  of 
Mr.  Snow  and  Poltock,  which  Hales  took  care 
to  shew   him.      Mr.  Poltock  took  the  small 
Bank  notes,  and  gave  his  note  for  them  ;  hut 
olisoryinjr  the  appearance  of  the  note  for  6,^00/. 
that  it  was  written  on  a  dirty  scrap  of  pa|>or, 
and  the  difference  of  hand- writings  m  it,  would 
have  notbinof  to  do  with  that.    During  this 
time  Haleti  kept  at  a  little  distance  ;  and  Rum- 
sey relurninff  without  success,  he  directeil  him 
to  go  to  Mr.  Hoare's,  and  (as  he  had  csoncerted 
in  the  former  instance)  to  nay  in  a  small  sum 
of  money  not  exceeding  7o/.  and  take  their  note 
for  it,  and  to  (>xchauire  the  note  of  6,400/.  for 
their  notes.  The  names  of  the  persons  to  whom 
the  notes  were  to  be  made  payalilo  were  then  to 
bech;ui'3:ed ;  forthestrrtlni^eni  wns,to  make  use 
of  the  names  of  i^ersons  that  dealt  at  the  several 
shops,  in  order  to  gain  credit  to  the  transaction. 
Therefore  the  names  of  two  honourable  persons, 
wtl!  known  at  Mr.  Hearers,  wen*  pitched  npon; 
and  the  new  direction  which  the  pri.sonerpfare  to 
J^imsey  was,  to  take  one  of  Mr.  Hoare's  notes 
for  4,300/.  payable  to  Hir  Richard  Grosvenor  or 
bearer;  and  another  tor  2,100/.  pay  aide  to  sir 
John  Hynde  Cotton  or  bearer;    and  there  also 
if  he  was  asked  to  give  in  his  name,  Thomas 
Fowler.     When  it  was  near  dark,  Rumsey 
went  to  Mr.  Hoare V,  and  exactly  pursued  hit 
orders.    Thcv  made  him  oot  A  small  note  for 
the  casli,  and  gave  such  eredit  to  Mr.  Gihsont 
miBe,  as  to  fg;m  bim  Ibe  notes  bf  dtiired,  in  lies 


Trial  of  WiUiam  Hales, 


lu 


of  the  6,400/.  note :  all  wliich  Mr.  Riunt)^  A 
livered  immediately  to  Mr.  Hales,  wlio  ifMj 
for  bim  at  a  fruit-stall  not  far  from  the  sbnp. 

Gentlemen,  Nr.  Hales  beinf:^  now  poiieM 
of  three  notes  of  Mr.  Hoare's,  one  fbr-fOl 
another  for  8,100/.  and  a  third  for  4,S0Of.lbi 
next  part  of  his  scheme  was  to  neffooiataMi 
exchange  them  for  other  notes  from  Mfei 
to  hand,  in  order  to  entangle  the  aflfairkUd 
make  it  difficult  to  trace  out  the  cheat :  Ibem 
fore  liis  next  orders  to  Rumsey  were,  t6anf 
the  note  for  4,300/.  payable  to  sir  Rfrfaai 
Grcsvenor  or  bearer,  to  5lr.  Brassey 's  spd  flp 
changfe  it  for  smaller  notes.  RunnseJ^  ml 
thither  that  night,  and  took  four  smaller  MM 
of  Mr.  Brassey's,  in  lieu  of  Mr.  UoaraVw 
two  of  1,000/.  each,  one  of  1,200/.  and  ifi- 
ther  of  J, 100/.  But  though  these  notes  4 
Mr.  Brassey's  were  given  out  on  feSativdqf 
Sept.  7th  at  night,  they  were  made  to  hM 
date  on  Mouda^r  the  9tb;  because,  h  brfjg 
late  in  the  evening,  the  cash-book  was  mm 
up  for  that  day.  These  four  new  notes  Mr 
Rumsey  delivered  to  Mr.  Hales,  who  wailnl 
for  him  again  at  a  very  small  distanoe  fipsii 
Mr.  Brassey's -shop.  • 

The  next  part  of  the  scheme  was  to  chasp 
these  notes  into  negocialde  securities  eqnil  ll 
cash,  in  which  there  was  probably  a  dsdUl 
view  ;  partly  to  intricate  the  affair  still  ftitMi 
and  partly  for  the  greater  convenience  of  pa^ 
rying  off  the  fruits  of  their  iniquity,  wbfi 
that  should  become  necessary:   therefora  IM 

Itrisoner  sent  Rumsey  to  Mr.  John  Hah^  ■ 
iroker  in  Exchange- alley,  and  directed  liisili 
acquaint  him,  that  he  came  from  Mr.  SsMpI 
Palmer,  in  Mansel-street,  Goodnian*s-fisNb| 
with  orders  to  buy  South-Sea  and  India  bsiii 
to  the  value  of  3,400/.  against  Monday  mocBi 
ing  following. 

Thus  the  matter  rested  till  Monday  tho  OH 
of  Sci»tember :  but  on  the  Sunday  the  prisoom 
was  liot  wanting  in  making  his  preparatioosi 
He  then  appointed  one  Roliert  Hall,  his  tayisi^ 
to  meet  him  at  Lloyd's  coffee- hoube  in  Lea- 
bard-street,  at  eiuht  o'clock  the  next  momiag, 
without  leitint;  him  into  the  secret  of  what  M 
was  to  i\o.  Hall  went  accordinsrly,  ami  tbcff 
foimd  one  Samuel  Lee  waiting  for  Mr.  Hales  | 
nn  instrument  made  use  of  by  the  prisoner  ifl 
another  transaction,  which  wdl  one  day  appcil 
as  rank  a  forgery  as  this.  About  niue  Halsi 
came,  and  p;ave  to  Hall  Mr.  Brassey's  note 
fur  1,200/.  directing  him  at  the  i^ametime  Iq 
go  and  receive  050/.  in  guineas,  and  have  k 
indorseil  off.  He  told  Hall,  that  if  he  was 
asked,  he  should  tell  them  he  lived  in  the 
Hav-market,  or  any  where  else  except  tbs 
reaf  place  of  his  dwelling,  and  that  his  uams 
was  John  Roberts.  So  here  is  anniher  shan 
name  and  place  of  abode.  He  obeyed  thess 
orders,  received  the  money,  nut  in  gold,  but  m 
three  Bank-notes;  and  when  the  persons  io 
Mr.  Brassey's  shop  enquired  his  name,  bo 
told  them  John  Roberts.  Whilst  Hall  was  m 
tbo  shop,  he  observed  that  Mr.  Hakes  waUnd 
by;  00  joiloas  was  be  of  bis  agents,  t»r  il 


for  a  Misdemeanor. 

vifilaat  to  see  how  things  succeeded, 
stif  ered  the  Baok-notes,  together  with 
iHev*s  note,  on  which  the  650/.  was 
I  ofll,  At  Ltoyd'g  cofTee-honte ;  and  af- 
•  met  him  again  at  Ja  new  ay's  cofTee- 
Ib  ComhUI.  There  llales  retarned 
mk- notes  to  Hall,  and  ordered  him  to 
m  Bank,  and  tltere  recei?e  the  money 
mi  in  goM.  Mr.  Hales  was  still  so 
or  iflBpatient,  that  whilst  Hall  was  at 
ik  icoeiving  tlie  moneyt  he  took  occa- 
BMDe  in  there  a|>oo  pretence  of  cHane* 
;wiea,  and  taking  no  notice  of  Hall, 
my ;  after  which  Hall  went  with  Itim 
rerot  and  paid  him  the  G!>0/.  which  he 
I  at  tb«  Bank. 

emen,  thus  far  the  design  succeeded 
9ere  are  several  good  notes  obtained, 
»e  cash  got,  without  discovery:  but 
ision  of  that  will  arise  out  of  the  part 
ftmuey  was  to  act  on  the  Monday 


A.D.  1728. 


[170 


ly  yon  obsenre  there  are  two  notes 
Iloare's  behind,  whereof  no  accmint 
B  yet  g^iven,  viz.  that  of  70/.  and  that 
I/,  payable  to  sir  John  Hymie  Cotton, 
f  nrfaich  Mr.  Rumscy  was  employed. 
appear,  tliat  Mr.  Hales  krpt  Rumscy 
Jlj  with  him,  and  lodged  him  in  his 
I  Saturday  and  Sunday  ;  and  on  Mon* 
nnngt  when  he  went  into  the  city, 
Rurosey  with  him,  took  care  to  shew 
'.  Alderman  llankey's  shop,  and  dt- 
lim  to  exchange  tfiese  two  notes  for 
d  2,100/.  for  Mr.  Hankey's  notes. 
'  went  to  the  shop,  and  they  iiaving  no 
f  about  exchanging  Mr.  Ht^arc's  notes, 
I  ti.em,  and  gave  him  two  of  thnr  own, 
1,100/.  and  another  for  1,050/.  both 
to  ^iainuel  Pahncr  or  bearer ;  and  the 
ig  QOl.  was  paid  in  money.     As  to  tlie 

1,100/.  the  whole  was  rcceiveil  upon 
Ir.  Aulerman  Hankey's  the  same  day, 
•vtn  wiio  called  himself  Samuel  Lane, 
einen,  the  next  part  of  the  transaction 
to  tlie  South  Sea  and  India  bonds  for 
ivhicli  hail  been  ordered  to  be  procured 
s  the  broker.  On  Monday  mornint>^ 
-  received  the  money  of  Mr.  Hales, 
eclions  to  carry  it  to  ilaU,  and  pay  fur 
nnusi.      WliiUt  Uuiuiiey  was  gone  to 

this,  it  appears  that  Mr.  Hales  was 
is  occasion  also  uneasy  aiirl  impntient, 

Idiriisey  st.Lye<l  too  long,  and  sent  a 
or  hi'ii  to  Huls's  ottice,  by  the  name 
mas  Fowler ;  and  that  Uumsey  an- 
to  that  name,  and  went  along  with  the 

emen,  we  shall  next  produce  to  you 
not  made  U[t  by  Mr.  Hals  or  Mr.  (-oie 
ler,  which  will  appear  to  have  licen 
ut  in  these  feij;;ued  names,  Samuel 
esq.  per  Thomas  Fowkr;  whereas 
I  persons  had  any  thing  to  do  in  the 
ion,  bnt  the  whole  was  negociated  by 
■d  Ramsey.  Aud  it  will  oe  proved, 
eaever  the  privouer  sent  Rumsey  apou 


any  of  these  errands,  be  considered  the  quca- 
tions  which  were  likely  to  be  asked,  and  gave 
him  instructions  how  to  make  proper  answers, 
and  some  of  them  in  writing. 

While  these  things  were  transacting,  the 
accident  happened  that  led  to  the  disoovery. 
About  eleven  o'clock  on  Monday  morning,  Mr. 
Humphreys,  a  servautof  Mr.  Hoareandhia 
partners,  who  carries  out  notes  and  receivee 
money  abroad,  carried  the  note  for  6,400/.  to 
Mr.  Gibson's,  and,  Mr.  Phillips  the  cash- 
keeper  being  abroad,  left  it  with  Mr.  Cram* 
lington,  another  of  the  servants,  with  directiona 
to  pay  the  money  upon  it  to  Mr.  Bromfield  at 
the  Bank,  who  was  to  place  it  to  Mr.  Hoare*« 
account.  When  Mr.. Phillips  came  home,  ba 
was  surprised  to  find  such  a  note  with  Mr. 
Gibson's  hand  to  it ;  the  note  not  of  his  own 
writing,  thouffh  it  is  always  his  practice  to  write 
the  body  of  his  notes  as  well  as  the  subscrip- 
,tion.  And  no  notice  having  been  S[iven  of  it 
by  Mr.  Gikson,  upon  this  be  conceived  a  sus- 
picion, and  resolved  not  to  pay  it  till  be  bad 
lirst  spoke  to  Mr.  Jacoinb.  The  note  was 
shewn  tf>  Mr.  Jacomb,  who,  upon  finding  out 
the  rasure,  and  observing  the  other  circum* 
stances  which  I  at  first  mentioned  to  yon,  im- 
mediately  suspected  it  to  be  a  forgery,  and  took 
methods  for  the  discovery.  He  found  out,  that 
one  of  Mr.  Htare's  notes  had  been  exchanged 
for  Bank-notes,  and  traced  out  the  numbers; 
upon  which  notice  was  immediately  giveu  at 
the  Bank,  that  if  any  of  those  notes  were 
brought  for  payment,  they  should  be  i^topped, 
and  the  person  secured.  It  happened  soon  af- 
ter this,  that  Mr.  Hales  desiguing  to  get  tbe 
remainder  of  the  effects  into  his  pocket,  carried 
Rumsey  within  sight  of  the  Bank,  (who  was  so 
ib^norant  a  person,  that  he  asked  him  whether 
it  u  as  a  church)  and  directeil  Uumsey  to  re* 
ceive  money  then' on  two  Ijank- notes,  each  for 
'^00/.  part  of  the  Bank-notes  L^iven  out  by  Mr. 
Brassey  ;  and  theiv  upou  the  omeers  of  the  Bank 
stopped  Uunis'^y,  and  enquired  into  the  matter. 
Mr.  Ramsey  uus  first  interrogated  how  lie 
came  by  tliese  notes ;  and  atler  much  hcsita-' 
tion  and  dithculty,  at  last  said,  he  had  them 
from  a  gentleman  that  stayed  for  him  at  Robin's 
coAee- house  in  the  Old  Jewry.  Upon  this 
they  sent  a  constable,  and  found  Mr.  Hales 
there,  having  in  his  hand  Air.  Brassey 'a  uote 
for  1,100/.  This  note  he  endeavoured  to  con- 
ceal, but  was  prevented.  They  brought  him 
to  thfr  i  ank,and  upon  search  found  about  him 
the  %cry  effects  which  were  the  whole  produce 
of  Mr.  Hoare's  three  notes,  except  about  tlie 
sum  of  which  was  wanting.     He  was 

asked,  how  lie  came  by  them,  and  by  the  note 
siirned  with  Mr.  Gilisou's  name,  payable  to 
Watson,  with  which  he  procured  them.  The 
account  he  gave  was,  that  he  had  them  from 
one  Mr.  Sanuiel  Palmer :  but  he  there  declared^ 
that  all  the  eflects  that  he  had  about  him  were 
the  produce  of  this  note,  and  wrote  down  in  a 
paper  how  he  had  disnoM>d  of  the  rest. 

Ge^.tlemen,  this  will  appear  to  you  to  be  tbe 
nature  of  tbe  case  i  and  upon  this  Mr.  llales 


171]  2  GEORGE  II. 

was  committed,  and  Rumsey  secured.  And, 
ffentleroen,  I  apprehend,  tliat,  though  this  be  a 
hmt:  series  of  facts,  yet  it  will  amount  to  a  clear 
eTidence  against  the  prisoner.  No  reasonable 
man  can  expect  proof  to  be  made  of  the  Tery 
act  of  forgery.  Such  iniquities  are  deeds  of 
darkness,  and  those  who  commit  them  do  not 
call  witnesses  to  attest  the  performance :  but 
next  to  that  we  have  the  strongest  evidence. 
What  arises  out  of  the  note  itself  is  of  great 
weight :  the  circumstance  of  the  rasnre  and 
alterations,  which  1  will  not  repeat :  the  body 
•f  the  note  not  of  Mr.  Gibson's  writing,  whereas 
it  is  his  constant  practice  to  write  the  whole 
note  with  his  own  hand,  and  that  too  in  a  dif> 
ferent  form  of  expression  from  the  present  note : 
there  is  no  person  of  the  name  of  George  Wat- 
son, with  whom  he  hath  any  dealing.  An- 
other circumstance  material  to  be  taKen  into 
consideration  is  the  immediate  exchanging  all 
these  efRfcts,  without  any  apparent  occasion. 
One  banker's  note  exchanged  for  another,  Mr. 
Hoare's,  Mr.  alderman  Hankey's,  Mr.  Bras- 
sev's — all  of  them  persons  of  i;reat  credit — 
'\Vhat  account  can  be  given,  witliout  any  rea- 
son appearing,  why  one  of  these  gentlemen's 
notes  sliould  He  exchanged  for  another,  but  to 
darken  and  intricate  the  affair  P 

Add  to  this  the  considen&tion  of  the  persons 
concerned :  Mr.  Hales,  a  bankrupt  not  dis- 
charged, employing  such  agents  as  1  have  de- 
scribed to  you  ;  himself  lurking  about  in  a  con- 
cealed manner ;  all  these  circumstances  shew 
the  man  was  doing  a  wicked  thing,  which 
would  not  bear  the  light,  nor  his  appearing  in 
it.  But  what  amounts  to  a  demonstration, 
is  his  directing  these  agents  to  take  upon  them 
feigned  names  and  places,  to  dress  themselves 
in  masquerade,  and  to  take  notes  in  the  names 
of  other  persons,  who  were  absolute  strangers 
to  the  transaction. 

As  this  is  evidence  of  the  prisoner's  publish- 
ing a  fenced  note  knowingly,  it  is  evidence 
likewise  that  he  forged  it :  &r,  if  a  person  huth 
a  forged  note  in  his  custody,  and  takcth  such  . 
methods  to  put  it  off  and  give  it  a  currency,  it  [ 
is  a  strooff  proof  against  him  of  the  forgery  it-  ; 
self;   and  properly  turns  it  upon  the  defendant  i 
to  give  a  clear  account  h<»w  he  received  it,  upon  ! 
what  consideration,  and  in  what  way  of  busi-  | 
ness ;  more  especially  in  this  ca^e,  where  the 
note  is  for  so  great  a  sum  of  money,  that  no- 
body can  pretend  to  be  at  a  loss  or  under  any  , 
difficultv  to  shew  how  they  came  by  it. 

Gentlemen,  when  the  witnesses  shall  have 
given  you  an  account  of  these  things  upon  their 
oatlis,  I  apprehend  there  can  remain  no  doubt 
but  the  charge  of  forgery  against  the  prisoner  ; 
is  just,  and  thu  prosecution  necessary. 

Call  Philip  Booth.    [Who  was  sworn.] 

Solicitor  General,  (Hon.  Mr.  Talbot,)  Mr. 
Booth,  do  yon  know  the  prisoner  at  the  bar, 
Mr.  Hales  r — Booth.  Yes,  Sir,  I  do  know  him. 

Sol.  Gen.  How  long  haTe  you  been  ac- 
quainted with  him  ? 

Booth.  Ercr  since  the  year  1709. 


Trial  of  WiUiam  Hales, 


[17i 


SoL  Gen.  Can  you  remember  the  time— bow 
was  he  brought  up  at  that  timeP 

Booth.  I  remember  him  at  the  shop  of  sir 
Stephen  Evance  several  years  before  thw 
failure. 

SoL  Gen.  Do  you  remember  any  thing  of  t 
franked  letter  ? 

Booth.  About  a  year  and  a  half  ago  be  eisi 
to  me,  desiring  me  (Mr.  Gibson  being  a  men* 
her  of  parliament,  and  his  other  friends  out  if 
town),  that  I  would  do  him  the  favour  to  give 
him  two  franks.  He  brought  two  sheets  ti 
paper;  I  desired  Mr.  Gibson  to  frank  tboii 
who  wrote  on  them,  To  Robert  Booth,  o^ 
Bristol.     Free  Tho.  Gibson. 

Sol.  Gen.  How  did  he  write  his  name  P 

Booth.  Tho.  Gibson. 

Sol.  Gen.  What  did  you  do  with  them  P 

Booth.  I  gave  them  to  Mr.  WiUiam  Halc& 

Sol.  Gen.  Sir,  look  on  that  note.  Are  tm 
acquainted  with  the  hand  of  Mr.  Gibson  P  ISee 
whether  you  take  any  part  of  the  note  to  beef 
his  hand-writing  ? — ^Booth,  The  name  is  his. 

Sol.  Gen.  Is  there  any  other  part  of  the  noil 
which  vou  take  to  be  his  hand-  writing  ? 

Booth,  The  F I  take  to  be  part  of  the  wori 
<  Free'— the  F 1  take  to  be  Mr.  Gibson's  band- 
writing. 

Sol.  Gen.  What  is  the  r  ?  Look  carefully 
upon  it. 

Booth.  The  r  may  be  Mr.  Gibson's ;  bat  the 
0  seemeth  to  be  crowded  in  between  the  JPni 
ther. 

Sol.  Gen.  Do  they  seem  to  be  of  the  WM 
hand,  or  of  a  different  one? 

Booth.  Crowded  in  irregularly. 

Sol.  Gen.  Are  they  of  the  same  ink  P 

Booth.  I  take  them  to  be  of  a  different  ink. 
The  r  is  his  letter;  but  I  take  it  there  is  boom 
alteration :  here  is  a  plain  rasure,  where  the 
letters  *  my'  are  written. 

Sol,  Gen.  What  distance  from  the  rP 

Booth.  The  rasure  is  probably  where  the 
two  c's  stood. 

Sol.  Gen.  The  *  mv,'and  the  word  following, 
do  vou  take  them  to  be  Mr.  Gibson's  writing? 

booth.  No,  Sir. 

Sol.  Gen.  Take  notice  of  the  fold. 

Booth.  This  seems  to  be  the  fold  of  a  letter. 

Sol.  Gen.  If  you  take  that  to  be  the  fold  of  a 
letter ;  Is  that  the  usual  place  for  the  folding 
of  a  letter? 

Booth.  There  must  be  some  alteration  on  the 
left-hand  corner. 

Sol.  Gen.  Make  your  own  oliservations. 
Look  on  the  top  of  it ;  doth  that  seem  the  fold 
of  the  paper  as  at  first,  or  cut  or  torn  off  from 
any  other  paper  ? 

"booth.  I  believe  it  is  not  the  original  fold  of 
the  paper  as  it  is  now. 

Sol.  Gen.  Look  on  that  side  next  me ;  doth 
it  seem  cut  or  torn  off? 

Booth.  Yes,  it  is  not  the  original  selvedge  of 
the  paper. 

Sol.  Gen.  Is  the  original  selvedffe  of  the 
paper  in  any  other  part?  Is  it  cut  imi  or  tiM 
original  fdredgcP 


.  n.  ii«»- 


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■  fid  roiiiiitoii  iiiiiiiii*ii   111 


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175]  2  GEORGE  II. 

Soi.  Oen.  I  ask  one  qaestion  more ;  did  Mr. 
Gibson  e?er  give  franks,  witbout  writing  bins- 
■etf  the  superscription  ? 

Booth.    I  know  not  but  that  sometimes  he 


Mr.  Strange,  I  desire  he  may  fold  Ktbus,(pro- 
4meing  a  sheet  of  paper  whieli  he  bad  folded.) 
This  half  sheet  as  large  as  yuu  can: — Soppose 
yov  see  where  the  name  Thomas  Gibson  is 
wrote,  I  enquire  whether,  when  the  direction 
iras  o?er  it,  there  was  room  to  tear  off  soch  a 
paper  as  this,  (shewing  the  note)  and  hare  none 
of  the  direction?  You  see  the  distance  from 
Free  Thomas  Gibson  to  the  top  of  the  paper; 
was  the  (biding  so  large,  that  there  might  be 
the  direction  torn  offhand  jet  this  (the  note) 
remain? 

Booth,  Am  I  remember,  it  was  a  rerj  larcre 
sheet  of  paper,  and  ?erj  largely  fblded.  This 
I  remember  the  more  particularly,  because 
Mr.  Hales  hath  endeaTonred  the  same  thing 
•ince,  and  I  have  some  of  them  by  me.  I  be- 
tiere  the  paper  was  large  enough  that  there 
might  be  the  direction  torn  off. 

Sol,  Oen,  Pray,  will  you  k)ok  where  Mr. 
Gibson's  name  is  wrote,  and  tell  me  whether 
jou  apprehend  that  end  is  torn  or  cot  T 

Booth.  This  was  the  torn  end,  and  the  other 
answers  exactly. 

Mr.  Robert  Booth  called  and  sworn. 

AU,  Gen,  Sir,  hare  you  ewer  had  any  letter 
kj  tlie  post  from  Mr.  William  Bales? 

B.  Booth.  No,  Sir ;  I  nerer  bad  any  letter 
from  him  by  the  general  post. 

4tt,  Gen.  Can  you  recollect  that  yon  erer 
bad  a  letter  from  any  body,  franked  with  the 
name  of  Thomas  Gilison  ? 

K.  Booth,  1  never  had,  I  am  positively  sure 
•fthat.  ^ 

Att,  Gen,  Do  you  live  at  Bristol  ? 

fi.  Booth.  Yes*  Sir. 

Att,  Gen,  Do  you  know  of  any  other  per- 
son there  of  your  name? 

R,  Booth.  None  at  all. 

Att.  Gen.  Pray,  had  you  ever  any  letter 
from  Kr.  Hales,  either  franked  or  otherwise? 

R,  Booth,  No,  nor  ever  any  correspondence 
with  him. 

TTumuu  Rumtey  called  and  s«vom. 

The  Note  proposed  to  be  read,  and  read  ac- 
cordingly. 

"  Augusl  97, 1738. 
**  I  promise  to  pay  to  George  Watson,  esq. 
er  kearer,  the  sum  of'  six  tJiousaod  Ibifr  luin- 
tiscd  poiMidsi  at  demand,  the  tike  Talus  re- 
cs^ved.    For  myself  and  partnecs, 

"  Tho.  Gubsom.*' 

''  «£.  6,400 


Then  the  Note  was  banded  about  smongst 
Aeiwy. 

Att.  Gen.  Now,  mitlemen,  it  is  proper  Ibr 
ymt  lotake  noliee  of  9ie  obser?  ations  thst  bm?  e 
»»sa  asaiekj  the  whiiissis  vpdii  the  lypstr- 


Trid  of  WUliam  Hales, 

ance  and  ?iew  of  the  note,  the  sixe  and 
of  the  pa|>er,  tlie  rasore,  the  differenc*! 
ink,  the  letter  o  in  the  word  *  For,'  ; 
other  letters.  I  desire  that  you  will  hx 
and  judge  whether  the  side  of  the  pap 
to  the  name  halli  been  lorn  off  from  sot 
else,  or  is  as  it  was  originally.  We  i 
the  next  place,  shew  the  use  that  iras  i 
thisnote.— — Mr.  RumseT,  do  you  ko 
defenilaot,  William  Hales  r 

Rurnsfy.    Yrs,  Sir. 

Att,  Gen.  How  long  have  you  know 

Rumuy.  1  knew  him  above  a  twelve 
agone. 

Att.  Gen.    Did  you  see  him  at  all 
temher  last  ?— JlamMy.  Yes,  Sir. 

Att,  Gen,  What  trade  or  business  i 
of  yourself? 

jRifmsey.  I  have  been  at  sea  ever  si; 
years  of  age,  except  when  in  harbour. 

Att,  Gen.  Well,  Sir.;  What  time  n 
Sefvtember  that  you  saw  Mr.  Hales,  ani 
business  did  he  employ  yon  in  ? 

Rumw,  I  saw  him  every  day. 

Att,  Oen,  Did  you  see  him  Septem 
7th?— Hamiey.  Yes,  Sir. 

Att.  Gen.    What  day  of  the  week  wa 

Runuey.  Satnrday. 

Att.  Gen,    What  did  he  say  fo  you  ? 

Rumtetf,  He  bid  me  go  into  the  city, 
dress  me  in  tliese  clothes. 

Att,  Gen,  What  okttbes  had  you  on  I 

Runuey,    A  lightish-coloured  coat, 
red  waisiooat  and  oreeches. 

Ait,  Oen,  Did  be  say  any  thing  aboi 
bat? 

Rumtey,    When  he  spoke  to  me  to 
the  city  with  him,  I  had  then  a  laced  hi 
new  hat,  with  a  broad  open  lace. 

Att,  Gen,  What  did  he  say  to  yon  ab 

Rumtey,  He  told  me,  he  had  re 
should  wear  a  plain  one,  and  asked  if 
one :  I  told  him,  No :  be  then  desired 
take  his  own. 

Att,  Gen.    What  time  of  the  day  wa 

Rumtey,  About  four  or  five  in  the  afti 
as  near  as  I  can  guess.    • 

Att,  Gen,  Did  he  tell  you  on  what  fc 
you  were  to  go  into  the  city  ? 

Rutnsey,  No,  Sir. 

Att,  Uen.   Whence  did  you  set  out  P 

Rumsey,    From  his  own  bouse  in 
street,  Westminster. 

Att,  Gen,   When  you  came  into  the 
did  you  do  any  thing  there  ? 

Rumsey.    He  went  into  a  shop,  and 
me  a  pocket  book.     [Produces  the  j 
book.] 

Att.  Gen,  Let  us  see  it.  When  y 
bouglit  that,  where  did  you  go  afierwai 

Runuey,  To  Holborn,  to  a  place  whe 
sell  perukes. 

Alt.  Gen,  Was  it  Middle  Row  ? 

Runuey,  I  believe  it  might  be ;  but ' 
was  there  before. 

Att,  Gen,  Did  he  Idl  yoo  be  woild  ] 
joa  wilk  one  ?— Ruiaify.  Yes,  8jr« 
4 


Jot  a  Mitdemeanor. 

IBh.  Wlikt  sor  of  one  was  it  f 

a      I  bnve  it  ID  my  pocket.    fPulls 
-cnloutrd  perake.l 
Gn.    Fut  it  uD  i  I  do  not  obsecre  that 
V  d«w  a  dark  peruke.    Diil  yuu  use  lo 

M.     No,  Sir. 

.  Cm.    \V  tut  peruke  had  you  oa  before, 

l*a»(li!  vuu  ctiBU^;!^  it  f 

m».    I'hia,  Sir,  tiiat  I  bare  here.    [A 

gtlMrad  ptruke,] 

,  6<H.  After  be  had  SHetl  you  wilU  a  pe- 

rtUier  did  lie  carry  ynu  ? 

Mt^    T«  Joka'B  culfee-hauKin  Sfaire- 

m  dk)  Mai  tell  roe  whitlier  we  wer«  go- 
irl«r«bat. 

Or».    Wtaftl  ka|ipeoed  liicre  ? 
HBf.    We  went  iam  ■  back  room,  and 
kattd  ink  liruught  us.     Immediately  a 

Cn.  Did  the  porter  speak  lo  you  ? 
Hnr.     No;    lieaibed  (he  porter,  ir  lie 
Im?    Ueuid,    Ye«.     The  porter  pro- 
■  ItUer  VtirecteJ  to  me,  aiid  ke  bid  lue 

Co.  What  did  you  find  !n  i(  ? 
-y.     I  I'ooud  a  Dole  fur  0,400'.  payable 
*  WataoD,  eiq.  or  bearer. 

LAuk  on  that ;   tell  us  wlielber 
_'.  U  lobe  the  note? 
^  Yea,  Sir ;    I  taku  that  lo  be  the 
R  (lie  bMt  of  a>y  knowledge. 

What  else  did  you  find  in  Ihe 

[  I   Foand  writlen,  ■'  Lady  liarnot 
'-  air  JolinlfyiideCiitlon3,100;. 

^iVliere  wax  it  written  ? 
ntkebodyol'lbeleuer. 
Was  there  any  thing  written  to 

I  remember  only  these 

i  Cm.    What  did  he  order  tou  to  write 

mg.  "  Jaum  Moreton,  or  bearer." 

r  Oim.     Ai\er  he  bad  bid  you  write  this 

what  illil  be  do  with  ihe  paper  ? 

tftjf.  Tore  ihew  names  off. 

.  GtM-    What  dill  be  do  with  the  rest  of 

tmt—Rm<*ty.  I  know  noi. 

lOtm.  WhoihehadlornnlTthesenaniea, 

•rwkk  ohai  you  had  adileil,  what  did 

mji'  lleptUHiD  the  pocket-book,  with 
Ir  U  0,400/.  and  a  40/.  uoIb  and  two 
MeL  Ha  lh«u  ordered  me  lo  ^o  to  Mr. 
Mrf  Mtock'a  »hnp,  lo  g;ive  tbem  the  -lOl. 
Hi  tb*  two  othiT  notei,  and  to  take  their 
lanbW  lo  JamcB  Mareton,  or  bearer. 
Gra.     For  what  auru  ? 


m,  Itn*  to  tdl  thcmlbatheliredatthe 
■H  tf  &<nd>«treet ;  but  I  nerer  knew 
~  '  ad  me  to  il««irti  for  the  6,400/. 
■  At  *^iOOi<  y»>>bl«  lu  lady 


A.  D.  1728. 


on 


Harriot  Elliolt,  and  9,IOOI.  payable  la  lir  Jobiu 
Hynde  Cottou,  or  bearer.  ,L 

All.  Cai.  What  furtberdirectioDS  did  ii«g 
give  you  ? 

Kumtet/.     If  my  name  was  asked,  be  bid  mi\ 
lay  that  it  was  Tboma-f  Fowltr,  or  any  otherjj 
it  was  an  initiffereni  tbioj,',  and  I  mignt  n      . 
use  of  any  name  but  my  own.    He  had  be«t  ] 
so  »ery  kind  to  me,  and  I  had  so  gDod  »i 
nion  tliBt  he  designed  no  ill,  that  1  readily  iJ 
as  he  ordered  me. 

AU,   Gen,     After  he   had   given  you  1 
pocket-book  with  these  notes  and  iosiruction^  J 
wbitber  did  von  go? 

Runucu.    To  Mr.  Snow  and  Pollock's. 

Atl.Cltn.   Wbitber  did  Mr.  Hales  go  ? 

Ruriaey.  A  liitle  way  to  shew  me  the  houw^^ 

Alt .  Oat.    WbRt  happened  ut  ibis  sbop  i 

Ruinuu,  I  asked  for  ibeir  note  for  the  sma^ 
notes,  wliich  they  readily  gave  me.     1  ^''^Bj 
produced   llie  other   note,    and   desired  thnTa^ 
notes  i   the  gentleman  said,  he  did  no 
accept  it,  because  it  waanolallof  Slr.Gibaon't.J 
own  h  and- w riling. 

Att.Ccn.  Didhe  mention  any  other  re 

Rumicy.   1  remember  not. 

Atl.Gm.    Dill  be  ask  your  name  ? 

Aumcy.  I  think  he  did,  and  I  told  him  Tbo-^ 

Att,  Gtn.  Did  any  thing  further  happes  1 
there  ? — Rumiei/,  No,  Sir. 

Att.Oen.   What  did  you  do  then  ? 

Ramsey.  I  went  back  ;  Mr.  Hales  met  n 
a  little  way  off,  on  that  sideof  Temple-bar  nej 
tbe  shop. 

All.  Gen,  Had  be  appointed  to  meet  yoivJ 
there? — Rttnary.  No,  8ir,  j 

Alt. Gen.    VVasit  within  TiewoftbeshopF  1 

Rumtfy.  Yes,  Sir. 

All.  Gen.    What  did  you  say  to  lii 
you  enme  back  ? 

Rumaci/.  He  Baked  me  what  I  had  got,  aoj^ 
1  told  bim  ;  then  we  went  back  to  John's  cof^V 
fee-huuse,  where  I  Ka«ehim  the  note;  helheoT 
bid  me  write, air  Richard  GtosTcnor,  instead  oC J 
lady  Harriot  Elliott. 

.il((.  Gen.  On  ihesamepaper.or  anotherF  ; 

Rumsev.   1  cannot  say. 

All.  Gen.     Did  be  bid  you  strike 
name.  "Lady  Harriot  Elliott  ?" 

Runisn.     No  ;  but  write  on  a  plain  paper,  J 
"To  sir  Richard  Orosvenur  4.300/.  Tn!"    ' 
Hynde  Cotton   3,100/.  pay^ible   lo  tlicm   or|| 

Alt.  Gen.  A^er  ibia,  what  further  directioia  ~] 
did  hegiTeyou  ? 

Ituiiiset/.  HeorderedmetogotoMr.  Boare^J 
in  Fleet-street ;  be  went  opposite  to  tbe  shop,  J 
and  shewed  me  ibe  sbop.  J 

Alt.  Gea.  What  time  of  the  aRemoon  wU^ 
it? — Rumtty.  A  little  before  it  was  dark. 

Att.Gen.  What  o'clock? 

Rumiey.  Half  an  hour  or  three  ((uarlers 
fore  it  was  dark. 

Alt.  Gea.    What  instructions  did  be  gita 
you  la  observe  at  that  sbop  ? 

Rumtey.  To  retxive  fur  ihia  nola  their  uatM 

^  A 


179]  2  GEORGE  11. 

for  4,300/.  to  sir  Richard  GroB?eiior,  and  2,100/L 
to  sir  John  Hynde  CottOD,  payable  to  them  or 
to  the  bearers. 

Att,  Ccn,  Did  he  give  yoa  directioils  about 
taking  any  other  note  ? 

Rumsey,  I  have  a  notion  of  some  other  note, 
but  I  cannot  say  positively  what  it  was,  but  it 
did  not  exceed  70/. 

Att,  Gen.  Did  he  gire  yoa  any  thing  In 
notes  or  cash  P 

Runuey.  Much  the  same  as  before. 

Att.  Gen.  You  say  you  had  a  note  fironH 
Mr.  Poltock;  did  S(r.  Hales  return  that  to 
you? 

Rutnsey.  I  cannot  say  positifely ;  but  it  was 
that,  or  some  other  notes,  not  exceedini;  70^ 

Att.  Gen,  Did  he  give  you  any  directions 
as  to  your  own  name  ? 

Rumsey,  The  same  as  before,  Thomas 
Fowler. 

Att.  Gen,  When  yon  went  to  this  shop, 
what  peruke  haid  you  on  ? 

Rumtey.  The  dark  one,  and  the  other  ilk  my 
pocket 

^Att,  Gen,  What  passed  at  Mr,  Hoare's 
BnopP 

Rumscy.  I  received  their  ngtes,  one  fbr 
4,300/.  payable  to  sir  Richard  GrosTcnor  Or 
bearer,  the  other  for  S.lOOl.  payable  to  i^ 
John  Hyndc  Cotton  or  liearer. 

•Att.  Geri.  What  did\oo  give  for  them  P 

Rumsev.  The  note  of  6,400/. 

Att,  Oen.  What  fbr  the  smaller  noteP 

BMtM€u.  I  cannot  tell. 

Att,  Gen,    For  what  sum  wa»  that  f 

Rumtey,  1  remember  not,  but  it  did  not  ex- 
ceed 70/. 

Att,  Gen,   Where  did  you  find  Mr.  Hales? 

Rumsfy.  He  told  me  be  would  wait  for  me 
at  a  fruil- stall  at  the  end  of  a  court  about  six 
doors  further.  1  went  thilhcr,  and  delivered 
the  notes. 

Att,  Gen,  Did  yon  deliver  him  the  notes  at 
the  fruit- sUll  ? 

Rumsey.  1  cannot  be  positive  whether  there, 
or  nt  the  coffee-house. 

Att,  Gen.  Do  you  know  the  court  where 
the  fruit-stall  wasr  Was  it  Mitre-conrt? 

Rumtey.  i  know  not,  not  being  acquainted 
Vfhh  the  town. 

Att.  Gen,  How  far  from  Mr.  Hoare's  ? 

Rumt^,  About  six  doors. 

Att,  Gen,  When  you  gave  him  the  notes, 
did  yoa  deliter  them  with  the  pocket-book,  or 
without? — Rumtey.  Pocket-book  and  all. 

Att,  Gen,  Where  did  you  go  afterwards  ? 

Rumtey.  He  took  a  coach,  and  bid  the 
coachman  driye  to  the  Royal- Exchange. 

Att.  Gen.  Whither  dia  he  go  when  he  came' 
there? 

Rumtey.  He  went  out  of  the  coach,  went  a 
little  way  with  me  to  Janeway's  coffee- hobae, 
called  for  pen,  ink,  and  paper,  and  bid  itfe 
write  •«  1,200/.  1,100/.  1,060/.  1,000/.  to  Sar 
muel  Palmer  or  bearer." 

Att.  Gen.  WhatiostmcfioAfdidhe^teytfli 
ftbottt  Suanel  Palmer  ? 


Trial  of  William  Hales, 

Rumtey.  To  say  that  lie  lived  in  A 
street,  in  Goodman's  fields. 

Att.  Gen,   After  you  had  done  thia,  v 
did  you  go  next  ? 

Rumtey,  Next  he  carried  me  to  Mr. 
ward's,  a  banker  in  Exchange- alley.  . 
then  dark.     He  bid  roe  desire  their  nc 
these   sums,  payable  to  Samuel  Pale 
bearer,  in  lieu  of  the  4,S00/.  note  i 
Hoare's. 

Att,  Gen.  Wtiat  happened  there  ? 

Rumt^.  They  said  they  could  not  dc 

Att.  Gen,  Where  did  you  go  next  ? 

Rumtey,  I  went  to  him,  who  was  cl 
the  door.  He  took  me  to  Mr.  Brassey' 
me  desire  their  notes  for  the  same  sum, 
of  Mr.  Hoare's  note  payable  to  sir  h 
Grosvenor.  They  gave  me  tlie  notes 
asked  me,  what  Mr.  Palmer  it  was? 
that  he  lived  in  Muusel- street,  Good 
fields. 

Att.  Gen.  Did  you  say  any  thing  fur 
hhn? 

Rumtey.  I  think  not ;  if  I  did,  it  wai 
Mr.  Hales  directed  me. 

Att.  Gen.  Did  they  ask  your  name  ? 

Rumtey.  I  am  not  positive;  if  they 
told  tliem  as  elsewhere,  Thomas  Fowler 

Att.  Gen,  Whither  did  you  carrAr  ihe 

Rumtey.  I  carried  them  to  Mr.  Hates 

Att.  Gen,  Where  was  he? 

Runitey.  He  was  by  a  shop  at  the  cc 
a  court ;  he  was  in  the  court,  and  came 
there.  This  was  a  little  beyond  Mr. 
door.  He  bid  me  ask  the  price  of  8oi 
bonds,  and  ask  them,  whether  they  coi 
1,000/.  worth  by  Monday  inornmg? 
said,  (hey  buiicve<l  they  could.  We  the 
to  Jaueway's  coffee- house. 

Att,  Gcii.  Wlint  did  he  then  ? 

Rumsey.  He  caHed  for  something,  [ 
it,  went  to  Stocks -market,  theucc  took 
and  went  home. 

Att.  Gen,    Where  did  you  go?    D! 
leave  him  there  ? 

Rumt^.  No,  J  supped  with  him. 

Att.  Gen.  Did  he  make  any  fuither  a 
meat  with  you  ? 

Rumtey.  He  bid  me  be  ready  on  3 
morning  in  the  same  clothes. 

Sol.  Gen.  Where  were  you  ? 

Rumtey.    I  was  at  his  house;  he 
me  there. 

Sol.  Gen,   Did  any  thing  else  hapj 
Saturday  f^^Ruttucy.  No,  Sir. 

Sol.  Gen.  Were  you  to  put  on^  the  sa 
and  |»eruke  ? 

Rumtey,  Yes,  Sir ;  and  he  ordered  tl 
to  comb  and  powder  it. 

Sol.  Gen.  On  Monday  morning  dU ; 
as  directed  ? 

-     Rumtey.  Yes,  and  lie  then  told  out 
broad  pieces  and  ten  guineas. 

Sol,  Gen.  Those  notes  that  you  recc 
Mr.  Brassey's,  do  you  koow  the  dale  ol 

Rumtey.  Yea.  &i  Monday  moaiin 


%\gl 


Jir  a  MkitMtoMir, 


[I8» 


.11 

SI 
t1 


•AU  \\^  bad  the  nine  wig  on,  I  be-  t 
i^Iajfkknnrlriin. 

Af^iUiiir.  Let  him  pot  the  wig  on. 
ftBW  Mii  M  the  ilaik  wig.) 
1£l  ro,  I  mily  beUe?e  that  that  is  the 
MpHilliMgh  I  never  nw  him  before 
mwt.  fle  WM  a  good  genteel  yonng  man, 
rikiMwif. 

alUfiff.  What  clothes  had  he  on  ? 
i  I  cannot  directljr  tay.'not  kaovring. 
MXa,  Now  we  are  going  to  Mr.  Hoarc'a 

Hr.  Iwmtr  called  and  ■worn. 

'  JKfim.  Mr.  Turner,  look  on  that  paper ; 
JfcfljMKeitfirat? 
flnr.  On  Saturday  erening,  September 

KGn.  Pkay.can  yon  recollect  with  your* 
Wife  it  was  that  brought  it  you  ? 

Imr.  Sir,  1  did  not  see  Mr.  Ramsey 
L^b  CBBie  into  the  shop  first. 

r  1:  'Bkhaari  Hoart  called  and  iwom. 

Ga.  Hr.  Richard  Hoare,  pray  tell  us 

lyin  saw  that  bill  first? 

■ra  On  the  7lh  of  September  last,  about 

[Abek  in  the  evening.    That  gentleman  (as 

'  k)  produced  Mr.  Snow's  note,  and  a 

Hie  of  95/.  for  which  I  gave  him  onr 

iftr  70^    After  which  he  produced  this 

[Mrf  Mr.  Gibson's  hand,  and  another  paper, 

"  '\  oar  notes  for  that  sum.    I  had  not 

Jai;  m  the  business,  and  not  knowing 

D*s  band -writing,  called  Mr.  Turner 

thai  afiair,  after  1  had  given  the  70/1 

^Noteread: 

ir  Richard  Gmsvenor,  bart.  4,300/. 
frJohn  Hynde  Cotton,  3.100/. 

ftGfli.  Whose  hand -writing  is  this  P 
It  is  mine.  Sir. 


L**»f 


At  GeiL    Do  you  remember  what  ^ou  did 
Mlhitoote,  or  where  you  delivered  it? 


(jr.  At  Mr.  Hoare's. 
>  itL  Cm.    Mr.  Turner,  will  yon  give  us  an 
^m  what  waa  done  upon  the  producing 

'  3Wr.  BIr.  Hoare  sent  for  me.  F  think 
^hj  npon  the  counter  both  the  note  Mr. 
Wy  brought  for  6|400/.  and  this  little  di- 
^jn.  I  made  these  notes  pavahle  accord- 
%ki  knowing  that  sir  John  Hynde  Cotton 
tfhmess  at  Mr.  Hoare's  shop. 

AlG;a.  Doth  he? 

Tvwr.  Yes,  Sir,  he  freqaently  doth. 

flU.  Crn.  Produce  the  three  notes  given  at 
v.lhtre'sshop. 

Ttner.  These  are  the  notes  (producing  the 

1^  wbich  I  gave  in  exchange  for  Mr.  Gib- 

1  Ml  sole,  and  the  70/.  note  Mr.  Hoare  wrote, 

*i|l  signed  them,  and  gave  them  to  Mr. 

^  uM.  Tou  aay,  these  are  the  notes  that 
^pve  in  ezcbattffe  for  that  note ;  do  you 
^  what  became  of  that  bill  afterwanb? 


/ 


A.D.  17M 


Turner,  After  that  T  had  delivered  thi 
notes,  I  had  thia  note  (Mr.Gibson's  6,400/.  note) 
in  exchange,  brought  into  Mr.  Hoare's  cash,  in 
lieu  of  the  other. 

Sol,  Gen.  Did  you  send  it  out  ? 

Turner.  Yes,  ut>on  Monday  morning. 

Sol.  Gen.  Will  you  give  us  an  account  what 
was  done  upon  tliis  ? 

Turner,  1  know  nothing  farther. 

Sol.  Gen.  These  notes  which  you  have  pro- 
duced,  can  you  give  an  account  what  became 
of  them,  or  when  they  were  brought  back  t# 
Mr.  Hoare's  ? 

Turner.  I  did  nothing  farther  about  them. 

The  Notes  read : 

"  I  promise  to  pay  sir  John  Hynde  CotlOB, 
or  bearer,  two  thousand  one  hundred  pounds, 
on  demand,  for  Mess.  Benjamin  and  Henry 
Hoare  and  partner*         Wiluam  Turner." 

"  Septemher  7, 1798. 
<<  I  promise  to  pay  to  sir  Richard  Grosvenor, 
or  bearer,  four  thousand  three  hundred  ponnda, 
on  demand,  for  Mess.  Benjamin  and  Henry 
Hoare  and  partner.         Wiluam  Turner." 

"  September  7, 17«8, 
*'  I  promise  to  pay  James  Moreton,  esq.  or 
bearer,  seventy  pounds,  on  demand,  for  lleii. 
Benjamin  and  Heniy  Hoare  and  partner. 

««  William  Turner.** 

Mr.  George  Lee  called  and  sworn. 

So!.  Gen.  Where  is  it  that  yon  live  ? 

Lee.  At  Mr.  Brassey's  in  Lombard  -  street  F 

Sol.  Gen.  Did  you  ever  see  that  note  before  f 
(Mr.  Hoare's  note  for  A,300L)^Lee.  Yes,  Sir. 

Soi  Gen.  Upon  what  occasion  or  when  was 
it? 

Lee.  It  was  on  Saturday  Sept.  7th  brouglit 
by  Mr.  Rumsey  to  Mr.  Brassey's  in  Lombard* 
street,  near  seven  o'clock  in  the  evening. 

Si)L  Gen.  What  passed  upon  it  ? 

J^e,  Bcingf  brought  there  by  him,  he  pulled 
a  paper  out  of  his  pocket,  desiring  four  notes 
payable  to  Samuel  Palmer.  I  have  three  of 
them  by  me,  and  an  account  of  the  other.  One 
was  for  l,'20O/.  two  for  1,000/.  each,  the  other 
for  1,100/. 

Sol.  Gen.  What  dki  you  give  him  them  in 
exchange  for  F 

Lee.  Mr.  Hoare's  note  for  4,300/. 

Sal,  Gen,   Did  you  ask  who  Palmer  was? 

Lee.  He  told  me  that  he  lived  in  Msnsel* 
street,  in  G(M>dman'8- fields.  1  asked  him,  whe- 
ther be  was  a  merchant  ?  He  said,  that  he  could 
not  tell.  We  had  a  person  dealt  with  us  before 
of  that  name.  I  asKed,  whether  it  was  he? 
He  said,  that  he  could  not  tell.  1  enquire<l  at 
Woodward's,  where  Mr.  Hoare  doth  business; 
they  said  tl.at  there  had  been  a  person  there  of 
the  same  name.  I  iHftrari  to  suspect  some- 
thing. I  then  went  to  Mr.  Hoare's,  to  inquire 
whether  it  was  their  note  ;  they  ner|iiaintf.fi  me 
that  it  was,  and  showed  me  M..  Gihson's.  I 
said  that  1  believed  the  name  was  IMr.  Gibson's 
haudi  but  not  the  body  of  the  iiolc. 


m} 


2  GEORGE  II. 


Trial  of  WiOiam  Halest 


[188 


SoL  Got.  lliis  iransaotioa  wm  oa  the  8a- 
tuc4ftyf8a||t.  fib ;  bow  came  4iie  bills  to  be 
dated!  tbe  Mb  r 

JLcf.  Our  acGOunta  were  balanced  for  that 
day,  it  bein^^rjate  in  the  er^ng;  therefore 
they  were  dated  the  1Kb. 

Sai.G£u,  What  beoame  of  them  afterwarda? 

Lee.  They  came  back  afl^ain  :  tvo  of  them 
came  the  sasie  da^,  Ibe  otber  the  next  •moro- 

Sol.  Gem.  Who  brougiftt  them  P 

Let,  The  mobt  of  the  mooey  -was  fiaid  to 
Mr.  Hals  the  broker;  there  was  650/.  paid  to  a 
perioo  who  bron^t  one  of  the  ooies  in  the 
morning;  I  believe  that  it  was  about  ten 
o'clock.  We  asked  him  his  name ;  he  said, 
it  was  John  Roberta.  He  wanted  to  have  650/. 
to  be  wrote  off  from  mie  of  the  notes,  and  want- 
ed the  mOD^  for  it.  As  1  bad  aome  reason  to 
suspect  on  toe  Saturday  night,  and  he  coming 
80  soon  on  the  IMonday  morninir,  I  asked  him 
whom  he  came  from  7  He  sail.  Mr.  Mansel. 
I  hesitating,  he  said,  the  gentleman  that  it  was 
to ;  I  said,  Palmer ;  lie  said,  Pakaer  in  Man- 
eel  atreet.  I  did  not  know  but  that  there 
might  be  some  demur  on  Mr,  Hoare*s  note  ; 
then^Mie,  to  protract  time,  I  told  him  that  he 
might  receive  the  money  at  the  Bank.  1  gave 
hia  Bank-notes: 

No.    11,  payable  to  Mr.  flankey,  100/. 

106,  payable  to  Mr.  Collett,  50/. 

131,  pay  able  to  Mr.  Charles  Shales  500/. 
Which  together  made  up  650/. 

Sol.  Gen.  Yon  wrote  off,  650/.  Did  yon 
ddiv^  the  note,  when  indorsed,  to  the  person 
that  brought  it? — Lee,  Yes,  Sir. 

SoL  Gen,  This  was  a  1,900/.  note;  How 
was  the  oilier  500/.  paid  ? 

Lee,  The  other  part  was  paid  off  at  several 
pajnments  to  Mr.  Hals. 

SoL  Gen,  As  you  have  given  an  account  of 
that  note,  can  yon  give  an  account  of  the 
other? 

Lee,  Two  to  Mr.  Hals,  Sir,  at  several  pay- 
ments. 

Sol,  Gen,    How  much  was  each  for  ? 

Lee.  A  thousand  pounds. 

SoL  Gen,  Well  then,  of  these  notes  two  for 
1,000/.  each  have  lieen  paid ;  Hath  the  1,100/. 
note  been  paid  ? 

Lee,  Four  hundred  and  twenty  pounds  have 
been  paid  as  part  uf  the  1,100/.  and  the  rest  is 
(Hit-standing  still. 

Sol,  Gen.  Do  you  remember  the  ibrm  of  the 
person  that  came  to  you  by  the  name  of  Ro- 
berts P  Is  that  man  the  peison  ?  (Pointiog  tp 
llcdiert  Hall.) 

Lee.   Yes,  Sir,  I  believe  that  is  the  person. 

Robert  Hall  called  and  sworn. 

SoL  Gen.  Mr.  Hall,  pray  what  trade  are  yon 
^'f^HiilL  Ataylor,Sir. 
SitL  Gen.  Did  you  evor  work  fur  Mr.  Hales? 
lialL  Yes,  Sir,  several  years. 
S(d.  Gen.  Do  vou  know^him  .* 
mn.  Yes,  vflfy  well,  l^r. 


Sol,  Gen,  Had  yon  anr  coBversBtion  wkk 

him  in  September  last  ?--  nalL  Yes,  Sir. 

Sol.  Gen.  Did  he  send  fbc  yon  ? 

HalL  He  sent  his  tbotman  for  me,  Septem- 
ber 8th,  Sunday  night. 

SoL  Gen,  What  message  did  the  fbotmaB 
bring  vou  ? 

Hall.  He  came  and  knocked  at  the  door; 
m^  wife  opened  the  door.  He  desired  to  wpetk 
with  me ;  she  said  that  I  waa  in  bed.  He 
came  up,  opened  the  cmrtain,  told  me  he  baA  a 
message  for  me,  I  must  be  with  his  master  if 
nine  o'clock  on  Monday  morning  at  lioydli 
coffee-house  in  Lombard- street;  fsaid,  that  I 
must  be  with  Mr.  Rumsey  at  that  time  to  tahf 
orders  for  clothes ;  he  told  me,  that  I  should  mctt 
Rumsey  there.  I  went  to  Lloyd's,  and  waUwl 
in  the  coffee-room.  Whilst  I  was  there,  tberd 
came  up  one  Leigh,  who  asked  me  what  busi- 
ness 1  came  about?  I  said,  That  1  couM  not 
tell,  but  waited  for  'squire  Hales.  I  asked  him 
what  his  business  was  ?  He  said,  that  he  bad  a 
letter  to  meet  him  there.  I  drank  aom^hing 
there  before  Mr.  Hales  came,  which  was  the 
best  |)art  of  an  hour.  He  first  mentioned 
aomething  to  Leigh ;  he  then  asked  me  to  stay 
one  half  hour  more.  Accordingly  I  sat  down. 
He  talked  awhile  with  Leigh.  When  Leigb 
was  dismissed  (whither  1  cannot  tell)  he  took 
me  up.  In  the  passogu  he  gave  me  a  note,  and 
desired  me  to  go  to  Mr.  Brasscy's,  and  receive 
650/.  upon  that  note. 

SoL  ben.  What  note  was  it  ? 

HalL  About  1,200/. 

Sol  Gen.  Whai  dirfctions  did  he  give  youf 

Hall.  He  told  hip  to  go  tu  Mi .  Brassey 's  the 
banker,  at  the  Acorn ;  he  told  me  t«i  receive 
650/.  on  til  is  note ;  he  told  me  to  mind  that 
there  was  no  mistake.  If  (said  he)  they  offer 
to  pay  you  silver,  give  them  halt'  a  crown  to 
pay  it  you  in  gold.  He  told  me  tliot  019  gui- 
neas and  one  sliillinar  would  make  just  650/.  I 
took  these  notes  (the  Daiik-nutes  he  received  at 
Mr.  Brassey's:)  he  looked  them  over,  and 
said  that  it  was  all  very  right. 

SoL  Gen,  Look  on  that  paper  :  did  you  ever 
see  that  paper  before?  Is  thattiie  note  that 
you  delivered  lo  Mr.  Brassey  ? 

HalL  Yes,  Sir. 

SoL  Gen,  You  say,  that  yon  had  instrnc- 
tions  to  receive  it  in  gold :  ifid  they  pay  it  in 

Hall.  No,  Sir,  three  Bank-notes. 

Sol,  Gen.  What  was  the  amount  of  them? 

Hull.  Six  hundred  and  fifty  pounds. 

Sol  Geti,  What  did  ^\oii  do  with  them? 

Hall,    I  gave  them  to  Mr.  Hales. 

Sol,  Gen.   Did  they  wrire  imon  the  notef. 

Hull.  Yes,  the\  discounttii  this  050/. 

Sol.  Gen,  When  sent  by  2^1  r.  Hales,  had  yo« 
instructions  what  nanif  \ou  should  go  by  ? 

HalL  Yes,  John  Rubvitst. 

£('/.  Om.  or  what  place  ? 

Hall  The  Huy- market,  or  any  place  wheM 
I  pleascfl  that  way  ? 

Sol,  Gen.  Did  you  aee  him  whik  yoa  werri 
in  the  shop? 


I     .'.!.' pas«a)^inL|njd'«coffee-li<Mse. 

Minefiank-iiate&roL'  6Ml.  wliicb 

I  it>  JHr.  iUlet.  m  you  ewet  te« 

ilterwardar— Ho//.  YeB.Sir. 

.^(in-   li|>OD  whotoecaiiiun  ? 

B*II.  lie  laid  me,  ttint  il'  1  wntiM  lake  a 

inll  ada  ihn  piazu  by  ihe  Unyal  Exchange, 

kvsU  noir  tu  till'.     Aceoiilmgly  lie  came 

k  at,  and  al  the  vuflee-house  (JanewHy's 

Mbbaoan)  Ka*e  air  tbem  agnin-     He  askifd 

m,  wfafbsr  f  wBi  <>ver  at  the  Bniik  ?    I  luld 

iBtallAll  ludbMi>wilhitiit,buln»crrecmeil 

Snaary  tfaerc  for  myselt'  or  an;  boily  gIk. 
W  ■>  sn  wil  receive  Uiia  in  gnli),  ur  il'  I 
ifeaU  b«  ollcnid  Bilrer,  tu  ilu  ua  dif ecieil  before. 
Stt,  Orm    WhU  were  you  to  do  with  Itf 
11^    Tn  iiriag;  it  lo  him  at  lliis  cuHet^liouse 

Did  yon  go  to  the  Banb  ? 

<  II I  to  iiue  there ;  be  bid  me  go  to 
'  mail,  and  be  would  sign  my 
■  In  him,  lie  signol  tiieill ;    I  llieu 

.    ilie  sanie  perjon,  who  ]istd  me 


U. 


er«  Iber  the  strme  tills  which 
aiMr.  Drasscy's? 


Uid  yon  r 

In  ^tjM. 

■oeire  it   iu   gold  or 
liim  wtica  yuu  were 

lorihclEtlcranhom 

JulUc'inLe 

ny  notice  of  you  ? 

Sif  Nk.!  .. 

MAOtm.  Auryouorhim? 

.&IL    N«i  beiiiit  buKy  reiieiitiaK  the  money. 

&  Cf.  If «  Mw  you.  did  iwt  he  1 

tLOi*.  What  did  yondo  with  it^ 

BtlL    I  Mok  it  at  Ihc  Rank.- Ai  I  was 

'B(iK>ri'r''"Hltey,  Mr.  Williani  Hales 
•<a  aakdioit   bv   Ibe  utlEV,  we  tiirutd  into  a 
■^-1  (Ibc  'iii'.U.-   and   »M:e|itre  tavern) ;    he 
(.vjjf  drjnrr,  ia<i  called  for  an  half  ^ot 
'     -      '    -  die  money,  he  counted 

>  <  ynu  any  reason  why 

..  , -.I,  you  were  a  longtime 

id.  OtiL  l>id  b«  offer  you  any  thmg  tor 
fwpa«>.> 

BtU.  Vm  hut  1  aaid  iWt  I  would  have 
MtMf  fram  a  K'nllcmau  that  I  had  serveil  ko 
^(-  lleiH>l,ill  wauldcallun  him  the  next 
*;,  be  wnalJ  lend  tne  101.  and  I  ihould  work 
!■«. 

U.  da.  Wby  did  you  |f9  by  the  name  of 

Ki*wvr 
£Ui-  I  tkM^  I  iH(bl  4a  a*/  Uiiog  for 


Mr.  Ronkfy  called  and  awom. 

Sol.  Gen.  Mr.  iTankey,  will  yon  siFe  sn  ac- 

lUBt  wbeihei'  any  bill*  were  brought  Id  you, 

hat  they  were,  and  by  whom  brought? 

Jfankey.  Mr.  RuiMey  (this  gefltltunsn  here) 

ime  lo  me  od   Monday  mor Aing,  8eplciabe* 

the  9lh,  »iih  two  notes,  tor  which  I  gate  bim 

myoolps,  payable  to  Satinid  Palmer  dr  benier, 

one  fir  1,100(.  Ibe  olberTor  1,0^.  wlliuh  whh 

£0'.  amounied  to  Mr.  Hoare's  notea  or  S.IOOI. 

Bod'TOi. 

Sol,  Gen.  Did  you  hsIi  htm  His  name? 
BaHkey.  No  ;  but  I  ashed  htm  who  KotlttKl 
Palmer  was,  because  we  had  a  geiilleman  0^ 
ihal  namelbat  had  a  drawing  account  with  as, 
and  I  thought  that  tMs  was  (o  be  pnt  to  hia 
DCOouDt ;  but  he  (old  me,  that  it  was  a  gen- 
tleiDan  in  Maosel-ftreet  in  Ooodinau's-fleldv, 
When  he  had  done  his  business,  he  went  out  of 
Ihe  shop.  He  brought  a  liRle  bit  of  paper, 
wherein  was  written  ti)  go  to  alderman  Han- 
key's  and  gMIhe  two  DoiCB  figured  down  1,  |00/. 
1D5I)'.  and  90f.  in  money, 

Sol.  Gen.  You  have  looked  on  Rumsey ;  \» 
thM  Ihe  very  man  ? 

Hankey.  Yes.  Sir;  I  was  witli  him,  when, 
having  b«en  apprehended  at  the  Bank,  be  wW 

Sol.  Gen.  Do  you  remember  any  ibfny  of 
one  Lane's  feKhmg  any  money  ? 

Hankey.  If  you  wilt  favour  me  whh  the 
notes,  I  can  tell  the  Itetler.  The  I.KIU/.  n<yi« 
was  hardly  dry,  when  he  sent  a  purtcr-ttiM 
fellow,  who  came  to  a  servant  of  ours,  atnttfr. 
sired  that  he  would  indorse  5502.  nnd  give  it 
liim  in  guineas ;  he  did  it  ;  he  had  i>,  and 
Went  mitof  (heahop.  I  believe  ihat  it  wssnot 
an  hour  before  Ihe  same  person  came  n^ain, 
an4  said  thai  Mr.  Palmer  bevfged  pardua  fer 
giving  ns  sDrh  trouble,  he  did  Doi  kmvlr  he 
bhould  so  snoB  liave  occasion  fur  it,  desired  that 
we  would  give  hint  tlie  renraiuder  hi  Bunk.  I 
aaid,  that  we  Imd  not  just  the  sum  i»  Bank, 
but  I  would  give  it  him  In  money;  he  said, 
then  be  must  go  and  fetch  a  bag.  Tfe  went 
accordiirgly,  and  fetched  a  ba^.  We  asked  iris 
name  ;  b«  said,  that  it  was  Samtiel  Lane,  and- 
that  he  lived  in  MarlDe-s']unre,  I  gave  him 
523  guineas  and  an  half,  and  6i.  Qd,  which 
ciiRipkled  thai  nnte.  .As  to  the  other  note,  it 
had  not  been  writien  long,  but  a  servanl  lo  Mr. 
Hals,  or  be  himself,  came  and  desired  that  £ 
would  give  him  ■  nnte  fur  853/.  14i-  3d.  p«y- 
oble  to  liim.  1  indorsed  it,  and  gave  bim  a 
uole  for  the  sum  that  he  would  liave. 

SU.  Gen.  There  are  three  notes  that  com- 
pleie  the  sum  of  i,oW.  Do  you  remember 
my  Bank-bills  T 

Uunk^.  I  paid  none  at  at). 

S(ri.  Ocn.  Do  yon  know  any  lldiigr  of  Mi« 
rflMdoe   bein^   paid '!    Give  an  accoaal  what 

Huitk*!/.  I'he  remainder  was  ihns  )iaid; 
l,lWf,wiui|«idtaSiuuuelLaae;  l,o^ttf,b]ri» 


191] 


S  GEORGE  n. 


Trial  tfWmiamHulet, 


[19 


doiwmeDt  for  Snnael  Palmer,  fi>r  whicb  the 
person  had  a  note  payable  to  Mr.  Joho  Hals 
for  the  same  sum ;  for  the  reroaioder  of  that 
note,  two  notes  were  given,  payable  to  James 
Hickman. 

Sol.  Gen.  Were  you  present  at  the  Bank,  Sir, 
when  Mr.  Hales  and  Mr.  Ramsey  wens  seised  ? 
'  Uankey.    No;  but  I  waa  there,  Sir,  when 
he  waa  examined. 


Mr.  Benjamin  Cole  called  and  sworn. 

Sol.  Cen,  Mr.  Cole,  do  yoa  know  Mr.  Hals  ? 

Cole.  I  live  with  him,  »r. 

Sol.  Gen.  Are  you  his  servant,  or  partner? 

Cole.  His  servant 

Sol.  Gen.  Do  yoa  know  any  thing  of  Mr. 
Rumfsey  ? 

Cole.  On  Saturday  September  7th,  he  came 
about  seven  o'clock  to  me,  and  enqnired  the 
price  of  South-sea  bonds.  He  said,  that  he 
sbonld  want  a  lar^  parcel.  I  promised  to 
get  him  them  as  cheap  as  I  could. 

Sol.  Gen.  What  name  did  he  use  ? 

Cole.  None  till  Monday  the  9ih  of  Septem- 
ber. I  then  bought  ten  South-sea  bonds  of 
100/.  each ;  1  asked  him  what  name  they 
abould  be  wtered  in  f  He  said,  Samuel  Palmer 
in  Mansel  street,  in  Goodman's- fields.  The 
amount  was  IfiM.  14f.  4d.  for  which  he  gave 
me  Mr.  Brassey's  note  for  1,000/.  and  the  rest 
in  money. 

Sol.  wn.  Did  you  observe  the  date  of  that 
note?— Co^.  I  did  not  observe  the  note. 

SoL  Gen.  Were  there  any  other  bonds  ? 

Cole.  He  sud  that  he  should  want  more. 
This  happening  when  tliere  were  but  few  came 
to  market,  1  told  him  I  could  not  procure  him 
■0  many  as  be  mentioned.  Then  he  desired  as 
many  Soutli  Sea  bonds  as  I  could  get,  and  the 
rest  India.  I  procured  four  more  South  Sea 
bonds,  and  twenty  India  bonds.  He  paid  me 
a  note  of  Mr.  Brassey's  for  1,000/.  and  ano- 
ther note  of  Mr.  Brassey's  upon  which  there 
remained  550/.  and  one  note  of  Mr.  Hankey's 
ftr  1,050/.  which  made  3,600/.  upon  which 
Mr.  Hals  paid  him  41/.  2i.  3</.  which  made 
the  balance. 

Sol.  Gen.  What  name  did  betake? 

Cole.  He  said  that  his  name  waa  Thomas 
Fowler,  and  that  he  lived  with  Mr.  Pdmer. 

Sol.  Gen.   Was  there  an  account  drawn  up  ? 

CoU.  Yes,  Sir,  this  is  the  abstract  of  the  ac- 
count* 

Debtor,  Samuel  Palmer,  esq. 

To  ten  South  Sea  Bonds     -    ^.  IfOOO    0  0 

Interest  3  Months,  75  Days  18    4  4 

Premium  4/.  per  Cent.    -    •       40    0  0 

CommisiioD    ••••-         0  10  0 

1,058  14    4 


To  twenty  India  Bondi  •  -  S,000  0  -0 
Interest  5  Months  9  Days  -  35  6  0 
Premium  4/.  19«.  per  Cent     -     99    0    0 

Tjiwnnniiiiiffl      »•«»••      lOO 

S|13i   §    0 


To  lour  South  Sea  Bonds       -    -  400  O 

Intemt  3  Months,  75  Days    •  7  5 
Premium  on  ftOOL  at  41.  per 

Cent. -  8  0 

Ditto  oo  SOO/.  at  4/.  li.  per 

Cent. 8  9 

Commission       .    .    .    •    •  0  4 


S,558  17    ( 
To  Cash  paid  Thomas  Fowler  -       41    S    : 

9,600    0   ( 


Per  Thomas  Fowler,  Creditor. 

Sept.  9lh,  1728. 

Bv  Brassy's  Note  ....  1,000  0  Q 
By  Bank  Note,  No.  123  -  -  -  25  0  Q 
By  Cash  received  -    .    ^    .    .       33  14   4 


1,058  14   i 


By  Hankey*s  Note  -  .  - 
By  Brassey's  ditto  -  -  - 
By  Ditto,  Part  of  1,200/.    - 


.  1,050  0 

-  1,000  0 

-  550  0 

2,600  0 


i 


For  Mr.  John  Hals, 

Benjamin  Cole,  jun. 

Sol.  Gen.  How  came  you  to  make  it  up  i 
this  manner,  since  he  toid  yon  that  it  was  ft 
Samuel  Palmer? 

Cole.  Yes,  Sir,  he  did  so ;  but  we  alwij 
mention  also  the  name  of  the  person  that  comi 
to  us.    This  was  the  particular  of  the  acoom 

Sol.  Gen.  Pray,  Mr.  Cole,  do  you  remembi 
that  any  body  came  to  enquire  for  Mr.  Romiey 

Cole.  There  was  a  person  came  and  aski 
for  him  by  the  name  of  Fowler ;  to  the  best  < 
my  memory,  it  was  the  prisoner  at  the  ba 
He  came  and  asked  Mr.  Hals,  if  he  had  as 
thing  to  do  in  South  Sea  bonds. 

Sol.  Gen.  Was  this  Mr.  Hales  that  aski 
him  this  question  ? — Cole,  Yes,  Sir. 

Then  Mr.  Lightfoot^  a  porter,  was  calk 
and  sworn. 

Sol.  Gen.  Do  you  remember.  Sir,  any  tin 
in  September  last,  that  you  were  sent  to  H 
Hals'»office  to  inquire  for  Mr.  Thomas  Fowlci 

Lishtfoot.  Yes,  Sir. 

Sol.  Gen.  When  ? 

Lightfoot.  September  the  9th. 

&J.  Gen.  What  day  of  the  week  wu  it  f 

Lightfooi.  Monday. 

Sol.  Gen.  Who  sent  you  ? 

Lifhtfoot.  Mr.  William  Hales. 

Sol.  Gen.  Is  that  the  gfentleman  ? 

Lightfoot.  Yes,  Sir. 

5o/.  Gen.  What  was  the  message  that  I 
sent  you  on  ? 

Lightfoot.  He  sent  me  to  inquire  lor  U 
Thomas  Fowler,  and  to  tell  him  that  the  ga 
tienum  wanted  him  aa  soon  as  he  ooukl  di 
patch  his  businc8S|  feo  •oont  immediatety  awi 
with  m«  to  him* 


J9S]  Jbr  a  Mitdenueaor. 

U  Om.  DM  you  Ma  an;  boil;  at  Hab'a 
taHMMrcdlbenamer  Shen bim Mr. Rum- 
■j:  »sthattb*pn«HF 

Sal.  6<a.   Did  he  come  nilh  yon  ? 
hfktfoot.     Yea,  Bir,  he  cbdh:  mtb  mc  di- 
Wlj  M  the  pia^a  under  the  Royal  Ex* 

id.  Gn.  Whom  did  he  dmcC  there  ? 

iMtMit.  Mr.  Utie*. 

&i  ficB.  Yon  had  knoirn  Hr.  Ilalei  be- 
^t,  W  you  DUL  ; 

lifUjaat.  Yea,  Sir,  fur  90  yeara :  I  knew 
Ua  when  be  iraa  partner  with  lir  Siephen 

JW.  Gna.  And  are  yon  anre  that  that  ma 
te  jmwog  man  that  aniwsid  to  Uie  name  of 
fa^f— iAjA(/«K.  Y«,Sir. 

■r.  Btimphr*g$  called  and  iwom. 

SU.  GcM.  Let  hiiD  aee  tbe  note.  Mr.  Hum. 
|lnyi^  look  upoti  that  note ;  have  you  aeeo 
iWh  Drte  b«rnre  ? — Rumphrtyi.  Yei|Sir. 

ill.  Cm.  Upon  what  occasion  f 

fi^^Arryi.  By  diredinn  Troni  Mr.  lloare, 
I  WHUorecctTe  it  September  the  9th. 

ttLGen.  Wbiiher  did  you  carry  Jtr 

^mphrt^t.  To  Mr.  GibMn's  hojsEt.  Iliii 
■AiBBM  bring  at  home,  I  led  it  there,  de- 
■idlbBt  the  money  ahould  be  Icfl  vrilL  Mr. 
■nskld,  one  of  the  tellera  at  the  Bank,  to  be 
(hMdlben  to  Mr.  Hoare'i  account.  I  went 
ikM  ane  o'clock  to  tee  if  the  money  iraa  left 
Aan;  floding  that  it  Trasnot,  1  went  to  Mr. 
QAHa'a.  The  caahier  wa«  at  dinner.  I  got 
aNH  ^  for  him,  and  left  word  that  I  should 
Whdi  in  a  quarter  of  an  hour.  I  went  to 
IbrHoTal  Exchange,  where  Mr.  Htiare  met 
■c.  fre  went  to  sir.  Brauey'i  afterwards. 
We  itopped  ihe  payment  of  the  two  Bauk- 
BMt,  whirh  wp  found  there  had  been  delivered 
aat.  I  bad  l-eeii  returoed  not  abore  ten  mi- 
■Blca.  beliire  we  had  au  account  that  a  peraoii 
ni  vioiiped  with  the  two  nolei. 

Sill  Otn,    What  ia  your  busineiar 

Haai^Vcy).  It  ia  mv  bufineai  to  go  with 
Itr  l\-i4re'i,  aoiea  into  the  city. 

M.  (rra.  Wbeo  you  came  the  aecood  time 
k  Mr.  Gibwin'a,  what  anawcr  had  you  ? 

B^mpiitjft.  None,  but  that  the  cashier  waa 
1^  >>!  diuner. 

Sol.  Gen.  Who  wh  tbe  person  that  you 
left  iliF  Dole  with? 

Eimplirtgi  I  do  not  know  the  geatleman's 
Btae;  ihrre  weiK  three  of  ihrm  there,  who 
*ac  -^rtauti  lo  Mr.  Gibaon.  One  of  them 
uluri,  Blifre  it  ahould  be  left?  I  tliereupan 
iwnl.^Ir.  Bromfield,  onsof  theihe  tellera  of 
Atfiaak. 

Ur.  Cramlingtim  called  and  sworn. 
SU.  Gat.  Do  you  remember  that  you  erer 
Ma  that  note  before  1 
Cran'ia^ton.  Yea, Air. 
U.  (ien.  When,  and  opon  what  occasion  F 
CrtrntiMgln.  Ttiia  note  was  bronght  to  Mr. 
VOL.  X\  II. 


A.  D.  1726.  [lU 

Gibann*s  office  Sept.  9th  by  Mr.  Hamphrcra, 
an  cgcot  or  out~teller  to  Mr.  Hoarc.  ila 
deaireil,  that  when  Mr.  Fhilli|u(.Mr.  Gibson's 
cashier)  came  in,  lie  wonid  leore  a  note  or 
money  fur  the  same  with  Mr.  BromfieM  It  tbe 
Bank. 

SnLGai.  WhatbecameofitF 

Cramlington.  1  put  it  into  Mr  Phillipa'aseal 
between  tbe  banisters,  for  him  la  see  when  ha 

Sal.  Gfit.  Are  yon  concerned  or  employed 
for  Mr.  Gibson  about  book-keepingr 

Cramihglon.  No,  Sir. 

Mr.  I'hillipi  called  and  sworn. 

All.  Gen.  Lnok  on  that  note,  Sir:  Hark 
you  CTcr  seen  it  biitbre  ? 

FhiUip:  Yes,  Sir,  on  Monday  tbe  9ih  of 
September  laat.  1  happened  to  be  at  tha 
Bank  ;  and  on  my  return  from  thence,  which 
waii  about  twelve  o'l^lock,  Hr,  Ilarwood,  one  of 
Ihe  clerks  Id  our  odicc,  lo!d  me,  that  Ur. 
Humphreys  (Mr.  Hoare's  c^rvanl)  had  been 
therewith  a  note  fur  6,1-00/.  and  that  I  not 
beinjr  nt  home,  he  hail  left  it  wiin  Hr.  Cram- 
lingluii,  desiriiiic  that  when  1  returned  1  would  . 
leave  a  money  .ticket  for  it  with  Mr,  BromlieM, 
one  of  the  tellers  ol'lho  Bank,  for  Humphreye. 
1  axkcd  him,  where  was  the  note?  Hsaud, 
that  it  waa' left  with  Mr.  rramlingtoi).  I 
opened  my  seat  door,  and  saw  tbe'.noie  there. 
I  was  very  much  surprised,  it  being  wrote  by 
a  straD^e  hand;  and  hnnwiug,by  many  ypsn 
experience,  Ibnt  Air.  Gibson  never  signed  any 
promissory  nutes  without  writing  the  wbofe 
notes.  I  observed  a  difference  in  the  note,  that 
(he  last  words,  "  For  myself  and  [lartnera," 
were  wrote  with  a  nearer  resemblance  to  hi* 
hand  ihau  the  other  pLirt  of  the  note.  I  ob- 
served that  this  note  was  dated  the  STth  of 
Anguht,  and  that  he  went  to  tbe  Bath  uii  ihe 
astb :  1  hod  ihc  honour  lo  ntltnd  him  several 
days.  He  concluded  his  businfiis  relvUnK  la 
the  office  on  the  3Glh  :  On  the  !)7lh  be  did 
nolbinij^of  that  business,  but  prettared  for  hii 
janmey.  I  endeavoureil  to  recnllect,  whether 
lie  hud  any  transaclions  then  with  any  George 
Watson,  towliom  itwasmadepayuljlc.  I  could 
not  remember  thai  he  hiid,  nar  did  I  remember 
that  t  liad  ever  before  heard  of  Ihe  name,  nor 
liad  I  any  directions  from  any  of  my  masters, 
that  there  was  any  such  note  stood  out.  I  ob- 
served also  Ihat  there  was  a  diflerencc  between 
Ihe  stile  of  this  note  and  Mr.  Gibsnn's;  Ha 
always  writetl),  in  n  strniglil  lioe,  "  For  my- 
si-lf  ttoil  Co.  Tfiii.  Gibson,"  never  "  Partners." 
And  then  aatulhe  "value  recavtd,"  be  never 
uficti)  these  wonls.  I  earned  it  lo  Hr.  Har- 
wood,  whom  Mr.  Hiimiihreys  spoke  to.  I 
told  him,  Ihat  I  did  not  lilce  it,  it  being  written 
iu  a  strange  hand  ;  1  would  iMtt  thernbre  lake 
notice  of  II.  We  observed  lliat  there  was  iba 
f  and  r,  in  "  For  myself  and  |iartneni,"  wrote 
in  a,  different  hand.  1  thougtil  that  there 
might  he  some  wickedness  at  the  bottom  ;  I 
went  therefnre myself  iiilaMr.  Boetli's nifiee ; 
and  be  and  Mr.  rhip;i(.'S  being  ihcrc,  I  desired 


195]  2  GEORGE  11. 

II r.  Plilppps  to  look  into  the  books,  And  see 
whether  one  Mv.  Watson  had  credit  for  such 
a  sum.  Not  tinding^  ttixy  such  thing,  I  then 
desired  tbein  to  look  into  the  kaleudars  of  the 
ledj^ers.  Tliey  looked,  and  saw  that  there 
was  no  such  name  there,  i  said  then  to  Mr. 
Booth,  I  have  a  note  for  6.400/.  which  I  do  not 
like,  and  will  not  pay,  without  enquirini^  into 
it,  and  acquainting  Mr.  Jac<mib  (nlr.  Jacomb 
was  then  aoove  stairs,  which  1  knew  not).  I  told 
Mr.  Booth  tlie  circumstances  which  made  me 
suspect  a  forgery ;  Ftfh !  fsaid  he)  this  is  a 
Tiilainy,  a  for^rv;  this  looks  liKC  one  of 
Hales'ii  tricks.  I  wailed  for  Mr.  Jacomb's 
coming  down  ;  f  said  to  him,  Sir,  here  is  a 
note  for  6,400/.  whidi  I  believe  to  be  for^l. 
It  is  (said  Mr.  Jacomb^  very  plain ;  here  is  a 
rasure  on  a  frank.  (Mr.  Booth  having  recol- 
lected that  Mr.  Hales  some  time  berore  had 
two  franks  from  him,  one  of  which  he  now  ans- 
pected  to  be  thus  abused,  acquainted  Mr. 
Jacomb  therewith.)  He  enquired  where  we 
had  it  ?  We  told  him,  of  Mr.  Hampbreyt, 
Mr.  Hoare*8  servant.  He  hereupon  took  me 
out  with  him.  We  went  to  the  fiaidc.  I  sUid 
in  the  outer  office,  whilst  he  went  in  and  ao- 

Snabted  the  directors,  that  such  a  thing  had 
appened.  Mr.  Bromfidd  was  sent  ibrt  and 
•zamined,  what  the  reason  was  of  this  direc- 
tion, 4hat  it  should  be  left  with  him  ?  Urn  said, 
lia  oould  give  no  reason,  but  that  Mr.  Hoare's 
man  used  to  transact  affairs  with  him ;  Mr. 
Jacomb  took  the  note  to  Mr.  IIoftre*S|  and  I 
went  to  dinner. 

Sol,  Oca.  Is  it  not  usual  for  Mr.  Gibson -to 
€nter  notes  in  the  book  when  he  makes  them 
out,  and  give  you  notice  of  them  P 

FhiUJDt.  Yes,  8ir. 

Sol.  Gen.  Sir,  k>ok  on  the  Pand  r,  and  tell 
OS  what  you  think  of  them  ? 

Phillips.  This  is  certainly  Mr.  Gibson's  F, 
the  o  seems  thrust  in  irregularly,  two  e*B 
€rssed,  and  then  follows  <«  Myself  and  partners." 

Soi.  Gen,  You  have  seen  liis  franks ;  doth 
4ie  make  such  a  distance  between  tlie  F  and 
the  r  ?  Cast  your  eye  again  on  it,  and  see  whe- 
ther tha  distance  between  the  F  and  r  be  such 
■s  is  usual  in  his  franking. 

FkiUipi,  Much  as  osual,  for  1  have  com- 
pared it  with  some  franks,  aud  they  are  there 
at  the  same  distance :  but  1  observe  the  o  is 
not  of  the  same  letter,  but  crowded  in  irregu- 
larlv :    And  the  o  is  of  a  blacker  ink. 

Sol.  Gen.  Please,  S^r,  to  k)ok  on  the  be- 
ginning <rf  the  m :  What  observations  do  you 
make  on  that  ? 

FhiUipe.  There  is  the  stroke  before  the  first 
minini  of  the  m  that  seems  of  lighter  ink. 

Sol.  Gen.  What  do  you  make  of  that  ? 

FkUlips.  It  seems  to  me  to  be  the  tail  or 
4illtnofthee. 

Mr.  Maddox  called  and  sworn. 

SoL  Gen.  I  think,  Mr.  Maddox,  you  belong 
10  the  Bank  f •^Maddox.  Yes,  Sir. 

SoL  Gen.  "Proy^  Sir,  will  you  give  ns  an 
■coounty  whether  any  notice  was  givon  you  to 
•top  no/ Bank- Wis  r 


Trial  of  William  HaU$9 


[196 


Madiai.  Mr.  Brassey,  with  Mr.  Hum- 
phreys, (Mr.  Hoare's  man)  came  to  the  Bank  to 
desire  me  to  stop  five  not^,  with  the  nnmbcn, 
dates,  and  names.  I  looked  and  saw  that 
tliree  of  them  of  350/.  were  already  pud.  I 
took  the  numbers  of  those  not  paid,  and  gavt 
directions  to  all  the  tellers,  that  tne  minnte  any 
brought  any  of  them,  they  should  give  mt 
notice.  In  a  little  time  after  I  was  gone  vp^  I 
was  called  down  again.  Pewtress  (one  «f 
them)  came  to  me,  and  told  me  that  two  hun- 
dred pound  notes  were  brought  and  demandedt 
I  asked  him,  who  brought  them  ?  He  told  ms^ 
that  person  (Rumsey).  I  bid  him  bring  a  em- 
atable,  and  not  come  back  again  till  ne  hid 
brought  one.  When  lie  had  brought  OM^  I 
charged  him  with  him.  1  asked,him,  where  he 
had  those  notes  ?  He  would  not  tell  me  whfie 
he  had  them,  nor  who  he  vras,  but  was  vm 
obstinate.  One  of  the  officers  of  the  Bank  saio, 
that  he  knew  him,  that  his  name  vras  Rums^, 
that  he  belonged  to  the  Eagle  galley.  He 
asked  me  to  let  him  write  a  letter ;  I  let  bun, 
but  would  myself  appoint  the  messenger.  'Hi 
wrote  a  letter,  signed  it  Thomas  Fowler,  aoA 
directed  it  to  Blr.  at  Robin's  oofliBe^ 

house.  I  called  some  officers  of  the  Bank, 
and  directed  them  to  go  there  with  the  eon- 
stable,  and  see  what  suspicions  person  wis 
there.  They  went  into  the  coffee-house,  and 
enquired  of  the  master  of  the  honsc  what  com- 
pany was  there.  He  said  there  were  only  thiet 
neighbours,  and  a  fourth  person  whom  he  dM 
not  know.  Whereupon  one  oftheoffioentf 
the  Bank  said,  I  know  that  person ;  that  is  Blir. 
Hales.  They  went  and  seized  him.  As  tiuy 
brouffht  him  mto  the  Bank,  Ramsey  said,  thtt 
is  the  person  that  F  had  the  notes  of;  and  would 
fain  have  spoke  with  him.  I  kept  them  apart, 
carried  the  one  up  stairs  kept  the  other  bdow. 
They  searched  Ilumsey,  found  about  him  60/. 
and  ^L  in  different  bags,  and  two  notes  were 
slopped  below,  before  they  went  up  to  Mr. 
Hales.  They  found  upon  him  above  stairs 
thirty -six  South- Sea  and  India  bonds,  a  bill  of 

fiarcels  tor  some  of  thcui  from  Mr.  Hals,  five 
Kindred  and  odd  pounds  in  money,  a  note  of 
Mr.  Brassey 's,  and  Mr.  Sbales's  note. 

SoL  Gen,  What  account  did  Uumsey  give 
of  the  money  found  upon  hirol'* 

Maddox.  Thirty  ti^e  pounds  and  odd  money 
he  said  wert  his  ovvu  wage!s».  There  was  about 
60/.  besides,  which  he  said  was  Mr.  Hales's. 

SoL  Gen.  What  notes  had  I^Ir,  Huies  about 
liini  ? 

Maddor,  He  had  a  note  of  Mr.  Brassey 's  of 
680/.  the  remainder  of  the  1,100/.  note;  a 
note  of  Mr.  Shaleb^s  of  12U/.  A  note  of  Mr. 
Thrupp's  he  had  received,  and  had  procured 
the  money  for  il,  as  he  owned  when  ne  came 
upon  his  exiuniuution. 

Sol.  Gen,  W|s  bis  examination  iu  writing  or 
net? 

Maddox,  It  was  taken  before  sir  Edwiid 
Bellamy.  1  cannot  say  whether  it^as  in 
writing  or  not. 

Soi,  Gen.  Go.  on,  and  give  us  an 


1  - "  1  Jar  a  MiaJtrntanor. 

wtu  Mr.  fifties  niil  when  examined  at  the 
BiriE,  «poB  making  up  tbe  tccouot  of  wtiat 
wwUMi  fVooiliiui. 

MmUti.  It  wanleil  about  4  or  SCKH.  of  the 
AiUOt.  Mr.  Bate*  bariiif^  tb>t  day  (as  he  mid) 
nii^Hil  two  GaM-  India  bonds,  which  hv  bad 
fiMiai  with  Mr.  Braaier  i  anil  had  ahn  taken 
sfaaMasf  Mr.  Thrunp\  for  4O0/.  which  he 
iai  Jimnalei  with  Air.  Sbalc*.  Amnng^the 
flfMf*atwer«  found  upon  Mr.  Rales,  there 
■MMKCOHOi  of  the  psrlicutar  produce  oflbe 

UCna.  fThatdlilMr.  Ralessay." 

iidier.  He  owned  that  he  cniiiloyed 
tmamn  ;  bM  nid,  that  be  liimself  was  em- 
Blmiby  one  Samuel  Palmer,  a  pcnon  whom 
MM  hn»  acquainted  with  for  «ame  moutha, 
*aJ  (kai  (fab  nolo  na«  left  bv  liim  wiih  him  to 
■nort  in  aomething  that  wnuld  tui  n  to  account. 

Sat  CtM.  Was  tb«re  any  noijce  Ihea  takeo 
d  B>mai'y  '•  going  by  a  tham  name  ? 

ilaridw.  I  remeajiierDoIlhat. 

&1.  G(s.  Was  there  any  one  ihat  laid  Mr. 
BbIm,11mI  he  was  a  laan  of  figures,  and  de- 
mtk  htm  iherdbn;  la  give  a  more  particular 

Ibddai-  Yn,  Mr.  nrosea  Raper. 
im.  Pagt,  U  it  not  eoough  that  Mr.  Hates 
ktoidr  owned  that  what  be  bud  wag  the  pro- 
teaf  ih«  6,400f.  note?  Did  not  )tuni«ey 
■Maf*  all  tkia  f  And  came  be  not  from  hiin 
H  Ai  B»iik  f  Hath  he  nut  owned  it? 

r.      That  was  one  of  llie  notes  found 
Hale.. 


I     •<? 


inL  Pagf-   Dad  you  any  ditcourae  with 
Um  abHxl  lite  import  of  it  ? 


J- 


No,  my  lord.    Thii  paper, 
(uuod  in  lh«  pocket  of  Air.   Hales,  con- 
a  particular  ae«uuni  of  the  produce  of 
IktMOOl.  note,  and  d  lUtle  more. 
IW  t«pci- read  : 

Om  at  Mr.  Henry  Iloare's   fur  -1,100'. 

mUelotir  John  Hynde  Couon. 

maafTOJ.  payable  to  James  Morelon,  Mq. 

Ow«r  i.000l.  nf  Mr.  Nathaniel  Braisey'a. 

Baok-DoUi,  N".  4lQ,  for  1,000/. 

413,  for  J.OOO/, 

414,  for  l,90or. 

415,  fur        251. 
MM.  rtoeiiad  in  Gold. 

Alt  Ota.  In  caae  of  forgery,  every  cir- 
^■MMtce  b  oorroborating  of  the  fact,  and 
<^&dutm  tUi  was  proper  to  be  laid  bvfbre 
fcjory. 

ImL  Page.  Whoae  writing  ia  lhat  paper? 

iladiLu.  I  bvliere  it  (o  be  his :  I  kuetv  bitn 
Vboi  a  ffoldsnitli. 

iay  Darmtll.  Mr.  Maddox,  I  deiire  to  aak 
)••  aaK  qncMion.  We  bare  a  Tery  good  opi- 
iMaffoo  :  I'ray,  do  you  not  know  oneNi- 
kMl  PalBMr  ?  iJiid  you  never  any  iianvan- 
<iM  in  year  booka  between  Mr.  Hnlei  nnd 
fc»Mri  Pat»«r,  with  relation  lo  a  lO.OOOJ. 

1>.  Nl^  H 


A.D.  1728.  [198 

Serj.  Darnell.  Nor  have  yon  narer  heard 
of  him  i* 

Maddot.  No,  only  by  the  paper  found  on 
Mr.  Hales. 

Serj.  Darnell.  Did  not  the  defendant  Mr, 
Ralei  brin|f  ynu  a  draught  from  Mr.  Jacomb 
upon  a  particular  occasion,  payable  lo  DymerF 

Maddar.  1  cannot  remenber  this.  Wo 
neier  bad  any  accoani,  tliat  I  know  uf,  witk 
Pahiier. 

Motel  Raper,  esq.  bhotd. 

Atf.  Otn.  Mr.  Raper,  will  you  look  on  (hat 

Eaper  P  Hare  you  aeen  it  before  f  Do  you 
now  npon  wbaioccaaioa  it  wsf  wrote,  at)<f  bjr 
whom  ? 

Rapcr.  I  waa  at  the  Bank  the  Sth  of  Sep- 
tember  last.  Alderman  Bellamv  was  lh«ri 
examining  Mr.  William  Hslea :  be  was  then 
giriog  an  account  of  the  produce  of  that  ante 
of  6,4001.  of  Mr.  Oibion's.  He  was  a  lon^ 
time  before  he  could  cast  it  up.  He  itceiiieHi 
not  much  concerned.  I  said  to  him,  I  wander 
that  you,  who  ere  a  man  of  figures,  should  be 
ao  much  at  a  loss :  you  wsnt  about  4001.  Ha 
at  ten^h  mentioned  a  note  of  one  ThruppV. 
They  aiked  him,  where  he  had  that  nat«? 
He  said,  of  one  Palmer  of  Mansel- street. 

All.  Gen.  Did  you  aee  hiui  wrilethal  note  f 

Haper.  I  saw  him  sum  up  that,  as  the.[iro- 
duce  of  the  6,400/.  note. 

Alt.  Gen.  Do  yon  remember  tliat  iLe  quei- 
tion  was  asked  hiiu,  why  Rum&ey  wcat  l>y  the 
name  of  Fowler  ? 

Raptr.  I  know  no  reason  that  he  gave.  Ha 
was  asked  the  question  several  limes,  but  gave 

All.  Gen.  The  evidence,  my  lord,  hath  been 
so  extreme  long,  and  every  part  so  well  con- 
nected, that  1  shall  nut  trauble  your  lordsliip 
with  any  observations  tliercupon.  Ifiherelis 
occasion  given  by  the  reply,  youi  lordship  will 
then  give  us  leave. 

Serj.  Darnell.  My  lord,  and  genlleroen  of 
the  jury ;  1  am  couniel  in  ihi?  cnte  for  Mr. 
Hales.     And  indeed,  acoonliitg  tn  the  misre- 

tresentation  that  they  have  laid  him  under, 
e  is  a  very  unfortuoale  peraon.  And  really 
they  have  given  a  great  deal  to  lead  into  a  sus- 
picion of  the  tniih  of  what  he  is  chargeil 
with  ;  but  we  think  a  good  deal  of  it  h  owing 
to  the  misfortune  he  lay  under.  Riling;  been 
a  bankrupt  many  years,  and  not  having  ob- 
tained a  certificate,  it  was  therelure  impos- 
sible for  him  to  carry  on  any  thiog  in  his  own 
name;  therefore,  in  the  whole  course  of  hia 
traffic  fnr  many  years,  he  hath  been  forced  to 
use  tictitious  names,  and  thereby  conceal  all 
receipts  and  payments.  And  the  conseqoence 
of  his  doing  otherwise  is  very  obtious.  Till 
he  hath  obtained  a  cerlitii.-ate,  whulanevcr  he 
received  in  his  own  name  would  br  lubject  to 
the  commissioners.  Tberelore  (aocunling  to 
my  instrnciiooi)  Mr,  Hahs  hath  <.-on>'''aUd 
his  dealings.  I  am  intlmctcd,  thai  he  had 
couuderabic  dealings  tvith  one  Kauiucl  I'alaiar, 


1993  SS  GEORGE  IT. 

and  that  he  was  indebted  to  Mr.  Hales  Id  the 
sum  mentioned  ;  and  bavinfir  had  great  traos- 
actlons  for  many  thoosanib  of  pounds,  they 
came  to  a  balance  of  the  account,  and  Mr. 
Pahner  [;a?c  him  this  note  in  payment.  It  is 
difficult  tor  us  to  dear  thincrs  in  such  affairs 
as  require  privacy:  bnt  it  appears,  tliat  be 
bath  transactcHl  great  affairs.  He  hath  books, 
thereby  it  appeareth  that  he  bath  traded  for 
upwards  of  300,000/.  and  that  be  bath  traded 
ivith  this  Samuel  Palmer  for  upwards  of 
10,000/.  To  prove  that  this  is  not  a  forced 
note,  will  be  extremely  difficult ;  and  I  think 
that  it  matters  not  any  thinu^  to  Mr.  Hales, 
whether  it  be  so  or  not.  If  it  lie  so,  if  this 
note  came  from  Mr.  Palmer  to  Mr.  Hales,  the 
forgery  falls  not  upon  Mr.  Hales.  The  only 
thing  for  us  to  establish  is,  that  it  came  from 
Mr.  Palmer  to  Mr.  Hales.  They  own,  tliat 
he  said,  when  the  thing  was  recent,  that  he 
had  it  from  Palmer.  It  happens  (1  aajipose 
lirom  a  certaintr  that  the  note  was  a  iorged 
note)  that  Mr.  Aimer  is  gone  out  of  the  king- 
dom. It  is  impossible  therefore  to  produce 
him ;  and  if  he  was  here,  he  oould  not  be  a 
witness.  And,  if  my  instmctiona  are  true, 
that  I^almer  is  gone,  it  leaves  Mr.  Hales 
without  the  assistance  of  Palmer.  Taking  it 
lor  granted  that  he  hath  forged  the  note,  we 
submit  it  that  Mr.  Hales  cannot  be  guilty  of 
the  forgery. — Another  part  of  the  indict? 
nent  is,  that  he  hath  published  this  note, 
knowing  it  to  be  forged.  If  he  received  it  in 
satisfactJDn  of  a  debt  or  demand  that  he  had 
upon  Palmer,  that  cxcuseth  him.  Mr.  Palmer 
being  gone,  it  is  only  possible  tor  us,  first,  to 
establish  Mr.  Hales's  character,  then  shew 
tliat  he  is  a  ^at  dealer,  and  produce  his 
books,  in  which  these  thing^s  are  entered. 
There  are  several  transactions  therein,  some 
many  vears  ago,  some  later,  that  will  be 
Terinetlby  witnesses.  If  there  be  such  trans- 
actions which  we  can  verify,  we  leave  it  to  the 
Court  how  far  that  will  avail.  Under  these 
ciroamstances  we  beg  leave  to  submit  it  to 
your  lordbhip. 

Serj.  Bajfnes,  My  lord,  and  gentlemen  of  the 
jury ;  I  am  cooumI  on  the  same  side.  The 
first  thing  that  lies  under  consideration  is,  whe- 
ther this  note  was  forged  by  Mr.  Hales?  That 
it  was  a  forgery,  tiiey  have  giveu  strong  evi- 
dence; but  the  only  question  is,  first,  Whether 
Mr.  Hales  did  forge  it?  In  the  next  place, 
whether  he  publisiicd  it,  knowing  it  to  be 
forged  ?  These  are  the  two  charges  laid  against 
him  in  the  indictment.  We  hope,  that  uiion 
the  evidence  we  shall  give,  you  will  think  him 
clear  of  what  is  charged.  It  is  well  known,  that 
he  hath  dealt  for  as  great  sums  as  most  in 
Lombard -street :  he  hail  the  misfortune  af)er- 
wards  to  fail ;  therefore  be  was  obli^red  to  act 
in  a  different  way  from  others.  We  shall  shew 
that  Mr.  Gibson  himself  gave  him  such  credit, 
that  he  trusted  him  witli  ^eat  sums  of  money, 
and  with  receiving  rents  m  Kent.  For  us  to 
prove  a  negative,  that  he  did  not  furge  tfaia 
ima^  caaaot  be  bnt  bj  riw^nnHaBflM,    lo 


Trial  ^WiUiam  Hales, 


[fee 


order  to  charge  ns,  they  haw  gone  a  grnl 
way  with  ciroumstanoes ;  and  the  question  isj 
what  validity  these  circumstanoes  will  liata 
with  you  ?  They  lay  a  stress  upon  this,  that  ha 

Sve  directions  to  fuimsey  to  tralwact  theae  af« 
rs,  to  change  his  cloaths,  his  wig,  and  to  ^ 
on  another  hat    As  to  that,  that  will  dcocad  a 
great  deal  upon  the  credit  of  Rnmacy'a  cvi« 
dence  which  he  gives.    Mr.  Bnmsey  appiaii 
to  be  partieeps  criminis :    therefore,  thoi^  i 
cannot  say  but  this  evidence  is  le^,  yet  iti^ 
fects  his  character  and  credit:  it  is  notaoch'aa 
if  he  was  an  indifferent  person .    As  lo  the  wig, 
they  made  a  great  noise,  as  if  it  waa  bowll 
with  a  design  to  impose  on  persons  in  tfaal» 
guise.    We  shall  shew  that  it  waa  not,  boCviik 
another  design.    Mr.  Hales  and  Rooiaej  bai 
an  intention,  before  Monday,  to  go  iato  tha 
country.    He  himself  saith,  that  be  only  M 
the  finO  light  wig  which  he  bad  upon  hia  naad. 
It  was  very  proper  at  that  time  of  the  JMI^ 
that  he  should  have  another  wig  to  travel  ia. 
Therefore  it  seems  probable,  that  it  waa  bongbt 
with  that  view,  and  not  to  impose  upoo  per- 
sons; since  that  could  not  make  an  alteralM 
in  his  cooatenance.    As  to  his  acting  iindat  a 
different  name,  that  seems  upon  this  acooont ; 
Mr.  Hales  had  the  misfortune  to  have  a  eon- 
mission  of  bankni|>tcy  awarded  agaiast  Um  t 
and  after  long  soliciting  for  a  cxrtifieate,    "*'' 
not  get  it:  therefore,  although  be  Iran 
great  affdrs,  all  the  sunra  which  he 
ciated  were  forced  to  be  under  feigned  and 
rowed  names;  because  if  his  creditora  ' 
that  he  had  such  credit,  and  negociated 
affairs,  they  would  be  the  harder  npoa  Ui 
Therefore  there  was  such  a  direction  givMi 
that  Mr.  Hales  might  not  be  known  to  be  eoa- 
cemedinsuch  an  affair.— It  is  incumbent  apaa 
us,  first,  to  give  an  account  how  we  canae  bj 
thtftnote:  there  was  one  Samuel  Palmer  in- 
debted to  Mr.  Hales  between  6  and  7,000i. ;  be 
came  to  him,  offered  this  note  as  a  security, 
that  he  might  pay  himself  upon  receiving  tkia 
money ;  thereupon  Mr.  Hales  very  inaomtlj 
took  the  note,  not  questioning  its  goodaass. 
Mr.  Gibson  being  a  man  very  well  known,  Mr. 
Hales  knew  that  the  signing  was  his  hand, 
thouqfh  the  body  of  the  note  was  not  \«ritten  bj 
him  ;  and  he  miglit  be  easily  imposed  upon, 
and  take  this  as  a  good  note.    No  wonder  that 
it  should  be  thought  so.    Thoutzh  Mr.  Poltock 
suspected  this  note,  because  it  was  not  written 
by  Mr.  Gibson's  own  band ;  yet  it  is  plaia,  thai 
at  Mr.  Hoare's  shop,  Mr.  Turner  made  aa 
scruple  at  all  to  exchange  this  note,  and  giva 
other  notes  for  it    Therefore,  though  they  saw 
that  this  note  was  written  on  a  different  piece 
of  paper  from  what  a  note  of  such  a  value  used 
to  be,  it  is  plain  that  Mr.  Turner  did  not  think 
this  of  so  much  weight.     No  wonder,  theea- 
fore,  that  Mr.  Hales  sboulil  be  so  imposed  ea« 
The  next  part  of  the  convitleratiou  is,  Wlictker 
he  published  this  note,  knowing  it  to  be  forgeAf 
For  otherwiae  it  is  not  criminal.    Thtiuwa 
the  indictment  runs,  *'  Knowing  it  to  be  foil- 
ed."   NoW|  in  case  that  we  prove  this  fintpart 


IxipetUalthen'it- 
np  M,  tlia  ulhcr  part  will  fall 

iti,  knowini;  il  tn  l>e  funfcil.  In  pub- 


^  nir  lardsbip. 
t^  in'iIicUucDl  my  lord,  rani,  tliRl  lie,  vi  el 
w«u.  ra.  *  «efbii  M  ti[[um  iieiiuFnilliiM,* 
bil«4lhi*  u*te.  Nnw,  my  lord,  it  a  nul  pre- 
^M«M  he  foTgeil  the  name  of  Mr.  Gibwm ; 
^  Mi  fciifiiii  ,  llioagh  I  do  not  cootrovert  that 
kckricntisntFr  my  Dtme  ta  guilty  of  for;- 
^  ii|ikitb*ile  note,  y«l  ool  ■  Terbii  et  ligari* 
'^^uIhh  ;*  tlial  19,  forging  ilie  whole  note. 
Iknfot  being  charged  berewilh,  and  lliey 
^■■inff  ilul  li*  dkl  write  LUe  iiaii;ii  I'bomas 

^M.  Fft.    In  ilie  name  in  Ibe  indicttneoi  t 
Jmi.  B^*a.  Vci,  Toy  lord. 
Jml  Pmgt.     Now  I'liomnK  Gibson  n  agrpcd 
k     bkilfaekaarfuf  Mr.  Gibon,  but  not  to  ibal 
I    M» 

I        bq.  fi»rM)-    No,  ray  lord,  I  admitted  that, 

I     iiiMiBf  ibeobjeciioii.     I  Mid,  llial  he  Ibat 

I     vntmmiwt  my  name  i«  guilty  of  tbrging  such 

t     IMHi  bal  noi  '  in  lerhis  el   tignris  seqiiCDli- 

I       'b*l'  b«  ■■  fui  guilty  of  forging  Ibe  name  of 

n^HB  (iibMM).     I'bcy  boTe  tokeo  upon  Ihetn 

to  fa  thai  thia  nota  was  '  verbis  et  figurii  je- 

■'MMibui;'    thrn  aller  tbe  body  of  tbe  noK 

M«ab  Thotuoa  Oibavn.     Now,ii>y  lord,  we 

Mifattd  tlM   ia  uot  fore^i.     Tfaotigh  tbe 

I       MMBc*  b4  the  note  is  nul  Mr.  Gibson's  haiid- 

Iwiilf  t  yet  tlu^  <"*»,  on  Itie  otber  hand,  that 
A*  w«e  n  Ibe  band-writing  of  Mr.  Gibson, 
H 1^  it  >p(ieara  tery  plainly,  that  we  hare  not 
inrf  llin  DOIc  '  verbis  <!(  nguris  aeqiieAtihua.' 
Jm.  Faff,  (trolher,  dn  you  rely  upon  this 
""  '  »?  If  you  do,  I  will  yi»e  you  my  opi. 
I  wbcn  tbe  whole  t»  liiiiibed. 


Mr.  Crammer  railed  and  sworn. 
Dai^ull.  Kr,  are  yoa  Br^iinioted  with 


•n.iW.1 

■r.#a«i 


.   -    „  >t  penonally  aoqnainled 

rtklM»,dMarh  I  barelinnwD  bini  by  light 
mmy  yw«.     1   know  nothing  at  all  of  bis 

9my  Durmtll.     Do  you  hnow  Hr.  Snmuel 
hkmrt   Dayaubuuw  biadealin^i' 

e*au.  Yn.  Hir.  aa  to  Mr.  Pulmer.  1  knew 
tialMwaobiid.     1  married  hi*  mollier. 
•■  tmofhl  up  at  Ibt)  Bait  India  house, 
■M  lij  l£*  I^Mt  India  coiupany  iota  IVi 
"'""   '  ""■-   I  many  yean..      Not  hating  tbe 
4  that  be  evpei'ti^,  he  relumed 
It  Maycd  iu  Turkey. 
:  t'sge.     Were  you   ibere  with    him  f 
■"     "  """         what  did  you  know  of 

jk    ba  came    home  throttgh 

:  Y<M  caoMrt  tay  that  upon  oath, 
— -^,_  -rtBO*  Iherrwiih  him,  Did  you 
Wa  Ihm  hn*  ai  Laodou  ahiT  bif  rMuni  f 
■taMbafWiar 


A.  D.  1728. 

Gminger.  I  know  not  of  any  dealia^ni 
had  io  Eogland. 

Just.  fa^e.  DuyMiknowofBoy  ImoivoLiOB 
between  bim  and  Mr.  Halnf 

.rahgtr.  Hf  told  inc 

list,  i'age.  That  \a  uuibing.  What  subslanca 
he  off 

■rainger.  He  bad  no  GiibsUnce  atall,for  ba 
HD  inaotrent  man. 

uRt.  Page.     How  long   aince   he   wa*  in 
Londuo  f 
Qrainger.  Within  a  Iwaliemcalh. 

Thomaa  At/lcs,  esq.  called  and  iworn, 

Serj.  Baynti.    You  are  desired.  Sir,  to  gitc 

I  account,  whether  you  know  the  defendant 

Hr.  Hales,  bow  many  years  you  hare  knuwn 

bim,  and  what  is  your  opioion  of  his.'' 

A^let.  I  baTeknowubiiD  twenty,  three  yean 
ind  upwards,  when  partner  vrilh  sir  Mepheti 
ZviDce,  with  whom  i  keiit  a  considerable  casb 
nil  that  time :  I  reireived  a  great  many  ci(i< 
lilies  tram  Mr.  Hales  upon  Beveral  onMsiona. 
'  r  which  1  hare  always  bad  a  good  opinioH 

Serj.  Baynfi.  AV'bat  opinion  bad  you  of  hia 
character  ? 

Aylei.    I  look  bim  to  be  of  nagoodacha. 


passing  through  his  hanils,  doting 
these  years  that  you  ha>e  knii'iii  him  ? 
Ayltr.  Not  any  since  his  failure. 

Mr.  JLary.  I  beg  a  word  of  the  same  aide 
with  the  other  gentlemen ,  As  Io  iheexcepliniv 
they  have  made,  il  will  not  be  conti-ndeil  (I 
believe)  but  that  they  might  have  laid  it  oiher- 
They  might  bate  made  il  a  forgery  of 

e,  though  ibey  had  acl  i(  forth  otherwise. 

Our  objection  is,  Wl>elher  "  verbis  et  ligoria 
sequeniibiHi"  doth  Dot  lie  it  down  to  the  tecnud 
part  of  ibenoleaa  well  as  Ibe  rest?  Aoolber 
thing  is  this ;  lliey  have  grien  nn  account  of 
the  publication  at  London  in  Mr,  Hoarc's  shop ; 
whelber  slrauld  not  the  forgery  be  lixed  in  Lon* 
don  too  ? 

Jaat.  Po^e.  If  afiirged  note-be  pidiliibed  in 
may  not  Ihe  proseculura  lay  it  in 


Mr.  Lucy.  8lrauld  notthe  torgery  be  local  as 
will  as  the  pitblicaiioD  f 

Jusi.  i'uge.  Yes.  If  ihatvery  act  "f  foreery 
had  been  in  Middlesex,  it  ought  to  bave  been 
tritd  there:  Bpt  where  there  is  tio  |<ositiv« 
and  direct  proof  of  the  forgery,  but  the  nhola 
nriaes  from  circumsiancei,  some  in  London, 
and  some  in  Middlesex,  it  may  be  laid  in  ei- 
ther ;  or  il  would  be  impnasible  ifast  anir  artful 
persoD  should  be  convicted  of  forgery  ;  il  iabul 
being  aJone  when  he  commit*  the  tad,  and  be 
is  aatc.  And  ihe  ot^eotion  will  be  aa  strong  hi 
one  CDtmly  as  in  another ;  and  then,  if  your 
doctrine  be  true,  be  can  be  tried  no  where, 
whiih  sore  is  noi  so.  Yon  know  a  telony  may 
botrittd  ill  any  county  wb«ro  tlic  goods  arc 


SOSj 


S  GEORGE  II. 


Trial  of  Wiilmm  Haiti, 


[SOI 


found  on  the  prisoner.  As  to  your  other  objec- 
tion, that  the  indictmeut  is  for  fon;in^  the 
whole  note,  whereas  Tho.  Oihson  is  Mr.  Gib- 
son's own  hand- writing ;  that  is  extraordinary. 
Did  Mr.  Gibson  put  his  name  to  that  bill  ?  No. 
Suppose,  in  a  Ic>ss  degree,  Mr.  Gibson  had  given 
his  note  for  a  less  sum,  and  Mr.  Hales  bad  only 
made  it  for  a  greater,  would  not  that  have  been 
a  forgery  of  the  whole  bill  ?  You  know  it  is  so 
•f  a  bond,  bank,  or  other  bill,  in  every  day's 
coaimon  experience. 

Att.  Gen.  My  lord,  this  was  the  same  case 
with  Mr.  Ward's.  There  it  was  adjudged, 
that  Mr.  Ward  fmyed  a  note  of  the  dake  of 
Buckingham's  in  that  form.  There  wae  no 
pretence  but  that  it  was  (as  originally)  the 
duke  of  Buckingham's  note.  This  objection 
was  then  made,  but  it  was  over-mled,  That 
the  altering  a  material  part  was  making  it  en- 
tirely another  bill. 

Serj.  Dameli,  My  lord,  we  have  done  with 
eur  Defence. 

Sol.  Gen.  My  lord,  as  their  defence  bath 
given  us  no  further  occasion,  we  shall  not  take 
up  your  lordship's  time  with  any  reply. 

Just.  Page.  Gentlemen  of  the  Jury,  the 
prisoner  at  the  bar  is  indicted  for  forging  a  note 
of  Air.  Gibson's  of  6,400/.  and  also  tor  pub- 
lishing this  note,  knowing  it  to  be  forged ; 
upon  which  two  things  are  proper  for  your 
consideration :  First,  gentlemen,  by  whom  this 
note  was  forged,  (for  it  is  agreed  to  be  a  forged 
note)  whether  by  the  prisoner,  or  if  he  was 
privy  to,  or  concerned  in  it  ?  And  secondljTf 
Whether  he  us  guilty  of  the  publication  of  it 
knowing  it  to  lie  forged  ?  There  have  been  a 
great  number  of  witnesses  examined  ;  and  I 
should  have  gone  over  the  whole  evidence  as 
it  was  given,  but  the  counsel  for  the  prisoner 
have  eased  me  of  that  trouble.  Forgery  it 
what  couoenis  every  £nf|[lishman :  As  paper- 
credit  is  come  to  that  bright  it  is  now  m,  the 
utmost  care  ought  to  be  taken  to  preserve  that 
credit:  but  still  the  innocent  must  not  suffer. 
As  to  this  note's  being  forged,  which  hath 
tjken  up  the  most  part  of  the  very  long  time 
this  cause  hatli  been  trying,  the  counsel  for 
tiiG  prisoner  all  agree  that  it  is  a  forged  note ; 
and  then  it  will  be  to  no  purpose  to  sum  up  that 
part  of  the  evidence  to  you«  I  shall  therefore 
take  notice  only  of  such  parts  as  go  to  prove 
j\lr.  Hales  himself  guilty  of  this  forgery*  or  of 
his  publication  of  it  knowing  it  to  be  forged. 

The  two  iirbt  witnesses  were  Phifip  and 
Robert  Booth,  which  may  be  proper  to  be 
taken  notice  of  by  and  bye. 

The  third  witness  was  Rumsey,  who  hath 
gone  through  this  whole  matter,  and  whose 
credit  hath  been  supported  by  others  of  un- 
questionable reputation  in  every  material  cir- 
cumstance, lie  tells  you,  he  was  no  dealer 
in  thid  kind  of  business,  but  a  perfect  stranger 
to  it,  bred  up  to  the  sea:  that  he  hath  been 
aciiuauited  with  the  prisoner  for  abont  a  year, 
and  from  June,  till  the  time  this  fact_was 
committfidy  wis  ?ery  much  with  him. 


note,  which  was  read  and  shewn  to  yoa,  bean 
date  the  7th  of^September  last;  and  the  wboW 
management  was  carried  on  till  the  9th.  He 
saith,  that  on  the  7th  of  September,  which  wie 
Saturday,  he  was  at  Mr.  Hales'i,  not  thct 
knowing  that  he  was  to  dip  his  finser  for  his 
in  so  vne  a  thing.  He  says,  Mr.  Bales  only 
then  told  him,  that  he  must  go  inlo  the  citv 
with  him  on  some  bnsiness;  and  that  ha 
dress,  which  was  a  red  waistcoat  and  breecbs^ 
were  not  proper  to  appear  in,  in  the  effsir  he 
had  to  employ  him  in  ;  and  that  he  had  pro- 
vided him  another  (the  same  which  RimiiBj 
has  now  on).  That  he  was  not  tlionght  ik* 
poised  enough,  but  was  in  this  new  drcsi  ea^ 
ried  to  Holborn,  and  there  had  a  Mack  penkl 
bought  for  him,  and  a  letter-case  with  papf 
put  m,  as  a  man  of  busiuess ';  from  whamL 
after  he  was  equipped  in  this  disguise,  be  aal 
the  prisoner  went  together  to  John's  ooffbe- 
house  in  Shire-lane.  * 

You  will  observe,  gentlemen,  BIr.  Hales,  m 
Romsey  swears,  did  not  then  discover  to  hini 
what  he  was  to  do ;  but  it  was  to  come  out  m 
by  accident,  which  was  thus :  soon  after  they 
came  to  the  oofiee- bouse,  a  porter  with  a  lettar 
directed  to  Rumsey,  came  there,  which  Mh 
Hales  immediately  took  from  the  porter  sal 
opened;  which  then  appeared  to  be  a  oovw 
with  this  note  in  it,  and  nothing  writ  on  the 
cover  but.  Lady  Harriot  Elliot  4,300/.  Sur  Jeha 
Hynde  Cotton  2,100/.  This,  Rumsey  say^ 
he  did  not  understand ;  nor  did  the  prisoasr 
nve  him  leave  to  open  the  letter,  knowing  Isi 
Ramsey  says)  he  wss  unacquainted  with  M 
contents  of  it.  But  when  BIr.  Hales  btA 
opened  the  letter,  he  explained  to  him  whU 
the  two  names  and  figures  meant,  and  thsa 
told  him,  he  would  have  him  go  to  Bless.  Sneis 
and  Poltock's  with  this  note,  and  get  of  thass 
two  bills,  one  for  lady  Harriot  Elliott  for 
4,300/.  the  other  for  sir  John  Hynde  Cotton 
for  S,100/.  and  told  him,  that  BIr.  Snow's  shop 
was  a  little  without  Temple-bar,  and  did  not 
so  much  as  trust  Rumsey  out  of  his  sight,  but 
went  with  him  over-against  the  door.  Iliim- 
sey  goes  in,  where  was  BIr.  Poltock.  Tho 
first  thing  BIr.  Rumsey  does  is  to  produce  a 
Bank-note  of  40/.  and  10/.  in  money,  and  to 
take  his  note  for  50/.  and  then  produces  the 
note  for  6,400/.  But  BIr.  Poltock  being  a 
very  careful  man,  and  being  now  called,  says, 
he  made  much  the  same  observations  that  I 
believe  you  have  all  made  on  view  of  it.  Ha 
says,  it  was  an  odd  sort  of  a  bill ;  that  he  never 
had  any  of  BIr.  Gibson's  bills  but  of  his  owa 
hand-writing ;  and  that  this  was  writ  oo  so. 
scanty  a  piece  of  paper,  that  he  would  nol 
metldlc  with  it. 

When  Rumsey  came  out  of  the  shop,  ho 
says  he  found  Mr.  Hnles  over-against  the 
door,  where  he  left  him,  and  tells  him  what 
ill  success  he  had  had,  and  gives  him  back  tho 
note :  whereupon  the  prisoner  and  Rumsey  go 
back  to  the  coffee-house,  and  there  the  prisontf 
said,  he  must  try  elsewhere,  and  nanied  Mr. 
Hoare'i,    And  to  give  Kumiey  credit  tbci% 


m 


Jbr  a  Mudemianor. 


A.  D.  172«; 


[306 


li««ii«l  10  pty  in  Ml  Horn's  70/.  that  is, 
Jk Mtek^iois  for  501.  and  30{.  in  rooney, 
IrilitriR  fism's  bUi  for  70/.  which  was 
i:  teitwtboi  acaree light;  and  CTcry 
Mr.  Giboan's  fery  great  credit, 
rriAo  was  then  in  the  shop,  with- 
HHwh  this  note,  takes  it,  and 
two  odiers.  But  Mr.  Hales 
is  Greeted  Ramsey  not  to  take  the 
Mm  Is  Isdy  Harnott  Elliott,  hot  to 
'^  iGfOSfcnor  or  bearer,  and  the  e,100/. 
f  Johi  Hynde  Cotton  or  bearer ;  and 
flsafinns.  And  Kuipsey  swears, 
also  shewed  him  Mr.  Hoare's 
with  him  almost  to  the  door. 
Samser  had  soceeeded  at  Mr. 
htsiySfhe  found  the  prisoner  wait- 
[tf  a  fialHitall,  a  small  distance  from  the 
1  there  he  gave  the  prisoner  the  70/. 
mi  the  notes  he  had  reoeired  in  ex- 
Ar  Mr.  Gibbou's.  Rumsey  swears, 
Hfet  nothing,  and  that  tho  prisoner 
ivbole  profit  Bot  th'is  wonid  not  do 
easiness,  nor  did  he  rest  here. 
tU^g  therefore  b  to  make  the  best 
rssles,  and  to  manage  matters  so  as 
ilililnesd  or  fonnd  ont;  in  which,  gen- 
'"  \%  was  certainly  right  that  the  notes 
IJedufted  and  changed,  divided  and 
"  '  as  moch  as  possible,  that  no  track 
■■ht  be  seen :  and  for  this,  Rumsey 
f  Am  he  acoordiogly  did  go  with  these 
the  prisoner's  direction,  from  one 
i  ts  another ;  first  with  the  4,S00/. 
JiMr.  Woodward's,  who  wouki  not 
viih  it;  thence  to  Mr.  Brassey's, 
ih  cfaaoffed  it  for  four  bills,  which  he 
Mr.  Hales,  who  waited  for  him  at  a 


Ramsey  received  at  Mr.  Bras- 
,  jjljht  goUsroith's,  in  exchange  for  Mr. 
^prt  Mitt  of  4,900/.  were  four,  viz.  one  for 

for  1,100/.  and  two  for  1,000/. 

de  payable  to  one  Samuel  Palmer, 
P^ —  same  Rumsey  was  instructed  by 
Abto  take  these  notes,  and  was  himself 
'AMby  the  prisoner  to  go  by  the  name  of 
tMB^vliieh  hedid;  and  the  prisoner  was 
[^*Mil,  that  he  waited  about  Mr.  Bras- 
4^Aip  during  all  the  time  Rumsey  was 

jny  says,  that  he  went  and  lay  at  Mr. 
gfc  that  and  the  next  night ;  and  Mr. 
^U  him  be  ready  on  Monday  morning 
be  had  then  put  on :  and  accord 


WM  Monday  morning  he  went  with  him 

^^iewav's  coffhe-house,  where  it  was  fixed 

^  k  iboold  dispose   of  these  notes,  and 

^feded  by  the  prisoner  to  go  to  Mr.  Ai- 

■  ^^  Bankey's  to  make  other  alterations, 

-  i^  ^  ^®  Maker's  for  the  bonds  he  had 

I  %b,  who  tokl  him  he  had  onl  v  got  1 ,000/. 

^i^^ieh  Rumsey  saj^s  he  had,  and  af- 

^^  en  his  goinff  again^  Iwd  more. 

jjwfanco,  I  rare  laid  [this]  before  you,  not 

"^consideration  whether  Mr.  Gibson's  note 

^^ifed,  for  that  is  admitted ;  but  how  far 


Itr.  Hales  hu  been  concerned  an  actor  in 
this  aifoir ;  and  to  put  you  in  mind  (if  Rumsey 
swears  true)  that  he  was  only  the  cat's  claw, 
and  a  mere  tool  for  Hales,  and  that  Hales 
contrived  and  ordered  every  thing. 

When  all  this  was  so  succe^nlly  carried 
through,  the  prisoner  semis  Rumsey  to  the 
Bank  for  moaey,  where  the  matter  comes  to 
be  discovered  in  this  manner. 

Mr.  Humphreys  swears,  that  he  being  Mr. 
Hoare's  out-going  cleik  to  carry  bills  abroad 
and  receive  money,  on  Monday  morning  he 
went  to  Mr.  Oibeon's  with  tliis  note  for  6,400/. 
Mr.  Gibson,  he  says,  was  gone  to  Bath ;  and 
it  is  remarkable  that  the  note  is  dated  on  a 
day  when  be  transacted  no  business,  and  it 
was  not  published  till  he  was  gone  to  Bath. 
Mr.  Humnhreys  says,  that  he  not  meeting 
with  Mr.  Gibson's  cashier,  desired  the  money 
should  be  paid  into  the  Bank,  and  letl  the  note 
for  that  purpose.  When  Mr.  Gibson's  cashier, 
Mr.  Phillips,  came  home,  he  says  he  had  the 
bill,  and  looking  upon  it,  saw  great  reason  to 
suspect  it,  and  thought  it  not  probable  Mr. 
Gibron  should  draw  a  bill  as  that  was.  He 
saith,  that  in  all  his  time  he  nerer  knew  Mr. 
Gibson  sign  such  a  note,  nor  any  note  for 
money,  but  of  his  own  hand»writing.  The 
size  of  the  paper  also,  he  says,  confirmed 
his  suspicion.  And  sure,  gentlemen,  paper 
must  be  very  dear,  that  a  note  for  such  a  sum 
should  be  wrote  on  so  scanty  a  piece  as  you 
have  produced.  But  the  casnier  further  says, 
that  looking  on  the  note,  he  found  there 
was  a  manuest  alteration  in  the  writing ;  Tho« 
mas  Gibson  was  Mr.  Gibson's  hand,  but  a 
rasure  appeared  above  it,  and  th^  letter  o  in  the 
word  *  For'  to  be  intruded  in  it,  and  wrote  with 
another  ink.  Yon  have  all  seen  the  note,  and 
to  me  it  seems  very  plain,  that  the  letter  o  was 
not  originally  written  in  that  phice.  And  to  give 
you  at  least  a  very  probable  account,  that  this 
word  was  at  first  *  Free'  and  not '  for' and  done 
by  Mr.  Hales  himself,  the  first  witness  (Mr.  Phi* 
lip  Booth)  you  will  remember  swears,  that  the 
prisoner  some  time  ago  prevailed  on  him  to  get 
of  Mr.  Gibson  two  franks  on  two  letters  of  Mr. 
Hales,  directed  to  Robert  Booth,  eso.  of  Bris- 
tol, ;  and  says,  that  the  foldinirs  of  those  letters 
were  largfe  euough  to  tear  off  the  piece  pro- 
duced. And  Robert  Booth,  esq.  of  Bristol, 
says,  there  is  no  other  of  that  name  there, 
and  that  he  never  received  any  letter  fraoked 
by  Mr.  Gibson.  And  as  things  of  tliis  kind  ant 
generally  made  out  by  ctrcamstances,  '^  ^^ 
no  very  hard  thing  to  erase  the  two  ^r'i,  »r 
the  o  between  the  F  and  r,  in  such  aim— ^^^ 
this  has  been  shewn  to  you.    Ocptfcy-^    '' 

Humphreys  goes  further,  and  wJ^J^SiLf^ 
to  the  Bank  about  noon  that  dsy»  •^  *'■■*'     *• 

Mr.  Gibson's  people  had  not  pai^Jr 


at  which  he  says  he  was  P^^f.^.^i  ^w  j«.*..».. 
knowing  Mr.  Gibson's  credit  f^'  ^  ^^-« 

ness  of  his  people;  and  '**^"*  Vi 
son's  to  know  what  the  rt*^ 
was  informed  of  the  ^^^'Jl^^  T      « 
out  thus.   Mr.  Hoare's  t'^^  "••  ■    '"   '* 


S2071  2  GEORGE  11. 

thifM  and  chati^ed  about,  at  yod  bate  heardi 
aome  part  of  the  mooey  was  at  last  in  Bank- 
bilLi,  and  there  Rumsey  that  Monday  morning 
receif  es  6502.  on  account  of  those  billa,  before 
the  fraud  waa  disco? ered.  But  from  what  ap- 
peared at  Mr.  Oiboon'a,  and  the  Bankoumbera 
of  the  bills  delivered  being  entered,  care  waa 
takeii  to  examine  the  receipt  book,  to  see  who 
came  for  any  more  money  on  those  bills.  And 
Mr.  Maddox  tells  you,  that  be  having  notice 
given  him,  ordered  the  clerk  that  paid,  when 
any  body  came  with  those  bills,  to  seem  ready 
to  pay  the  money,  but  to  delay  it  till  a  conalabie 
could  be  fetched :  that  aoon  after  Rumaey  came 
a^in,  when  a  constable  was  fetched,  and  cnarged 
.with  Rumaey.  He  at  first  declined  to  give 
any  account  of  his  name,  or  where  he  had  the 
note;  at  length  he  told  Mr.  Maddox,  that  if 
they  would  let  him  write  a  letter,  he  wonM 
•end  it  to  the  person  he  had  the  note  from ;  and 
aceordingly  writea  a  letter  to  Mr.  ■■■■■ 
(with  a  blank)  at  Robin's  coffee-house,  with 
which  the  constable,  with  some  of  the  clerks  of 
the  Bank,  went  immediately  to  see  who  waa 
there,  and  found  three  persons  besidca  Mr. 
Halea.  The  three  were  neighbours  whom  the 
coffee-roan  knew  :  Mr.  IlaTea  was  a  stranger 
to  him,  hot  known  to  the  officers  of  the  Bank. 
When  he  was  aeiied,  Mr.  Rumscy  waa  exa- 
mined again,  and  owned  that  that  was  the  very 
person  who  sent  him  with  the  bill.  U|)on  this 
Halea  waa  carried  up  stairs,  examined  and 
aearcfacd ;  and  not  only  one  of  those  bills  that 
had  been  received  found  upon  him,  but  also  au 
account  under  Mr.  Halea's  own  band,  that  ex- 
actly tallied  with  the  account  Rumsey  gave. 
And  Mr.  Maddox  says,  the  prisoner  owned  the 
account  to  be  his;  and  the  notes,  bonds, 
broker's  accoimt  of  the  bonds  bought,  and  ef- 
fects found  upon  him,  to  be  the  very  produce  of 
the  6,400/.  So  that,  gentlemen,  you  will  now 
take  it  into  yonr  consideration,  tnat  the  evi- 
dence against  the  prisoner  doth  not  depend 
aingly  on  the  credit  of  Rumsey,  but  that  he  is 
aupported  by  the  number  of  witnesses  you  have 
had,  and,  iu  particular  by  Mr.  Maddox,  and 
(which  cannot  err)  the  account  and  produce  of 
the  money  taken  upon  him. 

Thus,  gentlemen,  the  forgery  being  admitted, 
I  hare  laid  beibre  you  that  part  of  the  evidence 
(bat  principally  affects  Mr.  Hales,  and  that  goes 
to  prove  him  either  guilty  ef  the  forgery,  or  of 
the  publishing  of  this  note,  knowing  it  to  be 
forged.  As  to  the  tbrgery,  gentlemen*  of  tliia 
note,  by  Mr.  Hales,  I  must  leave  it  to  yon  upon 
the  strength  of  this  evidence,  wliich  has  been 
▼ery  long,  and  (1  doubt  not)  fully  observed  by 

Jou ;  and  that  you  will  give  it  its  just  weight, 
(ut  aa  to  his  publishing  it  knowing  it  to  be 
inged,  he  bath  not  given  you  the  leaat  oolonr 
of  evidence  to  tlie  contrary  ;  and  I  must  tell 
yon,  wherever  a  for^red  note,  or  other  thing  of 
that  nature,  is  found  in  any  one's  hands,  it  is  in 
law  a  strong  evktenoe  that  he  ia  the  ibrger,  un- 
leaa  he  can  give  some  account  of  it.  B«it  hare 
jo«  af8  only  told,  that  he  bad  it  from  Palmer ; 
WtH0l«Btwwd«fproo£    Mr.  Hnlea'a  coun- 


Trial  of  mUiam  Hales. 


E« 


sd  have  indeed  offered  to  yon  in  bis  defence 
first,  that  be  is  a  gentleman,  and  shall  not  b 
presumed  to  be  guilty  of  such  an  uffeuce  ;  urn 
^ntlemen,  aliallany  other  on  a  bare  presump 
tion.  But  here,  gentlemen,  b  great  atrengtl 
of  evidence  that  afl'ecta  him  ;  I  do  not  kn« 
that  1  have  met  with  a  stronger  proof  of  th 
very  fact ;  it  is  not  to  be  expected.  They  kaiff 
also  told  you,  that  he  was  a  bankrupt,  an 
could  not  get  a  certificate ;  thattliecominMa 
of  baokmptcy  against  htin  waa  about  twea^ 
years  ago.  They  say,  that  upon  thai  aoonm 
he  was  forced  to  make  use  of  other  nanM  I 
his  dealings,  and  sometimes  fictitiona  oMi. 
that  he  hath  traded  for  upwards  of  300,000i 
in  that  time:  that  Palmer  was  much  emph^ 
by  him,  and  entrusted  in  the  carrying  ai 
that  trade,  and  being  thereby  indebteJ  to  Mi 
Hales  in  above  7,000/.  gave  him  this  note  I 
part  of  payment ;  which,  aa  to  bis  trading  s 
that  manner,  I  think,  is  so  far  from  juatifyia 
bis  character,  that  it  is  of  itself  a  crime  not  mad 
leaa  than  that  with  which  he  stands  charged 
A  man  that  ia  a  bankrupt,  if  he  aiterwatds  hi 
comeaable,  ouffhtin  honour  and  conscianeai 
pay  bia  just  ddots.  It  is  not  the  first  lime 
nave  known  that  done ;  general  Wood  waa  i 
draper,  fiiiled,  and  (laid  very  little  ;  hn  was 
into  the  army  for  bread,  and  proved  ao  galtai 
a  man,  that  he  raiaed  himself  to  be  a  gcnani 
He,  like  a  good  Chriatian,  and  a  man  that  dMa 
be  would  be  done  by,  paid  hia  debto  to  fk 
full ;  which  if  the  prisoner  had  done,  it 
have  given  him  a  much  better  character, 
tlemen,  his  connsel  have  told  you  he  ca  . 
a  vast  trade  for  twenty  years  ;  but  do  thev  M 
you  that  his  creditors  were  the  better  for  il^  i 
were  ever  paid  one  penny?  No,  geiokmm 
they  did  not ;  and  therefore  I  mnat  leave  ill 
you,  whether  this  waa  not  one  continued  actfl 
fraud  to  cheat  hu  creditors ;  if  so,  it  will  -'^' 
the  prisoner  quite  another  way  than  hb  o 

intended  it.    And  though  two  or  three  wit 

were  called  to  give  evidence  of  the  dealingihl 
tween  Mr.  Hdes  and  Mr.  Palmer,  there  wi 
not  one  thing  proved :  so  that,  gentlemii 
there  seems  very  little  for  you  to  conaidB 
You  have  a  number  of  concurrent  witnoiad 
that  have  given  you  a  full  and  clear  acooont  < 
this  whole  transaction  ;  that  this  was  contrived 
managed,  and  carried  on  by  tlie  prisoner  in 
very  extraordinary  manner,  and  which  tbei 
was  not,  nor  could  be  any  reason  for,  but  I 
avoid  being  detected  of  the  vile  crime  lie  ia  nni 
charged  witli ;  nor  can  there  be  any  doub-  bl 
the  whole  produce  of  this  note  was  for  his  bl 
nefit,  the  account,  bonds,  and  billa,  having  bea 
found  in  his  pocket. 

I  roust  leave  it  to  you,  gentleroen :  but  nen 
was  stronger  evidence  than  here  is,  that  Ml 
Hales  is  the  author  of  this.  So  that  I  thial 
gentlemen,  if  you  believe  the  evivlence,  Ih 
charge,  one  way  or  other,  is  lully  broiighl  I 
the  priitoaer's  dour.  If  you  believe  him  guikj I 
the  forgery,  you  will  then  find  bins  gnihyga 
nerally  of  the  whole  indictment;  bnt  ifyoa  m 
not  aatiaflnd  of  that,  you  will  only  imi  kk 


'  SV)  TnMtqfmiUamtIale$. 

Mbf  of  A*  Mfacr  part  of  tba  iadMlnwnt ;  or, 
tym  MB  ^^  ihu  cvUeoof ,  jou  may  acquit 

IW  Jny  hcwf  witUrawn,  «fW  a  Tei*  mi- 
iMi  Nff,  braogfat  tbe  prwciMr  in  Guilty  of 
fa|a(  ■»  MMc,  and  of  pnMMliing  tbe  Mine, 
hSrafki*  Iw  biged. 

r  wu  «  fMond  time  indictnl 
m  «f  S8  H.  8,  e.  1,  for  obuinm; 
J  tolMM.  To  whiab  indicbnent 
t  plnuUd  Not  Oiiiliy ;  and  the 
w,  in  tnMwio*,  being  oSered  ai 


A.  D.  17S9.  [SIO 

apen  the  fbrmer  indictment,  the  ynj  brangfat 
him  in  Guilty. 

It  ii  (tated  in  tbe  former  edition,  that  this  foil 
rennt,  taken  in  ahort-hand  by  order  of  Hr. 
OibMD,  waa  dot  obtained  in  time  for  interdon 
near  to  the  other  Cases  reapeeting  Halei,  tn 
wbieb  |>art  of  the  work  waa  Ikercfbre  tobrti- 
tnled  a  abort  account  of  the  trial  taken  fmn 
tbe  SeanOQ  Paper.  This  full  report  bring  uow 
giren  in  iia  proper  place,  the  abridgement  from 
the  Beanoa  Paper  u  omitted.  la  Uiat  abridge- 
ment the  trial  u  stated  to  hare  been  on  De- 
cember Mb,  178B. 


I7L  The  Trial  of  Mr.  Wiluah  Hales,  at  tlie  Sessions-House  ia 
the  OW-Bailey,  before  the  Lord  Chief-Baron  Pengelly,  Mr. 
Justice  Reynolds  (afterwards  Lord  Chief-Baron),  Sir  William 
Thompson  (afterwards  Baron),  Serjeant  Rabj,  and  several  of 
his  Majesty's  Justices,  for  Misdemeanors,  in  forging  several 
Notes  and  Indorsements  in  the  Name  of  Samuel  Edward^ 
esq.  and  publishing  the  same,  knowing  them  to  be  forged  :* 
3  George  II.  A.  D.  1729- 


OjfJrr.  OyEZ.  All  manner  of  per- 
mimt  lw*c  any  thing  to  do  at  the  muioqi 
if  Ojeranil  Teriiiiocr,  held  for  the  city  of 
Into  and  c«unly  of  Sliddlesex,  draw  neai', 
ml  pic  ronr  allciiilancf:. 

Ofis.  "Van  good  mtui  nf  llic  city  of  Lonilnn, 
^■■Meil  lo  a|ipear  here  tliia  day,  ii|ion  tiie 
1W  brtneea  our  •orerngn  lord  ihe  king  and 
Vatam  llalpt,  answer  to  your  iiamen,  ai 
(Mapoa,  Sic. — James  Tilnier,  Samuel  Cran- 
mr,  RicbarU  Knollyi,  William  H<)»anl, 
HMnRogcn,  Abraham  Punier,  Robert  Ktiap- 
hd^lt(•bert  Kendal,  Jolin  llearoe,  Thomas 
■aaee.  TbomH  C'nurt,  R^ljili  Knox,  Tlioinu 
F«d,  CoraeliiH  Slason,  Jobo  I'ote,  Richard 
Etuncy,  Jame*  Coulter,  Henry  i$pi'a;»f, 
iMyb  }BC:kM>u,  Henry  Athliural,  Jcjtin  UeT- 
Uft,  IVilliain    Selwyo,  Samuel    Craiglicad, 

Pitdcrick  Ktaunton, Eloikyni,  Joliu  Jtu- 

'        Nicbolaa  Bemfield,  Edward  Tay,  t>t:ter 


htkNie 
Gmk. 


Ckrk.  Yon  chall  well  ami  truly  try  thii 
iwt  buween  our  toFerei;;n  lord  the  king  and 
Vjiam  Hatea.    Sa  help  you  God. 


^Ml  Cranmer, 

fetad  k.noUy«, 


Joar. 

I'boma*  Ford, 
Ralph  Knox. 
Cornel  Jul  Haton. 
John  l>nte, 
Richard  Chauocr, 
Jaaepb  Jacbion. 


1  Cltrk.  Oyex.  If  any  man  ean  inform  onr 
Borereign  lord  the  king,  the  king's  jnitices,  tba 
king's  attorney,  the  Iud^i  Serjeants,  in  tbia 
rauw  betweFn  our  «otereign  lord  the  king  and 
» illiam  HaJFfl,  let  him  no»  come  forth. 

Attorncfi  General.  (Sir  Philip  Yorke,  after- 
irarilB  earl  nl'  Elarduii^ke).  Sly  lord,  we  desire 
tlitl  those  that  nere  Bummnneil  on  the  jury, 
who  happvnpd  not  to  be  iKnrn,  should  flay, 
Inl  vriten  Mr,  Kiniiersley  a  aTraigoed  there 
should  bna  detect  of  jury  men. 

It  wnH  ordered  accordingly  by  the  Court. 

Clerk  nf  Arraigjit.  Gentlemen  of  the  Jury, 
William  Hales  viands  indicted,  by  the  name  of 
Willium  Hales,  late  of  London,  goldsmith,  for 
that  he  bein^  a  person  uf  eril  fame  and  conver- 
salioD,  oiid  enileavoiirins  Samuel  Edwards,  esq. 
and  divers  others  willingly  to  defraud,  on  the 
lit  of  Juntr,  in  the  parish  of  ,  had  in 

his  custody  a  certain  note,  bearing  date  May 
11,  179tJ,  by  which  note  it  was  supposed,  that 
Mr.  Robert' EJalest  dill  promise  to  pay  uuta 

t  This  Robert  Hales,  Mq.  Jan.  -17,  1138-9, 
was  tried  at  the  King'a-beiich  bar,  Westmin- 
sler,  liy  a  special  jury  of  the  county  of  Mid- 
dlesex, of  which  lir  George  Waltcn,  koL  waa 
fon-man,  on  an  iodictoieut  tor  a  misdemeanor, 
lor  that  llie  said  Robert  Hales,  esq.  wonM  ba*S 
defrauded  Samuel  Uilwanls,  esq.  of  BOOf-  by 
mean*  of  a  note,  drawn  by  the  aaid  Robert 
Hales,  esq.  lor  a/Ml.  ])Byable  to  Samuel  Ed- 
wards, esq.  iir  order.  TIm  paper,  on  which 
the  said  Note  waa  drawn,  hatinif  the  n 
the  said  tftuiiBct  Edward*  01 


livlnck  11 


811] 


S  GEORGE  IL 


Trial  ^WiUiamHatii, 


[»« 


Samuel  Edwards,  esq.  the  full  sum  of  800/. ; 
aiid  that,  on  the  same  note,  with  an  intent  to 
defraud,  in  the  parith  aforesaid,  he  did  frawtu- 
l^Dtly  and  deceitfully,  on  the  IStb  of  June, 
forge  and  counterfeit  a  certain  indoraement,  to 
the  grreat  dama^^e  of  the  said  Samuel  EdwardH, 
esq.  to  the  breach  of  his  miyesty's  |>eace,  and 
the  ill  example  of  his  majesty 'a  snbjeclfi  in  like 
case  offending'. 

Mr.  Siraniie.  May  it  please  your  lordship, 
and  you  (rcntlemen  of  the  jury,  the  |irisouer  at 
the  bar,  William  Hales,  standeth  indicted  for 
forgiu;;,  counterfeiting',  and  publishing  an  in- 
dorsement of  Samuel  Edwards,  esq.  on  a  pro- 
missory note.  The  indictment  sets  forth,  that 
the  prisoner  did  endeavour  to  deceive  and  de- 
fraud Samuel  Edwards,  esq.  and  othen  bis 
majesty *saubjects,  having  in  bis  possession  a 
certain  promissory  note,  under  tne  hand  of 
Roltcrt  Halc«,  lieariug  ilate  Ma^  17,  1728,  by 
which  note,  this  Robert  Hales  is  supposed  to 
promise  to  pay  to  Samuel  Edwards,  esq.  or 
order,  a  certain  sumof  bOO/.  having  this  note  in 
his  custody,  did  forge  and  counterfeit,  and 
caused  to  be  forged  and  counterfeited,  a  certain 
indorsement  ou  the  same  note,  viz. 

»  Pray  pay  to  for  Samuel  Edwards." 

and  having  in  his  custody  the  said  note  for 
800/.  payable  to  Samuel  Edwards,  esq.  on 
which  there  was  so  forged  an  indorsement  in 
the  name  of  the  said  Samuel  Edwards,  esq.  did 
publish  it  to  be  a  true  indorsement,  knowing  the 
■ame  to  be  so  forged  and  counterfeited.  This 
is  laid  to  be  to  the  great  damage  of  the  said 
Samuel  Edwards,  esq.  the  brewJi  of  bis  ma- 
jesty's peace,  and  the  ill  example  of  bis  ma- 
jesty's subjects  in  like  case  offending.  To  this 
the  said  defendant  hath  pleaded,  Not  Guilty. 

only  as  a  frank  of  a  letter  to  be  sent  by  the 
post ;  he,  the  said  Robert  Hales,  having  no 
dealings  i^ilh  the  said  Samuel  Edwards.  The 
trial  lasted  seven  hours,  when  the^ury  brought 
bitii  in  Guilty.  But  in  June  following,  he 
pleaded  his  majesty's  most  gracious  pardon  in 
the  Court  of  King's-bench,  for  the  said  offence. 

Mich.  Term  [tlie  year  of  the  King  is  omitted], 

Geo.  8. 

DoMiNts  Rkx  vert.  Robe&tum  Hales. 

**  Mr.  Attorney  moved  for  a  trial  at  bar  on 
an  information  tiled  by  him  for  forgery.  Uui 
it  not  being  carried  on  at  the  expence  of  the 
crown,  but  of  a  private  prosecutor,  the  Court 
held,  that  he  miwt  make  out  the  usual  requi- 
hites  to  bring  it  to  the  bar :  so  the  motion  was 
denied.  And,  at  anotlier  day,  Mr.  Attorney 
moved,  on  an  authority  from  the  king  to  pro- 
secute, and  it  was  granted  as  of  rigiit  to  the 
king  in  his  own  cause.  And  in  HiU  set|uen'.  it 
was  tried,  and  tlie  defenilaut  convicted.  And 
in  Trin.  sequeu*.  being  called  to  judgment,  be 
nrodnced  a  |iardon,  which  was  allowed ;  and 
being  only  for  a  misdemeanor,  be  was  not  pnt 
to  go  to  toe  bar,  or  plead  it  u|>on  his  knees." 
8iniif«i  vol.  8,  p.  816.    Farmer  Edition, 


Attorney  General,  Mv  lord,  and  gentlenm 
of  the  jnrv,  I  am  counsel  on  the  aame  side,  for 
my  lord  the  king.    The  charge  against  thed^ 
fendant,  William  Hales,  is  for  forging  an  in- 
dorsement on  a  promissory  mite,  to  Samnel 
Edwards,  oq.  for  tbe  biho  of  800/.    Tbe  boIb 
was  made  in  the  name  of  Robert  Hales,  for 
800/.,  payable  to  Samuel  Edwards,  esq.  sr 
order.    And,  gentlemen,  it  will  appear,  thai 
the  prisoner  hath  been  iruiltv  both  of  tbigisg 
this  indorsement,  and  of  publisbing  it  kMv* 
ing  it  to  be  so  forged.   Gentlemen)  tnis  Samsd 
Edwards,  esq.  bath  a  considerable  empfoyeil 
in  the  Exchequer,  and  is  besides  a  membsref 
the  House  of  Commons,  and  by  that  bath  the 
privilege  of  sending  his  poa- letters  free.    Il 
was  his  misfortune  to  lite  in  the  neighbourbosA 
of  Mr.  Hales,  in  Duke-street,  in  \VestminsMr. 
The  opportunity  for  committing  of  this  (rmnd 
seems  to  have  kfceu  in  this  manner :  Mr.  Haka 
used  frequently  to^  apply  to   Mr.  Edwardii 
sometimes  by  binwelf,  sometimes  by  a  servant, 
for  frank  covers  of  letters  to  send  news  into  thi 
oonntry.    The  gentleman's   crood -nature  in- 
duced 'him  to  accommodate  him  according  « 
his  desire  with  them,  supposing  that  they  wen 
only  designed  to  send  news  to  his  friends  in  tbi 
oountrv.    He   having  possesseil   himself  si 
several  pa|iers  thus  subscribed,  it  will  appcsfi 
tliat  most  probably  he  made  use  of  one  or  tbcsi 
franks  to  commit  this  forgery.    The  fwrsery  ii 
an  indorsement  ou  a   note  of  Robert  llaki 
The  note  is  thizt : 

«*  Aftfy  17,  1798i 
'<  I  promise  to  pay  to  Samuel  EdwardSi  siq. 
or  order,  eight  hundred  pounds,  three  nonlbi 
after  date,  value  received. 

"  Robert  Halib.* 

The  Indorsement  is  thus  : 

*'  Pray  pay  the  value  of  this  to  ,  Ibi 

raloe  received.  Samuel  Edwards," 

1'his  indorsement  being  thus  wrote  over  tbi 
name  Samuel  Edwards,  gentlemen,  it  apjpcsn 
by  the  face  of  this  indorsement,  that  it  isca 
off  from  another  writing.  There  is  the  tail  o 
a  letter,  which  manifestly  apiienrs.  The  won 
'  the '  is  wrote  with  aii  abbreviation  y.  Tba 
wilt  appear  to  be  a  wonl  altered  from  some 
thing  else.  It  is  difficult  to  tell  whether  li 
read  it  fory«,  or  which  looks  like  tbe  troth  s 
the  case,  for  *  ye.'  It  will  appear  to  be  ver 
;  probable,  that  the  manner  of  forging  was  this 
having  possessed  himself  of  these  franks,  h 
cut  off  a  piece  of  one  of  these  franks  proper  In 
a  promissory  note  to  be  wrote  on  it,  whid 
would  have  on  the  back  of  it  the  name  of  8a 
niuel  Edwards.  When  he  had  done  this,  b 
did  not  think  proper  to  write  the  note  hiowel 
but  got  another  gentleman  to  write  a  proow 
sory  note  ou  the  back  of  this  paper,  payaUol 
Samuel  Edwards,  esq.  or  order.  When  tbi 
was  done,  the  name  Samuel  Edwards  ssns 
for  sn  indoraement  on  the  note.  And  the  ftlM 
ration  seems  to  have  been  made  in  tbe  iblloM 
ing  manner:  there  being  tbe  word  'ffsa 
wrote  over  the  saaei  tbtro  is  Ike  Isttsr 


say 


^r  a  Mitdemeanor, 


A.  D.  nS!). 


[?14 


umM  m  between  the  f  and  the  r.     At  to 

§i«'ttfter  tlie  r,  the  use  made  of  them  is 

ill :  set  ef  the  one  of  them  is  drawn  the  stroke 

fcrdM  tetter  jr,  the  latter  c  stands  on  ooe  side, 

viMher  above  the  y,  and  makes  y^.    Ha? ing 

tesMs,  U  eppeew,  that  here  is  a  promissory 

vis,  a  the  nune  of  Robert  Hales,  to  8amuel 

M^■i^  een.  end  here  is  an  indorsement  of 

■r.  Vsaiiel  Edwards,  by  which,  by  virtue  of  an 

ad  rf  pafiaineiit^  which  makes  these  notes 

aad  tlie  indorser  liable,  Mr.  Edwards 

iaUe  16  the  pajrtnent  of  this  note.  The 

_Jb  of  this  note  ts  this,  to  raise  monejr 

ity  and  atake  the  credit  of  Mr.  Edwards 

MfMily  for  this  money.   Gentlemen,  hav- 

i^  dsae  ihia,  he  applies  to  Mr.  Harle,  to  bor- 

MWflf  Ues  a  certain  sum  of  450/.    He  knew 

Mj  weH,  that  hia  credit  would  not  serve  for 

im  poraese,  he  beinf  a  known  bankrupt ;  but 

Mnd  dfeat  Mr.  Harle  would  lend  bim  450/. 

CI  te  credit  of  this  note.    Mr.  Harle  knew 
Mr.  Edwards  was  a  gentleman  of  great 
Mfit:  il  wta  a  promissory  note  of  800/.  pav- 
dHi  Is  SaoBuel  Edwards,  esq.  and  indorsed  by 
HavEl  Gdwards :    Mr.  Harle  made  therefore 
adsA  of  advancing  the  money  desired  upon 
it  The  anaDner  of  adrandng  this  money  was 
1^  Ihb  Harle's  making  a  draught  upon  his 
(PMhMm,  Mesa.  Caswal  and  Mount,  where 
Mr.  Brica  received  this  money .    Gentlemen, 
ttat  wiH  be  evidence  to  charge  this  upon  Mr. 
Uhl    Gentlemen,  the  occasion  of  disco ver- 
iig  im  leiwy  was  this,  Mr.  Hales  having 
M  Cihen  op  in  September  last,  ou  another 
iasPWf  of  forging  a  note  of  Mr.  Gibson's, 
feettA  he  was  convicted  last  sessions,  that 
chkI  a  pretty  deal  of  noise.     And,  gentle- 
■ca,neh  as  had  notes  of  Mr.  Hales  for  their 
wswiiy,  were  alarmed  ;  Mr.  Haile  heard  of 
liufasMog  others,  and  the  thing  thus  coming 
isheiaipured  into,  it  appeared  plain  Mr.  £d- 
««4k  nd  no  dealing  wiin  them,  but  it  was  a 
faifery  and  an  imposition  both  upon  Mr.  Ed- 
ewdsand  Mr.  Harle.     We  will  call  the  wit- 
HHst,  and  then  we  apprehend,  that  the  thing 
aQ  speak  for  itself,  and  will  appear  a  plain 
lM|cry. 

I$cr).  Wkiimker.  My  lord,  there  are  a  pretty 
■say  indictments,  and  Mr.  Attorney  hath 
•Msd  the  cause :  therefore  we  shall  imme- 
wdy  caU  the  witnesses. 

noBMti  Maddockt  sworn. 

8n].  Wkiimker.  Whom  do  you  live  with  ? 
Uiddncki.  Mr.  Edwards,  ^r. 
Unj.  Wkitaker.  Where  duth  he  live  P 
MU^oekt,  In  Dnke-strtet,  Westmin!4er. 
M.  Wkiimker.    Where  doth  Mr.  William 
Ukver 
MBddorkt.  Within  a  few  doors  over-against 

way  WkUmlur.  Will  yon  give  ns  an  ac- 
•M,  whether  Mr.  Bales  hath  ever  sent  for 
49  ftaaka  to  year  master  f 

Msrfdtrto.    Yea,  8ir,  several  times. 

I«i.  WkiukBr.  What  nuumer  of  franks 
IhayP 


Maddockt.    There  was  alwsyf  some  super- 
scription. 
Serj.  Whi faker,   Vho  had  them  of  you  ? 
Maddocks.  His  man  had  them  of  me.  They 
were  sent  bv  him  to  Mr.  Hales. 

Serj.  Whitaker.  Will  ymi  recollect  whether 
there  was  ever  any  request  to  you,  thnt  tl.ere 
might  be  some  only  free  without  any  euper- 
scription  ? 

litaddocks.  Yes,  Sir ;  there  was  in  the  be* 
ginning  of  July  last. 

Serj.  Whituker,  How  many  were  there  of 
them? 

Maddockt.    There  were  half  a  dozen. 
Serj.  Whitaker.  What  came  of  them? 
Maddockt.    I  have  five  of  them  here.    The 
other,  1  believe,  is  torn. 

Serj.  Whitaker.  Did  you  give  them  to  Mr. 
Edwards? — Maddockt.  Yes,  Sir. 
Serj.  Whitaker.  What  answer  did  he  ffivof 
Maddockt.  He  said,  when  1  delivered  bim 
that  message,  that  he  never  did  such  a  thing  ; 
and  that  be  would  not  do  them  without  a  so- 
perscription. 

Seij.  Whitaker.  Were  there  any  afterwards 
sent  without  a  superscription  ? 

Maddockt.     About  a  week  aHer  he  came 

again,  and  I  told  him,  that  my  master  would- 

not  do  it  without  a  superscription. 

Serj.  Whitaker.  Were  they  after%vards  left  P 

Maddockt.    Thejr  were  left  with 'a  young 

woman  that  is  now  in  Court. 

Serj.  Whitaker.  Are  those  they  that  were 
delivered  to  you  by  her  ? 

Maddockt.  Yes,  Sir :  one  is,  I  believe  torn. 
Those  are  the  other  ^ve. 

Mr.  Hungerjord.     Have  you  been  long  ac- 
quainte<l  with  your  master's  business? 
Maddockt.  Yes,  Sir. 

Mr.  Hungerjord.     Have  you  ever  known  it 
to  be  his  practice  tu  gi? e  promissory  notes  ? 
Maddockt.  No,  Sir. 

Lord  Chief  Baron  Pcngclly.  It  i^  proper 
you  should  ^ive  an  account  where  Mr.  Ed* 
wanis  lives  ? 

Maddockt.  In  Duke- street,  Westminster. 
'  Lord  Chief  Baron.    And  where  doth  Mr. 
Hales  live? 

Maddocks.  Within  a  few  doors,  almost  over* 
against  Mr.  Edwards. 

Jjord  Chic/ Baron.  How  long  since  was  it? 
Maddockt.   I  btrliere  that  it  might  be  three 
or  four  years  ago. 

Att.  Gen.  There  were  (I  apprehend  yoa 
say)  several  that  were  franked  ? 

Maddockt.   Yes,  Sir,  there  were  frequent] r, 
Att.  Gen.  How  long  might  this  continue  r 
Maddockt.    I  believe  several  years.     It  was 
since  the  time  of  his  living  in  our  neighbour- 
hood, which  I  believe,  may  be  about  tnrse  or 
four  years. 

Att.  Gen.    Do  yon  know  of  any  other  bu- 
siness transacted  between  them  ? 
Maddockt.  No,  Sir. 

Mr.  Strange.  You  sa]^  that  these  coferi 
were  brought  and  left  with  the  maid.  Vo 
you? 


S15]  8  GEORGE  II. 

Maddocki,  Yes,  Sir,  these  are  the  same  that 
were  left  with  the  maid. 

Mr.  Strange.  You  saji  yon  delivered  the 
fraoks  to  Mr.  Hales's  servant.    Do  you  not  ? 

Maddocki,  Y<:8,  Sir. 

Mr.  Strange,  What  was  his  name  ? 

Maddocki,  Robert  Hunsdon,  Sir. 

Mr.  StranRc,  Did  yoa  ever  deliver  any  to 
him  himself  r—Mia</£/oc^.  No,  Sir. 

Mr.  Lacy,  Had  the  franks  that  yon  deliver- 
ed the  whole  superscription? 

Maddocki,  Yes,  Sir. 

Mr.  Lacy,  They  asked  you,  whether  there 
were  any  dealings  between  your  master  and 
Mr.  Hales,  besides  this  of  letters.  I  would  en- 
quire of  votty  whether  your  master  acquaints 
you  with  bis  dealings  with  any  other  persons  f 

Maddocki.  No,  Sir. 

Anne  Clarke  sworn. 

Sen.  Whitaker,  Had  you  a  note  of  direc- 
tions for  letters  to  be  franl^  by  Mr.  Edwards? 

Clarke,  Yes,  Sir. 

Serj.  Whitaker.  Who  brought  it  ? 

Clarke,  Mr.  Hale's  servant. 

8eij.  Whitaker.  What  was  his  name  ? 

Clarke,  Robert,  I  think  they  called  him. 

Bmrj,  Whitaker,  Do  you  know  whose  writ- 
ing it  was? — Clarke.  Vo,  Sir. 

Serj.  Whitaker,  We  shall,  mv  lord,  call 
another  witness  to  prove  that  it  was  Mr.  Hales's. 

Serj.  Whitaker,  When  was  it? 

Clarke,  1  cannot  say. 

Serj.  Whitaker,  Was  it  summer  or  winter? 

Clarke.  Summer. 

Serj.  Whitaker,  In  what  month  was  it  ?  • 

Clarke.    I  believe  that  it  Was  in  July  last. 

Sen.  Whitaker.  Did  you  deliver  them  to 
Mr.  Edwards  f-^Clarke.  Yes,  Sir. 

Serj.  Whitaker,  What  did  you  say  to  him, 
or  he  to  you  ? 

Clarke,  I  told  him,  that  Mr.  Hales's  servant 
had  left  that  paper  of  directions  for  the  franks 
that  he  had  desired  ;  and  said  that  his  master 
understood  that  he  would  nut  frank  them  without 
a  superscription,  and  therefore  he  had  sent  that 
paper  of  directions.  He  said  then  that  be  did 
not  care  to  frank  them,  because  Mr.  Hales  had 
both  a  brother  and  a  nephew  that  were  mem- 
bers of  parliament,  and  therefore  had  no  need 
to  apply  to  him  for  franks. 

Serj.  Whitaker.     My  lord,  we  shall   now 

Erove  the  paper  of  directions  to  be  Mr.  Ilaies's 
and- writing. 

Mr.  Booth  sworn. 

Serj.  Whitaker,  Sir,  Are  vou  acquainted 
with  Mr.  William  Hales's  hand- writing  ? 

Booth,  Yes,  Sir. 

Serj.  Whitaker,  Whose  wriliug  do  yon  take 
that  paper  of  directions  to  be? 

Booth,  I  verily  believe  it  to  be  Mr.  William 
Hales's. 

Serj.  Whitaker,  My  lord,  there  is  something 
Tery  worthy  of  observation  as  to  these  direc- 
tions and  covers.  The  covers  are  very  large. 
Tht  dinctuHii  ar«  extremely  abort,  e,  g.  for 


Trial  of  WiUiam  Hales, 


[81ft 


John  Pratt,  esq.  Bristol.  The  whole  direcCioo 
is  but  one  line,  which  wouM  consequently  leave 
a  great  deal  of  room.  Another  is  to  Mr.  Lsvctt 
ofHuntiiMnlon.  And  there  are  two  to  each  of 
these.  The  other  two  to  Stephen  Mitford^ 
esq.  at  Exeter.  The  man  gave  an  acoonnt  of. 
six  covers  sent  to  be  franked ;  there  are  two  la 
each  of  these,  which  very  well  agree. 

Serj.  Whitaker,  You  say.  Sir,  that  thia  it  Ihi 
hand- writing  of  Mr.  William  llalea  f 

Booth.  Yes,  Sir. 

Serj.  Whitmker.  1  would  ask,  whether  ilk 
common  for  a  person  that  hath  a  piumi— y 
note  to  write  his  name  thereon  ? 

Booth.  I  know  not.  Sir,  that  it  is  comHNB* 

Note  of  Directions  read  t 

Two  to  John  Pratt,  esq.  Bristol. 
Two  to  Mr.  Levett,  Huntingdon. 
Two  to  Stephen  Mitford,  esq.  Exder. 

Mr.  Hcrr^e  sworn. 

Serj.  Wkitaker,  Let  the  gentlemen  of  tha 
jury  see  the  directions  and  covers. 

Serj.  Whitaker.  Gentlemen,  you  wiH  slaano 
the  size  of  the  covers,  and  the  shortneaa  of  Ihi 
directions  just  fitted  for  the  purpose. 

Sen.  Whitaker.  Mr.  Harle,  please,  Sr,  la 
take  that  note  in  your  hand,  and  give  no  ■■  ao* 
count  who  you  received  it  from  ? 

Harle.  From  Mr.  Hales. 

Serj.  Whitaker.  When  was  it? 

Harle,  To  the  best  of  my  remembnuMo  it 
was  Juoe  13th  last. 

Seij.  Whitaker,  Will  you  give  us  as  oeosMt 
on  what  account  it  was,  and  what  Mr.  Haht 
said  to  you  when  he  brought  that  note  ? 

Harle,  Mr.  Hales  on  the  ISth  of  Juno  hH 
came  to  me,  and  brought  me  that  note  firoBi  a 
gentleman. 

Serj.  Whitaker,  Where  were  you? 

Harle,  To  the  best  of  my  remembraneo,  at 
Baker's  coffee-house  in  Exchange  Alley.  Bo 
desired  to  borrow  of  me  450/.  upon  the  cr^it 
of  that  note ;  I  accordingly  made  him  a 
draught  on  Mess.  Caswal  and  Mount,  with 
whom  I  left  my  cash,  fur  that  sum ;  for  a  aoai! 
rit^  for  which  he  left  that  note,  and  he  pro* 
mised  that  he  would  pay  it  in  a  few  days. 

Serj.  Whitaker,  Did  he  take  any  particolio 
notice  of  the  indorsement? 

Harle.  Not  much  J  Sir. 

Serj.  Whitaker.  Was  it  then  indorsed  ? 

Harle.  Yes,  Sir,  I  am  sure  it  was ;  for  I 
was  desiretl  to  lend  the  money  on  a  note  so  in* 
dorse^l- 

Serj.  Whitaker,  The  note  then,  upon  this 
occasion,  was  left  in  your  hands  alter  that  it 
was  so  indorsed,  Was  it  uot  ? 

Harle.  Yes,  Sir. 

Serj.  Whitaker.  U|>on  what  occasion  did  ife 
happen  to  be  suspected  or  discovered  ?  Did  yoa 
pay  it  yourself,  or  3^ our  golusmith  ? 

Harle,   Mess.  Caswaland  Mount, on  wl 
I  made  a  druuirlit. 

Sen.  Whiiakcn  HoTO  you  that  dnnglftf 

HarU.  Yea,  Sir. 


« 


Jw  a  MUdaneoMor. 


MWHi^er.    It h«Ui  been  deUtered  up, 

USr-Jfarfe.  Yci»8ir,aiMlcaiieeJled. 

44Kiibr.  Ob  wlmi  occuioa  ? 

[  «Ul  Wkn  I  Mllle  my  ftceouuU  with  my 
illdwap  ny  Doiet. 
ittmgt.  YMiwcrafoiiigtogifeiisan 
■Mtov  yto  aune  to  ratpcct  thw  note  ? 
U  Ilhnk  it  wu  on  September  9, 1788, 
tiMhrhiiifB  Alley  aU  the  morniog,  toy 
IfiVfliig  flw  thither.    At  two  1  went 

,  IpmmL    It  eeeois  there  woe  a  nieeiai^ 


WlOTMffvaiit  fay  Mr.  William  Hales, 
JitmfM  U  my  iroldsmith  4S0/.»  part  ot' 


1^ 


'limf  vUeh  ho  owed  me;  for  be  owed 

H^Moey  on  aocority.      He  weut  to 

[|B«tptti  tbcm  thie  money,  for  which  he 

MiMHnodom  that  Iw  uul  paid  them  to 

Im^wmgy  upon  aeoowit.    Goiog  then  to 

^  M  Gmn,  when  1  came  home  Mr.  Cai- 

IM  m  what  had  happened.     There  it 

l^tad  ihiM  bath  happened;  Mr.  WiL 

llii^  wilh  whom  yon  baTe  transactions, 

'b  m  Ibr  forgery.    He  hath  |>aid  to  us 

[W.  upon  your  aecouot,  which  is  at- 

*  i«r  bands.    It  seetna  there  was  found 

•book  a  memorandum  which  gave 

Isf  hie  paying  that  sum  to  them. 

Mkiiahtr.   Was  this  the  first  occasion 

[  isy flion  ?'^HarU.  Yes,  Sir. 

.  WkiUker.  Wlvat  did  you  do  upon  that  ? 

JAl  I  bad  naked   a   gentleman,  now 

bmt,Maie  daya  before,  knowing  bim  well 

with  Mr.  Edwards,  and  the  affairs 

Eiebcquer,   whether    be  knew   Mr. 

I  band-  writing,  and  whether  he  knew 

bke  Mr.  Edwards's  hand- writing?  He 

4hMieved  that  it  was.      I  indeed  myself 

Mid  tbat  it  was.     Afier  that  Mr.  ifales 

Vths  up  (I  tbiok  that  it  was  the  Weilnes- 

%t  Tburiday  after),  I  went  up  to  the  £x- 

d^tD  that  gtntlemau  to  get  biro  to  go 

l||ieio  Mr.  Edwards.    lie  went  up,  but 

jftlbrirds  was  not  there.  ^Ve  then  weut  into 

^hll,  where  we  met  with  Mr.  Kdwanis,  who 

^Mrito  be  rery  much  Mirprised.     As  to  the 

^faid  be)  I  know  notliiug  of  it.     As  to  the 

H-writiag,  be  could  not  |>ositively  say  whe 

^  11  VM  bis  own  or  not ;    if  (sai«l  he)  it  is 

^ittsd,  it  is  made  an  ill  use  of.     We  went 

^t'iilely  to  the  coffee-house  to  enquire  after 

«ihbert  Hales,  thence  to  the  Cock- pit, 

Jl'lhice  to  his  house ;    but  met  not  with 

J^l  tben   left   Mr.    Wright  atui    Mr. 

''irit.     i   told  them  that   my  buitiness 

^nd  me  to  go  into  the  city.    They  re- 

*N  to  meet  Mr.  liobert  Hales,  and  enquire 

^h«  whether  it  was  bis  note  or  not. 

L  C.  BcTOM.  Head  the  note  distinctly. 

X«te  read,  "  Matf  18, 1728. 

**  I  promise  to  pay  to  Samuel  Edwards,  esq. 
*  trur,  the  sum  of  eight  hundred  noutids 
*i|^  three  months  after  dute,  for  value  re- 
^hl.  KoBERT  Hales.'* 

bdofiement,  **  Pray  pay  to  the  order 
of        foryc  value  received. 

**  ISamuel  Edwards." 


A.  D.  179^  [tlS 

Draught  read,  «*  kt.  Mess.  Caswal  and  tfoont. 

«<  June  13, 1798.  Pay  to  Mr.  William  Hales 
or  boarer,  on  demand,  four  hundred  and  Afty 
pounds.  RoBBtT  Harlb." 

X.  C.  Baron,  Sir,  you  say  that  yoo  are  ae« 
qnaintcd  with  the  band-if«  riling  of  ftlr.  EdwaMf. 
do  you  not? — Har/<e.  No,  Sir.  ^ 

Att,  Gen,  My  lord,  we  beg  that  the  gentle- 
men of  tlie  jury  will  look  upon  the  indorse* 
meut.  But  before  it  be  put  intd  their  hands,  { 
would  make  an  observation  thereon .  It  ap- 
peareth  by  the  end  of  the  paper  that  it  is  cut 
off  from  something  else.  It  is  not  straight  as 
it  would  be  naturally,  hot  seems  cut  off  0Miqae>' 
ly  :  And  there  is  the  tail  probaUy  of  a  letter 
of  the  direction  of  the  cover  whence  we  pre- 
sume it  cut  off.  Then  the  wurds,  *  Pray  pay 
to  the  order  of,*  at  a  distance  from  the  othc^ 
words,  *  for  the  valoe  received.'  There  is  this 
material  also,  that  the  words  *  for  the  valne  re* 
ceived'  are  not  usual  words  in  an  indorsement ; 
when  the  words  *  value  received'  are  mentioned, 
still  more  unnsnal  to  put  in  the  word  *  the'. 
But  the  word  ^  free'  being  there,  there  must  be 
some  way  contrived  to  nse  those  letters :  An  e 
is  therefore  crowded  in  between  the/ and  the  r : 
And  tben  the  y  seems  to  be  a  much  blacker 
ink  tlian  the  rest :  And  then  as  to  the  two  re*!, 
the  one  of  them  the  y  is  drawn  from,  and  the 
otiier  of  them  stands  for  the  other  part  of  the 
contraction. 

Serj.  Whitaker.  liook  on  it,  gentlemen,  and 
you  will  find  it  as  mentioned. 

Att.  Gen,  Observe,  gentlemen,  over  it  them 
is  a  stroke  or  hook. 

Mr.  John  Spicer  sworn. 

Att,  Gen.  Mr.  Spicer,  What  employ meni 
are  you  in  under  Mr.  Edwards  f 

Spicer,  A  clerk,  Sir,  in  the  Exchequer. 

Att,  Gen.  How  long  in  that  capacity  ? 

Spicer.  About  ten  years  in  that  capacity: 
But  in  ail  I  have  served  him  for  24  years. 

Att.  Gen.  Have  you  known  in  all  that  time 
any  mouey-dcalin^s  between  Mr.  Edwards 
and  Mr.  itobert,  or  Mr.  William  Hales  ? 

Spicer,  No,  Sir. 

Att,  Gen,  If  there  had  been  any,  do  yoil 
think  that  you  bhould  have  known  it? 

Spicer,  Yes,  Sir,  I  believe  that  1  should ;  for, 
as  to  affairs  of  that  nature,  1  believe  that  J  know 
as  much  as  auy  except  himself. 

Att,  Gen.  Look  upon  that  note.  Do  you 
take  any  part  of  that  note  to  be  his  hand* 
writing? 

Spicer.  The  name  is  his ;  and  they  I  believe 
is  his.  As  to  the  other  letters  they  are  so  al- 
tered that  I  cannot  say.  *  Value  received'  is 
not  his. 

Att.  Gen,  Are  you  acquainted  with  his 
writing  ? — Spicer.  Very  well,  Sir. 

Att.  Gen.  Have  you  seen  him  frank  letters? 

Spicer,  Yes,  Sir. 

Att.  Gen.  What  is  his  method  of  franking? 

Spicer.  •  Free  Samuel  Kduards.* 

Att.  Qen,  Doth  he  write  the  word  *  lire^*  * 


219J  d  G£ORG£  II. 

Spicpr.  YiM,Sir. 

Att.  Gen,  What  sort  of/  doth  he  rnhkt?, 
'  Spker,   A  sort  of  double /just  such  as  is 
faere. 

Att  Gen,  Do  you  take  the  letter  o  to  be  his 
hand'Writiog? 

Spker,  It  is  an  altered  letter.  It  was  some- 
ihing  else  turned  into  an  o. 

Ait,  Gen.  The  r,  what  is  that,  doth  it  not 
«ceni  to  bare  been  another  letter? 

Spicer,  Yes,  it  seems  altered  from  another 
ktter;  but  bunglinfflv  done. 

Serj.  Whitaker,  We  wiU^  my  lord,  call  oueof 
Mr.  Caswal'a  apprentices  to  prove  that  th» 
^ught  hath  been  complied  with. 

Mr.  George  Branthwait^wom. 

Serj.  Whitdur.  Do  you  look  upon  that 
flight.  00  yoa  remember  whellier  it  was 
«?er  brought  to  you,  and  by  whom  ? 

Brant^aU,  I  beliere  it  was  brought  by  Mr. 
Hales. 

Serj.  WhUaker.  To  your 

BratUhwaU,  Yes,  Sir,  and  it  was  marked  by 


8eij.  Whitaker.  What  had  he  for  it  ? 

Branthwait,  He  had  ofme  two  notes.  One 
was  for  850/.  the  other  for  S90/.  which  was 
470/.  and  he  brought  besides  this  draught  two 
notes  of  Wanley's  for  SO/,  which  made  the 
balauce. 

Serj.  WhUaker,  Whom  were  they  payable 
to? 

Branthwait,  One  to  oue  Calthrope,  and  the 
•tber  to  himself. 

£.  C,  B,  You  say  there  were  two  notes  you 
ga? e  him.  Whom  was  the  250/.  note  payable 
to? 

Branthwait.  To  Mr.  William  Hales. 

L,  C.  B,  And  who  was  the  320/.  note  made 
payable  to? 

Branthwait.  To  one  Charlton  Thrup.  He 
gave  me  this  draught  of  Mr.  Uarle'tf  tor  250/. 
and  notes  of  twenty  pounds. 

X.  C.  B.  Whom  did  you  say  the  220/.  note 
was  onade  payable  to  ? 

Branthwait.  To  one  Charlton  Thrup. 

Att.  Gen.  My  lord,  we  have  done  with  our 
evidence. 

X.  C.  B.  Well,*  what  do  you  say  to  this  ? 

5eij.  Darnell.  I  have  nothing  material  in 
mine  instructions ;  therefore,  i  shall  not  trou- 
ble your  lordship. 

Mr.  Lacjf,  1  take  leave  to  observe,  that  it 
doth  appear  that  no  prejuilice  is  done  by  this 
note.  The  450/.  borrowed  on  it  hath  been  re- 
paid. 

Att.  Gen,  Mr.  Hales  owed  Mr.  Harle  uio- 
ney  upon  other  accounts,  and  he  had  it  upon 
account:    And  besides,  it  is  attached  in  the 

S'oldsmith's  hands,  and  it  was  on  the  very  same 
ay  that  he  was  taken. 

X.  C.  Baron.  Gentlemen  of  the  Jury,  this  is 
an  indictment  against  William  Hales,  gold- 
amitb,  for  a  very  great  misdemeanour.  It  is 
for  fbiging  an  indorsement  on  a  promuiory 
note  Ibr  600/.  for  the  chaipog  of  the  pcnon 


Trial  of  WaUamHakB, 

indorsing  with  the  payment  of  this  son 
tlie  publishing  of  this  indorsement  as 
one,  knowing  it  to  be  so  forged.  It  is 
great  offence,  a  misdemeaooor  of  the  ! 
nature ;  not  -only  as  it  afltos  particuli 
sons,  and  chai^^es  the  person  whose  n 
made  use  of  with  the  pay  noent,  but  as  i 
stmctive  to  all  commerce :  You  are  tfa 
to  consider  what  account  the  defends 

Sive  of  it.    The  indictment  sets  forth  tl 
efendant  bad  in  iiis  custody  a  certain  i 
a  writing,  purportiiigto  be  a  promissor 
with  the  name  of  Robert  Hales;   by 
note  it  was  supposed,  that  Robert  Halt 
mised  to  pay  to  Samuel  Edwards,  esq 
order,  the  sum  of  800/.  within  three 
after  date.    And  upon  this,  the  chari^ 
indictment  is,  that  the  defendant,  witfa 
^tion  to  charge  Mr.  Edwards  with  tl 
ment  of  the  money  contained  in  tbia  ii 
note,  and  to  delraud  and  deceive   hi 
others,  on  the  iSth  day  of  June  did 
and  deceitfully  forge  and  counterfeit  a 
indorsement  on  thisnote  in  these  Englisl 
following:  **  i^y  psy  to  the  order  of 
the  value  received,"  over  the  name  of 
Edwards,  as  if  subscribed  to  that  indors* 
and,  that  knowing  the  same  to  be  a  fur| 
counterfeit  indorsement,  he  published  tl 
in  order  to  deceive  several  persons,  the 
subjects,  as  a  real  indorsement,  as  wc 
defraud  the  said  Samuel  Edwards,  esq. 
in  order  to  prove  this,  the  counsel  ga^ 
account  of  the  circumstances  of  the  del 
the  character  of  Mr.  Edwards,  the  ac 
ance  between  them  as  neighbours, 
shew  you  the  circumstances  of  the  fai 
have   called  several    witnesses:    Firs 
called  a  servant  of  Mr.  £dwards*s,  wh 
tiooed  that  he  had  lived  some  coosideral 
in  Mr.  Edwards's  service ;  during  wbi 
the  defendant,  Mr.  Hales,  hath  irequci 
several  years,  sent  to  Mr.  Edwards 
franks  delivered  him  in  the  name  of  1 
wards,  who  hath  for  some  years  been  a  i 
of  parliament,  in  order  to  send  them 
the  postage.     It  appears  that  this  ha 
done  for  several  years;  and  the  usui 
was,  when  Mr.  Edwards  had  received 
rection  of  the  name  of  the  person,  he 
wrote  the  .whole  superscription,  and  tli 
scribed  to  frank  it    '  Free  Samuel  Ec 
He  tells  you,  that  in  the  beginning  of  Ji 
several  covers  were  brought  to  him  for 
made  up  as  you  may  perceive  prett; 
The  covers  were  brought  orer  to  Mr.  Ei 
bouse  by  a  servant  ot  Mr.  Hales*s.    T 
sage  was,  that  Mr.  Hales  desired  soon 
upon  these  covers,  particularly  desirii 
to  be  franked  without  any  superscriptic 
saith,that  these  were  left  in  this  numi 
were  all  delivered  to  a  servant  of  Mr.  1 
with  this  desire,  that  he  would   on] 
thereupon  *'  Samuel  Edwards  free  :'* 
rest  might  be  left  to  be6lled  up  by  Mr.  ] 
be  thought  fit    He  tdb  yoa,  thai  w 
mastor  came  honei  hit  maater  tunriii 


0  M'udemtann. 


UmMiniiewholeiupef  , 
lo  ilo  this;  anJ 
r«m  mnaiDnl  wilbout  frank- 
b  wiihIiI  nut  ii(xi>iiim'Hlite 
Mr.  Bile!,  in  ihal  maiiDer  wiili 
to  kaad.  uid  Icate  llie  Test  lilniik  lur  anutiier 
|MMUfi<l  U|i  us  lip  iliDuelit  111.  This  OUll 
imj  pWriilly  ilorir;  Hr.  EilwHrtIa,  wlio  in  h 
■bAmm  IB  husDni,  iiii|[|j|  well  spprtliend 
MINSfpi'ituiiily  niit(bt  Iw  liereby  girpn  (o 
MHfw^tf*  lliM  H  might  nulbeiii  l)ra)>ni*«r 
■•■nmul.  Tliia,  gentlemen,  U  made  luc  of 
>p«r  uf  an  attempt  bv  ibe  ilelrndanl.  to  gel 
Ntt  wrl  •■'  I'rankt  into  hit  power  lo  make  uie 
#li  Mcb  n  MriK>*«  as  (liii.  The  next  wiineM 
iMtbry  ulU  It  Ar>Ke  CUrke,  who  Faith 
dMikitlilwiniea  semnito  Mr.  Edwordf, 
wrillen  Ij  Mr. 
lat  ihii  was  brought  to 
of  Mr.  Edwanit,  with  a  deure  tu 
'  fr«nk»  liiiectfd  lo  cai^h  of  those 
*i>  to  Mcb  ut'  tbeoe  lliree  several 
Mite  aailb,  that  it  was  soniR  lime  lait 


h4  i^  pniiiiKirib 
Bi^  m4  M<ih,   il, 


M^M*.  *l>e  thintit  atwiil  July. 
te  >bm  her   mtsurr.   Mr.  Kdn: 


Kite  SI 


(titiog 


a  bim  :  and  Mr.  Kil- 
ir  accommodaiinff  Mr. 
tlii-ae  persons.  The 
Ihli;  Mr.  Hale*  (Mid 
a  nepliew  that  are 


Mi  ouh  franki 
MBIhat  iMfrave  was  ihi 
ItflMkbolii  a  braiher  and 
•i^wa  iif  the  HiniBv  iil  tJ»mmnna  ;  anij 
IhniM  ha  need  mil  «eud  lo  me  tiir  franks, 
^«  ke  vn»y  bare  Ihein  from  his  own  rela- 
tWI  b*  Umrhre  declined  il  at  Ihal  time. 
Itat  vera  tin  ilirectinnt :  Two  to  Mr.  Lervll 
4  laMiiiirdon,  Iwo  m  Jidin  Pratt.  va\.  at 
h»t,lHu  to  Stephen  Mitt'iinl,  e«q.  at  Biiilnl. 
takairii.  to  c^rrobnratt  this  evidence  Uinl 
«»Ma  nuc  rroni  the  defendant  Mr.  Hales, 
kr.tlMilt  It  called.  He  ia  aike<l.  whether  he 
•wdl  aoqiMiiiled  witli  the  hand-writing  of  the 
M«rfM>l,Ur.  Ilaln?  Hesailh  tbalbeia,  and 
iH  bp  •cnljr  briiere*  that  this  note  Is  bis 
tori.vntm^.  It  balh  bt«n  tririerTed  by  Mr. 
that  there  veeitiH  to  have  beeii  some 
tlwfnnn  wherein  it  is  wrote  being  >ery 
an  opfKirtiinit;  lor  an  alteraiioQ ; 
if  ibaae  directionn  a  very  short,  and 
«p  U  oMift  but  one  line  on  the  su- 

oaUnUrot  tlie  cover;  ihal  there 

m  a  conaldenble  space  lelt,  so 
e,  MaiDurl  Edwards,  ivna  wrulr, 
^■B  wuold  bate  been  a  sulficient  space  oi' 
na  In  wnte  a  note  nr  any  ihintf  oter  it. 
BM  b  the  afaierraiion  thai  hath  been  made 
^Xlbia  no«i-  •■'  drmlions.  Aller  this  they 
fttta  Mr.  Kiitirii  Hifk',  who  it  secretary  to 
tiwOsM  bank,  !■>  hiirpm  In  the  jiarliculaT 
k.  Ue  wilb,  that  thii  note  wn«  on  the  )3lh 
'lancUit  brau^ht  and  delivered  to  bim  by 
kiMn4a>t  Mr.  \Vitl>am  Hale*.  He  sailh, 
kt  he  was  then  d1  Raker's  mifiee- bouse  in 
h*Mfp-alUy  :  ibut  Ibe  dufcndUDI,  Mr. 
■A^  ^nM  la  hini,  «iid  produced  Ibis  very 
%tf  WWt.  payablr  to  Sniniiel  Edwards,  mq 
~"     "■  lubsmbcd  Robert  >lah>«, 

"  iidwardt, 


A.  D.  17S9. 

iitd  de«ired  him  lu  advance  bin  i50!.  upon  llie 
credit  of  that  note;  Ihal  seeing  a  proinisaorf 
Dote  njnde  payable  lo  Numiiel  Eilwnrda,  esq. 
-.nit  imloneit  by  the  said  Sninuel  Edwards,  esq. 
Ilia  appeared  to  him  «ii<iioieut  seouriiy  lu  lend 
4Si)f.  upon  ;  Ihal  tie  did  tltereupon  cnntply 
>vilh  ilierequnt  uf  the dufemlaat,  Mr.  Willinoi 
Hales,  III  ndvsiice  bim  thaltumi  ihatbedr«w 
a  draught  lor  i(  an  Casual  and   Moant,  wbo 


settling  of  his  accuootii  with  bis  goldsmiths  ; 
that  at  that  lime  when  Ihe  defendaut  brouKbi 
this  note  to  him,  this  very  note  woa  delivereil 
la  him,  with  tbis  very  indursemeiit  Ihal  is  novr 
upon  it, 

"  Tray  pay  to  llie  Order  of  for  j« 

value  r<:cdred  Simuei.  Edwards." 

lie  saitb,  that  he  is  sure  that  it  was  (bus  in- 
ilcirsnd  when  il  was  left  with  him,  he  being  de- 
sired to  lend  Ihe  money  on  a  note  si>  imlorsed  i 
Ibat  it  hath  l<een  in  his  cnstody  ever  since,  sn 
chat  he  ia  snre  iliere  hath  been  no  alleralton 
made  tberean  since  lliat  il  itas  delivered  unin 
him.  You  may  n'membrr  that  he  was  parti- 
GiiUrly  asked,  are  yon  sure  that  il  was  indnrwd 
when  il  »as  delivered  you?  Hesailb  that  b* 
is  sure;  and  indeed  the  thing  bespeaks  itaelf. 
'  n'hen  a  note  is  made  payable  to  a  particular 
|)efBon.if  any  other  person  brings  il,  every  one 
expects  lliat  Ihcrc  sbotild  b«  an  initorsement 
to  inlitle  any  pertiiin  that  Is  not  the  very  person 
to  whnm  il  wni  made  payable.  1  am  there- 
fore lure  (saiih  he)  ihal  it  was  so  indorsed: 
anil  Bs  Mr.  Edtrards  was  a  iierson  of  rerj 
great  dealings  and  considerable  sulislance,  anil 
BO  likely  to  liave  sach  a  note  made  jnyabla 
to  hira,  I  therefore  gave  credit  to  this  note  aa 
a  sufficient  security  to  reimburse  me  the  ihQt, 
i*hiGb  1  advanced  thereupon.'  This  tact  ha 
tells  you  was  thus  transacted  at  thai  time; 
and  he  ia  sure  that  he  received  it  from  Ibe  dc- 
feiidant  thus  inilorsed,  and  that  the  drtendant 
hath  hail  the  benefit  uf  the  draught  which  ha 
gave  him  on  the  credit  ihereol.  Mr.  Harle 
hath  ullowed  this  in  settling  his  account*  with 
his  goldsmith.  Upon  ibis  the  nule  hath  been 
read  lo  sbeir  you  the  purport  thereof,  and  the 
indoraemeni  thereon.    The  note  is  this, 

"  Wau  J3,  1728, 
*■  1  promise  lo  pay  to  Samuel  Edward*,  esq. 
or  order,  the  sum  of  eight  hundred   pounds, 
within  llitee  tnoutb*  after  date,  for  value  re- 
ceived. "  RoaERT  HtLEa." 


Tlicn  upon  the  back  of  Ihe  m 


elben 


stbit 


Mr.  llarle  goelb  on  In  the  account  which  be 
gives  you,  and  snitli  thai  Ibis  nule  was  leti  ia 
his  hands  in  June ;  and  that  ou  Sept.  V,  after, 
he  was  in  Ekc  ha  age- alley  aJI  the  luorniug  till 
bIhiuI  two  ;  that  theie  was  a  message  left  for 
him  at  Uakci't  colTee-hoiite,  bat  he  received  jt 


8CS] 


3  GEQKGfi  n. 


not  there ;  that  he  went  honie,  and  heard  that 
there  was  a  message  left  for  him  hy  the  de- 
fendanc,  Mr.  Halei,  at  Baker's  coffee- hoasej 
that  he  went  out  in  the  afternoon,  and  had 
not  a  particular  account  of  the  message  till  he 
came  home.  The  message  was  mm  Mr. 
Hales,  that  he  bad  that  morning  paid  to  his 
goldsmiths  Caswal  and  Mount  45o2.  on  his  ac- 
count: Mr.  Harle  tells  you  that  there  was 
more  money  due  to  him  on  security.  So  much 
money  was  then  pai<l  in  discharge  of  so  much, 
part  or  money  advanced  by  him  to  Mr.  Hales, 
and  It  wss  the  exact  sum  which  had  been 
advanced  on  the  Idth  of  June  on  the  credit  of 
this  note.  He  tells  you,  that  in  the  erening 
Mr.  Caswal  came  U>  biro,  and  told  him  there 
was  a  melancholy  account,  that  a  sad  accident 
had  happened:  for  Mr.  William  Hales,  the 
person  tnat  had  paid  them  this  money  on  his 
account,  was  taken  up  for  forgery,  and  this 
money  was  attached  in  their  bands  for  to  pre- 
yent  bis  issuing  it  out.  Mr.  Harle  tiills  yoo, 
that  this  was  the  first  discovery  that  bo  had  of 
the  particular  fact,  that  gave  him  oecasion  to 
make  the  more  particular  enquiry :  he  had  in- 
deed two  or  three  days  before  sfioke  to  a  ^n- 
tlemaa  of  the  Exchequer,  one  Mr.  Wright, 
Imd  shewed  him  the  indorsement ;  and  having 
tooaesttspicioo,  asked  him  whether  lie  was  ac- 
qaauitnl  with  Mr.  Edwards's  hand,  and  whe- 
llier  be  thought  that  that  was  his  hand- writing  ? 
Mr.  Wright  tho«g;|it  it  was  a  little  odd,  uav 
joaMbiog  di6Ment,  but  believed  thai  it  was 
Mr.  Edwanls's  hand,  aa  Mr.  Harle  himself 
also  thooght  that  it  was.  He  saith,  that  after 
Ibat  the  defendant  was  apprehended,  he  went 
to  Mr.  Wright  to  desire  him  to  go  with  him, 
that  they  might  have  from  Mr.  Edwards  more 
particular  satisfiiction.  They  went  and  met 
with  Mr.  Edwards,  in  Westminster- hall, 
shewed  him  the  note,  asked  him  whether  he 
knew  of  it,  and  whether  it  was  hu  indorse- 
ment? Mr.  Eilwards  waa  very  much  startled, 
end  said,  that  lie  never  gave  any  such  note, 
and  knew  nothing  of  it.  Mr.  Harle  asked  him 
whether  the  name  wss  bis  liand- writing?  He 
said  that  if  it  was,  an  ill  use  waa  made  of  it 
Mr.  BUwanIs  took  a  copy  of  it,  and  kept  it 
by  him.  The  note  hath  been  read  to  yoo,  and 
appears  to  be  a  promissory  note  in  the  name 
of  Mr.  Robert  Hales,  for  800/.  payable  in  three 
months,  to  Samuel  Edwards,  esq.  The  iudorae- 
meot  is 

**  Pray  pay  to  the  order  of  for  y« 

value  reoeived,  »Samuel  Edwards." 

Gentlemen,  Ufion  the  producing  and  reading  of 
this  note,  Mr.  Attorney  bath  made  several  ob- 
servations on  the  manner  of  m  riting  it.  You 
have  bad  the  inspection  of  it,  and  something 
very'  particular  appears  to  every  one's  view.  It 
is  by  the  uounael  for  the  prosecutor  supposed, 
that  this  mtie  must  be  formed  from  part  of  a 
iraok  cover  signed  *  Ifree  Samuel  Edwards,' 
Jfree  being  turned  ■  into  far  ^  value  received ; 
that  there  is  the  Foraainder  of  anoiher  letter. 
Awl  yen  may  ehs^iTe  erbethcr  there  is  east* 


Trial  of  WiUiam  Hales, 

▼edge  or  any  thing  of  that  oatvte,  thi 
h  to  have  been  the  outside  of  a  sheet 
All  the  edges  indeed  seem  to  be  so 
dean  as  a  paper  that  is  cut.  Th( 
ment  begins,  «  Pray  pay  to  the  ordei 
for'  then  comes  y«,  and  then  a  laigi 
between  that  and  *  value  received.' 
seems  pretty  extraordinary  if  any 
honestly  writing,  and  had  a  paper  not 
before,  that  they  should  write  in  thi 
that  the  word  y«  should  be  tacked  to 

*  for,'  and  put  at  such  a  distance  froi 
reeeived.'  *  Received'  follows  *  vali 
diately  in  a  more  plain  writing :  be 
unusual  to  make  use  of  the  word 
*- value  received  ;'  but  they  say  it  is 
nerally  *  value  received.'  You  ha 
stance  in  the  note  itself;  the  conclui 
note  is  *  value  received  :'  and  I  belir 
aervation  is  just ;  that  it  is  not  so  us 

*  For  ye  value  received.'  But  the  ol 
of  the  counsel  was  this,  that  there  v 
cessity  of  this  in  order  to  aocomm 
leuers  to  the  forgery  ;  as  the  words 
they  exactly  suited.  And,  gentlem 
is  of  a  paler  ink  than  the  or,  and  thi 
thicker,  and  seem  of  a  deeper  ink. 
were  two  m's  before,  the  alteration  an 
the  other  letters  roust  occasion  the  tb 
these  letters,  and  their  seeming  of 
ink.  Other  letters  being  to  be  supc 
they^  must  of  necessity  be  thicker  ai 
than  the  first  letters.  Here  is  a  ver 
sort  of  an  r,  and  the  o  seems  very 
the  end  of  the  r  is  something  made 
assist  to  make  the  upper  part  of  the 
doth  not  stand  cleverly.  And  you 
that  part  which  is  the  head  of  the 
thicker  than  the  other  part  that  mal 
y.  And  then  on  the  side  or  one  si 
the  y  there  is  a  sort  of  e  put.  You 
how  improperly  it  stands.  It  is  not 
rectly  over  the  y,  which  is  the  way  8 
of  writing  '  the'  short;  but  it  com 
bottom  ot  the  head  of  the  y.  So  tha 
men,  these  are  the  observations  that  I 
made  by  the  counsel.  You  have 
note,  and  may  observe  upon  it,  wh' 
think  these  observations  plain,  proper 
Upon  this  occasion,  another  servai 
Edwards  is  called,  one  Mr.  Spicer. 
that  he  hath  been  a  clerk  in  the  £ 
above  ten  years,  but  in  the  whole  in 
wards's  service  upwards  of  30  yeitn 
is  well  acquainteo  ivith  bis  public  de; 

Krivate  transactions  in  money-  matters 
e  never  knew  or  heard  that  he  had  an 
dealings  with  the  defendant,  which  h 
he  should,  if  there  had  been  any,  being 
and  acquainted  with  his  muney-dealii 
he  saith,  that  as  to  the  name  Samuel 
be  believes  it  to  be  Mr.  Edwards 
hand- writing,  being  very  well  acquai 
his  hand.  And  he  saith,  that  as  I 
doTMflMBt,  he  believes  that  the  /  k 
Aot  the  other  letters ;  that  he  is  aati 
<  ?atae  KOBived'  is  aoC  Mr*  Edsmda' 


i 


tiSj 


Jw  a  Misdemeanor* 


A.  D.  1729. 


[S26 


And  he  nitht  that  the  o  aud  r  he  doth  not 
tike  In  be  Mr.  Edwards's  hanJ-writiogf,  but 
w  akcffatioD  from  lonething  that  Mr.  Ed- 
wards had  wrote  before ;  that  the  osual  way  of 
Hr.  Edwwde  frankiiiff  iv  *  frce^  with  a  ^  as 
ynjfree  ;  and  that  the  o  appears  to  be  made 
art  tf  an  altered  letter-  So  Uiat  this  ia  a 
fnfet  tbscnration,  that  there  is  ao  alteration, 
M  ihcjf  batiere  upon  their  oaths.  He  saith, 
thUja.kuifirUnffly  done;  that  he  apprehends 
been  mentioned.  AVeJI,  ano« 
called,  Mr.  George  Branth- 
t  to  Mess.  Caswal  and  Mount, 
that  thia  draught  was  brought  to 

r  bj  the  defendant  himself,  becanse 

ke  kath  pot  bia  mark  upon  it,  as  is  proper  for 

BMsas  of  aoeh  deaiings ;  that  that  mark  of 

Hsl  Ibc  bottom  remmds  him  that  the  defSm- 

tet  hrouglit  it.    Upon  the  bringing  of  this 

ti^bf,  be  bad  two  notes  from  this  witness 

SB  aeeount  of  his  master ;  one  was  for  S50/. 

Ar  SSO/. :  that  came  to  470/. :  there- 

ihe  deficiency  of  this  draught  was  to  be 

'  with  another  to  make  up  that  sum 

.   Therefbre,  he  saith,  that  he  brought 

df  Wanley*s  for  30/.  which  made  up  the 

The  note  tor  250/.  he  saith,  was 

laajable  to  the  defendant  himself;  and 

ite  it  990L  to  one  Charlton  Throp ;  and 

ta  al  tfaia  time  the  draught  and  Wanley's 

era  delif  ered  to  him  for  these  notes  on 

afileal'.  Caawal  and  Mount.    T^is  is 

«it  given  by  them.    The  defendant 

and  nis  counsel  are  here.    Nothing 

is  aaid  by  them  in  defence,  only  Mr. 

lacy  osentioneil  that  there  is  no  damage  done 

ky&isDOto.  the  450/.  borrowed  on  it  being 

icpai    To  this  it  was  replied  by  Mr.  Attor- 

SIT.  thai  the  money  was  paid  upon  account, 

fkin  being  other  monies  due  to  Mr.  Harle  on 

MBsrity;  and  besides  it  is  attached  in  Mr. 

Hirie't  goldsmith's  hands,  to  prevent  its  being 

iMcd  out.     Gentlemen,  you  will  observe,  that 

iftlus  was  a  real  indorsement,  it  would  be  an 

Mwrance  of  pacing  the  whole  debt     Who- 

Mwer  iadoraeih  a  note,  whereof  no  part  is 

fH4,  is  liable  to  the  whole.    Therefore  the 

^oKtioQ  is  not,  whether  or  not  this  money  was 

ptJ'  But  whether  here  is  not  an  engagement 

tipay  the  note,  which  the  re -payment  of  the 

y  borrowed  thoreou  is  do  fence  against  f 


Therefore  if  the  money  had  been  repaid,  that 
had  been  no  acquitting  of  the  crime.  That 
will  no  more  discharge  a  person,  than  if  a 
felon  should  say  that  he  is  acquitted  because 
the  goods  are  restored.  The  behaviour  after- 
wards is  not  a  sufficient  acquittal  of  a  crime. 
And  consider  when  thai  was.  It  was  not 
before,  but  upon  the  Monday,  the  very  day 
that  he  was  apprehended.  Then  the  message 
was  left,  and  the  money  paid.  You  are  to 
consider,  therefoi^,  whether  this  did  not  arise 
from  an  apprehension  and  fear  of  a  discoveiV« 
in  order  to  clear  things  as  well  as  he  could  ? 
Gentlemen,  as  there  is  sufficient  evidence  to  fix 
this  upon  the  defendant,  so  hath  he  not  proved 
how  he  came  by  this  note.  lie  bath  not  called 
one  witness  to  shew  that  he  had  any  money- 
dealings  with  Mr.  Edwards,  or  that  he  received 
it  of  any  other  person ;  but  it  is  left  on  the 
evidence  given  by  the  prosecutor.  Therefore, 
there  can  be  no  doubt  in  the  matter.  If  a 
person  is  silent  to  t^ie  charge,  and  cannot  five 
you  any  satisfaction  as  to  it,  it  stands  as  tuUy 
fixed  upon  him  as  if  any  had  seen  him  write 
the  indorsement.  Therefore,  gentlemen,  you 
are  to  consider,  whether  any  thing  appeara  to 
aflbrd  the  least  presumptiou  that  this  waaa 
true  indorsement  made  uy  Mr.  Edwards,  for 
value  received  by  him?  It  is,  gentlemen,  an 
offence  of  a  very  heinous  nature,  and,  if  not 
suppressed,  must  tend  to  hiotler  all  commerce 
by  bills  and  paper-credit.  If  this  be  suffered 
to  increase,  none  can  take  such  a  note,  unlesa 
he  goeth  to  the  person  himself.  It  will  render 
it  insecure  to  carry  on  commerce  by  notes  or 
bills.  As  to  au  indorsement  of  this  nature, 
though  it  was  not  mentioned,  it  is  proper  for 
roe  to  take  notice,  that  though  the  name  be 
not  named,  it  may  be  made  to  any  person. 
The  person,  in  whose  possession  it  is,  can  go 
and  receive  the  money.  So  that  the  indorse- 
ment  is  complete  authority  tu  impower  the 
person  in  whose  possession  the  note  is,  to  re* 
ceive  the  money,  and  likewise  to  charge  the 
person  that  so  indorsed  it  with  the  ie-imburse« 
ment  of  the  money.  Therefore,  gentlemen, 
the  crime  and  offence  seems  complete.  U|M)n 
this  evidence,  it  doth  not  seem  to  me  that  there 
can  be  auy  doubt  with  you^  whetlier  he  be 
guilty  of  this  fact  or  not. 


▼OL.  XflL 


897]  S  GEORGE  II.        Trial  of  Wm.  Hales,  far  a  Misdemeanor. 


473.  The  Trial  of  William  Hales,*  fot  a  Misdemeanor,  in 
taining  the  Sum  of  Four  Hundred  and  Fifty  Pounds, 
Mn   William    Harle,    by   false   Tokens  rf    3  Georgi 


A,  D.  1729. 

Jury  sworn  ova  agaiD. 

Clerk,  OyEZ,  Oyez,  if  way  one  can  in - 
Ibrm,  &c 

Gentleiiien  of  the  Jary,  William  Hales  ttaadt 
itidicted  by  the  name  of  William  flales»  kc,  Ibr 
falsly  and  deceitfolly  obtaining  the  sum  of  450li 
of  Mr.  William  Harle  by  a  false  token,  to  wit,  a 
promissory  note  in  the  name  criT  Mr.  Robert 
Hales,  whereby  the  said  Robert  Hales  is  sup- 
posed to  engage  to  pay  within  three  months 
afler  date,  the  sum  of  800/.  to  Samuel  Edwards, 
esq.  with  a  counterfeit  indorsement  on  this  note 
to  the  great  damage,  &c.  To  this  indictment 
be  hath  pleaded  Not  Guilty. 

Mr.  Strange.  This  likewise  b  an  indictment 
iigahist  the.  defendant  Mr.  William  Hales,  and 
is  for  falsely  and  deceitfully  obtainmg  a  sum  of 
money  of  Mr.  William  Harle  by  a  false  token. 
And  it  sets  fbrth,  that  the  defendant  haying  in 
his  possessioo  a  promissory  note  of  Mr.  Robert 
Haies's  for  800/.  payable  m  three  months  afler 
date  to  Samuel  Edwards,  esq.  with  a  fbr|g[ed  in- 
dorsement thereon  in  the  name  of  the  said  Sa- 
muel Edwards,  esq.  did  falsly  and  deceitfully 
obtain  of  one  Mr.  William  ftarle,  the  sum  of 
450/.  on  the  mid  note.  Tliisis  laid  to  be  to  the 
great  damage,  &c. 

Mr.  Hungerford,  May  it  please  your  lord- 
ship, the  fact  charged  is  the  ?ery  same  as  in 
the  former  cause  already  heard,  only  upon  a 
different  law,  Sd  Hen.  8.  There  was,  it  seems, 
•o  long  agone  an  abominable  practice  of  ob- 
taining money  by  false  tokens.  The  act  of  par- 
Kameut  hath  prphibited  that  practice,  and  made 
It  penal.  There  is  but  one  witness  we  shall 
trouble  your  lordship  with. 

Mr.  HarU  sworn. 

'  Mf.  Hungitford,  Mr.  Harle,  pray  gire  an 
account  to  my  lord,  and  the  jury,  when  you 
first  saw  that  note,  and  what  money  you  paid 
«pon  it. 


» >  I  ■ 


*  See  the  preceding  and  following  Cases. 
f  These  Trials  were  taken  in  short- hand  bv 
•rder  of  Mr.  Edwards.    Farmer  Ediiion, 


Harle.  On  the  13th  of  June,  Mr. 
applied  to  me,  to  lend  him  460/.  npc 
note.  I  accordingly  made  a  draught  • 
goldsmiths,  which  I  suppose  was  pa 
saaae  day,  haf mg  taken  up  the  drau| 
settling  mine  accounts. 

L.  C.  B.  Pengelly.  Mr.  Lscv,  do  you 
that  they  should  go  on  further  in  the 
dence? — Mr.  Loc^.  No,  my  lord. 

L.  C.  B.  Pengelly.  This  indictm 
against  William  Hales,  goldsmith,  ll 
ootaining  upon  this  note  a  draught  equ 
to  money,  and  which  afierwards  pr 
money,  oy  this  false  token.  If  the  no 
forged,  it  was  a  false  note.  He  brouo; 
note  as  a  good  note,  to  induce  Mr.  Harli 
commodate  him  with  450/.  thereupori. 
is  the  description  of  the  act  of  pari! 
that  if  any  one  by  a  false  token  doth  ob 
gel  any  thing  or  any  goods  of  another*! 
poral  punishment  shall  be  inflicted, 
appear  to  be  a  forged  indorsement ;  tbL 
a  ndse  token,  he  must  be  guilty.*  So  t 
evidence  is  the  same  as  to  both  these 
meats. 

The  Officer  sworn  to  keep  the  Jur 

Clerk.  Gentlemen,  answer  to  your  na 

Jury  called  over. 

Clerk.  Are  you  all  agreed  in  your  ver 

Jury.  Agreed. 

Clerk.  \vho  shall  say  for  you  f 

Jury,  Our  Foreman. 

Clerk.  How  say  you,  Is  William 
Guilty  of  the  misdemeanour  whereuiti 
cbaiged,  in  forging  and  publishing  an  ii 
ment  on  a  promissory  note,  or  not  Guill 

Forenum.  Guilty . 

Clerk.    How  say  you,  Is  William 
Guilty  of  the  misdemeanour   wberew 
stands  charged  in  obtaining  money  by 
token,  or  not  Guilty  f-^Foreman,  Guilty 

*  As  to  this,  see  East's  Pleas  of  the  i 
chap.  18,  seel.  G. 


Triato/fl'm.  UaUi  and  T.  KinnenUy. 


iT^.  The  Trial  of  William  Hales  and  Thosias  Kinneuslev, 
Clerk,  for  forging  aod  counterfeiting  a  Note  of  Hand,  bear- 
ing date  August  \6,  1727,*  for  Twelve  Hundred  and  Sixty 
Pounds,  payable  to  Samuel  Edwards,  esq.  or  Order,  signed 
Thomas  Kinnersley,  and  indorsed  Samuel  Edwards  :  SGeouge 
U.  A.  D.    17Sy. 


imy  called  orer  ikg:iip,  and  tworn. 

Cn^.  0YE7^  Oyw.  If  any  one  oan  in- 
km  ny  InH  Uie  kin^'i  rnMice,  ibe  king's  ser- 
^■•^•tknmry.  3cf.  ui  ini>  rause  between  our 
■wuiiyu  \orA  the  king  and  W  illiim  Halei  ami 
IkoM  KionecBley,  let  tbem  come  farlh,  See. 
Vu*  ihc  loaticunent  ww  read. 


lb.Srrdafc  Geutlemeuoflhejuiy.  This 
•U  iaifteliiical  ■^■imt  ibe  two  priHOUera  si 
ftihr,  fTjllum  Hales  uf  Londun,  lale  golil- 
^itk,  aad  Tbotnu  Kiuaerslvy,  clerk.  Tbe 
Woiacsl  acts  furlh  Ibatthese  livo  defendauts, 
hMfftnons  of  ill  Came  atiil  reputation,  and 
^■iif  iDil  iDleoding  10  derrand  Samuel  Ed- 
■w4,(Ki.  aod  divers  other  bis  majesty's  sub- 
^■■,01  Mttreb  last  had  in  ibeir  custody  a  cer- 
MM(B  IT  •  writine'  purporting  to  be  a  pro- 
■■■rj  auto  aigned  by  Tbumus  Kinneraley, 
miitiM  Aog.  16,  iTar.  lo  this  noteTbo- 
^Sjoner^ey  >*  suppnaed  lo  promise  to  pay 
UUJ.  USaniiiel  Edwards,  esq.  wilhb  three 
■atamfter  date,  far  ralue  receiied  ;  that  on 
AaMtewbicli  they  bad  in  their  cusloily,lbey 
A^  so  io<lor«eineul  in  Ihew  words,  "  Pray 
fU  la  lli«  onlcr  ol'  fur  Tal  ue  re- 

omri,  Samuel  Edwards ;"  that  thus  bating 
aMreaMAdy  Ibis  note  with  this  forged  in- 
^UMMiM  iberrufioii,  and  knowing  this  to  bea 
h|tri  isHlimeuieDl,  Ibey  did  afterwards  pn b- 
U  il  to  bn  a  true  one.  These  oRrDcea  are  laid 
I  (Teat  damage  of  the  said  8amueJ 
— t  tbe  breach  of  his  majesiy's 
I  fill  example  of  other  his  majts- 
I  like  case  offendine;.  To  Ibis 
'  have  pleaded  Not  Guilly. 

Gcnrrat.  Hy  lord,  and  gentlenien 
•f  the  jury,  I  am  of  counsel  on  the  same  side 
ki  mj  luTil  lh»  king.  Genilemen,  the  charge 
IpBl  III*  defendant  is  for  forging  an  initone- 
■aMoa  •  ppTmibsory  not*  for  1,S60/.  Like- 
aatlkn  arcchargnl  willi  publishing  the  said 
Malrriat  JBilorwiiient  for  a  true  nne,  know- 
^  iW  MUM  to  be  forged  nud  counlerteii. 
taltMea,  tbu  i*  nut  the  tint  of  sereral  facts 
1 9m  ■■liisr  thai  have  come  to  he  cuniidered 
qk  tagard  to  tbe  defemJHDt  Mr.  Halei :  but 
%lntllHl  hath  corib  lo  be  examined  in  (hi* 
ilrfendoiit,  Mr. 


fm  ibargad  upon  tlx 
liwmUy,  a  dwgytn 


*  &B  Ifee  fnetAng  uul  Mowing  Cbks. 


lancholy  thing  that  when  a  scene  of  fiirgeiy  of 
■Ilia  uature  is  going  on,  which  as  you  bavd 
been  told  is  uf  a  very  [leiDicious  nature  lo  trade 
and  commerce,  we  lihoutd  see  nne  chartrcd 
Iherewilb  that  halh  a  right  to  a[i)iear  in  that 
habil,  and  thinka  til  lo  appear  here  in  it.  Uut 
it  Hill  appear  that  there  is  jiifl  ground  to  charj^a 
not  only  the  defendant  Kales,  but  the  defenibnt 
Kinneraley.     Gentlemen,  as  to  Ibe  fact,  it  will 


I  that  i' 


n  thes: 


tbe  former  fact ;  that  by  Ibai  corresiiondence 
ti>at  Mr.  William  lU\es  thought  tit  (n  let  him- 
self into  with  Mr.  Edwards,  by  applying  fi>r 
frank  covers  lo  send  news  into  tbe  coiintry,  be 
look  occasion  tu  make  use  of  such  a  paper ; 
and  that  there  bein|;  an  intimacy  between  him 
and  Mr.  Kinnersley,  Mr.  Hales  having  by  Ibia 
means  possessed  himself  ofa  frank  cover  with 
tbe  name  of  "  Samuel  Edwards,  flree  "  there- 
on, Ihat  u|Hin  a  piece  of  ibat  paper  cut  otT  from 
tbe  rest,  a  promissiirv  note  is  wrilleu.  I  lake 
it  lhat  the  note  will  appear  to  be  tbe  hand- 
writing of  Mr.  Kiiinersley,  dated  in  a  different 
baud,  Aug.  10,  1737.    The  words  are  these : 

"  1  promise  lo  pay  to  Samuel  Edwards,  esq. 
or  his  order,  three  monlha  after  date,  ihe  autn 
of  twelve  hundred  and  sixty  iioundi,  for  tha 
value  received.  TiiuM.ts  Kikhekslei'."  . 

On  tbe  back  of  Ibe  paper  these  circumstaDCca 
will  appear :  fiisl,  the  edj^e  of  ihcpHper  on  Ihat 
lide  uf  it  where  the  indoraenient  ia  wrote  ap- 
iiears  cut  offi  and  as  in  tbe  furnier  cose,  ao 
here  there  are  tbe  tails  of  two  or  three  letter* 
still  remaining  plainly  to  be  seen.  And  it  will 
appear  that  here  is  an  irregularity  and  uneven- 
oe*E  in  the  culling ;  the  edge  in  one  placa 
smoother  btiiig  lurued  in,  aud  en  book  or  deul 
made  in  lite  paper.  Under  Ibis,  pretty  near 
Ihe  top  of  the  paper,  is  written,  "  Pr^y  pay  lo 
the  order  of,"  then  there  Is  a  wide  blank  as  in 
Ibe  former  instance;  then  follow  tbe  words, 
'■  For  tbe  value  received,  Samuel  Edwards." 
It  appesTb  that  the  words  "  for  the  "  are  writ- 
ten in  a  sironger  and  blacker  ink  than  the 
former;  the/of  ilie  former  sort,  probably  Mr. 
Edwards's.  "The  word  "  Ihe  "  is  not  wrilteu 
in  a  contraction  ua  hetbre,  but  at  length.  Here, 
iustead  of  changing  leltera,  erasing  or  turning, 
are  leliers  wriiien  over  in  a  blacker  Ink  ;  iha 
other  letters,  aa  the  two  re  ajipeit  in  a  palsr 
ink  ;  BO  ilial  it  will  appear  to  a  ftenioDslrutii-n 
ibat  this  was  a  frank  turned  to  this  use.  <Hh*r 
ubeervatioD*  will  likewiie  appear  as  Id  tb« 


i 


227] 


3  GEORGE  II.        Trial  of  Wtn.  Hales,, 


473.  The  Trial  of  William  Hales,*  for 
taining  the  Sum  of  Four  Hundred 
Mr.    AViUiam    Harle,    by    fake    'J 

A.  D.    1729. 


4f.UMTtle!f 


ai  thai   il 


.  3  ipprebeDJ  lii 
:gnind«d  nnd  cai 
tsa.    il  will  >f>li< 


Jury  swoTD  orer  agiio. 

Clerk.  OyEZ,  Otm,  if  any  one  can  in- 
form,  See.  3  "^  S 

GentlenienoftheJory,  William  HalMriaadi 
indicted  by  Die  name  of  Witliara  Hales,  Sec.  fbr 
lalsly  anil  deceitfully  obtaining  (be  autn  of  450^: 
of  Mr.  William  Hsrle  by  a  tiTM  token,  to  wit,  a 

frnmissary  note  in  the  name  of  Mr.  Robert 
Tales,  whereby  the  laid  Rahen  Hales  ia  sup- 
posed to  engage  to  pay  within  three  months 
alter  date,  the  sum  of  800/.  to  Samuel  Edwards, 
esq.  with  a  counterfeU  indonement  on  tbia  note 
in  the  great  damage,  &c.  To  this  indictmeat 
he  hath  pleaded  Not  Guilty. 

Mr.  Strange.  This  likewiae  is  an  indictineot 
agimst  the  defendant  Mr.  William  HalM,  and 
is  tor  faliely  and  ileceitTully  oblaiuing  a 
money  of  Air.  William  Hariebyafal* 
And  It  sets  forth,  that  the  defendant  fai 
nu  nossesiion  a  promissory  note  0I 
Hafes's  for  800/."payable  to  three ., 
dale  to  Samuel  Edwards,^,  with-., 
dorsemenl  thereon  in  the  name  of  tlie 
trnitl  Edwards,  esq.  did  falaly  and 
olHoio  of  one  Mr.  William  Harle,  L... 
A'Ml.  on  tlie  said  note.    This  is  laid  U 
grent  damage,  &e. 

}\t.  UangerfoTd.  Hay  il  please 
>hi|i,  the  fact  charged  is  the  Tery  t 
the  furincr  cause  already  heard  01 
dilTereat  low,  3a  Hen.  8.  There 
to  long  Bgoue  an  abomiuablc  pi__ 
laming  money  by  false  tokens.  The . 
llament  hath  jtivhiUiicd  that  practice.i 

Il  penal.    There  is  hot  one  -■■ 

trouble  your  lordship  with. 

Mr.  Hark  •wnrii. 
Ur.  Ilungirfvrd.    Mr.  Hurli 
account  lo  my  lord,  and  the 
fir^l  saw  that  note,  and  what 


•1  dcr  ol" Mr,  Lilwards.    Fvim 


Hark 
applied 

■"l^"  .  ii^im^tiay  Uiinff, 

«"'*''"  '^eflhe: 

^"?       •    ^lii'baiMl.wi 
•^;l'-      ^*^  brief  be     _    . 


th 


■d-wriUng.    II. 
f  be  rigCt,  iba 


pAalwe  shall  lay  before 

— *^  of  a|)ptyil^;  to  Hr.  E 

anner  of  making  ihia  m 

^^bI,  the  DM  be  made  of  il.  h 

-^d«iMmting  ofitoaa  true  to < 

■  ^iitppeanoD  ihefaceofit  tub 

II  will  appear  plainly  agains 

aeemevl  in  the  forgery,  9 

n  of  it.    A>  lo  the  oiher  0 

_  ~"  nneraley,  the  circ 

'  ^  I  have  meotianed  will  make  it 

'  ^^  and  be  as  strong  eridence  ag 

'--It  the  other. 

gm.  Wliilaktr.    I  will  not  lake 

Hvnrdsliip's  time,  then:  lieing  ini 

fittis;  but  aliall  immediately  cull 

ma. 

Jtmet  Maddax  and  Am 


art  he  inserted  over  again,] 

yir.Jakn  SpicerM\ 
8(^.  WlUtaker.    Look  upon  that  1 
Ml   acquainteil  with    Mr.  Edwart 
n™r__S;>ifer,  Yes,  Sir. 
San.  Whilakir.     How  long  have 
MnwiMed  with  it? 
^^kv.  Twenty-four  years,  Sir. 
Smj.  WMaker.    How  hug  lia*e  t 
Mtwlumr 
Sfktr.  Between  ten  and  I'lnun  y 
%IQ.  Wkitaktr.    How  much  ib  h'i. 
J^icr-  Samuel  Edward*  and  the 


] 


for  a  MisiUmeanw* 


Sfri.  Wkitaker.  Very  well.  As  to  the  other 
kttnt,  whit  are  they  ? 

flakier.  Some  of  them  seem  to  be  written 
tver  ether  letters,  which  I  suppose  were  pert 
ef  Ihe  word  *  free.*  The  r  seems  visiblt  he« 
Ivettlhtond  r. 

Mr.  Strange.  What  was  his  method  of  wiiu 

Efiut.    With  a  donUe  /,  jast  as  it  is  here, 

tk,  Amge.    Did  ^oa  ever  koow  him  use 
itasid  Fraak  f^^^wer.  Never,  Sir. 
A9.  Wnutaker.  You  say  that  }-o«  haro  been 
■MHMd  as  derk  between  10  and  11  years. 
Vnyon  ooneemcd  befofe  for  him  ? 

^BiSBr.  V  OB,  CnT* 

fhq.  Wkitrnker.  lo  what  business  f 

As  to  Ma  pivsae  affairs  in  town,  cash 

I,  and  many  of  his  vents. 

WAUmkgr,    During  the  time  that  you 

aeqwuntcd  with  Iris  prifate  transactions, 

understand  tnat  there  were  any 

in  asoney  affiurs  between  him  and 

.  No,  nsfver  any  whatever.  I  never 
as  heard  Ins  name  in  the  family. 
1^.  WMUmktr.  Did  you  ever  know  that  Mr. 
iMds  used  to  make  a  practice  of  indorsing^ 
■f  Ukar  pcffion's  notes,  or  of  giving'  pronrn- 
•wislsn?    Sfker,  No,  Sir. 

IHJ.  WkiiakeTn  1  believe  you  will  all  be 
omiMBd  that  M  is  his  hand -writing. 

MkMnfej.  1  admit,  Sir,  the  whole  body 
tf  tensle  to  be  mine  own  band-writing. 

■r.  8ir0ng§,    Look  opon  it  before  you  do 
in    We  desire  nothhig  but  what  is  fair. 
Mamersley.    Yes,  Sir,  I  admit  both  the  fi- 
en  the  top,  and  the  whole  note  to  be 


faj.  Whiiaker.  Gentlemen,  yon  will  ob- 
mveAat  there  were  but  3  months  mentioned  in 
AcBSle.  The  note  is  drawn  August  16,  and  was 
m  brsoght  till  March  90  after,  so  that  the 
vWIe  time  was  long  expired  before  the  note 
mi  left  with  Mr.  Bird  for  the  money  which 
What  upon  it. 

Mr.  Strange,  I  verily  believe,  my  lord,  the 
and  note  to  be  both  the  same  hand. 


Mr.  William  Wright  sworn. 

^myWkiiaker,    Sir,  were  you  at  any  time 

Ih  Mr.  Kinnersley  and  Mr.  Edwarch,  and 
an  there  any  diseourse  passed  between  them 
ikMt this  note? 

Wright.  When  Mr.  Kinnersley  was  exa- 
'  before  sir  Richard  Hopkins,  he  there 
it  to  be  his  own  hand- writing,  butli  the 
1*  and  indorsement. 

faj.  Wkiimker,  But  give  us  an  account 
*Wdier  he  was  going  to  make  a  confession, 
m4  whst  was  aaid  upon  it  ? 

Wrigh.  As  soon  as  he  said  that  tbc  note 
ta  sH  his  hsnd-writing— ' 

L  C.  B.  Ptngelly,  And  what  did  he  say  be- 

J^fiifU.    Wbtl  he  said,  my  tord,  as  to  the 
WM  sftarwii^    As  soon  u  he 


A.  D.  173a  [SSf 

I  Kaid  that  the  note  was  all  his  hand-writing,  Mr. 

i  Edwards  asked  him,  Why  he  drew  the  note 

!  payable  to  him,  when  there  never  had  been 

any  dealings  or  negociations  between  them  P 

Serj.  WhUaker.  What  said  Mr.  Kinnersley 
to  that  ? 

Wright,  He  said  that  there  never  had  been 
any  doings  between  them,  either  before  or 
since  the  making  of  the  note  payable  to  inm ; 
that  he  did  not  know  Mr.  Edwaros,  nor,  except 
that  time  before  sir  Richard  Hopkins,  had  not 
seen  him. 

Serj.  Whitaker.  Pray,  Sir,  give  ns  an  ie- 
eount  how  he  was  prevented  ffoing  on. 

Wright,  He  opened  himself  in  this  manner : 
that  he  was  indebted  to  Mr.  Hales  m  that  sum, 
and  more,  and  that  Mr.  Hales  desired  him  to 
give  a  note  of  his  hand ;  that  he  asked  Mr. 
Hales  to  whom  it  should  be  made  payable?  I 
replied.  It  is  very  unusual  to  ask  tliat.  It  is 
sure  natural  for  a  man  to  make  it  payable  to  a 
person  that  he  owpth  the  money  to.  I  said. 
Sir,  you  seemed  before  to  declare  yourself  an 
unhappy  person,  an  undone  man.  1  asked  him 
the  reason ;  and  upon  that  Mr.  Mitford,  who 
was  with  him,  said,  You  shall  not  go  on  to  de» 
dare  any  thing  further,  yon  may  do  younelf 
an  injury. 

Mr.  Strange,  Did  he  say  at  that  time,  that 
he  saw  any  thing  on  the  back  of  that  note  ? 

Wright,  As  soon  as  he  had  declared  the  note 
to  be  his  hand -writing  to  Mr.  Edwards,  and 
Mr.  Bird  had  shewed  the  note  to  Mr.  Kinners- 
ley, he  was  asked.  Whether  he  knew  of  thai 
indorsement  of  Mr.  Edwanls's  hand  before  he 
saw  the  note?  He  said,  he  did  know  of  the  in- 
dorsement thereof,  but  knew  not  how  it  came 
there. 

Mr.  Strange,  How  did  Mr.  Edwanis  ask  the 
questi<m  ? 

Wright,  He  asked  Mr.  Bird,  Did  Mr.  Kin- 
nersley  own  the  indorsement  before  yon  shew* 
ed  him  the  note? 

Mr.  Strange.  Sir,  you  do  not  apprehend  the 
question  asked  you.  What  was  the  qnestioii 
that  Mr.  Edwards  asked  Mr.  Kinnersley  ? 

Wright.  Whether  be  knew  of  the  indorM- 
ment  before  that  Mr.  Bird  showed  him  the 
note? 

Mr.  Strange.  What  did  he  say? 

Wrifiht.  lie  answered  that  he  did. 

L.  C.  B..  Was  that  all  that  he  said  ? 

Wright,  He  said  that  he  had  had  sereral 
dealinj>fs  with  Mr.  Hales,  which  was  the  cause 
of  bis  drawing  that  note  in  that  manner. 

L.  C.  B.  But  what  did  he  say  concerning 
th(!  indorsement? 

Wright.  Mr.  Bird  said,  tbat  before  he  shew- 
eil  Mr.  Kinnersley  the  note,  Mr.  Kinnerslet 
said  that  there  was  such  a  note  of  his  hand, 
with  such  au  indorsement. 

L.  C.  B.  Hut  what  was  the  answer  that  Mr. 
Kinnersley  (jave  Mr.  Edwanis  ? 

Wright.  Tiiat  he  knew  of  the  indorsement, 
but  knew  not  how  it  came  there. 

Mr.  Strange.  Did  he,  Mr.  Kinnersley,  men- 
tion the  indorsement  himself?     Did  be  say, 

4 


935] 


9  GEORGE  II.         Trial  of  Wm.  HaUs  and  T.  Kinnerdey,        [SS( 


whether  he  law  the  name  before  hit  writ'uig 
the  Dute  ?-— Wright.  Not  tt  that  time,  Sir. 

Mr.  Siranse.  Did  he  at  any  other  in  your 
heariiisr? — li'righi.  No,  Sir. 

!ilr Estrange,  When  Mr.  Mitford  ttopt  him, 
^as  there  uuy  discourse  afterwards  whoaa 
hand-writing  the  note  naight  be;  was  there 
any  dispute? 

Wright,  Sir,  the  company  broke  up  then, 
when  Mr.  Mitford  had  given  him  that  caution. 

Sir  Richard  Hopkins  sworn. 


Serj.  Whitaker,  l^r  Richard 

Mr.  Xocy.  1  would  beg  first  to  ask  sir  Ri- 
chard, whether  this  examination  %vas  reduced 
into  ivriting  ? 

Sir  R.  Ilo/ikint.  I  always  take  a  memoran- 
dum in  my  book  of  what  is  said  upon  an  exa- 
mination. Tliere  was  none  other  examination 
in  writing,  but  my  memorandum  of  what  1 
thought  sufficient  U>  occasion  the  commitment 
thut  I  made. 

t^rj,  Whitaker,   When  was  it? 

Sir  R,  Hopkins,  it  was  some  time  about 
September.  I  remeAaber  that  he  was  chargeil 
before  me  about  two  notes.  One  was  a  note  of 
1,260/.,  the  other  was  a  note  of  1,650/. ;  which 
of  thc^e  you  desire  me  to  sneak  to,  J  know  not. 

Serj.  Whitaker.  That  of  1,260/. 

Sir  R.  Hopkins,  There  was  such  a  note 
drawn  by  Thomas  Kiunersley,  |>ayable  within 
three  months  afier  date  to  Samuel  Edwards, 
esq.  and  indorsed  by  Samuel  Edwards.  1 
looked  ui>on  it ;  and,  turning  over  the  indorse- 
ment, it  seemed  to  me  to  be  an  altered  and 
forti^cd  thing.  Upon  this  I  examined  Mr. 
Bird,  whom  they  offered  as  an  evidence. 
Mr.  IVird  lold  me,  that  he  bad  lent  money  upon 
that  note  of  1,260/.  and  that  he  had  received 
some  money  in  part  of  payment  of  what  he 
bad  lent:  'fhat  Learing  that  Mr.  Hales  was 
taken  up,  he  made  application  to  Mr.  Kiu- 
nersley tor  what  money  remained  due  to  him ; 
that  when  he  made  such  application  to  Mr. 
Kiunersley  for  this  money,  Mr.  Kmnersiey,  be- 
fore he  saw  the  note,  told  him,  that  he  had  a  note 
of  his  for  his  1,260/.  payable  in  three  months 
after  dute  to  Samuel  Edwards,  esq.  or  order, 
and  indorsed  by  item uel  Edwards.  This  1  laid 
my  finy;er  upon  before  him,  thinking  it  sufficient 
to  conunit  him,  and  repeated  the  words  to  Mr. 
liird,  are  these  the  words  that  you  say  ?  if  they 
are,  re|)eatthem  ;  which  he  did.  I  askefl  31r. 
Kinnei-sley,  whether  he  hfid  any  dealings  with 
Mr.  Edwards?  He  said,  that  be  had  not.  1 
askeii  then,  how  be  caiue  to  make  a  note  for 
1,260/.  payable  to  him,  a  person  with  whom 
he  liad  no  dealings.  He  said,  that  he  did  it  at 
the  icquebt  of  Mr.  Hales,  to  whom  he  was  in- 
debted iu  that  sum  of  money«  He  said,  that 
as  to  the  indorsement  he  knew  not  how  it  came 
IhtTP.  He  seemed  ready  to  make  an  ample 
conieshiun ;  but  there  was  a  person  thera,  who 
was  (1  think)  one  way  or  otiier  related  to  tiie 
law,  who  stopt  him  directly,  and  had  oft  inter- 
rupted. I  said  to  him^  air,  tbb  is  not  be- 
•omiDgherc:  I  expect  to  caniae  any  penoo 


without  your  interrupting.  I  will  afterwards 
ask  any  question  that -«— 

Seij.  Whitaker,  Sir,  when  Mr.  KinDeiilcy 
bad  owned  the  note,  was  there  afterwards  a 
denial? 

Sir  R.  Hopkins.  Aflerwardst  Sir,  there  was 
a  denial.  It  might  be  as  to  tlie  other  note; 
and  not  that  which  you  are  now  eilung  IM 
about. 

BIr.  Richard  Davis,  the  constable,  sworn. 

Serj.  Whitaker.  Richard  Davis,  I  think  tbei 
you  were  the  constable  sent  to  apprehend  Mr. 
Kinnersley.  Will  you  give  us  an  eoooanl 
how  often  yon  went  to  apprehend  bim,wbelhci 
he  was  to  be  met  withal,  and  what  passed  when 
he  was  apprehended  ? 

Davis.  My  lord,  on  September  18,  tbm 
was  a  warrant  issued  out  to  take  up  the  ktI 
Mr.  Kinnersley,  and  was  given  to  ine  to  eie* 
cute.  Accordingly  1  went  in  the  aftemeeai 
and  took  a  |iorter  with  me.  We  went  to  thi 
Magpye  tavern  without  Aldgate.     I  sent  the 

Sorter  thence  to  Mr.  Kinnersley *8  house  is 
lansel-etreet  to  tell  him,  that  there  was  a  gen- 
tleman there  to  speak  with  him ;  becaoee,  hi 
living  in  Mansel-street  in  Middlesex,  1  conU 
not  there  execute  my  warrant.  When  lh« 
porter  came  back,  he  told  me,  that  the  dmughlei 
came  to  the  door,  and  said,  that  the  reverand 
Mr.  Kinnersley  was  not  in  town.  After  I  Iml 
paid  for  what  I  had  called  for,  I  wentfraa 
thence  to  the  derk  of  the  parish,  and  esksd 
him,  whether  the  reyerenu  Mr.  Kinnersln 
was  in  town?  He  answered.  No;  and  sain, 
that  he  went  out  of  town  on  Tuesday,  I  thill 
it  was,  and  tliat  he  did  not  know  when  h« 
would  be  in  town.  He  asked  me  what  I 
wanted  with  him  ?  I  told  him  that  a  conpk 
wanted  to  be  married,  and  wanted  a  licence 
Won't  (said  ht)  the  curate  do?  No  (said  I) 
the  young  gentlewoman  will  not  be  marriei 
by  any  but  the  doctor,  and  at  his  church :  S 
the  person  having  no  apprehension,  sent  me  t( 
London-house  in  Aldersgale-strcct,  to  enquir 
for  Mr.  May,  who  would  tell  me  when  thi 
doctor  would  be  iu  town.  He  told  me,  that  b* 
would  be  in  town  next  Thursday  night.  Ac 
cordingly  I  went  the  next  Friday  morning 
took  a  porter  with  me,  went  ilirectly  to  t£ 
Doctor's  house.  When  I  came  there  I  ninj 
hard  at  the  gate.  Out  came  the  daughter, 
asked  to  speak  with  the  doctor ;  she  said  tbi 
he  was  not  at  home,  and  enquired  what  I  wouli 
have  with  him.  I  told  her  the  same  about  m; 
wanting  a  licence  that  I  had  tuld  the  clerk  be* 
fore.  I  will  (said  she)  go  and  call  my  mammi 
Accordingly  madam  Kinnersley  came  out:  . 
told  lier  that  I  wanted  a  licence,  was  in 
formed  that  the  doctor  generally  kept  licence 
by  him,  or  at  least  could  help  me  to  one.  SIm 
desired  me  to  walk  into  the  parlour,  said  the 
the  doctor  had  been  out  of  town,  was  very  muci 
fiitiff  ued,  which  was  the  reason  that  he  was  dc 
nied.  Out  came  the  doctor;  Sir,  (said  he 
where  is  the  gentlewoman  ?  Sir,  (said  1^  she  s 
hard  bji  at  the  Magpye  tavern  by  AJdgati 


f<yr  a  Misdememor. 

il  bt)  is  ibe,  *Xii  nho  art  ber  frieoils 
B  Ifaat  ber  name  waa  Binl.     When 

B  abe  r  I  Mid  ID  Fleet -stifei. 
<i  be)  remeuiber  thai  name.  ¥011  do 
.  .  BUllknowlwrrallierTery  ndl.  What 
■II  (aU  or)  ia  she  ?  I  told  bim  her  age. 
B«n  bs  I'riends  aiten  conaeut  (laiil  be), 
'■'afcWIbM  l.nouldiKil  Jo  it  For  lOO/.;  tbe 
yniqr  ia  50/.  \  I  Inid  liini  lliat  il  bail  been 
taila  MT  know  ledge.  Ave  (said  be)  ilroaj 
k  M  Ac  Vtm.  J  dHired  bim  to  go  to  the 
k<M^  where  her  brother  waa  wilh  her,  Rod 
k*«M  b*  Mtisfied.  My  intent  wna  to  decay 
b  ■!»  tbe  libcTtiea  ol'ihe  city.  Hetaid,  Nci, 
k<M«Unotgn  vrilb  me;  so  I  bad  no  oppor- 
tari^tben.  Itut  baling  seen  him  once,  and 
MinaatDS  liiin,  I  afUrwarOa  watched  for  him, 
mi  *a*  bim  come  nut,  and  go  through  the 
Ibmn.  I  watched  bim  till  became  to  Ald- 
|Nt;  I  kben  paid  my  respectt  to  liim.  I  lliiak 
{mA  bt)  that  you  are  the  peraun  thai  came  to 
■tabaat  ■  marriage.  Yea,  Sir,  (aaid  I)  but  1 
'■"  ■  ^  alfaii  to  apeak 

He 
,  bad  the 

piisni  aonl  to  him,  be  would  readily  have 
«■&.  I  aakcii  bim  why  he  ilFniett  bimseir? 
■»Mll,  Ibal  be  apprehended  an  arrcBl.  I  de- 
M  bfai  U  go  with  roe  to  the  While  Hnn 
iMsia  Biahai>9gale' street.     Xlelbere  owned 

fc].  WkUakcr.    Was  it  within  or  wilbout 
^\m%t—Dam.  It  waswithin. 
.%n.  WKttukrr.  Did  you  go  wilh  him  to  sir 
fete4  Huphina?— Duvit.  Yea,  iSir. 

|.  Wkttaktr.  My  lord,  there  is  another 
""tu  we  aball  prute,  tor  all  is  drciiro- 
We  ahall  shew  that  Mr,  Kinner»ley 
_ '.  HalM  have  been  often  together  for 
r  It«  raoDtlis  in  a  priisle  manner.  As 
B  bath  come  in,  the  other  hath 

Cwilh  kina  into  a  private  room,  and  they 
Blajnl  •ooie  lime  together ;  and  this  was 
itM  Hi*  iitiM  that  lime  Iraiisadion*  have 
nbm  these  matters  are  laid  together, 
jai^MjailftcthalMr.  Kinnenley  bath  not  been 
,  mMm  Mr.Edwar^aaalogivehirol.ifGO^; 
lAu  tberv  waa  a  nlain  limned  design  to 
■  IbiaHiBtwy  npon  biseredit.  Join  (bis  to- 
'w  with  bis  owning,  that  be  knew  that  Mr. 
^  ■  '  ■  ml  waa  on  ilie  back  o(  the  note 
V  the  note,  anil  that  he  knew  of 
rot.  lliongh  he  said  be  knew  not 
Mlbere-  CoDsiilering  these  things, 
(  bul  that  there  was  a  con- 
MbAtneutbein.    We  (hall  call  aereral 

We  submit  it  to  my  lord,  whe- 
— -f.  Il  ia  foreign  to  this  indicl- 
aboulil  have  notliing  nlTered 
■at  we  may  tw  sii|ipoaeil  to  come  pre- 
■  ilWand.  We  caDDot  be  aupuuseil  to 
^  pNfwrH  in  iMcnd  ihii,  by  shewing  how 
beaaM  tbete,  and  upon  what  ncconnt. 
_  I-  C  fi:  Il  ia  an  indictment  againat  both 
!%•  Bal«  WM  indeed  »&> 


scribed  by  the  defendant  Kinnersley:  Bat 
then  itwasdebiertnl  ontby  Ihentber  Jerendant 
llalea.  Now,  they  say,  that  they  will  shew 
by  several  witnesses  tbai  they  were  Tery  oon- 
lersant  logether  about  that  time,  and  they  are 
■cquainteil  with  tbe  private  manner  of  Oieir 
conreraing  logether.  You  hear  what  is  the 
use  they  make  of  it.  I  see  nut  that  we  can  re- 
fuse their  giving  this  account.  What  uae  is  Ia 
be  madeol  it  muat  beletllu  the  jury. 

V[t.  Mather.  Aretbeae  things  lobe  proredby 


Hr.  Strange.  Pray,  where  do  you  live? 

hah.  At  Feel's  colfee-houie,  in  Fleel-slreet. 

Mr.  Slrangr.  Do  yoti  keep  that  bouse? 

Bab.  Yn,  !^ir. 

Mr.  Strange.  Hare  you  ever  obaened  ihat 
Mr.  Hales  anil  Mr.  Kinnerstey  erer  frequented 
that  house,  and  in  what  manner  ? 

Bab.  Last  summer,  tbe  greatest  partofthe 
sutnmer,someiimes  twice  or  thrice  in  a  week, till 
near  the  lime  that  ibe  gentleman  was  taken  up, 
Mr.  Hales  would  somcliinea  come  thither,  and 
anmetimes  be  there  an  hour  or  two.  Some- 
times be  wnuiil  ask  whether  a  minister  bad 
been  there  to  aak  for  himT  We  hardly  knew 
the  name  of  either  of  them,  but  knew  whnm  ha 
meant.  Mr.  Haleswould  often  bein  ourroom, 
and  see  sonielimes  Mr,  Kinneraiey  coming,  out 
of  the  window.     Mr.  Hales  would  hardly  take 


«ofhirr 


but  a 


she  c 

.te  room,  and 


Hales  would  go  ii 
the  other  atterwards  go  t 
timea  as  soon  as  one  came  in  at  one  door,  the 
other  went  out  at  Ihc  other,  and  be  followed  bim. 

Serj.  Wliilaker.  How  often  was  ibis  ? 

Bab.  Twice  or  thrice  in  a  week. 

Mr.  Strangt.  Do  you  remember  on  what 
occasion,  and  bow  tbey  lefl  off  coming  to  your 

Bab,  Mr.  Kinnersley  was  not  at  the  honse 
for  two  or  three  weeks  or  a  month  before  Mr. 
Hales  was  taken  up.  Mr.  Hales  was  there  a 
tew  days  before. 

Mr.  Strange.  Do  you  remember  that  Mr, 
Kinnersley  passed  by? 

Bab.  Once  he  did.  He  weol  down  Fleet, 
street-  Mr.  Halearoscup,  went  out,  ood  went 
alW  him. 

Mr.  Strangt.  How  long  tvas  tbis  before  Mr. 
Hales  was  apprebendeil  ? 

Bab.  It  was  three  weeks  or  a  month,  I  he- 
litre,  before  he  was  ajiprcbendeJ. 

Mr.  Slninge.  I  ask,  Whether  at  any  lint 
they  aatdowii  in  Ibe  public  room  ? 

Bab.  Very  seldom :  Ihey  generally  went 
into  the  pritale  part. 

Mr.  Strangt.  Was  that  distinct  from  lb« 
rcstofibe  buiiseF 

Bab.  Yes,  Sir,  i^uile  separate. 
Mr.  Juhii  BrBokttt 

Mr.  Slrtige-  Where  d*  yon 


S391 


3  GEORGE  11.         Trial  of  Wm.  Hales  and  T.  Kinnerdey,        ££4 


Brooks, '  I  keep  a  coffee- hou<e  in  Downing- 
(ttrerty  in  WesUniotter. 

Nr.  Strange,  What  name  doth  yoor  coffee- 
house go  hyf — Brookt.  My  own  name. 

Mr.  Strange,  Do  vou  l^now  tbat  you  have 
ever  observed  that  5lr.  Hales  and  Mr.  Kin- 
oenfley  ever  frequented  your  house,  and  in 
what  manner  ? 

Brooks.  Mr.  Kinnersley  hath  sometimes 
come  to  the  cofice-  house ;  sent  for  a  porter ; 
gave  him  a  note  to  Mr.  Hales,  who  hath  come, 
and  they  have  gone  to  a  private  ^tart  of  the 
room. 

Mr.  Strange.  Was  there  aoy  other  with 
them? — Brooks.  No,  Sir,  never. 

Mr.  Strange.  Was  it  often  that  they  met 
thus?  ^ 

Brooks.  About  four  or  five  times  iu  a  month. 

Mr.  Strange.  How  long  have  thcv  stayed  ? 

£r(k>/».  Several  hours.  When  I  have  asked 
the  servant  whv  a  candle  was  not  carried  them, 
ke  hath  said,  that  they  refused  it. 

Mr.  Strange.  How  long  was  it  before  Mr. 
Hales  was  taken  up  ? 

Brooks.  About  a  month. 

Mr.  Strange.  Was  tliere  any  observation 
yiade  upon  his  being  taken  up  ? 

Brooki.  I  observed  it  the  more,  having  oflen 
«een  them  togctlier. 

Thomas  Janeway  sworn. 

Kiuncrsky.  I  admit,  my  lord,  that  we  have 
been  together  at  several  coffee- bouses. 

L.  C.  B,  Well,  now  the  mau  is  sworn,  we 
will  go  on  with  him, 

Mr.  Strange.  Do  you  know  Mr.  Kionersiey 
and  Air.  UB\ei?-^Jnntuuy.  Yes,  Sir. 

Mr.  Strange.  Do  you  keep  a  coffee-house? 

Janeway.  Yea,  Sir. 

Mr. Strange.  Where? 

Janeway.  In  Cornhill,  Sir. 

Mr,  Strange.  Do  you  remember  tbat  they 
have  frequented  your  house  together,  and  in 
what  manner  ? 

Janeway.  I  believe  they  may  have  been 
there  t^^ther  several  times. 

Mr.  Strange.  What  company  had  they  with 
them  ? 

Janeway.  1  take  no  notice  what  company 
is  there.    I  observed  them  not 

Mr.  Strange,  How  ot^en  have  you  observed 
tiiem  retire  up  stairs  together  ? 

Janeway.  I  take  no  notice  of  sucli  things. 
They  might  for  an  hundred  times,  for  aught  1 
know. 

Serj.  Wkitaker.  My  lord,  we  shall  rest  the 
evidence  here.  We  submit  it  to  your  lordship 
and  the  jury,  when  such  a  note  is  drawn  by 
•uoh  a  mau  upon  such  a  paper,  by  which  he 
promiseth  to  pay  such  a  sum  to  a  person  with 
whom  he  had  uo  dealings,  to  what  end  can  it 
ke.  Can  it  be  with  any  other  intention  than  U» 
charge  an  inuocent  mau  witli  it  ?  J  think  it  is 
a  plain  case.  It  k  certain  that  Mr.  Hales  car- 
ried this  note,  and  borrowed  a  sum  of  money 
upon  it.;  and  Mr.  Kinnersley  made  preparation 
tor  it  by  making  a  note  for  so  much  monty 


psjfable  to  Mr.  Edwards.  Doth  a  nan  q 
easily  ifive  1,960/.  to  a  stranger  with  whom  U 
bath  had  no  dealings  ?  To  what  pnrpote  eonk 
it  then  be  thus  drawn?  Wb^,  to  he  indorsed 
And  this  Mr.  Kinnersley  did,  and  he  ownei 
that  the  name  was  there,  and  be  knew  that  Mi 
Edwards  was  a  rich  man.  Well,  if  Mr.  £4 
wards  was  a  rich  man,  and^the  other  not  won] 
a  groat,  as  he  owncl  himself  to  be  an  nndon 
man,  to  what  purpose  then  can  it  be?  WeU,  1 
think  it  clearly  appears  tbat  this  wan  a  eon< 
trivance  between  them  two.  If  you  think  mi 
this  plain,  I  think  that  it  is  imnoiisiUe  to  torn 
vict  any  man  on  a  stronger  evidence. 

Ser).  Darnell.  Mv  lord,  I  amcounfel  ierthi 
prisoner  at  the  bar,  Mr.  Hales.  Aiu|  I  thiak  j 
doth  appear  that  there  was  a  transaction  ha 
twecn  Mr.  Hales  and  Mr.  Kionersley  ;  av 
that  this  money  was  due  from  Mr.  KiaMibei 
to  him.  And  we  aitprehend,  nntwithftandini 
what  hath  been  oflered,  that  the  confsMinp  s 
Mr.  Kionersley  is  a  proper  justification  of  lb 
Hales.  It  is  not,  my  lord,  Mr.  Kinnerslev' 
being  a  defendant  that  shall  deprive  Jlr.  Uu| 
of  the  benefit  of  this  oonfesston.  It  ap|^earai| 
that  he  was  indebted  to  Mr.  Hales,  this  nsl 
was  given  in  satisfaction :  we  apprehend  Ibi 
it  was  given  upon  this  acconnt  to  R|r.  Utlfl 
In  confirmation  of  what  Mr.  Halea  nilh,  m 
can  produce  a  person  to  shew  tbat  therf  nt 
an  account  between  them,  and  Mr.  KinnMhl 
acknowledged  such  a  balance,  in  salis&clii 
of  which  this  note  was  giveo.  And  we  thpi 
that  it  could  not  be  drawn  as  a  note  of  U§ 
Kinnersley 's  payable  to  Mr.  Hales,  not  «■!] 
because  the  account  would  be  as  good  agM 
Mr.  Kinner&Iej^  as  such  a  note  of  bis  hand,  k 
also  because  of  5fr.  Hales*sown  circumstance 
Mr.  Hales  applied  to  a  gentleman  that  reooqi 
mended  him  to  Mr.  Bird  to  borrow  money  qpo 
this  note.  And,  gentlemen,  it  was  thia  nel 
thus  drawn  that  recommended  him.  M; 
Hales  had  the  misfortune  to  be  oonceraed  wit 
sir  Stephen  Evance;  he  coukl  not  therefai 
appear  himself;  and,  therefore,  by  the  assial 
ance  of  this  note,  borrowed  tlie  money.  Whi 
difficulties  came  upon  it,  he  went  and  paid  pai 
of  the  money,  and  I  believe  would  have  talu 
care  to  have  paid  the  whole :  it  doth  notappei 
that  this  hath  affected  Mr.  Edwards.  H 
name  indeed  hath  been  exposed  as  a  roan  won! 
not  l)e  williuff  thatit  should  ;  monev  bath  bei 
raised  upon  the  credit  of  his  name ;  out  he  hnl 
not  becu  affected  thereby.  This  therefore  lid 
on  the  unhappy  circumstances  of  Mr.  Hak 
We  will  call  one  witness,  and  ihen  this  coufti 
sinn  of  Mr.  Kinnersley  we  ho|>e  will  avail. 

Mr.  Lacy.  My  lurd,  I  apprehend  that  there 
a  circumstance  ihat  lessens  the  weight  of,  if 
not  wholly  sets  aside  whst  they  go  upon.  Whi 
they  have  gone  on  was,  that  Mr.  Edwards 
franks  were  used  lo  this  ill  purpose.  Aladdae 
a  servant  of  Mr.  Edwards,  is  produced,  wl 
tells  us  of  a  parcel  of  franks  that  were  delif  en 
iu  July  iMt.  Mr.  Bird  gave  an  account  tk 
this  note  was  liroughk  to  him  in  March :  i 
that  ii  was  brought  him  before  thoae  fnnl 


I  Mhdemranor. 

Aiul  thnugh  il  may  be  ap< 
there  were  oiher  rmiikti,  we 
Oittk  tint  (bera  ouyhl  lo  be  a  ptout'  of  some 

ji.U  il.ii  iffrti  dt'lKcred  before. 

TIterc  hnfe  been,  Mr.  Lacy, 
■j'l^weti)  for^teral  years.  Thoie 
<  4:Iil  ill  July  laM,  arolliose  ihkl 
iiniikn),  but  were  only  covei-s  iell 

Mf-  R^btrt  Burkil  ivimn. 


<://.     No  !   What  dolh  (lie  mao 

'       What,  none  in  Newgate,  nor 
Uo  you  know  of  oooc  ? 
■   .,Sir. 
'              -■,■.    Do  j'ou  know  of  any  money 
ftji  'u  nl  auy  time  itue  froiD  Mr.  Bale*  to 
Nr.  fciMMnic)'  r 
Btrkit.  No,  Sir,  none  at  all. 
LC.  B.  Ila>e  voii  anyolber  trilnesi? 
Sqj.  Darnell.   My  lorJe,  there  are  Iwo  wit- 
• ■ --.slaleJ, 


^  Ejrt.  My  lord,  aud  ^ntlemen  of  tlie 
,  A I  am  connacllbr  Iklr.  Kinnersley.  I  sp- 
|MmJ  iliM  lie  is  ionncent.      t  readily  agree 


liy  ad  of  parlwtli 
MMHt,  uid  (heir  ceourity  necessary  lo  com- 
M«t;  toil  that  Uie  forgery  of  audi  notes 
III  ■liinrmeiiu  tliereupon  i«  very  peroicioua 
ktt*  f¥Uic :   I  ihertfure  apprebend  that  (here 

«Vt  W  alrong  e*iileiu;e  for  tlie  contlcling 
ih  a  crime.  1  bu[nb|y  Bubiiiil  it,  that  be- 
In  *  Bss  be  convicted  or  ao  iutamous  au  af-' 
fel  Ifcer*  oo^t  to  be  atran^  eiidence ;  and 
it  iMber  )M^r«iuie  be  it  a  clergyman  of  the 
flHcli  of  Eaj^aiiil,  and  his  cnpacrty  nl'  «er- 
(indepriLda  M)ion  liia  credit:  And  il  doth  ap- 
fwlkat  be  baihbeliarcd  himself  wiib  all  pos- 
db  eaalMD.  You  see  that  ibe  coutrivance 
tm  IW  iiilirvr  aem  la  apprehend  bira  made 
111,  iiu  a  preience  of  a  marriage.  You 
Mn,  and  I  did  glad  lu  tee  il,  and 
■0  otlieis  Used  tbe  i>ame  caution, 
hiaanijuiry  wliul  t^fe  the  young  wo- 
lof,  MiilentaadinE  Ihni  Hhe  waa  not  of 
bcr  parenti  not  being  tlii^re,  nolwiili- 
dial  be  irit  told  lliiit  lier  liiuihcr 
riUi  bor,  jet  he  ab9i>luti.-ly  refused, 
111  nut  be  coocerncil  fur  an 
foaajm  niibuui  the  parent'a  conBenI: 
Mich  a  p"ii>t  ill  hiw  favour,  lliat  1  Ibiiik 
•lion^rr  cirr^iinaiance  fiir  him,  than 
circuniiUiiceB  arc  ugaintrt  blm.  A* 
affencK  iliai  ii  charged  upon  bin.  ilia,  I 
:,  (bat  he  »li«uid  gifa  mit  a  note  made 
IMjalili- (0  Mr.  Kdwards,  and  in 
DtiU!  in  Mr.  Edwards'a  name,  ii 
ij^  Mr.  Edwardi  with  the  pay 
iiinpy.  Tlii'v  lav  a  great  itreai 
1  ••y,  that  Sir.  fciuiiersley  wui 
Liiiti«l  iriib  Hr.  liiwuit.    Ow 


A.D.  1729. 

of  die  wimenes  aaiili,  that  Mr.  KinnetUt^ 
hitntelf  oivned  that  he  had  neicr  seen  Mr. 
Edwarda  before  in  hi*  life.  How  therelbr^  (say 
tbey)  is  it  likely,  that  there  should  be  any 
tiur  reasDa  for  a  man  tn  make  such  a  note  pay  - 
alile  lo  one  that  he  had  no  deahng  nor  acquaint* 
ance  with,  nm- had  so  much  as  ever  seen  before 
in  his  lite  T  I  eubinit  it  to  you,  whether  in  ibe 
course  of  business  it  is  a  material  thing  whom  a 
note  is  made  pajablelo.  If  a  man  owe  a  sum 
of  money,  and  give  a  note  for  it,  il  is  natural  to 
enquire  to  whuiu  it  should  be  made  payable, 
It  was  the  more  naiural  iu  this  case,  ai  Mr. 
Uales,  having  the  miaforlune  to  have  a  com- 
missiun  of  bankniplcy  standing  out  against 
him,  could  not  negociste  note*  in  his  own  name, 
but  must  act  in  some  friend  or  neighbour'! 
name.  And  il  is  no  great  wonder  that  Mr. 
Kinnersley,  whose  characterdirccted  bis  studies 
another  way,  and  who  waa  not  Bcqiiainled 
much  with  these  aftkirs,  should  he  imposed 
ti[H)n  to  give  such  a  note;  and  the  less  so,  fnr 
this  plain  rEOSOD :  Sir  Stephen  Evance  and  ih. 
Hales  formerly  Ufcd  iu  Mr.  Kinnersley'a 
parish  ;  received  him  with  a  great  (leal  of  oiti- 
\\ty  :  It  can  be  no  wonder  therefore  that  h* 
alierwards  continued  an  acquaintance  with  him. 
Notwithstanding  his  roisforlunea,  it  ia  plain  that 
Mr.  Hales  was  Hiillacquaioleil  with  several  very 
worthy  gentlemen  :  Mr.  Gibson  and  Mr.  Ed- 
wards butb  furnished  him  with  franks;  sir 
Uiby  Lake  recommended  hira  to  Mr.  Bird,  in 
barrow  of  him  s  considerable  sum  of  money. 
If  such  gentlemen  as  Ihese  thus  corresponiled 
with  him  after  his  mitlbrlunes,  no  wuntler  thai 
Mr.  Kiuuersley,  whs  had  been  the  minister  of 
the  parish  where  Mr.  Hales  had  lived,  should 
beep  lip  ao  acquaintance  with  him ;  and  so  no 
wonder  that  he  ahoulJ  be  so  imposed  on.  In 
fhci,  Ke  shall  shew  you  that  he  was  indebleil 
for  such  aaum  to  Mr.  Hales.  It  is  impossible 
(Ogive  a  particular  account  of  the  whole  affair ; 
Mr.  Hales  being  also  a  defendant,  and  there- 
fore no  evidence :  But  that  he  was  indebted  iii 
some  such  sums  is  plain.  Gentlemen,  it  is 
very  ioaocent  if  a  man  give  a  note  where  ibero 
is  no  consideration.  '  A  is  no  injury  to  tbo 
public.  The  person  that  gives  the  note  may 
mjure  himself,  but  not  the  public.  There  ia  ai> 
act  of  parliacnent  against  tlie  giving  of  auch 
notes.  Well,  if  the  giving  of  tbe  note  be  nut 
culpable,  consider  bow  the  fact  uf  the  indorse- 
ment comes  about.  And  if  you  consider  how 
that  comes  about,  do  doubt  but  that  he  must  ha 
i:leared  uf  the  fact.  How  must  this  be  done  to 
affect  Mr.  Kinnersley  7  It  mu-st  be  on  the  back 
of  the  pole  when  ho  wrote  tbe  note,  and  h« 
muM  know  it  to  be  there.  Now,  with  great 
submissiou,  have  they  given  any  proof,  or  co- 
tour  of  proof,  that  it  was  then  there,  or,  thai 
if  it  was,  be  knew  it  lu  be  tlienf  Hiey  haw 
given  you  (he  prouf  uf  Mr.  Ciid  and  the  con- 
stable, who  was  present  when  lie  was  examin- 
ed. According  to  the  Brst  of  these,  it  is  pUin 
that  he  knew  not.  He  said  that  he  knew  (bat 
the  name  was  there,  but  know  not  how  it  cania 
Tbbc,  I  thiuk,  instaad  ol  a  coafotiaa. 


fiS] 


3  GEORGE  II.         Trial  of  Wm,  Hdn  and  T.  Kinnenley^ 


is  an  BTeiAo^  of  it,  by  nyini^y  HMt  be  knew 
nothinfir  ai  «||  how  it  came  there :  But  consi- 
der tlie  nature  of  ^e  thinip,  how  it  is  eupposed 
to  Ik  done  from  a  frsnii  of  Mr.  Edwanls's. 
Mr.  Edwards  liad  never  franked  a  letter  for 
bim,  but  many  tor  3lr.  Hales.  Is  it  not  most 
natural  lo  suppose  then  that  Hales  was  con- 
cernod  ?  Hnw  doih  it  follow,  that  this  being 
done  from  a  frank,  the  nam<!  must  lie  tbera  be- 
fore Aie  note  was  wrote  P  A  man  that  is  capa- 
ble of  drawing  such  a  note  for  ooeh  an  end, 
might  be  not  gire  it  to  be  Ihmked  ?  Is  it  not 
easy  to  conceive,  that  if  I  give  onch  a  note  on 
a  quarter  of  a  sheet  of  pa|>er  doubled  up  to  a 
person  to  be  franked,  that  he  shall  do  this  so 
as  to  make  the  name  stand  for  an  indorsement  ? 
1  woaM  mslce  this  further  observation,  it  hath 
been  eounted  doubtful,  whether  the  making 
nse  of  a  man's  name  to  a  diflferent  purpose 
from  what  he  dcsigiied  itfor,  shall  be  counted 
a  forgery.  I  think  that  the  doubt  arisetfa  npon 
a  distinction  of  my  lord  Cowper,  on  the  statote 
of  8  lilix.  between  forgmg  aud  making  a  false 
deed,  i  do  not  |ire(end  to  say  but  that  the 
opinion  of  the  King's -bench  was  right.  It 
was  in  the  aflair  of  Ward  and  Bridge. 

X.  C  B,  No,  Bridge  and  Dutton :  there 
was  an  alteration.  The  question  was,  whether 
H  could  be  accounted  a  forgin-y  within  the  act 
of  fiarliament  ?  The  wunls  of  the  description 
in  the  act  of  parliament  are,  ^*  if  any  one  forge 
or  erase,  IkcV  whether  he  could  be  charg^ 
with  forging  of  that  note  ?  I  was  one  of  the 
counsel.  It  appeared  their  opinion,  that  he 
forged  it  as  much  as  if  he  bud  wrote  the 
whole  note. 

Seij.  Eyre»  M}*  lord,  \  a<]free  it  to  be  as 
your  hardship  puts  it.  I  nnly  mention  it  bs  a 
iktubt  not  settled  hy  the  priti(e<l  bookii.  My 
lord,  a  man  may  alter  a  deed,  e.  g.  a  person 
o Weill  me  money  on  bond ;  if  1  alter  tlie  boud 
to  mine  own  damsge,  that  is  no  forgery ;  but 
when  he  doth  it  to  the  injury  of  the  person  to 
wliom  ttio money  Is  owing,  then  it  is  forgery  : 
the  furgery  therciore  lieth  in  the  design  of 
defrauding  another.  Now,  whose  good  is  it 
that  this  note  was  drnwu  for  ?  It  appears  that 
my  client  had  no  benefit  st  all  by  it.  The 
money  was  all  received  by  Mr.  Hale^,  and  the 
whole  transaction  about  paying  the  money  was 
by  Mr.  Hales :  he  was  therefore  to  receive  the 
%ene(it,  most  likely  therefore  tlitit  the  forgery 
was  his.  And  as  to  this  promissory  note,  what 
SVBS  the  effect  of  it  ?  No  one  will  pretend  to 
say,  but  that  if  Mr.  Edwanls  was  to  bring  an 
action  lie  might  n  cover  his  money  of  Mr. 
Kiunersley:  he  hath,  therefore,  osily  wrote 
A  note,  which,  with  nut  controversy,  hath  sub- 
jected him  to  the  payment  of  such  a  sum.  of 
money.  Mr.  Hsles  hath  receivcil  the  money, 
and  gained  by  this  ntite.  IVe  submit  it  there- 
fore to  your  lordship. 

Hr.* Mather,  My  lord,  with  rHstinn  to  the 
transactions  between  Mr.  Kinnemley  and  Mr. 
Hales,  we  shall  call  evldi.'nce  to  sfiew  the 
reasons  of  those  private  meetings  that  were 
bstwccB  them. 


Mr.  Ftter  Marsh  sworn. 

Mr.  Mather.  8ir,  do  you  know  the  • 
ants,  Mr.  Hales  and  Mr.  Kinnerslev  ? 

Mardh.  I  have.  Sir,  known  Mr.  Hale 
years. 

Mr.  Mather.  But  have  you  known  M 
nerKley? — M^trth,  Not  so  many  years. 

L.  C.  B.  What  is  your  business  or  e 
ment  ? 

Marsh,  I  am  an  attorney,  my  lord. 

Mr.  Mather,  Do  you  know  of  any  t 
tions  between  Mr.  Hales  and  Mr  Kiun 

Marsh,    About  ten  or  eleven  yeai 
Mr.  Hales  brought  me  a  bond  of  50/. 
by  Mr.  Rinnersley  to  me.     Mr.   Kir 
owed  him  the  money,  and  had  given 
bond  imynble  to  me.     He  desired  me  t 

Seri.  Whiiaker,  This  is  not  evidence 
signihetb  it  what  the  defendant  told  hin 

Mr.  Mather,    What  was  done  upo 
Wlmt  came  of  the  bond  ? 

Marsh.    I  delivered  it  to  Mr.  Hale 

Mr.  Mather,  Did  Mr.  Hales  owe 


>we  y 
at  all. 


money  ? — Marsh,  No,  Sir,  none 
Mr.  Cropley  sworn. 

Mr.   Lacy,    Mr.   Cmplcy,   What 
know    of  any  money -matters  betwe 
Hales  and  Mr.  Kinnerifley  ^ 

Craplcv,  I  received  ahout  607.  at  Jai 
eolfoe- house,  a  ilebt  which  was  clue 
from  Mr.  Kinnersley :    they   were  tl 
gether  ;  Mr.  Kinnersley  was  the  debt 
Hales  had  given  me  a  note  for  it.     1V1 
nersley  had  prevailed  on  me  to  lend 
hundred  and  odd  ponnds  upon  but  a  sli 
quaintance :  he  hronght  another  gentl< 
be  security  with  him  for  the  paving  it 
1  forbore  liiin  for  six  months.     (  then  c 
of  him  after  it :  w  ben  he  had  led  nie 
from  coffee- house  to   coffee-house  W 
months,  I  was  forced  nt  last  to  sue  for 
desired  me  to  sue  the  other  pnrty,  and 
him:  I  recovered  half  from  the  one, 
came  upon  him  for  the  other.    When 
to  siTvc  him  wiili  a  notice  of  a  writ 
quiry,  he  met  me  with  Mr.  ILiles  i 
tavern  in  Holborn,  about  June  or  July 
atnelvemonth.    Then  Mr.  Hales  suit 
I  am  to  receive  ahout  6  or  700/.  with 
three  months  time;  and  then  I  shall  ^ 
to  pay  that  money:    upon  that  I  st 
procedure  upon  the  Writ  of  Enquiry; 
Mr.  Hales  requcsTcd  me,  I  took  Air. 
and  Mr.  Kinnersley'*  note  for  the  pav 
it  within  three  mouths:  when  tli;it  I'i 
expired,  or  within  about  fonr  months, 
What  was  his  pnrt  to  pay  I  received  : 
way's    coffee-house:    they    were    to 
which  paid  me  I  cannot  say.    The  moi 
in  half  and  quarter  broad  |>icces :  I  rel 
take  it  in  tin-se  pieces,  being  to  trans; 
the  Allrv'.   Upm  tliat  he  touk  me  to  a  I 
abom  Yemple-bar,  and  there  changed 
L  C.  B,  When  was  this  ? 
Cropley,    It  was  in  February.    M 


St9j 


Jbt  a  lii9iemeatiar. 


A.  D.  1739* 


[240 


MKltsr sifB  me  m  Utile  netoat  the  sMue  tkne 
im  the  WMges  that  I  had  austained  iu  teek- 
iw  it;  ahout  5XH,  or  tbereabout«. 

Ilr.  Sinngf,  liath  there  been  any  appUca- 
liw  Bade,  Sir,  to  you  to  appear  aa  a  witoese  ? 

Cr^y.  Yea,  Sir,  BIra.  Kinnersley  tent  te 
4mm  BM ;  mmA  Mr.  Kienertley  also  aeot  oie 
atolls,  asd  bcaidee  that  seat  iue.a  Subpceaa. 

Mn  llrtn^cL  Caa  you  produce  that  lette  ? 
GNpigr.  1  have  it  not  here,  8ir. 
ik.Si^mmgt.    Yott  caoDui  aay  which  paid 


iaiiav,8ir? 
fwy/ry.   No,  Sir,  but  they  were  both  to- 


l^ffgfty.  Sir,  one  word  I  beg.  Did  not 
fcBalai  giro  you  a  note  for  it? 

UqdiSf.  Yei,  Sir,  you  and  Mr.  Bake 
jwdinil. 

Mi:  FHer  Beait  waa  called,  but  did  not 


Mr.  Jokm  WeU$  aworn. 

Mr.  lary.  What  do  you  know.  Sir,  of  any 
•■ly  dnefrom  Mr.  Kinnerrfey  to  Mr.  Hales? 

Wdb,  No,  Sir,  I  know  net  of  any. 

Mr.  Lacy.  Or  of  any  money  lent,  particu* 
hrij  aa  bondved  pound  ?  Was  Mr.  Kinnersley 
Mtosi  lo  yon  ? 

Mb,  Yes,  Sir,  an  hundred  poond  ■ 

*ft.  Itfcy.   Who  lent  hin  the  money  to 

wmk,  Mr.  Hales,  as  Mr.  Kionersley  told  me. 
Mr.  £snr.  Who  paid  you  the  money  ? 
Mb.  Mr.  Kinnersley. 
Mr.  Ian.  Was  Mr.  Haica  present  ? 
lUk   I  do  net  knoW|  Sur.    It  waa 


Mr.  John  Sunpsoa,  hanker,  sworn. 

Mr.  Lacjf,  Sir  what  do  you  know  of  money 
Mr.  Kinnersley  to  Mr.  Hales  ? 


Smf§9n.  1  know  ootMr.  Hales,  Sir.  1  never 
vabrnk  out  of  Court. 
Mr.  Lacy.    Was  Mr.  Kinnersley  indebted 

oaipsM.  Some  months  ago  he  borrowed  of 
MM,  on  some  lottery  tickets. 

Mr.  Jjify,  Who  paid  it  you  off? 

fiw/Moa.  I  was  not  at  the  shop  when  the 
■■cy  waa  paid. 

Mr.  Lacff,  But  do  you  not  know  how  it  was 
tmktTjgfd,  whether  by  money  or  notes,  and 
Ayvhsm? 

Simpmn,  No,  Sir,  I  cannot  say.  It  doth 
■t  apfpsr  by  oor  books. 

Mr.  Xflcy.  Tk^  you  know  or  not  that  Mr. 
Irim  paid  it,  or  gave  a  note  for  it? 

iimpMtn.  I  do  net  know,  Sir. 

lb.  Lacy.   Dolb  any  note  by  your  books 
given  for  it,  or  by  whom  paid  ? 

No,  Sir ;  if  it  had  bef*n  paid  by  any 
than  Mr.  Kinnersley 's,  1  believe 
te Jl  fsooU  bare  appeared  by  our  books. 

Mr.  Fowter,  banker,  sworn. 

lisaai/sy.    Stf,  I  lieg  you  to  say  who- 
i»  you  HBMmber  that  1  gave  you  a  note 
ifiMnAflCMr.Halw'i? 


FomUr,  You  never  mentioned  his  name.  I 
lent  you  money  upon  lottery  tickets;  but 
know  nothing  of  that  you  mention. 

KiiMcriley,  Did  not  Mr.  Hales  come  to 
yottf  shop,  take  up  the  note,  and  pay  it  ? 

Ftaoler.  No,  Sir,  not  that  I  know  Oi.  I  never 
saw  him  tiiere. 

Mr.  John  Hall  sworn. 

Mr.  Lacy,  Did  you  ever,  Sir,  give  a  note 
upcjQ  Mr.  Halea's  acoount  and  for  bis  money  ? 

JialL  Not  that  1  know  of. 

Mr.  Lacy.  Did  you  at  his  desire  pay  aay 
money  ? — HalL  No,  Su*. 

Mr.  Xocy.  Do  you  know  any  peraon  that 
did?— lir«/lNo,Sir. 

^j.  Wkitaker.  Do  you  knew  Mr.  WiUiam 
Hales  ?  Will  you  give  us  an  account  of  his 

Keying  you  a  bill  iu  broad  pieces,  and  whether 
e  asked  you  to  write  hie  name  Wells.  He 
can  tell  very  well  I  know  what  this  meaner 
Did  you  give  any  note,  or  set  your  naaM? 

liaU,  I  set  my  name. 

Serj.  Wkitaker.  Do  you  knew  your  name 
again  :' — Hall.  Yes,  Sir. 

Sepj.  U^A4VaW.  Is  that  your  name? 

HaU.  Yes,  Sir,  it  h, 

Serj.  WhUaktr.  When  did  they  get  it  of 
you  ? — Hall.  On  August  17  last. 

Serj.  Darnell,  1  see  not  hew  my  brother 
makes  this  efridence  against  Mr.  HueSk  He 
is  not  brought  for  him  but  fur  Mr.  Kmnersloy ; 
and  they  would  cross-examine  him  as  to  Mr, 
Hales. 

Serj.  WhUaker.  I  agree  with  yon  that  we 
could  not  have  called  him :  but  my  brother 
Eyre  called  him  to  shew  that  there  was  a  pro- 
missory note,  he  denies  it.    Well,  1  submit  it. 

Serj,  Eyre.  My  lord,  we  have  gone  through 
the  evidence  opened :  but  I  would  mention  this 
as  to  the  examination  before  sir  Uiohard  Ho|)« 
kins.  It  is  suggested  that  Mr.  Kinnertdey 
would  have  confessed,  but  that  he  was  in- 
terrupted by  Mr.  Alitford.  It  is  plain  that  he 
bad  spoke  to  all  that  was  material  both  as  to 
the  note  ami  the  indorsement :  J  think  that  it 
is  therefore  wrong  for  them  to  say  that  he 
would  have  confessed  more,  but  that  he  was 
interrupted.  But  we  will  call  a  gentleman  to 
shew  in  what  a  candid  miuiner  he  behaved, 
and  that  he  was  not  interrupted  in  the  i^anner 
that  hatli  been  suggested. 

Rev.  Mr.  John  Hayes  sworn. 

Neij.  Eyre.  Were  you  present,  Sir,  at  sir 
Ridiard  Hopkius's,  when  Mr.  Kiunentley  was 
exaniineil  ? — Hayes.  Yes,  Sir. 

Serj.  Eyre.  What  did  you  observe  about  his 
being  stopped,  or  did  he  fully  speak  hb  mind? 

Hayes.  I  remember.  Sir,  that  Mr.  Mitford 
desired  him  to  be  cautious,  and  not  too  free 
iu  making  bis  reply. 

Serj.  Eyre,  J  only  ask  you,  whether  lie 
had  nut  then  spoke  both  as  to  the  note  and  the 
indorsement  ? 

Hayes,  He  said  that  the  note  was  bis.  He 
said  that  aa  to  the  indonement,  he  had  heard 


347] 


S  GEORGE  IL  Trial  of  Wnu  Hales  and  T.  Kimerdey^ 


that  it  wu  indorsed  by  Mr.  Edwards,  but 
([new  not  how  it  oaroe. 

Serj.  Eyre.  Do  you  aprirehend  that  his  beinnf 
eautioned  was  to  be  careful  in  his  answer,  or 
that  referred  to  the  answers  that  he  had  al- 
ready madeP 

Hayet.  I  apprehended  that  the  caution  was 
to  be  careful  in  his  answers. 

Mr.  Grants  sworn. 

Seij.  Eyre.  Were  yon  present  at  the  «xa« 
nination  of  Mr.  Kionersley  before  sir  Richard 
Hopkins? 

Grants,  Yes,  Sir,  Mr.  Kinnersley  sent  for 
nie  when  he  was  first  taken  up.  I  suppose  it 
was  because  1  married  a  relation  of  his ;  lor  1 
knew  nothings  of  any  transactions  between  him 
and  Mr.  Hales. 

Seij.  Eyre.  I  ask  you,  whether  he  fully 
apoke  his  mind  about  the  note  and  the  indorse- 
ment, or  whether  he  was  interrupted  therein  ? 

Grants,  Sir  Richard  asked  him,  whether  he 
knew  the  note  and  the  indorsement?  There 
then  passed  a  sort  of  a  squabble  between  him 
and  Mr.  Mitford. 

Serj.  Eyre.  Did  you  observe  that  any  gen- 
tleman interrupted  Mr.  Kinnersley,  or  cau- 
tioned him  as  to  his  answers  ? 

Grants.  There  was  an  interruption:  but 
what  it  waa  I  could  not  particularly  hear. 

X.  C.  B,  Hare  you  done? 

Serj.  Eyre.  Yes,  my  lord. 

8er|.  Whitaker.  My  lord,  lobserre^that  the 
defence  that  they  have  made  is  for  one  to 
throw  it  upon  another.  Mr.  Kinnersley  thinks 
that  Mr.  Hales  is  as  deep  as  he  can  be,  and 
therefore  may  bear  the  load:  But  then  my 
lord,  Mr.  Hales  wants  to  retort  it  upon  Mr. 
KiDDers!ey  ;  but  the  drill  of  both  is,  that  Mr. 
Kinoerslev  maj^  get  out  as  he  can.  You  will 
observe  the  defence :  There  is  a  pretence  of 
mutual  dealings,  and  that  this  note  was  given 
in  discharge  of  the  balance  of  the  account.  I 
submit  whether  there  hath  been  any  evidence 
of  any  dealings  to  an^  such  sum :  If  not,  to 
what  purpose  was  it  given  ?  If  it  was  to  raise 
money,  was  it  for  a  fraudulent  purpose,  or 
not?  If  it  was,  they  are  both  equally  guilty. 
But  the  pretence  now  is  this,  Mr.  Hales  was  a 
bankrupt:  and  it  was  therefore  proper  for 
them  to  have  a  third  person,  in  whose  name  to 
transact.  Now  how  could  that  be  proper,  if 
it  was  a  person  over  whom  they  had  no  power? 
Would  any  one  be  willing  to  take  notes  in  the 
name  of  a  stranger?  Is  a  stranger  to  be 
trusted  with  such  a  sum?  No.  If  not,  how 
then?  Here  is  one  man  to  write  such  a  note 
for  another  in  Mr.  Edwards's  name,  to  what 
purpose?  Why,  in  order  to  charge  Mr.  £d- 
wanis  with  the  money :  Else,  what  si^nifieth 
the  indorsement?  The  question  then  is,  was 
Mr.  Edwards's  hand  then*.?  And  did  Mr.  Kin- 
nersley know  it  ?  They  that  woukl  have  it  that 
Mr.  Kinnersley  waa  very  innocent,  say,  that 
he  knew  nothing  at  all  that  Mr.  Edwarda'a 
liand  waa  there.  Well,  when  he  cornea  to  be 
Silied  upon  iod  iinportiiiied  Ibr  the  BMoey  by 


Mr.  Bird,  what  doth  he  say  ?  Wbr,  M 
wards  is  a  rich  man :  I  am  an  undone 
You  must  therefore  resort  unto  him. 
was  said  not  only  upon  the  sight  of  the 
but  before  it  was  shewed  to  him.  U' 
told  Mr.  Bird  that  he  knew  that  he  hai 
a'  note  of  his  so  indorsed.  Gentlemen, 
of  this  nature  are  only  to  be  detected  h 
cumstanoes.  They  will  not  call  person 
witnesses  to  these  transactions.  If  thia 
fair  dealing,  it  waa  proper  to  have  called 
one  hooest  man  to  give  an  account  that  1 
present  thereat,  and  privy  to  this  transi 
But  instead  of  tliat*  which  is  the  wickc 
cannot  tell ;  but  it  is  plain  that  here  is 
trivance  to  charge  an  innocent  person 
auoh  little  things  as  evidences  of  transi 
of  a  note  of  fifty  or  thirty  pounds,  or  th 
are  not  to  go  against  it.  Circumstanci 
not  make  a  plainer  proof  than  here  is  < 
gery.  A  note  drawn  on  such  a  little  ps 
so  slovenly  a  manner,  detects  itself.  He 
plain  forgery.  The  question  is,  who  is 
of  it ;  and  whether  there  is  not  sufficieol 
that  the  defendants  are  the  persons  guilty 
Mn  Strange.  My  lord.  I  beg  it  may  b 
sidered,  whether  it  is  not  criminal  to  giv* 
a,  note.  At  aeveral  times  he  declared  bel 
saw  the  note,  that  the  name  of  Mr.  £i 
was  on  the  back  of  it.  If  the  jury  are  • 
mind,  as  to  one  fact,  it  is  a  demonstratio 
the  name  was  upon  it  when  the  note  waa 
If  the  iury  will  look  upon  the  note,  it  «i 
pear  tnat  something  was  written  upon  th 
and  nothing  more  probable  than  <  free.' 
any  imagine,  that  Mr.  Edwards,  whose 
is  there,  would  ever  write  a  frank  upon  s 
If  therefore  the  jury  is  of  my  opinion 
observation,  that  there  was  at  first  '  Fr 
muel  Edwards,'  it  is  impossible  to  imagi 
that  it  was  wrote  there  before  the  no 
drawn.  My  lord,  that  the  jury  will  tt 
their  view.  My  lord,  there  have  been  ( 
things  said  as  to  whose  benefit  this  sh( 
for,  that  it  is  plain  that  Mr.  Kinnersl 
ceived  no  benefit  by  it,  that  therefore  it 
not  probably  be  his  forgery.  My  lor 
plain  by  the  account  that  we  have  given 
their  correspondence,  that  there  waa 
thing  carrying  on  between  them,  whict 
be  of  a  very  private  nature.  Doth  it  e 
pear  for  whose  benefit  it  was  ?  I  am  fsi 
an  undone  man ;  you  cannot  expect  it 
but  must  apply  to  Mr.  Edwards  who  in 
it:  And  therefore,  though  he  made  I 
liable,  that  aignified  not,  as  he  was  at  tb 
time  liable  to  many  more  actions.  Its 
that  they  were  obliged  to  give  the  note 
name  of  another  person  who  was  respc 
having  no  credit  of  their  own.  As  to  tl 
jection,  for  whose  benefit,  we  appreheoc 
no  consequence ;  they  might  probably  s 
between  them.  There  was  another  thi 
deavoured  to  be  proved,  viz.  such  a  de 
from  Mr.  Sjnnersley  to  Mr.  Hales, 
they  thought  it  naceasary  to  attempt  s 
of  tbatkiAdyif  they  bavefaiied  in  that  p 


J6r  a  Mitiiemeanor. 

t  npinion  wbb  that  Uiey 
1  [»nol'  of  Uiat  kini),  wliicii 
Wh«l  h»»e  Ihej  ^aiueJ  ? 
tegiveuof  l,S60l  (sver^ 
rrom  *  clergymin  in  his 
n),  lliey  hare  prelcDaed  lo  nrcie 
one  bond  of  50/.  which  halb  not 
I.  but  unl;  Mr.  Hales  came  to  Mr. 
i  tnlil  him  ihi*,  which  1  Rpnrebend 
iBkntrriileccF  ;  Hart  ihey  brought  lliebooJ, 
il^iW  liarF  aj>|«urerl  whrthw  true  ornnl: 
TWiiiMi  )irool  (kit  Mr.  Kinnenlfy  waa  in- 
tttd  to  Mr.  lUlw.  What  Mr.  Ciopley 
■■k  •■Hi'>i>*lh  lo  Qoninrc  than  about  69  or 
*■  I  BiuM  lubmit  il,  whether  they  hare  given 
I  w— ■— tUa  uccouiil  of  lliii  affair.  My  lord, 
IM  ta  iMppincm  Ihat  there  arv  such  g-encral 
■niMnnrr*  *«  leiiiJ  lo  itelecllhein. 


•kaU  ailiii*  with  yuurconnsel  vrhelheritbe 
|n|Bi' :  I  wouM  only  arquaiai  voii  that  it  is 
MNfwUr.  If  yuu  would  he  heard,  or  call 
m;  vitaeo,  if^ou  hare  any  thing  material  fur 
ym  Mnce.  it  shall  be  heard:  But  if  you 
F'fac*  BUT  lliing  af\e,  ibe  ciiuasrl  tiir  the 
■■(  (boat  taie  liberty  to  answer  ;  or  if  you 
t^;  tDy  wiloeu,  they  must  have  liberty  to 
OTM-mminc,  ar  to  bring  any  other  CTitlvnce 
mtnvie. 
tkmmin 
*«■*.    I 

tt)|tMlnciBn  I  belicTe  will  aci]uieace.  Mr. 
Msim  niA  50'.  i  he  took  it  in  that  ^cntliv 
■wS  naoic  that  was  colled  for  b  witness : 
In,  Hr.  Took  hail  oae  hundred  and  liny 
jMdaMe  :  Another  Krn'leman  (Mr.  Rurtnii) 
m  Mte  of  1W(.  wliirh  Mr.  Hales  gare  him 

inliiDBted  that 


LC.B.  Mr.  KiDnmley.yo 
jm^mM  brinp  nothing  new. 


Stntrtlfy.  My  loni,  at  ■  public  coffee- 
kMt  he  4Mir«)  me  to  lay  down  'isl.  anil  the 
■Am  ire  DOW  id  court  which  were  acluatly 
■MRd  for  M  tnuch  money.  And  as  to  this 
t,  I  all  God  lo  witneiB,  thai  this  note  1 
BB|i<Ni  no  other  uccuuni  hut  on  settling 
'»  exchange  for  other  oolea  which 
thai  nun.  He  directed  me  how 
Ic  the  paper  out  of  hi*  book,  and 
Mt,  whence  I  now  apprehend  that 
■li^  name  was  then  on  the  hack.  I 
Btny  in  his  altering  any  lelleni:  I 
U  not*  for  want  of  niouey,  fur  a 
i>  Mill  du«,  and  call  n[iou  him  to 
_  liatnw. 

JItt.  Gen.     My  lord,   whatefer  Hr.   Kin- 
Iv^  baib  avrrrnl  ia  without  wilneiR. 

Z.  C.  B.  When  persons  are  proacciitMl  ca- 
AAy,  (hr  bw  a1lnwr-th  hint  not  cnuosel  us  in 
In:  iWrHWe,  wliai  a  person  Bll^ts  hiinwir 
Mitfe  tafcati  iiotirr  "t-  Upon  a  charge  of 
Badiiuiaunr  y>-ii  nisk-ynar  dvfnKirhy  coun- 
WL  Md  tber  Uau-  ih"  raw.  |i  doth  nut  avail 
"*yif  wint  a  prrt<io  lailh  hitnself.  and  cluil 
7  wy  ariil*  otn,  eicr|>i  «upp«rlMl  by  priKif. 

c  viHJat*  u  wdgtit  u  pfOTed, 


A.  D.  172d.  [950 

Kianerileif.  Hylord,  arc  policies  no  pmnfT 
Here  ia  n  cenilicale  from  ihe  proper  nfticer. 
Sir,  I  insist  upno  it  that  yon  do  me  justice  in 
ihis  matter.  I  will  be  coulent  tu  sufl'crilcaili 
if  this  be  not  »a, 

L.  C.  B.    You  are  not  lo  be  ooir  regarded. 

1,  C.  B.  Gentlemen  of  the  Jury,  this  i( 
an  indictment  againut  Thomas  Kinnerslry, 
clerk,  and  William  Uales,  late  uf  London,  gold- 
smith, Ibr  forging  and  |iub1iihing  an  Indorse- 
metit  on  aproinissury  iioie,  for  the  paymcnl  of 
t,250l.  to  Samuel  lidwanls,  esq.  An'd  the  in- 
diclnient  sets  tbrth.  That  the  defenilanls.  har. 
in  their  custody  a  promissory  tiote  subMrribed 
l>y  Thomas  Kinneraley,  and  bearing  date. 4u> 
etist  tC.  17S7,  whereby  Kiunersley  promised 
to  pny  1,900/.  to  Samuel  Edwards,  e»q. «  hliin 
three  moulhi ;  that  the  defenilantt,  having  ibis 
noie  in  their  coslodv  wilh  an  inleiitinn  to  de-' 
crive  and  defrauil  llie  same  Samuel  Edwanls, 
etq,  and  being  persons  of  evil  fame  and  renu< 
latioii,  did  falsely  Knd  fr«iidulenlly  liirge  and 
eonnlerleil  on  this  note  for  1,36(»/.  payahltt 
i«iihiu  three  months  after  dale  lo  Samuel  Ed- 
wards, esq.  or  bis  order,  an  iodoraeiuent  (o 
this  eAect ; 


llierpbv  intending  to  charge  Mr.  Edwards  ■■ 
the  in  jorser  of  Ihal  note  wiih  the  payment  of 
the  1,2601.  coDtDined  in  tbf  lioily  of  the  aaid 
□ole ;  thai  nfier  Ihry  had  Ihrgnl  and  counter- 
lieiled  ihis  iiidorsemeot  ufion  Ibis  note,  and 
knowing  il  to  be  a  couoterleil,  ibey  did  publish 
tbe  «sid  note  so  iudursed.  Genllenten,  the 
counsel  on  Ibe  bebalf  of  the  prosecntion  have 
Eic(|iiainled  you  Ihal  ihey  look  npaa  Ibis  a*  k 
contrivance  uf  both  ilelendaots  lo  eairy  on  this 
forgery  upon  what  they  suppose  at  first  raerelj 
afrank;  Ihat  the  name  of  Mr.  Edwards  iipiin 
the  cover  of  a  leiirr  wiih  the  word  ■  ffree ;'  that 
the  word  '  firee'  halb  been  at  tbe  time  of  tba 
indorsement  altered  and  made  *  for  the,'  and 
the  words  •  value  received'  added  to  Ihat,  and 
made  the  indorsemenl  to  thi»  note.  For  the 
corrnbaraljng  of  ihia  ilicv  have  called  several 
witnesses.  Fi.st,  Tbomas  Mndilox'was  called, 
a  servam  to  Mr.  Edwards.  He  tells  you  that 
Mr.  Edward*  lives  in  Duke-street,  Weit- 
minsler,  and  that  the  defendant  Hales  lived 
near  over- against  him;  that  Ibe  defendant 
Hales  frequently  sent  covers  over,  upon  which 
be  bail  several  trankx  dirrrlrd  lo  several  per- 
son!;  Ihutlhlsbalb  hren  Ibe  custom  (iit  se- 
veral years  ;  that  Mr.  Edward*  used  to  send 
iheiii  over  indnrscil  with  his  name '  Samuel  Ed- 
wards, ffree.'  He  tnith,  that  bis  usual  waj 
svni  tu  iodurse  the  whole  BuperBCrijiliun  ;  but 
that  iasi  snmni'T,  some  lime  about  July,  there 
were  six  covers  sent  over  by  tbe  dcfeoitaiit  Ih 
Mr,  Edwards's  house  by  the  defendant  Uales, 
desiring  ibat  ibry  might  be  franked  with  only 
'Samuel  Edwards  uree,'  without  writing  tba 
whole  supTBcripiioii ;  that  Mr.  Edwards  de- 
dined  Ihal,  saying  Ibftl  he  Qcvn  &\&\\-.  >t« 
liief etlira rel'tued  liim,  inl  t^<MC  ca^&n  ««<:« 


151} 


ft  GE0&6&  n.         Trial  0/  JF^  HoZif  Mnd  T.  Kinntrdey,         [«MI 


not  iodorsed,  but  wcte  prodaced  here.  He 
hath  been  asked,  Whether  he  knew  of  any 
correspoDdcnce  besides  this  of  franking  letters 
betivecD  Mr.  Edwards  and  Mr.  Hales;  and 
nhethrr  he  knciv  ofany  between  Mr.  Edwards 
and  Mr.  Kinncrsley?  He  answered,  that  he 
doth  not  know  of  any  whatsoever.  Another 
servant,  one  Anne  Clarko,  comes  and  produoeth 
a  paper  of  names  that  was  brought  over  from 
the  defendant  Hales  to  Mr.  Samuel  Edwards's 
house,  in  order  lor  hiui  to  frank  letters  to  those 
persons,  and  write  the  whole  superscription  as 
at  other  times.  She  produced  the  paper  io 
court,  which  she  said  that  she  received  from 
3Ir.  Hales's  servant.  And  Mr.  Booth  being 
examined  thereto  declares  it  to  be  the  prop^ 
hand  of  tlie  defendant  Hales,  with  whose  writ* 
ing  he  hath  been  well  acquainted,  especially 
since  his  bankruptcy,  he  being  a  clerk  in  that 
commission.    In  this  paper  is  wrote, 

Two  to  John  Pratt,  esq.  Bristol. 

Two  to  Mr.  Levett,  Huntington. 

Two  to  Stephen  Mitford,  esq.  Exeter. 
They  make  use  of  this  evidence  to  shew  that 
there  was  a  sort  of  an  attempt  to  get  covers 
with  these  names  franked,  hoping  or  supposing 
that  there  mi$;ht  be  a  space  left  sufficient  to 
write  a  note  of  this  nature.  Mr.  Booth,  who 
was  called  to  prove  the  hand -writing  of  Mr. 
Hales,  was  cross-examined  by  the  counsel  for 
the  defendant,  whether  he  knew  of  any  traffic 
of  Air.  Hales  since  his  bankruptcy.  lie  saith, 
that  he  doth  not  know  of  any,  but  that  he  was 
well  acquainted  with  his  baud-writing,  being 
employed  in  the  affair  of  the  commission  of 
bankruptcy.  BIr.  Thomas  Bird  was  next  called 
and  examined  as  to  the  circumstances  of  the 
publication  of  this  note.  He  tells  you  that  this 
note,  dated  August  16, 1727,  for  the  forged  in- 
dorsement whereof  both  the  defendants  are  pro- 
secuted, was  brought  to  him,  in  order  to  take 
up  money  upon  this  note,  and  further  security, 
which  Mr.  Hales  gave  in  March  last ;  that  it 
was  brought  in  the  manner  that  it  now  is,  and 
no  alteration  made  either  in  the  body  of  the 
note  or  in  the  indorsement,  but  it  stands  and 
remains  in  the  same  manner  as  when  he  first 
received  it ;  that  when  Mr.  Hales  came  to  liim, 
he  pruposeil  to  borrow  of  him  750/.  upon  the 
credit  of  this  note  for  his  security,  and  likewise 
upon  his  own  note  for  the  payment  of  this  mo- 
ney ;  that  he  had  been  requested  by  a  friend  of 
his  in  the  morning  before  to  accommodate  Mr. 
Hales  with  this  money  upon  the  credit  of  a 
note  which  the  person  hud  in  his  hand,  and 
which  was  the  same  note ;  and  that  on  tlie 
aAernoon  of  the  same  clay  [March  20^,  while 
he  was  at  the  Hudson's- Bay  house,  in  Fen- 
church -street,  Mr.  Hales  came  to  him  with  the , 
note,  anil  he  then  lent  him  the  money  for  14 
days ;  thit  he  then  desired  Mr.  Hales  to  write 
ioiiie  paper  to  testify  the  receipt  of  the  money, 
and  be  a  further  security  to  him ;  and  that  the 
laid  Mr.  Hales  thereupon  wrote  a  promissory 
note  dated  the  same  day,  wherein  he  promised 
the  re  pa^  ment  of  this  7501.  in  14  days,  which 
■olo  was  idwcrilwd  bjr  the  dffendant  BaJca 


himself;  that  the  sum  of  moaey  waa  mada  ap 
in  several  bank  notes ;  that  he  delivered  thoa 
to  the  said  defendant  Hales,  and  took  this  Mia 
and  Mr.  Hales's  own  note,  as  a  security  forjht 
said   money ;   that   April  3   following. 
Hales  brought  400/.  which  he  indorsed 
his  own  note ;  and  thai  the  rest  of  the  no 
remains  due.     He  tells  you,  that  when  he 
heard  that  the  defendant  Hales  waa  •Pffl^ 
bended  in  September  last,  he  sent  to  ona  Took* 
kins,  an  attorney,  delivered  this  note  to  hiai  la 
go  to  Mr.  Kionersley,  to  get  this  money  iv 
him.    The  account  that  he  received  waa,  thai 
Mr.  Kinnersley  was  out  of  town,  so  thai  ha 
could  not  meet  with  him.  At  length  Mr.  Tm* 
kins  intimated  that  Mr.  Kinnersley  carad  i^|| 
to  see  him,  but  would  come  the  next  dxf^ 
Mr.  Bird  himself  upon  this  affair.  Acoordiartl 
on  or  about  the  16th  of  September,  tha  K 
fendant,  Kinnersley,  came  to  Mr.  Bird  at  his 
compting-house :  Mr.  Bird,  not  kuowingwli 
he  was,  seeing  a  clergyman  come  in  his  govai 
and  looking  a  little  at  him,  he  said  hia  aiBi 
was  Kinnersley.    He  hereupon  said  that  bf 
had  a  note  of  his  hand  left  with  him  for  a  •» 
curity ;  to  which  he  replied,  1  know,  Sur,  thil 
you  nave,  and  it  is  for  1,S60/.  payablo  la  thni 
months  to  5Ir.  Edwards  or  his  order ;  that  ht 
said  that  the  note  was  of  his  own  hand- wriliap 
but  immediately  added,  How  it  came  to  baaif 
dorsed  by  Mr.  Edwards  1  know  not.    Thi^ 
gentlemen,  you  must  take  particular  notioaef 
because  this  was  tbe  first  mention  of  Mr.  U> 
wards's  indorsement:  at  that  time  Mr.  mm 
had  not  mentioned  that,  nor  shewed  biAlhl 
note;  when  Mr.  Kinnersley  haviojp  owneathi 
note  to  be  his  hand- writing,  immediately  a '^'' 
but  how  it  came  to  be  indorsed  by  Mr.  £di 
I  know  not ;  naming  thus  the  particular  p 
who  was  the  indorser  of  this  note.    He  nMb 
that  Mr.  Kinncruley  was  in  a  great  oonatcmii 
tion  at  that  time,  and  said  Uiat  he  waa  an  aa- 
done  man,  among  other  expressions.    And  hi 
said  likewise,  that  BIr.  Edwards  was  a  gCBll^ 
man  of  substance  \  and  this  he  declared,  Uioagil 
Mr.  Bird  had  not  shewn  him  tbe  note  at  tB|( 
time:  I  am  (said  he)  an  undone  man;  Ik*- 
£d  wards  is  a  man  of  substance.    This  he  Mi4 
before  that  the  note  was  shewn  to  him,  or  wm§ 
declaration  was  made  by  Mr.  Bird,  relating  tt 
Mr.  Edwards's  being  the  indorser  of  this  nolii 
He  said  further  that  he  was  nut  in  a  capacitf 
to  pay  this  money ;  and  that  tliey  roust  appqf 
to  Mr.  Edwards,  who  was  a  substantial  aia% 
for  it.    Gentlemen,  this  was  made  use  of  aa# 
sort  of  defence  at  this  time  to  avoid  this  thiog^ 
to  put  it  off  from  himself  by  this  argooMBti 
why  Bird  should  not  come  upon  KinneraliEy 
himself,  who  was  uncapable  of_payinr  hnBf 

Iwards, 


k 


but  take  his  remedy  against  Mr.  Edi 
was  a  substantial  man.  He  was  cross-i 
mined:  tbe  counsel  for  tbe  defiendant  asJbed 
who  was  the  person  that  recommended  Mc» 
Hales  to  him  as  the  borrower  of  this  monev  2 
It  was  answered.  That  it  was  sir  Bibv  Lmu^ 
He  was  asked  on  whose  credit  he  lent  ut  no^ 
nej,  |h,iialfii'»  tc  Ur.  Edwaada'tf  tt  vw 


WpA,  m  it  mint  tiv  h)  such  a  ir&ss* 
!B,  aiNm  this  Ihenote  mts  read  ^  for  it 
rivea  directly  from  the  hands  of  the 
t  flflin,  tfattt  was  vofiicient  cau^e  to 
Mie,  and  hy  it  hefore  you.  Accord - 
ptpeara  to  bw  dnte  Augmt  16,  1727» 
MMiisMfy  iMACy  nimriug  thns : 

■liae  la  pay  to  Saai«el  £dwardi|  eiq. 

4irft  witiiiu  tbrae  HiOBiha  after  date, 

lif  ftw#lfia  huulred  and  aixty  pounds, 

noBMrad, 

-*  '*  Ttaoxaa  KuaEiisLsr." 

Ma 

BCi  the  {ndorsemeDt :  and  there,  there 
■D  the  top,  **  Pray  pay  to  the  order 
I  there  ia  a  large  Diana,  then  comes, 
ae  rtofrived,"  and  then  there  is  the 
ioB  ««  Samuel  Edvrards."  Gentle- 
m  ibis  it  is  proper  to  take  notice  of  the 
DBS  made  by  the  counsel  for  the  prb- 
011  the  manner  of  the  writing  of  this 
mt.  Thev  obserre  that  this  must  be 
pffiom  by  Mr.  Edwards  of  his  name  for 
Br  the  nassm^  of  a  letter  free  :  it  ap- 
rv  probable  frum  the  manner  of  bis 
nrank.  « Free '  and  not  *  frank '  is 
Alt  he  makes  use  of:  and  upon  what 
v  what  remains  in  this  note,  they  say, 
wt  top  it  appears  that  it  must  be  cut 
wmie  other  note,  and  that  there  is  an 
!  irhere  thev  suppose  that  some  other 
BK ;  that  there  is  the  appearance  of 
If,  not  a  blot,  but  tlie  appearance  of 
nder  of  a  lelter  or  figure  on  this  place, 
!  appearance  of  a  little  dash  from  it. 
say  that  '  for  the'  issubsiiituted  for 
*  firec  ;•  that  it  appears  by  the  ihick- 
le  letters,  by  the  ink,  and  by  the  man- 
ein  the  letters  are  put  thore  ;  anil  by 
of  tlie  ff  which  !\ir.  Kdnanls  makes 
ird  *  ffree ;'  and  that  there  is  still  the 
ee  of  the  remainder  oFone  or  botli  the 
>on  this,  gentlemen,  you  will  consider 
the  o  and  the  r  have  not  the  appcar- 
ome  other  letters  under  them,  aud  bo- 
e  /*and  the  r.  It  is  plain  upon  sight 
tne  other  letters  seem  wrote  of  the 
Rigth  and  thickness  wIJi  the  /*  and  r. 
«Gms  paler  and  thinner,  ..ud  of  a  dif- 
k  from  the  other  letters.  And  then, 
!n,  the  word  Mho'  is  here  written  at 
Yon  will  consider  whether  this  seems 
are  been  from  a  nect'ssity  to  put  some 
ird  to  fill  the  whole  compass  of  the 
ree.*  Now  •  the '  seems  not  wrote  at 
le  time,  and  with  the  same  ink  with 
eceired.'  If  this  had  liern  wrote  all  at 
etime,  it  is  prett}'  extraordiuary  that  it 
■ol  hare  been  wrote  even.  The  /  is 
a  strait  line  even  uith  *  value  received,' 
I  sioks  a  little,  an*]  the  r  comes  under. 
D  oonsider,  gent!emen,  whetficr  there 
icicat  room,  and  whether  this  was  the 
r  patting  it  so.  Tfaese  considerations 
t  we  of  to  make  it  probable  that  it  was 


A.D,  1729. 


[254 


wrote  at  difllprent  times :  if  so,  it  ia  most  pro* 
bable  that  it  was  at  first  *  free,*  and  that  th« 
otiier  worda  were  substituted  aflerwards.  8o 
that  these  are  the  obserrations  as  to  the  manner 
of  writipg  it,  wluch  you  are  to  consider  whe- 
ther they  are  tme,  and  there  be  a  foundation 
for  them  or  not.  Mr.  Spicer  then  was  called, 
who  hath  been  a  clerk  to  Mr.  Edwards  in  th« 
Escfaequer  between  ten  and  eleven  years,  but 
hath  been  in  his  service  about  twenty- four 
years.  The  note  was  shewn  to  him,  and  h^ 
teils  you,  that  as  to  the  name,  he  takes  it  to  \m 
the  proper  hand-writing  of  Mr.  Samuel  Ed- 
wards, nis  master:  the  J  he  also  counts  to  b* 
bis.  Upon  his  observation  and  oath,  which  it 
evidence  to  be  left  to  yon,  the  word  *  for  '  i» 
wrote  oyer  otiier  letters,  and  he  believes,  upoa 
his  oath,  that  the  first  word  was  '  ffree.'  Htt 
saithflhat  Mr.  Edwards,  vrhen  he  mdcetb  % 
frank,  makes  nse  of  a  ^as  in  the  mauoer  that 
it  here  stands.  If  it  was  made  fbr  *  valae  re- 
ceived '  at  first,  it  is  pretty  extraordinary  that 
a  ff  shouM  be  written,  and  not  a  single  f  as 
usual.  Wh^  (saith  he)  it  is  my  maater's  inaal 
way  of  writing  '  ffree.*  And  then  he  saith  thai 
he  always  wrote  ^ ffree'  and  not  'frank;' 
which  is  material,  as  the  word  *•  frank '  might 
not  so  well  correspond  with  tlus  alteration.  Hs 
saith  that  the  r  seems  visible,  and  to  stand  be- 
tween the  0  and  r.  You  ^11  see  whether 
there  be  the  remainder  of  any  such  letter  or  no  $ 
since  he  aaith  that  he  doth  think  that  the  r  ia 
visible.  He  tells  you,  that  as  he  is  clerk  \m 
ftlr.  Edwards,  so  he  is  acquainted  with  bis  pri- 
vate affairs,  relating  to  his  estate  and  the  like» 
and  that  he  doth  not  know  of  any  money  trans- 
actions between  his  master  and  either  of  the 
defendants  ;  that  he  is  so  well  acquainted  \i  ith 
his  affairs,  and  the  nature  of  his  employment 
under  Mr.  Edwards  such,  that  he  believes  that 
if  any  such  dealings  had  been,  it  would  have 
come  to  his  cognizance.  He  tctU  you,  like- 
wise, that  Mr.  Edwards  is  not  a  person  that 
nseth  to  deal  this  way  :  it  was  very  proper  ta 
ask  him  this,  because  it  is  common  for  many 
persons  to  indorse  notes  in  this  manner,  m 
saith  that  it  is  not  his  usual  custom  :  it  cometb 
not  into  his  public  business ;  and,  as  to  his  pri- 
vate transactions,  he  never  knew  him  to  do  it. 
They  were  then  going  to  call  a  witness  to  prove 
the  body  of  the  note  to  be  Mr.  Kinnersley'a 
hand-writing.  Upon  this,  Mr.  Kinucrsfey 
took  upon  him  to  admit  that  it  was  all  his  own 
hand -writing;.  So  then  it  is  to  be  taken  for 
confessed,  that  tlic  body  of  the  note  was  his 
writing.     It  is  written  in  this  manner, 

^'Au^ii  16,  ir^r. 
"  f  promise  to  pay  to  Samuel  Edwards,  esq. 
or  his  order,  three  months  atier  date,  the  sum 
of  twelve  hundred  and  sixty  poundii,  Ihr  Taloe 
rcoeived,  Thomas  Kimmebslet." 


"  -f .  li«60. 


Well,  gentlemen,  after  this,  the  cpiinscl  for  the 
prosecution  sny,  that  Mr.  Kinncrsley  iKith  ia 


855] 


3  GEORGE  II.         Trial  qf  Wnu  Haks  and  T.  IRnnerdey^ 


effect  confened  as  ranch  as  amoanli  to  what 
tliey  stand  io  need  of  to  oonvict  bim  of  thiafor* 
)(ery.  First,  they  call  Mr.  Wrig^ht,  who  was 
present  at  the  exanaination  of  Mr.  Kinnerslev 
uefore  sir  Richard  Hopkins.  Mr.  Wrii^t  tells 
\ou,  that  at  that  time  tlie  defendant  Kinners- 
ley  owned  that  the  note  was  all  his  own  hand- 
writing ;  that  Mr.  Edwards  thereupon  asked 
bim  why  he  drew  the  note  payable  to  him, 
when  there  never  had  been  any  dealings  be- 
tween them.  Mr.  Wright  sulh,  that  the  de- 
fendant Kinnersley  owned  at  that  time 
that  there  never  had  been  any  dealings 
between  them,  and  likewise  that  he  did  not 
know  Mr.  Edwards,  nor  had,  to  the  best  of  his 
knowledge,  ever  seen  him  till  then  before  sir 
Richard.  But  he  said,  that  the  reason  of  his 
doing  it  was  this :  that  he  was  indebted  to  the 
other  defendant  Hales  in  a  sum  of  such  an 
amount  and  more ;  and  that  Hales  desired  him, 
the  defendant  Kinnersley,  to  write  him  a  pro- 
miffsory  note  for  that  sum ;  that  he  asked  Mr. 
Hales  whom  he  should  make  the  note  payable 
to,  and  Mr.  Hales  said  to  Samuel  Edwards, 
esq.  and  that  accordingly  he  wrote  the  note  in 
that  manner  that  it  now  appears  in  to  you  upon 
the  request  of  Mr.  Hales.  Mr.  Wright  tells 
yoo,  that  at  that  time  he  had  heard  what  had 

Sast  relating  to  the  discourse  with  Bird ;  and 
e  told  him,  Why  you  have  expressed  your- 
ielf  as  if  you  was  a  ruined  and  undone  man  ; 
why  did  you  say  that,  if  Mr.  Hales  requested 
your  writing  him  a  note  for  such  a  sum  as 
1,260/.  ?  Upon  this,  one  Mitford  said  to  Mr. 
Kinnersley,  You  shall  not  go  on  to  declare 
yourself  any  further,  you  may  do  yourself  an 
injury.  This  is  made  use  of  as  a  circumstance 
by  the  kin^r's  counsel,  that  Mr.  Kinnersley  was 
going  to  explain  himself  further  if  he  had  not 
been  prevented  by  his  friend  or  solicitor,  who 
knew  the  consequence  of  a  confession  of  this 
nature.*  Mr.  Wright  tells  you,  that  at  this 
time  when  Mr.  Bird  was  examined,  and  said 
that  he  had  not  at  that  time  shewed  the  note  to 
Kinnersley,  when  he  said,  that  how  it  came  to 
be  indorsed  by  Mr.  Edwards  he  could  not  tell. 
Mr.  Edwards  hereupon  asked  him  whether  he 
knew  of  this  indorsement  before  Mr.  Bird 
shewed  him  the  note  P  That  he  answered  that 
he  did,  but  that  how  it  came  there  he  could  not 
net  tell.  So  that  that  is  the  substance  of  his 
confession  in  that  respect,  that  he  did  know  of 
it,  though  he  saiil  he  knew  not  how  it  came 
there.  Sir  Richard  Hopkins  likewise  was 
called  to  give  an  account  of  what  passed  before 
him:  hesaith  that  he  took  minutes  of  what 
passed  ;  that  it  was  in  the  latter  end  of  Sep- 
tember that  be  was  brought  before  him  charged 
with  forgery  of  two  notes,  this  of  l,2(jO/.  and 
another  of  1,600/. ;  that  as  to  this  note,  it 
seemed  to  him  an  altered  note,  which  wan  the 
occasion  of  his  more  strict  examination  of  the 
matter.  He  saith,  that  he  examined  Mr.  Bird, 
who  advanced  this  money,  who  said  that  before 
he  bad  shewn  this  note  to  Mr.  SJnnersley, 
when  he  had  only  told  him  that  he  had  a  note 
•f  liif  himd  ItiX  with  him  for  a  seciirityi  he 


answered,  I  know  that  yoa  have:  it 

1,S60/.  payable  in  three  months  to  fe^ 
Edwards,  esq.  or  his  ordefy  and  b  indor  ■ 
Samuel  Edvnurds.  Sir  Richard  hereapoi^B 
Mr.  Edwards  if  he  had  had  any  dcahnc-: 
Mr.  Kinnersley  ?  Who  said  that  ha  h^ 
Kinnersley  also  said  the  same,  but  said  ^  I 
drew  this  note  payable  to  Mr.  Edwards  ^ 
request  of  the  other  defendant  Hales,  ti^  ^ 
he  was  indebted  in' that  sum,  and  warm 
that  he  did  not  know  Mr.  Edwards,  nor  ^ 
best  of  his  knowledge  had  ever  seen  hint  b^ 
that  time.  He  saith,  that  upon  his  obse^ 
that  it  was  very  strange  that  he  should  ^ 
such  a  note  payable  to  a  person  with  wbo^ 
owned  that  be  had  no  dealings,  and  who 
an  ntter  stranger  to  him,  Kinnersley  wug^ 
further  to  open  his  mind,  but  one  wSs^ 
stopt  and  prevented  bim  from  going 
Richard  Davis,  who  is  the  constable  that  '> 
prehended  him,  was  next  called  to  give  an  i 
count  of  what  passed  when  the  warrant  «i 
issued  out,  and  given  him  to  be  executed.  1 
tells  you,  that  because  Mr.  SJnnenley  livi 
out  of  the  city,  he  went  to  a  publk:  has 
within  the  jurisdiction  of  the  city,  and  scnl 
porter  to  desire  to  speak  with  uim ;  but  i 
ceived  answer  that  he  was  not  in  town.  I 
enquired  when  he  would  be  in  town,  a 
went  himself  and  made  a  pretence  of  a  0M| 
wanting  to  be  married.  At  first  came  i 
the  daughter,  and  tlien  the  mother,  wh 
he  acquaint^  with  his  business:  at  6 
they  seemed  to  say  that  he  was  not  at  boB 
or  did  not  readily  say  where  he  was;  I 
after  that  he  had  given  an  account  of  I 
business,  he  was  carried  into  the  parioi 
and  then  Mr.  Kinnersley  came  to  him.  i 
told  him  the  business  of  the  marriage :  t^  < 
fendant  thereupon  asked  him  several  queatKN 
and,  among  the  rest,  how  old  the  lady  to 
married  was?  This  is  necessary  to  be  mi 
tioned,  because  they  have  insisted  upon  it  i 
proof  of  his  honesty,  that  he  asked  whcti 
she  was  of  aj^fe  or  not  ?  And  being  Udd  t 
she  was  not,  then  asked  whether  there  waso 
sent  of  relations  or  not  ?  If  (said  he)  there 
not,  I  will  not  be  concerned  m  a  thing  of  t 
nature  for  100/.  He  was  told  that  the  bi 
tlier  was  with  her  at  the  Magpye  tovem,  i 
asked  to  go  thither  for  satisfaction,  but  wo 
not  go.  Upon  this  the  constable  saith,  that 
went  away,  and  made  it  liis  business  to  wa 
and  see  when  Mr.  Kinnersley  came  out. 
an  hour  or  two  he  came  out,  he  dogged  him 
theI\1inories,  then  when  he  was  come  wi 
in  Aldgate,  he  told  him  that  he  had  a  warr 
against  him  for  forg^ery  of  a  note  of  ],3^ 
lie  then  desired  him  to  go  into  a  house  w 
him,  where  he  asked  to  sec  the  warrant :  Ui 
seeing  it,  he  said,  that  if  the  gentleman  I 
sent  for  him  he  should  readily  have  come 
bim.  Being  asked  why  he  denied  himsc 
He  anstrered,  that  be  was  afraid  of  being  > 
rested  for  ilebt,  and  that  Vas  the  reason  of 
denying  himself  when  the  constable  caino 
enquire  for  him.    lie  then  owned  that  the  A 


tt  f  krf  wilii%  i   but  jud  that  he 
')m  the  ndorMmciit  came  thert. 
vilhvhiiwas  nid  by  the  coonael, 
ly  Ai  ■iiiMiii,  €90ooeniiiig  what 
Ub  bmi  hie  ezamination  bcfoie 
Bipkiiii,  aod  to  Mr.  Bird  at  hia 
vbn  he  came  to  him.    Thia 
at  ta  the  fact     The  counsel 
go  on  and  aaj,  that  there 
frinM  eonrespondence  carried  on 
tva  deftnoantay  which  they  in- 
■lawiancii  to  make  it  likely  that 
krHB.    They  called  to  this,  first, 
I  Bfebi  who  aaith,  that  both  the  de- 
wilSBMt  froqnantly  at  hia  house ; 
" '  I  fnmntly  came  there  early  in 
waoid  aometimea  walk  about  a 
liae,  would  ask  aometimes  if  the 
WbRothera  witboot  naming  him, 
bfw  whom  be  meant,  baring  fre- 
dieai  together ;  that  some  time 
came  in,  Halea  sitting  by 
m  go  by  and  went  to  him ; 
Eiaaersley   came   in   and   went 
eite-room  into  a  back  room,  and 
Mlow  afier  him,  and  they  would 
tligiether;    Kinnersler  sometimes 
Rrt  at  one  door,  and  Hales  imme- 
artat  the  other ;  that  this  contioned 
•  OMMtb  or  three  weeks  beibre  Mr. 
Mcbeosion;  that  onetime  particn- 
hlaDerriey  paaaed  by  and  went  down 
sad  Ifr.  Halea  aeeing  him,  rose 
■Mtaot  after  him  ;  this,  he  saith,  was 
MSth  beibre  the  defendant  Halea  was 
ifi  He  aaith,  that  they  seldom  sat 
ifte  aablie  room,  bat  went  into  a  pri- 
Jobn  Brooks  was  next  called,  who 
Im  keeps  a  coffee- boose  io  Dnwn- 
yHii  Westminster.    He  said,  that  Mr. 
gwfcy  osed  to  come  someth&ca  to    his 
jPhsK,  send  for  a  porter,  and  git e  him  a 
flNr  Mr.  Hales,  who  hath  come  to  him, 
Hhf  htte  gone  into  a  prJTate  part  of  the 
Mm  there  they  hare  staid  fbr  three  or 
W^^t^  to^ber ;  that  it  bein?  in  the  eren- 
n  hitfa  thought  them  in  the  dark,  and 
Mike  serf  ant  why  a  candle  was  not  car- 
MiaB?    Who  hath  answered,  that  he  had 
Mthcm  one,  bnt  they  refused  it,  not  car- 
Ibleioterropted ;  that  they  met  thus  about 
mm  foor  times  in  a  month,  a  little  while 
plHr.  Hales  was  apprehended .    M  r.  Jane- 
1^  was  called,  who  saith,  that  he  hath 
Mk  two  defendants  aereral  times  retire  up 
bl^|Mlier  at  hia  coffee-house.    This,  gen- 
n,B  relied  upon,  and  given  in  evidence, 
ke  that  there  waa  a  correspondence  be- 
■  Am  about  some  affairs  not  so  proper  to 
iMSfsd  in  public.    This  is  the  substance 
b  evidence  on  the  side  of  the  prosecution : 
Ikeesunsel  for  the  king  tell  you,  that  as  to 
^  sf  this  nature,  they  must  be  done  in  a 
'prirate  way  in  order  to  prevent  a  disco- 
"f  it  caunot  be  expected  that  they  would 
pmns  to  eee  aoch  a  thing  done ;  that  the 
evidence,  therefore,  that  can  be  given  is 


Ju  D.  17». 


[£58 


dremnilaaee.     Well,  gentlemen,  the  defen* 
danu  come  upon  their  defence :  they  appear 
by  different  counael,  and  make  a  separate  de- 
fienoe.     The  counsel  on  the  behalf  of  the  do* 
fendant  Halea  insist  that  there  waa  a  debt  du« 
from  Kinnersley  to  Hales,  for  which  this  not* 
was  given  ;  that  this  doth  appear  from  the  ae* 
veral   declarationa  made  by  Mr.  Kinnersley 
from  time  to  time.    They  rely  upon  this  ai 
evidence  of  such  a  debt  for  money  ailvanced  Io 
him,  and  that  this  note  was  given  by  the  de- 
fendant Kini^ersley  for  such  a  debt.    Thcv  tall 
you  that-Mr.  Halea  being  a  bankrupt,  and  there- 
lore  it  not  being  firoper  to  have  such  a  note  in 
hia  own  name,  because  it  would  be  liable  to  bo 
claimed  by  the  asaigneea  in  the  commission  of 
bankruptcy  against  him,  that  therefore  it  wan 
proper  to  make  oae  of  the  name  of  another  per- 
aon  ;  that  Mr.  Edwarda  waa  never  affected  or 
injured  hereby ;  that  part  of  the  monejr  hath 
been  paid,  and  if  they  had  had  a  little  patience, 
as  4001.  waa  paid,  ao  the  rest  would  have  beea 
paid.    And  tbongh  they  admit  that  the  mak- 
mg  of  such  a  note  in  toe  name  of  another  to 
advance  credit  without  hia  leave  was  crimuwl, 
yet  it  did  not,  they  aay,  really  affect  or  injaro 
him.    And  then  to  shew  that  there  waa  a  reo« 
son  or  foundation  for  the  giving  of  this  note^ 
they  said  that  they  wonld  call  witness  that 
there  waa  an  account  stated,  upon  which  thia 
money  appeared  to  lie  due.    They  called  Ro- 
bert Burkit  to  it :  bnt  he  saiih  that  he  knoweth 
of  no  auch  account,  it  is  all  imagination  ;  thai 
his  name  was  made  use  of  without  his  know- 
ledge ;  that  he  knew  nothing  of  any  money 
ever  due  between  them :  so  that  it  w  plaui. 
that  that  witness  is  lost  in  tlie  ezamination  ao 
to  any  benefit  to  them.  They  said  tliat  thev  hail 
ao'rther  witness  who  happened  not  to  lie  here : 
this  is  the  substance  of  the  defence  of  the  de- 
fendant Halea.    Kmnersley  then  comes  ou  hia 
defence.     His  counsel  insist  that  he  is  not  evi- 
denced to  be  cooeemed  and  knowing  of  tbio 
forgery ;  that  as  this  is  a  crime  of  a  very  hein- 
ous nature,  and  deserves  the  greatest  punuh- 
ment,  ao  it  is  necewarv  that  tlie  dearest  proof 
should  be  given  you  before  you  convict  him. 
Tbey  say  that  bis  character  likewise  rMpiirei 
stronger  evidence  than  oilier* ;  that  his  cradit 
is  more  concerned  than  othem,  because  the 
very  ezerciae  of  his  function  deptfmls  up<Hi  hia 
credit,  witboot  which  lie  will  be  ol  imi  um;  in 
the  parish  wh<rr«  be  doth  or  aiay  miiiisti:r.   Ami 
tbey  say,  that  it  appears  by  tlie  evidcnci^  <hi 
the  side  of  the  prosecution,  that  Ih'  i«  ti**y 
careful  iothe  d»setiar|^«  «if  \\\%  ftiucii»ii.  tilii^^h 
they  insist  on  from  his  refusal  to  \i^  <  iiuo"!*!**' 
in  a  marriage  without  a  lioeooe  and  «<'(«•<'" ^  ^ 
friendH,  it  Mng  contrary  to  actn  «i  p«ili«"«»«* 
and  to  the  canons  of  the  cburrh.  nud  ibvi  tiiej 
«uppnne  him  as  cautious  in  «iih»t  lb*" J?*-   ^'^.^ 
say,  timt  the  thing  itself    ik  ii»>i«l*  <*"^   '^^ 
it  IS  an  innocent  and  harrrilr«k  thrna ;  ">*-  ^ 
iierson  is  hurt  by  auoti«<r'«  «if  •»•"!?''  y* 
liim  a  sum  of  money  by  aof-li  «  ii«4r :  >'• '   ^^ 

pemoii,  indeed,  who  r<»«»  *«••'*•  ■  ^^^  *  ***** 
to  an  action  for  the  iftottvy,  but  that  than  «^  •• 


<»■ 


259J 


3  GEORGE  II.         Trial  of  Wm.  Hales  and  T.  Kxnnerde^^        [ 


injury  done  to  the  person  to  whom  it  is  marie 
payable ;  that  therefore  as  to  Mr.  Kinnersle>  's 
subscnbinin'  a  note  fur  so  much  money  payable 
to  Samuel  Edwards,  esq.  especially  when  it 
was  done  iiprm  the  recjuest  of  the  defendant 
Hales,  upon  account  of  a  debt  which  was  due 
from  bini  to  Hales,  and  for  the  oon?enience  of 
Hales,  it  was  an  innocent  tliinfi^ ;  that  Kinners- 
ley  was  to  pay  Hales  so  much  money,  and 
riales  himself  desired  a  note  for  it  in  this  name. 
They  say  that  Kinnersley  might  he  induced  to 
do  this  from  the  credit  and  character  of  Hales, 
and  from  their  former  acquaintance ;  that  he 
was  the  minister  in  his  parish  when  the 
partnership   Was   between    him  and  sir  Ste- 

{ibcn  Evance;  that  notwithstandinfir  his  mis- 
ortunes  since  that  finit  acquaintance,  it  is 
plain  that  he  hath  been  corres|)onded  with 
by  persons  of  credit,  therefore  there  can  be 
DO  reflection  on  that  head  on  Mr.  Kinners- 
ley. And  they  say,  that  as  there  was  no- 
thmjf  culpable  in  p^ivin^  of  the  note,  so  nothing 
amiss  liaih  happened  thereu|ion ;  that  if  Mr. 
Hales  hath  dono  any  thing  amiss,  it  does  not 
affect  Mr.  Kinnc  rsley .  Though  they  raise  Mr. 
Hales's  credit  at  first,  yet  atlerward  they  sinic 
it,  and  seem  to  throw  the  blame  upon  him. 
Tliev  plead  also,  that  there  is  no  evidence  that 
the  mdorsement  was  upon  the  note  when  it  was 
subscribeil  by  Mr.  Kinnersley.  If  it  was  after- 
wards (say  they)  indorsed  with  or  without 
authority  from  Mr.  Edwards,  it  will  not  affect 
Kinnersley,  except  there  be  express  proof  that 
he  did  it.  Thev  say  also,  that  there  is  no  proof 
of  any  franks  clelivered  to  Kinnersley  but  only 
to  Hales ;  that  he  bad  not  therefore  the  oppor- 
tunity that  Hales  might  have ;  that  therefore 
he  is  not  involved  in  that  circumstance  or  tiic 
inducement  hereto ;  that  I  lie  proof  or  evidence 
given  is  nothing  nofainst  him.  And  then  (say 
they)  to  what  purpose  bhnuld  the  note  be  con- 
trived to  be  inil(M8(^d  with  the  privity  of  Kinner- 
sley, when  he  hath  no  manner  of  benefit  thereby. 
Hales  having  received  the  money  ?  They  ask 
the  question  c\i\  honv^  and  thence  infer  that 
Kinnersley  could  n«)t  do  this.  And  they  insist 
upon  it  in  point  of  law,  that  the  writing  of  this 
note  can  be  no  fraud  in  him,  he  having  done 
what  renders  him  liable  to  an  action.  And  to 
shew  that  the  money  was  due  from  Kinnersley 
to  Hales,  they  have  tailed  several  witnesses  to 
shew  that  there  was  a  foundation  for  this  note. 
Mr.  Peter  Marsh  was  called  :  He  saith,  that 
about  ten  or  eleven  years  ago  he  brought  a 
bond  of  50/.  to  him  made  by  Mr.  Kinnersley 

Eayabletobim.  Mr.  Hales  told  him,  that  Mr. 
Linnersley  owed  him  this  money,  and  had 
ffiven  him  this  note  made  payable  to*  him,  which 
he  desirefl  him  therefore  to  get  for  him.  He 
knew  nothing  of  the  matter,  was  surprised  that 
liis  name  was  made  use  of,  and  so  returned  the 
bond  again.  This  is  insisted  upon,  gentlemen, 
to  shew  that  there  were  transactions  l>etwcen 
Kinnersley  and  Hales.  Now  wlietlier  this 
|imvea  a  debt  due  from  the  one  to  tbe  other,  or 
|iroTM  ao  extraordinary  method  of  taking  bonds 
IB  tht  ii|n«  of  pcffOM  whboai  thtir  ooiiitat, 


Tou  are  to  consider ;  especially  when  ^o«  i 
Know  that  if  this  bonit  had  been  put  in  mi 
Peter  Marsh,  he  would  have  been  liable  t 
cover  the  money.  Well,  then  William  Cn 
iK  next  called.  He  saiih,  that  he  reeeit 
Janeway's  coffee-house  about  60/.  a  debt 
was  due  from  Kinnersley  to  him.  He  reo 
it  of  the  defendant  Halei,  and  Kinner»ley 
there  with  him  at  that  time.  He  saith, 
Kinnersley  was  the  original  debtor  i^f 
money,  and  that  Hales  gave  him  his  note  i 
He  saith,  that  Kinnei-sley  had  borrowed  ol 
an  hundred  and  odd  pounds ;  that  he  bro 
another  gentleman  to  be  securitv  with  bii 
it ;  that  at  the  end  of  six  months  he  oouk 
get  his  money ;  ttiat  he  enquired  of  Kinne 
tor  it,  who  led  him  a  dance  fi-om  place  to  | 
after  him  for  a  considerable  time ;  that  a 
he  was  forced  to  sue  for  the  money  ;  auc 
covered  half  from  the  other  gentleman  ; 
he  then  prosecuted  Kinnersley  for  the  i 
that  then  Kinnersley  met  him  with  Mr.  I: 
at  some  tavern,  and  then  Hales  told  him 
he  was  to  receive  about  6  or  700/.  within  « 
three  months  time,  and  then  he  would  pay  I 
He  saith,  that  upon  that  offer  of  Hales  he 
a  note  of  Hales,  and  a  new  one  of  Kinnet 
for  the  money ;  and  that  in  February 
he  got  the  money  as  before- mentioned, 
received  it  at  Jaiieway's  coffee- liOU»e. 
he  saitli,  that  some  little  mutter  (about 
shillings  or  thereabouts)  was  due  for 
charges,  for  which  he  gave  him  his  i 
Hales  gave  his  note  for  the  nnyment  of  t 
of  Kinnersley 's,  a  debt  of  50f.,*and  he  gave 
reason  tor  it,  that  he  was  to  receive  withii 
months  about  0  or  700/.  for  him,  and  then 
he  could  venture  being  security  for  Kinner 
This  is  a  transaction  of  quite  another  na 
it  is  so  far  from  proving  a  debt  from  Kinne 
to  Hales,  that  it  rattier  proves  Hales  ind« 
,  and  becoming  security  for  the  other.  \ 
\  then  John  Wells  is  called.  He  saith,  tbi 
i  knoweth  not  of  any  money  due  from 
i  nerslcy  to  Hales,  but  that  Kinnersley  < 
:  him  100/. ;    tiiat  afterwardi  this    money 

•  |>aid  to  his  attorney,  by  whom  or  how  he  < 

•  not  tell.  Mr.  Simpson,  who  is  a  partner 
'  Mr.  Fowler,  is  then  asked  concerning 
'  borrowed  upon  some  lottery  tickets  of 
j  Fowler,  and  is  asked  concerning  this  mi 

how,  where,  and  by  whom  it  was  ilischar 

He  saith,  that  he  it  as  not  at  tbe  shop 

knoweth  not  by  whom  and  hotv  it  was 

charged.     Mr.  Kinnersley,  upon  this,  b| 

himself  to  one  of  the  !;eiiileiiien  of  the  , 

>and  interrogates  him  how  this  nmney  was 

j  Mr.  Fowler  was  liereiiptm  sworn  tu  give 

,  dence.    Upon  his  oath,  he  saiili,  that  ha  i 

knew  of  any  transaction  in  the  name  of  H 

that  he  never  saw  hini  at  his  shop.     That 

Kinnersley  there  was  a  transactioo  uf  ro 

borrowed  on  lottery  tickets,  but  he  kno 

nothing  of  E^ules's  being  conccrnetl.     Aa 

person  is  examined  whether  he  ever  g; 

<note  on  Mr.  Hales's  accouiii,  or  at  bis  re 

paid  any  mouay  ?    He  saith,  that  be  iie?« 


JiiT  a  Misdemeanor. 

lowctfi  thtt  iny  other  did.  They  tell 
»,  that  tbe  witncMeii  for  the  prosecution 
im  gnat  netsure  proved  the  denial  oi' 
ioDcrslej  of  bisknowinH^  of  the  indorse- 

bal  the?  call  tbemseWes  for  further 
itMenoeorit.  They  cail  Mr.  John  Hayes, 
ilh  Ibat  he  was  present  at  tbe  examination 
ijHieralev  before  sir  Richard  Hopkins ; 
ibMrime  the  defendant  Kinnersley  owned 
ijStf  the  body  of  tbe  mite,  but  at  the 
iMt  said,  that  how  tbe  indorsement  came 
besald  not  tel].  He  tells  you  tliat  the 
I  ihac  was  g^Ten  to  tbe  defendant  Kin- 
',  was  after  this  declaration  made  by 
fcaithen  there  was  an  admonition  that  he 
he  eaotious  in  the  answers  that  be  japiTe. 
drew  Grants  likewise  was  present  at  that 
atioo.  He  saith,  that  that  was  all  Ibat 
illhat  time,  and  that  he  was  notstoppeil 
Mitibfd,  but  onlv  a  reasonahle  caution 
im  that  he  should  not  betoo  much  in  an 
•r  the  like.  This  is  the  substance  of 
made  by  the  counsel  for  both  tbe 
It  is  the  right  of  the  counsel  for 
f  to  reply.  They  say,  that  there  bath 
I  avidence  of  transactions  between  Kin- 

aod  Hales  to  tbe  amount  of  any  such 
I  the  note  is  for ;  that  if  the  note  was 
rith  a  design  to  ^efraud,  both  mast  be 
r  guilty ;  and  that  it  is  a  very  eztraordi- 
mg  that  this  note  should  be  written  by 
mmiey  as  a  promissory  note/or  such  a 
yable  to  Samuel  Edwards,  esq.  when  it 
itappear,  on  the  defendant's  part,  that 
rat  any  correspondence  between  £d- 
■d  Kinncrsley,'and  on  their  side  it  bath 
isfcd  that  there  was  no  such  correspon- 
.  that  it  was  very  extraordinary  if  this 
IB  ffiTeti  for  a  debt  due,  that  it  should  lie 
i  the  name  of  one  with  whom  they  had 
ifY-dealingswhatsoeTer,  and  of  er  whom 
aid  not  be  supposed  to  have  any  power  ; 
is  therefore  seems  to  be  only  to  give  a 
>  the  note ;  that  it  could  not  be  of  any  use 
ever  without  having  tbe  name  of  some 
nf  drcumstaoce  and  condition  to  it  who 
le  obligefl  to  pay  the  note ;  thut  this  note 
ive  been  thrown  upon  Mr.  Edwards,  ap  • 
bey  say)  from  the  declaration  of  Kin- 
,  that  he  was  an  undone  man.  If  then 
if  any  use  to  borrow  money  upon  or  in 
•er  way,  it  must  be  from  the  substance  of 
iwards,  and  not  from  the  poverty  and 
icy  of  Kinnersley.  They  insist  upon 
cumstance,  and  the  declaration  of  Kin- 
,  that  he  knew  of  that  indorsement, 
Ikiw  it  came  there,  be  said  that  he  knew 
iod  further  they  say,  that  as  the  name 
'•  Edwards's  own  baud-writing,  if  that 
nd  *  ffree'  was  wrote  unon  tbe  paper,  it 
»  before  the  writing  or  the  hofly  of  the 
It  caanot  be  imagined  that  the  words 
et  there  before.  It  cannot  be  supposed 
r.  Edwards  would  set  his  name  to  the 
ftce,'  or  to  any  other  woid  on  the  back 
Me  pffomising  the  payment  of  1,260/., 
to  him  or  his  order.    They 


A.  D.  1729.  [262 

insist,  therefore,  that  this  name  and  the  word 
*•  ffree'  were  upon  the  pa|ier  before  the  note  was 
wrote,  and  that  this  is  a  strong  and  reasonable 
evideuce  that  Kinnersley  must  be  privy  lo  the 
name  of  Edwanis,  and  tbe  indorsement  at  that 
time.  After  that,  Mr.  Kinnersley  desired  to  be 
heard,  and  he  was  indulgetl :  but  as  to  thai  you 
have  been  informed,  that  in  indictments  for 
misdemeanours,  whatever  the  defendant  saith 
for  himself,  it  will  have  no  further  validity  than 
as  the  counsel  insist,  and  evidence  is  brought 
for  him.  Tbe  cireumslance,  therefore,  is  very 
different  from  what  is  allowed  when  persons 
are  pn>secuted  in  capital  cases.  However,  you 
have  heard  how  he  bath  declared  in  the  most 
solemn  manner  his  innocence.  You  are  to  con- 
si<ler  whether  that  is  of  any  validity,  unless 
there  was  evidence  of  such  a  debt  due  from  the 
defendant  Kinnersley  to  Hales  the  other  de- 
fendanty  whether  you  will  take  it  upon  his 
word.  Tilts  being  the  evidence  on  both  sides, 
tbe  first  question  is,  whether  tbe  indorsement  is 
forged,  because  till  you  determine  that  it  is  a 
forged  indorsement,  there  can  be  no  prosecu- 
tion for  tbe  publication  of  it.  If  it  be  a  true 
indorsement,  no  person  can  be  guilty  of  the 
publication,  mncn  less  can  Mr.  Kinnersley, 
who  did  not  deliver  the  note:  that  therefore 
lieth  upon  the  defence  of  Mr.  Hales,  which  is 
not  made  but  by  the  defence  of  Kinnersley. 
You  are  to  consider  then  the  opjiortunity  that 
tlie  defendant  might  take  hold  ot  from  the  re- 
ceiving of  franks  for  several  years  from  Mr. 
Edwanis ;  and  you  will  consider  whether  there 
is  any  clear  proof,  or  so  much  as  the  colour  of 
it,  that  Mr.  Edwanis  was  privy  to  an  indornc- 
ment  of  this  nature,  or  there  was  any  occasion 
for  such  an  indorsement.  If  no  such  money 
was  indeed  due,  to  what  purpose  should  the 
note  be  indorsed  ?  Upon  the  best  observations 
that  I  can  make,  1  see  not  any  evideuce  to 
raise  a  reasonable  presumption  Ironi,  that  this 
was  a  fair  and  justifiable  indorst-ment.  if  it 
was  not  an  imposition  on  Mr.  Edwards,  because 
it  makes  him  liable  as  an  intlor^<er  for  the  sum 
mentioned  in  the  note,  if  you  should  find  thaty 
yet  you  are  to  conttider  whether  it  is  fhir  to 
make  use  of  another's  name  in  a  note ;  for  Mr. 
Kinnersley,  who  by  his  own  confessiiin  is  a 
poor,  undone  man,  and  whose  living  is  under  a 
sequestration,  to  make  a  note  indorsed,  by  an- 
other iierson  who  can  never  be  reimbursed  by 
this  |>erson  who  subscribed  the  note,  it  i^ta  very 
extraordinary  way  ;  though  they  say  that  it  is 
an  innocent  way  of  raising  money,  for  a  |)er- 
son  in  custody,  or  liable  to  it,  to  make  use  of 
the  name  of  a  substantial  person  in  such  a  iiote^ 
\t  hose  credit  must  be  at  stake  for  the  money. 
And  then  as  to  the  nature  of  the  note :  if  it  was 
only  a  promiss(»ry  note  tor  so  much  money 
payable  to  Samuel  Edwards,  esq.  it  was  not  of 
such  consequeuce,  tor  then  he  was  not  liable  : 
but  he  is  liable  to  the  payment  «inly  upon  the 
iiuiorseinent  of  such  a  nuie.  Why  ihen,  gen- 
tlemen, you  are  to  consider,  wlu'ther  thi<i  uote, 
when  Mr.  Kinnersley  hud  wrote  it,  could  tie  of 
any  use  in  the  world  unlcs»  it  w&a  iadorsed  af« 


ies] 


$  GEORGE  IL        Trial  of  Wnu  Hates  and  Tn  KimerJey. 


tsrwards.    Whr  then  this  note  is  either  a  pre- 
paration to  obtain  "Mr.  Edwanls's  roluntary  in- 
doraement  for  a  secarity,  or  an  imposition  upon 
bim.     Hath  an^  evidence  been  prod  need  to 
shew  a  probabihty  thct  Mr.  Edwards  would 
gire  him  that  liberty  to  transfer  his  own  insuffi- 
ciency and  poverty  upon  him,  and  make  him 
liable  to  Mr.  Edwards,  which  can  have  no  effect 
but  by  an  indorsement ;  doth  not  Mr.  Kinners- 
ley  put  it  into  the  power  of  Hales  to  negociate 
this  note  ?  Therefore  I  mnst  inform  you,  if  two 
persons  contrive  together  to  draw  such  a  note, 
And  make  nse  of  it,  both  persons  concerned  in 
the  transaction,  in  my  opmion,  will  be  guilty. 
Forgery  is  an  entire  ract.    Though  one  person 
doth  one  part,  and  another  the  other,  -both  are 
^uallv  guilty.*    Gentlemen,  it  is  material,  as 
liath  been  observed,  to  consider  when  this  in- 
dorsement was  made ;  and  if  it  was  a  forged  in  - 
dor8ement,you  ^vill  consider  when  it  will  appear 
to  have  been  indorsed.  You  have  been  truly  told 
that  this  can  be  only  known  by  circumstances : 
therefore  you  are  to  consider,  whether  the  name 
uf  Samuel  Edwards  can  be  supposed  to  be  set 
tliere  after  the  note  was  wrote.  Well  then,  what 
is  the  proper  and  natural  way  of  understanding 
this  transaction  ?    If  there  be  the   name  of 
a  person  on  any  paper,  where  there  is  room  for 
making  an  alteration,  what  is  natural  ?    Why, 
to  transact  on  the  other  aide  what  is  necessary 
to  supplir  and  make  that  complete,  without 
vhich   the   name  would  be  to  no  purpose. 
Therefore,  that  is  a  material  consideration  $  if 
it  ia  impossible  that  the  name  could  be  wrote 
mAer  the  making  of  the  note,  whether  that  be 
not  a  reasonable  presumption  that  be  saw  this 
indorsement  when  he  wrote  this  note.    Sup- 
pose the  words  only  *  ffree  Samuel  Edwards,' 
It  was  not  proper  to  write  this  note  on  the  back 
of  it.     If  this  indorsement  was  made  without 
bis  privity,  how  came  he  to  know  of  it  when 
be  came  to  Mr.  Bird  ?    And  upon  Mr.  Bird's 
telling  him  that  he  had  a  note  of  his  left  with 
bim,    immediately  answered,  **  1  know  that 
you  have ;  it  is  fur  so  much,  payable  in  three 
months  to  Mr.  Edwards,  but  how  it  came  in- 
dorsed bv  him  I  know  not ;"  when  Mr.  Bird 
iwearstbat  he  had  not  then  acquainted  him 
with  the  indorsement,  nor  showed  him  the  note 
mt  that  time.    No  evidence  hath  been  produced 
to  shew  how  be  came  to  know  that  it  was  in- 
dorsed.    He  declared,  indeed,  that  he  knew 
not  how  it  came  to  be  indorsed :  bnt  you  are  to 
consider,  whether  that  part  wherem  he  de- 
clares biy  knowledge  is  to  be  regarded,  or  what 
be  declares  he  knows  not  of,    A  declaration  of 
this  nature  will  be  taken  most  strongly  against 

*  See  Eitt'0  Pleas  of  the  Crown,  ch.  19, 
•.51. 


him.  Consider,  therefore,  whether  this 
part  of  his  declaratkm  be  sufficient  to  disc 
nim.  If  he  knew  that  it  was  indorsee 
should  have  some  evidence  upon  what  ac 
it  was.  As  to  the  rest,  as  to  the  eharact< 
coat,  or  Uie  like,  you  are  to  try  bim  npc 
same  law  with  Hales.  I  know  not  wh 
habit  he  wears  ahould  exempt  him  Iroi 
common  rules  of  proof.  As  to  tbo  port 
circumstance  of  his  usefulness  depend! 
his  credit,  that  is  left  to  yon.  But  the 
law  is  made  for  one  that  is  for  aaetber : 
are  therefore  to  consider  of  it.  If  this  be 
indorsement  you  must  acquit  both.  I 
are  satisfied  that  it  is  not,  but  the  indoro 
is  a  forged  indorsement,  whether  eithe 
which  of  the  defendants  seems  to  he  |^ 
You  are  to  consider  tbo  nature  and  di 
stances  of  the  transaction,  and  whether 
appears  any  thing  to  distinguish  the  one 
the  other,  and  accordingly  give  your  v 
against  the  one  or  the  other.  If  you  dei 
the  note  will  be  given  to  you. 

Jury.  My  lord,  if  your  lordship  pleas 
will  take  the  note  up  with  us. 

Kinnerdev.  I  desire  to  be  heard  — ^- 

L.  C.  B.  Not  in  case  of  a  misderoeanc 
know  not  any  instance  in  whioh  it  hath 
allowed. 

Kinnersley.  1  beg  leave,  my  lord.  I 
the  Lord  to  witness  — — 

L,  C.  B.  All  I  can  say  is,  if  you  b) 
mind  to  aver  or  affirm  any  thing,  the  < 
would  rather  be  irregular  than  abridge  j 
any  thinif. 

Sen.  Whituker.  My  lord,  it  never  wi 
lowed;  after  your  lordship  baa  summc 
the  evidence,  and  the  jory  gating  out : 
strange  Mr.  Kinnersley  will  behave  so. 

Att.  Gen,    Is  it,  my  lord,  to  be  allowf* 

L.  C.  B.  The  gentlemen  have  insisted 
it.     You  cannot  be  heard. 

Kinnersley,  By  the  living  Ood,  1  kno^ 
thing  of  it ! 

CL  ofArr.  [Calling  over  the  Jury.] 
you  all  agreed  in  your  verdict  P 

Jurymen,  All. 

Clerk,  Who  shall  speak  for  yon  r 

Jurymen,  Our  foreman. 

Clerk,  How  say  you,  is  William  ! 
Guilty  of  the  misdemeanor  wherewith  he  i 
charged,  in  forging  an  indoraeroent  on  a 
missory  note  for  1,960/.  in  the  name  of  Si 
Edwards,  esq.  and  publishing  the  same  I 
ingitto  be  forged,  or  Not  Guilty  } 

Foreman,  Guihy. 

Clerk.  How  say  you,  is  Thomas  KhnM 
Guilty  of  the  satd'misdemeanour  wbeviwj 
stands  charged,  or  Not  Gnilty. 

Foremgn.  Gailty« 


Trid^fWmamHaki. 


A.D.  17C(k 


fj.  The  Trial  of  William  Hales,*  for  a  Misdemeanor,  in  ob- 
taining  from  Thomas  Bird  the  Sum  of  Seven  Hundred  and 
fifty  Pounds  by  false  Tokens^  &c. :  3  Geouge  H.  a.  d.  I729. 


Tbe  Jury  calM  orer  agaiD. 
te«Mi  OyEZ,  Oyez,   If  any  om  can 

I^DICTMCn'. 

Hales  ttands  indicted  bj  the  name 
Halea,  &c.  for  falsi?  and  deceitfully 
_  tba  ran  of  7502.  of  Tliomias  Bird  by 
^AhttDken,  m.  a  promiaaory  note,  in  these 
'  MIowiag: 

*<  Augtat  16, 1727. 

•  ^  I  proniae  to  pay  to  Samuel  Ed  ivards,  esq. 

Illiisider»  within  three  months  after  date, 

fcanof  twelve  hundred  and  sixty  pounds, 

•^■he  rceeif ed,         Thomas  Kinnersley." 

On  vhicfa  Qote  there  is  the  foIlowin|^  ind<ir8e- 


"hiy  pay  to  the  order  of  for  value 

Sahubl  Edwards." 


iif  great  damage  of  Samuel  Edwards,  esq. 
ku  To  ibia  indictoMnt  he  hath  pleaded  nut 

Wr.  Strange,  May  it  please  your  lordship, 

iiaia  indictment  against  the  prisoner  Wil- 

"  la  Bales  only .    It  seta  forth  that  be,  having 

IkbpBMessibn  a  certain  writing  purporting  to 

hi  promissory  note  made  in  the  name  of 

Ihiu  Kiouersley,  wherein  the  said  Thomas 

faniLy  is  supposed  to  promise  to  pay  the 

Mif  lfS60/.  to  Samuel  Edwards,  esq.  within 

te  nonths,  with  a  forged  indorsement  of 

Ir.  Edwards  on  that  note,  did,  in  March  last, 

AUj  sad  deceitfully  obtain  of  Mr.  Thomas 

>  Ini,  tbeaoni  of  7S0/.  by  that  false  token. 

K  islsid  to  be  contrary  to  the  statute  in  that 

ott  nade,  to  the  damage  of  8amuel  Edwards, 

M^  &e.  to  the  breach  of  his  majesty's  peace, 

^  to  the  ill  examph!  of  hia  majesty's  subjects 

■fta  ease  offending. 

Mt.  Gen.  My  lord,  this  is  an  indictment 
VMBst  Mr.  William  Hales,  for  obtaining  a  sttm 
^9tamey  by  the  false  token  of  this  note.  For 
ihwa  will  only  call  Mr.  Bird. 

Mr.  Bird  sworn. 

4ll.  Gen.  Mr.  Bird,  look  upon  the  note,  and 
fifSiii  account  who  brought  it  to  you,  and 
vbat  money  you  paid  upon  it  ? 

Bird.  Mr.  William  Hales  brought  it  to  me 
M  March  20th,  last. 

Att.  Gen.  What  did  be  say  ? 

Bird,  He  said,  that  at  the  request  of  a  gen- 
flnnan,  I  was  to  lend  him  760/.  upon  that  note. 

dtt.  Gen,  Did  he  produce  the  note? 

*  bsethe  preoadiDg  and  folbwing  Caaci. 


Bird.  Yea,  Sir,  I  had  it  then  of  him. 

Att.  Gen.  Waa  it  then  indorsed  as  it  is  now  f 

Bird,  Yes,  Sir,  in  the  manner  as  now. 

Att.  Gen,  How  much  money  did  you  d«* 
lirer  him  upon  ii?— Bird.  760/. 

L.  C  B.  Pengelljf.  Diil  you  deliver  it,  when 
he  delivered  you  ihis  note? 

Bird.  Yes,  my  lord. 

Att,  Gen.  Should  yon  have  let  him  bav# 
this  money  if  he  had  not  produced  tbia  uoteT 

Bird.  No,  Sir. 

Att.  Gen.  What  waa  it  paid  in? 

Bird   In  one  or  more  B^ok- notes. 

Seri.  Ej^re.  J  submit  tbia,  my  kwd :  they 
have  laid  ibis  indictment  but  singly  for  obtain* 
invr  money,  whereas  in  the  former  they  Iayt4 
doubly  for  obtaining  money,  or  other  valuable 
things.  It  lietli  therefore  upou  them  to  prove 
that  this  Mr.  Halea  did  receive  in  money. 
Though  1  know  that  generally  Bank-notes  are 
received  as  so  much  money,  yet  1  know  not 
that  according  to  law  they  are  reckoned  money. 
They  should  therefore  have  laid  it  for  money 
or  other  valuable  things,  it  bein^  two  Bank* 
notes,  and  not  money  :  and  in  tbia  manner,  I 
supftose,  in  case  of  a  tender  of  money,  it  is  not, 
as  I  apprehend,  thought  thai  a  tender  of  Bank- 
notes is  a  sufficient  plea  :  Uie  consequence  then 
is,  that  the  giving  of  760/.  and  the  giving  of 
surh  notes  is  not  tantamount.  They  ought  to 
indict  him  as  the  fact  really  was. 

Att.  Gen.  Do  you  know,  Mr.  Bird,  of  the 
receiving  of  this  money  ?  Did  he  complain  of 
his  not  receiving  of  this  money  ? 

Bird.  No,  sir. 

Serj.  Whitakcr.  Did  he  pay  buck  any  of  the 
money? — Hird.  Yes,  Sir,  400/. 

Serj.  Whitaker.  Was  it  U|»on  the  account  of 
those  HHnknote:^? — Bird.  Yes,  Sir. 

L.  C.  B.  Then  when  he  paid  you  bark  that 
money,  did  he  complain  that  he  had  not  re« 
ceived  it  ? — Bird.  No,  uiy  lord. 

Serj.  Eyre.  Fray,  Sir,  i*id  he  say  that  he  had 
received  it? — Bird.  Yes, Sir. 

L.  C.  B,  Mr.  Serjeant  Eyre,  I  supposa  you 
do  not  insist  upon  it  us  necessary  that  be  should 
receive  so  much  money  of  Mr.  Bird,  if  he 
received  tlie  produce  of  those  notes  it  was  suf- 
ficient. 

Serj.  Ej/rc.  My  lord,  I  apprehend  that  though 
he  dill  receive  the  money  from  the  Bank  for 
ihone  notes,  he  received  not  the  money  from 
the  hands  of  Mr.  Bird.  He  received,  indeed, 
what  I  should  have  taken  lor  money.  Es|M)- 
cially  as  the  act  of  parliament  hath  added,  *  or 
any  valuable  thing,'  as  je\tels  or  the  like.  I 
think  it  should  have  been  so  laid.  1  observo 
the  words  used  are,  *  by  colour  or  means  of  a 
fahio  tuikea.'    i  woukl  aak,  suppose  Mr.  Bird 


«67] 


S  GEORGE  If.  Trial  of  fTm.  HaUt  and  T.  KinnenUy,         [968 


bid  oTiterei]  him  to  receire  it  of  his  cashier,  or 
scut  llie  note  to  his  goldsmilh,  whose  pBymcut 
would  it  hare  been  i  Suppoue  he  had  sent  him 
tu  llie  Bunk  to  rec«vc  that  bioiipy  before  lie  de- 
lli«red  up  tlie  note,  certainr}'  he  had  obtiiaed 
the  moony  by  colour  or  means  of  that  note. 

Hy  lord,  I  admit  that  if  it  had 

hcen  paid  by  his  servant  or  b^  his  cashier  upoD 
a  Dole  drawD  upon  him  for  it,  I  lake  it  that  it 
Kiighl  have  leen  laid  either  way. 

^rj.  Whilaktr.  The  Bauk  in  that  respect 
are  but  caabiera  for  the  geutlemep  that  haie 
Uieir  notes. 

!4erj.  £yre.  The  oibec  indictment  kid  it 
doablv. 

Judge  Hi^tiuUt.  Though  they  mi^t  do  that 
by  wav  of  caiitios,  yet  it  might  hare  heen  laid 
ibe  other  way  as  ibis  is. 

L.  C.  B.  Gentlemen  of  the  Jury,  yon  are  to 
COD  aider  whether  tbe  indorsement  on  tbii  note 
was  a  forged  indorcement ;  for  if  it  was  uot 
forged,  tbe  defendant  cannot  be  said  to  obtain 
Ibe  money  by  a  false  token.  And  further  you 
are  to  consider,  aa  he  obtained  this  of  Hr. 
Binl  by  thii  false  token,  whether  it  ever  came 


to  his  hands  Or  not.  You  are  to  coiuiiler  apos 
ibe  erideuce  that  be  never  cumulsiued  that  ha 
had  not  received  the  money  fur  iboie  bills,  but, 
on  the  contrary,  paid  back  400i.,  jiart  of  iba 
money,  wbelber  he  would  have  paid  it  if  ha 
had  not  received  tlicnianey.  Therefore,  if  yoa 
apprehend  that  indorsement  of  the  note  was  not 
a  forged  indorsement,  or  that  tbe  money  was 
not  |Mid,  you  are  to  acquit  bim.  But  if  yon 
Judge  that'tbc  [ndnracmont  upon  the  uule  wu 
forged,  and  the  money  Jiaid,  whtlber  it  was 
paid  hv  Mr.  Bird  in  ninney,  or  in  billa  um 
whicb  be  aflerwanis  received  money,  I  Ibiok 
that  thai  makes  no  difference. 

Jury  called  over. 
Clerk.    Are  von  all  agreed  in  yonr  TCrfidf 


Llerk.  Are  \i 
Tury.  Agreed. 
CUrk.  Who  sL 


CUrk.  Who  shall  speak  for  you  T 

Jury.  Our  Foreman. 

Cltrk.  How  aay  you,  la  M'illiam  Haisi 
G  uilty  of  tbe  misdemeanour  whereof  he  standi 
indicted  in  obtainiutf  a  sum  of  ntoney  by  thil 
fidK  token,  or  Not  Guilty  r 

Fertntan.     Guilty. 


476.  Tlie  Trial  of  William  Hales  and  Thomas  Kinneuslet* 
Clerk,  for  a  Misdemeanor,  for  fraudulently  forging  a  Pro- 
missory Note,  &c.  in  the  Name  of  Samuel  Edwards,  esq.' 
for  Sixteen  Hundred  and  Fifty  Pounds,  and  publishing  the 
said  Note,  knowing  the  same  to  be  forged :  3  George  H. 
A.D.  1729. 


Jury  called  and  atrom  over  again. 
Clerk.  OyEZ  !    Oyez  !  If  any  man  can 
joform,  Sec, 

Ikdicthext. 
Gentlemen  of  the  jury,  William  Hales  and 
Tiiomas  Kinnenlry  stand  imlicled  by  the 
names,  &c.  for  frauJuleolly  forgini;  anoieora 
writing,  purporting  to  bea  prumiisory  note,  on 
the  Snd  of  March,  in  ihe  first  year  of  bis  ma. 
jelly's  reign,  in  ibe  words  following: 

"  I  promise  lo  pay  to  Mr.  Thomas  Kinners- 
ley,  or  his  order,  within  six  monlbs  alter  dale, 
(he  lum  of  sixteen  hundred  and  GDy  pounds, 
for  ibe  value  received,        Simuel  EnWABOs." 
and  Icnawingly  and  wittingly  publiahing  of  this 
aaa  tme  writiog,  knowing  it  to  be  to  forged 
and  couaterfeilM. 
Hr.  Straoife.    May  it  please  jonr  lordihip, 
,   and  ynu  genllemen  of  Ibe  jury,  this  is  an  in- 
dictment Bgainsl  the   two  prisonera  William 
Thomas  KiDncreley 
a  forth,  that  they  being  persona  of  ill    gery  of  ihii  note  wai  by  the  same  opportunity 
'  '  '      "        lo  deceive  Hr.  Edwarda,    taken  by  Mr.  Ualea,  in  eoqjuuclinn  with  1* 

Kionenley,  that  ibe  former  waa.     It  bath  bt 

*  8m  the  piMfdigy  and  f<rflotniig  CiHii 


Sec.  onlheSd  of  Marcb,  in  thefirst  year  of  his 
majesty's  reign,  did  forge  a  writing  porporling 
to  be  a  promissory  note,  &c.  The  mdictment 
further  aela  forth,  that  the  defendants  did  like- 
wise produce  end  publish  IbltipromiBSory  cole  of 
Mr.  Edwards's  Itir  1,650^  i  tlinl  knoning  this 
to  be  a  Ibrged  note,  they  did  publish  Ihe  said' 
note  liir  a  true  one.  Il  is  laid  in  oilier  words, 
that  they  forged  a  nole  of  Samuel  Edwanls's, 
wbereby  be  ia  supposed  lo  prorai^  to  pay  lo 
Thomas  Kiimerslev.  Hitliio  six  months,  the 
sumori,660f..&c.'  Toalllhese  facts  they  boll) 
have  pleaded  Nottiuiliy. 

All.  Gen.  My  lord  and  gentlemen  of  iht 
jury,  I  a[n  counsel  for  tbe  king.  Oeotlemeq, 
Ibis  is  an  indictment  against  both  tbe  de- 
fvndants,  fur  forging  a  promiKsory  note  in  lb* 
name  of  Saniuel  Eilwards,  eMj.  for  1,650'.,  pay- 
able  to  Thomas  Kinnemley,  or  order,  wjihin 
six  miiDths  after  date,  and  aliio  fur  publishinc 
Ibe  same.  And,  gentlemen,  lhou)[h  il  is  lai3 
•everal  ways  in  iTie  indiclmeiit,  tlie  note  ii 
one  and  tbe  eanie.  There  arc  nol  several  note*. 
Hales  and  Thomas  Kinncrs^ey.  This  indict-  j  Gentlemen,  it  will  apnear  to  you  that  this  for- 
menlseta  forth,  that  they  being  persona  of  ill  gery  of  this  note  waa  oy  the  same  opportunity 
fame,  and  intending  to  deceive  Mr.  Edwarda,    uken  by  Mr.  Ualea,  in  eo^juuclion  with  Hr. 

. Kinneisley,  that  Ibe  former  waa.     Itbatbb  — 

I  obMntd  alraady,  thai  in  nicf  of  Ihii  k 


W] 


far  a  MitdemeHnor, 


A.D.  17S9. 


[S70 


fieti  are  to  be  proTed  oDly  by  circumstances. 
PluD  tail  positive  proof  is  not  to  l)e  expected : 
brtioch  circumstances  speak  the  truth  often 
BOicpIahily  than  the  other  way  of  proof  doth. 
As  to  II r.  Hales,  Mr.  Edwards  being  too 
•bligin^  to  him,  he  made  use  of  it  to  much  the 
■BB  purpose  as  in  the  fbrmer  case.  But 
ilii«not  DOW  to  indorse,  but  to  make  a  pro- 

'.Ed- 


nute  fur  1,650/.,  payable  by  Mr 
vwdi  10  Mr.  Kinnersley,  within  six  months 
lAff  ^te,  and  dated  March  SO,  1728.     And, 
imJfiDen,  this  note  is  signed  on  the  back  with 
^  land- writing  of  Thomas  Kinnersley.    The 
Biooerof  this  forgery  will  appear  to  have  been 
ike  ibe  other:    but  it  will  appear  on  the  very 
Uet  of  it  manifestly  a  forgery.     Gentlemen, 
the  note  is  wrote  on  a  very  small  piece  of  paper, 
vbich  appears  plainly  to  nave  been  cut  oil  from 
umber  paper.     And,  gentlemen,  the  words, 
*  hx  the  value  received,'  are  uot  wrote  upon  the 
he  with  the  other  words,  but  a  little  below  the 
kM.    The  words  '  for  the'  appear  done  in  the 
miie  wanner  as  in  the  former  note  that  before 
caoe  under  your  consideration.    Here  \s  a  ff" 
neb  a»  before,  and  as  Mr.  Edwards  always 
iMtb,  then  an  r  which  appears  to  be  of  the 
wae  hand,  then  an  o  crowded  in  between  them 
«bicb  seems  net  of  the  original  writing.    One 
tf  Ibe  u^a  is  made  to  serve  tor  the  first  stroke  of 
Ihr  V,  and  a  long  stroke  between  the  two  ee'sy 
tbro'ifae  other  e  makes  up  the  word  y^.    Then 
'rihie  received'  is  wrote  in  another  manner  of 
bad.    This  seems  to  be  the  nature  of  the  for- 
fery;  and  none  can  doubt  it  a  furt^ery  that  in- 
apceia  it.    This  appears  to  be  done  from  n  frank 
coier  i>btained  from  Mr.  Edwards.     And  tliis  is 
tMrtbinir  rcmnrkahie  :    it  is  Koinethiii^  odd 
tini'fortlic  vaiuf;  received'  should  bc^  v.iotecn 
i&o:.W  line.     It  is  plain  that  the  words  arf  ret 
ibssMli]  because  of  the  word  wrote  h  t^rc,  and 
^thejf  be«jriiiDir.g  anothor  line  may  make 
the  better  appearance.    This  note  is  made  pay- 
able to  Mr.  Kiunerslry.     He  was  an  absolute 
■tnoger  to  Mr.  Edward?,  as  it  appeared  in  the 
P'Tmer  case.     There  wns  no  dealing  between 
Ur.  Edwards  and  Mr.  Kinnersley,  nor  no  co- 
bur  «it  any  such  dealing!,  hy  which  a  debt  of 
iQch  a  sum  as  this  should  b(Vnme  duo  from  Mr. 
£dvards  to  Kinnersley.     lint,  gentlemen,  this 
Mtf  thuH  made  for  l.ti'tOl.,  payable  within  six 
Bonttisfrom  Mr.EdwanIs  toKmuersley,  with- 
out ai!V  ilt-alin^s  between  them  to  irivc'a  foun- 
duiun  tor  it,  in  the  manner  1  hnve  shewed  von, 
»nifh  ts  sufiicient  to  make  it  appear  to  any 
a  foitf-ry,    is  indorsed  by   Mr.    KiunorRley. 
That  u  ill  appear  a  clear  evidence  of  the  forgery 
^jf  by    Mr.   Kinnersley.      No  man  in    hi* 
KB^s  would  do  this.     If  a  for<;oi|   note  for 
IjSoO/.  waii  made  in  ihp  name  of  any  person, 
nd  appeared  in  all  these  rircurnstaiicrs  of  a 
pkin  P>rgery,  no  man  in  his  senses,  and  desit>'n- 
iBKioact  a  fiair  part,  would  make  an  iu'lorsc- 
•mt  tbetvtu.      No  other  purpr»se.  thfrrefore, 
Kcms  aimed  at  in  the  indorsitu;  but  to  ^vi  the 
Metifoiog.     If  such  a  note  wns  olftTcd  to  a 
fur  sad  bonett  uian  to  indorse  would  he  not 
■inkat  it  ?    Would  he  evor  have  indorsed  it  ? 


Therefore,  this  indorsement  is  a  strong  evidenes 
against  him.  The  use  made  of  this  note,  thui 
forged  and  indorsed,  was  this :  it  being  in  th« 
hands  of  Mr.  Hales,  Mr.  Hales  wanting  a  sum 
of  money  applied  to  one  Mr.  Thrup,  dckiring 
him  to  lend  nim  bis  note  of  400/.  Upon  his 
doing  tliis  with  difficulty,  Mr.  Hales  deposited 
this  note  as  a  security  tor  his  money,  and  here* 
upon  this  note  continued  in  the  bands  of  Mr. 
Thnip.  Gentlemen,  upon  the  discovery  that 
was  made  of  another  forgery,  whereupon  Mr. 
Hales  was  apprehended,  there  was  a  suspicion : 
hereupon  Mr.  Edwards,  being  informed  that 
this  note  was  in  the  hands  of  Mr.  Thrup,  en- 
quired of  him  about  it.  The  thing  upon  this 
appeared,  and  Mr.'  Kinnersley  thereupon  was 
apprehended  and  carried  before  sir  Richard 
Hopkins.  At  first  he  seemed  willing  to  make 
ft  discovery  :  afterward  he  went  back,  and  de- 
nied ^I  thmk)  what  he  seemed  before  to  have 
owned:  that  will  be  proved  to  you.  I  think 
that  this  will  appear  plainly  to  have  been  ft  for^ 
gery,  and  to  have  been  done  by  Mr.  Hales  and 
Mr.  Kinnersley. 

Serj.  Whitaker,  My  lord,  we  will  go- on  in 
the  same  method  as  before,  by  calling  two  or 
three  witnesses. 

Thomas  Maddox  and  Anne  Clarke  were 
called,  sworn,  and  deposed  as  before. — As  ftlss 
Mr.  Booth.  Vide  the  preceding  Cases. 

Mr.  Charlton  Thrup  sworn. 

Att,  Gen,  Look,  Sir,  on  that  note,  and  ttH 
us  when  you  first  saw  it  before. 

Thrup.  On  May  the  22nd. 

Att,  Gen,  Who  brought  it  to  you? 

Thrup,  Mr.  Hales. 

Att,  Gen.  What  did  he  say  to  you  f 

Thrup.  He  brought  it  to  me,  and  desired 
me  that  1  would  give  him  on  it  three  notes  of 
500/.  I  refused  him  at  first,  alleging  that  it 
wns  not  for  my  credit.  At  length  1  put  into  his 
hand  a  pnunissory  note  for  400^  payable 
within  six  months. 

Att.  Gen,  Look  on  that  note  and  see  whether 
it  now  is  in  the  same  case  that  it  then  was. 
V/ns  the  indorsement  then  upon  it  ? 

Thrup.  1  cannot  say :  for  1  took  no  notice  of 
the  indorsement  till  I  delivered  it  to  Mr.  Booth 
at  the  request  of  Mr.  Edwards. 

Alt.  Gt'H.  fn  whose  custody  was  it  till  you 
delivereil  it  to  Mr.  Booth  ? 

Thrup.  In  mine.  Sir. 

Aff.  Gin.  Did  yuu  make  any  alteration  in 
it.** — Thrvp.  No,  Sir. 

Att.  Gen,  And  \^hen  you  gave  it  to  Mr. 
Booth  y(»u  mirided  the  indorsement,  did  you 
not? — Thrup.  Yes,  Sir. 

Att.  Gtn.  How  came  you  not  to  mind  it 
b**fore?  What  security  was  Mr.  Edwards's 
note  if  it  had  uot  been  uidorseil  ?  . 

Thrup.  I  had  such  an  opinion  of  Mr.  Ha^es 
that  1  suspected  uoiliiu:^,  and  therefore  (rave 
him  the  note ;  I  did  not  think  he  would  have 
been  guilty  'tf  so  vile  an  action. 

Att.  Gtn.  \\\\v\\  wui  it  that  you  delivered 
this  note  to  Mr.  B'joih  ^ 


fvr  a  Mudcmcamr. 

ka«a(benlliat  were  mule,  llmtthe 

M  wtiuea  nith  n  secretary  e,  hut  ibe  e 

'•■^  witicti  plainly  mpri*  1u  answer  lo 

>ad,  anJ  aliaw  that  iLal  is 

H(,  Tfenot  Bird  tvato, 
iluCtn.  Sir.  wbose  lianii  i>  lliaC? 
to^lir.  Kinaenley.  »ir,  owncil  that  to  Le 

JcAm.    W«i  it  (hpirril  by  y<ia  In  Mr. 
fapiliy  at  tbal  lime  wbcD  he  on  ned  il  i" 
■aw,  f  ci.  Sir. 

laarttrf.  And  did  I  own  it.  Sr  ? 

Il  6m.    Why,  you  owned  il   in  court. 

,  I  b*^  your  pardon,  Sir  ;  t  did 
d  ll.aL 

(i>ic  thai   unte  Id   the  Jury  lu 
I  wilb  Uie  oUiVr   uote  tkat  it   now 

J,  Witlnktr.  Blr.  Uneoln.  those  rece>|ili 
•«diyM  pnHlured,  <lld  Mr.  Kinnrraley  ac- 
lalhr  KM*  llinn  .' 
Iimh.  f  MW  him  write  tlietn  all. 
tmiWkHaktr.  Sbrwtliem  lo  the  jury. 
Ii^«  Bityaeldi.  Oenltumen  ol'lb«  jury,  in 
tami yaw  will  Sad  anine  receipia  wrote-  by 
Mt.  liwmity,  which  Mr.  Lincoln  sHcars 
nhlanrf;  tW  he  luw  him  write  then)  all. 
Jti.  Otm.    TIm  tiCKt  wiloess  that  we  will 


iitMlui|i«ariTi([norThoinas  Brooks,  who 

WMttMlM, 

Hir  Rjdtard  Uopkutt  ttvoTti. 
M.  Gtn.    8ir  lliohard,  we  muat   trouble 

Cia  p>e  an  account  upon  nhal  accounl 
KaMialcy  wta  brunglit  before  you,  and 

lb  a-  Jln-Inoi.  Itc  waabrnnghl  before  mc 
«^in...,i.,i,.,  iiu«  of  l.^iOOf.  and  tills  note. 
V- lien  he  WIS  before  yon,  was 
.-  ular  nenlioii  made  of  this  nole 

'II.    It  WM  giren  to   me  to 
\:  \Mvn\ty  about  il. 
-  f  Ridtard,  can  you  recdieci 
lUe  note  r 
"  I  M.    I  made  nn  mark  upon  it: 

t  IwOeve  ibat  lbi>  was" 
i  Otn.    Wat  it  abewed 
f 

L  B^kiM.  Tliii 

"     latKise   Sir.  Kinoerslpy   oiioo.      I 

,  ifit,  and  il  seeninl  lu  me  to   be  a 

Bafbrv  I  could  aay  any  lliinj^  lo  Mr. 

■     ■  leMilford  there. 

what  I 

'  Hold,  8ir(«iid  be), 

■or  hand.'  I  titnuglit 

>  |tinice  ol  peace.   I 

1 .  1*  this  your  hand 

1    I  the  niher  Tiof  in 

I'Telbre  lo  reoolkct 

iliat   ibry  «wi\ied 


A.  D.  1729. 

Mr.  Strange.  1  Ibink  lie  Offoed  the  one  In  be 
Ilia  hanil-wrilin^,  and  tbe  olher  not.  I  aik. 
Whether  ihat  wliieb  he  did  own,  Has  owned 
before  that  Mr.  Hitford  tntemipled  him,  or 
after  f 

mr  R.  Jlopkint.  It  waa  before.  Upon  tlial 
Mr.  Mitfonl  interrupted  him. 

Serj.  Wkitaker.  Upon  the  quesltnn,  when 
enquiry  wa»  made  whether  he  had  bad  any 
dcaliii^B  will)  Mr.  Ednarils,  what  did  be  aay  T 

Sir  R.  Hvpkini.  Both  Mr.  Edwarda  and  1 
asked  him,  whether  he  erer  had  had  any  dcal- 
ioffB  nilh  Mr.  EdwiinU?  To  which  lie  re- 
plied  No,  be  nerer  had  hail  any,  nor  erer  toth« 
best  of  bia  knowledge  had  seen  him  before.  1 
llirn  asked  him  bow  he  came  l«  draw  ibat 
n«te  payable  to  Mr.  Edwarda,  when  there 
neitr  liad  been  any  dealings  between  him  and 
Mr.  EdivnntH  f  He  answered,  That  be  did  it 
at  the  re<)ii(-Kl  of  Mr.  Halea,  to  whom  be  wa*. 
indebted  in  that  aum,  and  more. 

Judge  tUynoliii.  The  lirat  question  I  sup- 
pose was  (i^iierul,  whether  there  had  been  any 
dealings  between  lliena  i*  Aflerwaida,  when  Ihe 
noles  iveie  tliewn  liim,  he  owned  ibe  one, 
and  denied  the  other.    Was  it  not  ao  f 

Sir  R.  Ihpkmt.  Yes,  my  lord. 

Alt.  Gctt.  The  noxt  wilBcas  that  we  shall 
call  is  Thomas  Bab,  to  shew  lliai  there  was  a 


Thomns  Bai  swdid.  and  deposed  as  before. 

KinneriU<,.    Sir.  di.)  ire  ever  call  for  pen, 
ink  and  paprr  ? — iiab.  No,  Sir,  ncter. 
Mr.  Brooki  aworn,  depoaed  an  befora. 

Kinnerilfy.  There  could  not  be  much  dnn* 
at  night  without  a  candle- 

Broah.  No,  Sir  ;  but  you  had  been  there  a 
considerable  time  belbre. 

Mr.  Wright  Bwom. 

Serj.  WIdiiiker.  Were  you  present,  Sir,  at 
tile  eiiRiiuatian  of  Mr.  Kinnersley  before  air 
Richard  Hopkins?— ll'rifAt.  Yea.Sir. 

Serj.  Wh'lakir.  When  Mr.  Edwards  asked 
him,  whelber  there  had  been  any  dealings  be- 
tween them,  what  did  he  rc|ily  T 

Wright.  He  replied,  that  Uiere  nerer  had 
been  any  dealing  between  them,  and  that  h« 
nerer  bod  WFn  hiiu  till  that  time. 

Serj.  Wfiilaker.  Did  you  obaeive  any  inter- 
ruplion? 

Wright.  Mr.  Kionertley  was  aayioi;,  I  will 
tell  you  all  if  yon  will  give  me  trate.  Hf. 
Milfard  laid  his  hand  opon  him  and  said,  Hold 
your  lonffue,  be  careful  what  vou  say. 

Serj.  WAilakfr.  I  ask  whellier  be'bad  there 
related  any  thing  aa  lo  the  note  now  Id  i)Ueninii 
before  the  Interruption  ? 

Wr^ighl.     He  had   declared  that  that  nnta 

Kintitritey.  I  beg  leave  In  speak,  my  lord. 
Both  sir  Rii-hard  Ifopkins  ami  Ihatgentlemaa 
bnte  made  a  mialnke.  Mr.  Kdwnrd*  asked 
me.  How  olt  have  von  viaited  Mr.  Hat««i» 


875] 


S  GEORGE  11.         Trial  of  Wm.  Hates  and  T.  KinnenUyf         [871 


New|(ftte  ?  Upon  ibis  it  was  ihat  he  said.  Hold 
your  pence. 

Serj.  Wkitaker.  Wbat  was  the  question  that 
was  asked  Mr.  Rionersley,  when  you  say  that 
Mr.  Miifbrd  interposed  ?  ^ 

Wright,  I  cannot  say  what  was  the  ques- 
tion that  was  asked  immediately  before. 

8erj.  Whilaker,  But  you  say,  that  it  was 
af\er  that  Ive  had  denied  this  note  ? 

Wright.  Yes,8ir. 

KinatTM/ey.  J  would  only  ask,  Sir,  whether  sir 
Richard  Hopkins  disired  me  to  hold  my  tongue 
as  well  as  Mr..MiU'ord? 

Judge  Rejfnoldi.  Did  he  hid  Mr.  Kinnersley 
make  no  discovery  f — Wright,  No,  my  lord. 

Kinnerglejjf.  No,  my  lord:  But  he  hade  me 
take  the  gentleman's  advice.  1  appeal  to  sir 
Richard. 

Sir  Richard  Hopkitu,  The  gentleman  hath 
appealed  to  me.  I  take  it  that  the  question  is, 
Whether  I  advised  him  to  take  the  gentleman's 
advice  P  It  would  be  very  strange  that  I  should 
reprove  Mr.  Mitford  for  misbehaviour,  and 
vet  should  at  the  same  time  advise  you  to  take 
nis  advice. 

Wright,  Sir  Richard  asked  Mr.  Bird,  whe- 
ther Mr.  Kinnersley  owned  that  he  knew  of  the 
note  being  indorsed  that  was  in  his  hands  ? 
He  said  that  he  did.  Then  he  was  asked  when 
and  how  he  knew  this  ?  This  was  before  Mr. 
Mitford  interposed. 

Judge  Reynolds.  You  have  appealed  to  sir 
Richard  Hopkins,  that  he  advised  you  to  take 
the  gentleman's  advice.  Sir  Richard  denies 
this. 

Kinnersley,  But  he  cannot  deny  that  he 
said,  Take  your  friend's  advice« 

Mr.  John  March  sworn. 

Serj.  Whitaker.  Were  you  present,  Sir,  at  the 
•xaminatioii  of  Mr.  Kinnersley  before  sir 
Richard  Hopkins  ? — March.  Yes,  Sir. 

Serj.  Whilaker,  Pray,  will  you  give  us  an 
account  of  all  that  past  then*  at*^that  time. 

March.  My  lord,  I  was  nttending  upon  sir 
Richard  Hopkins  as  his  clerk,  when  Mr.  Kin- 
nersley was  broufifht  betoie  him  with  relalion 
to  these  notes.  \Vlien  th«)  tixst  nou?  was  pro- 
duce^l,  he  was  a^iked,  whether  that  note  was  his 
hand- writing  or  mil  ?  To  n  hich  he  answered, 
That  it  was.  When  that  was  gone  ilii*ough, 
the  second  note  was  produced,  being  a  pro- 
missory note  made  in  the  niiinc  of  i^fr.  Ed- 
wards payable  to  Mr.  Kirinerslt-v.  When  that 
note  in  the  name  of  Mr.  Kdwanis  was  produced. 
we  perceived  on  the  back  nf  it  the  naun*  of 
Mr.  Kinneniley  wrote.  Mr.  Kinnersley  having 
denied  this  note,  sir  Richard,  upon  comparing 
the  name  on  the  liack  of  tnis  note,  with  the 
Other  note  which  he  bad  owned  to  be  his  own 
hand-writii?!^,  said  to  him,  *^  1  would  have  you, 
Wr,  consider  very  well  whether  you  did  not 
write  that  too:  tor  it  is  Tery  like  that  wliich 
jrou  have  owned."  Upon  that  Mr.  Alittbrd 
interposed. 

Heru  Wkitmktr.  What  was  it  thai  Mr.  Mit- 
fiinlaMiayf 


March.  Mr.  Mitford  apoD  that  said,  <•  Hr. 
Kinnersley,  1  woubl  not  hare  you  anawrr  that 
question  ;"  or  to  that  purpose. 

Att.  Gen,  Did  sir  Richard  Hopkins  tdfin 
him  to  take  his  friend's  advice  ? 

March.  No,  Sir. 

Alt,  Gen.  Did  he  reprove  Blir.  Mitlord  fit 
interjposing  ? 

March.  Yes,  Sir.  He  desired  him  to  h 
quiet ;  and  told  him  that  he  would  atk  whil» 
ever  questions  were  desired,  but  desired  thatli 
would  not  interrupt.  ' 

Att.  Gen.  Was  his  denying  of  the  Dtli  !•> 
fore  or  after  the  interruption  ? 

March.  He  had  first  intermpted  during  lit 
examination  on  the  Grst  note,  and  he  nfteriiMl 
interposed  during  that  on  the  second  note. 

Alt.  Gen.  Well.  But  I  ask  you  u  toAi 
second  interruption,  whether  it  was  bcfim  • 
after  his  denying  his  hand  ? 

March.  It  was  after. 

Serj.  Eyre.  You  were  saj^ing,  Sh*,  tbttnr 
Richard  bttde  him  recollect  himself,  and  d** 
aider  well  whether  this  was  not  his  hand  tm^ 
for  that  it  was  very  like  that  note  which  IM 
had  owned  to  be  his  own  hand-writing.  Had  wtt 
Mr.  Kinnersley  before  that  said,  that  be  M 
not  sign  that  note  ? — March.  Yes,  Sir. 

Att,  Gm.  We  rest  it  here,  my  lovi,  irf 
leave  the  considemtion  hereof  to  the  jury. 

Mr.  Mather.  1  would  ask,  wbcihcr  Mr. 
Mitford's  advice  was  not  that  he  shoeUl  Itf 
speak  too  fast  ? 

March.  No,  Sir;  it  was  that  he  shonii  at 
answer  to  that  qiicstiun. 

Kinnersley.  They  contradict  one  nnote) 
and  Mr.  Bird  will  swear  ahy  thing. 

3 xk^QG  Reynolds.  You  may  prove  that  ts^ 
his  character  if  you  can ;  but  without  that  yli 
oun:ht  not  to  aver  it. 

Bird.  It  is  well  known,  my  lord,  wbat  Of 
character  is.  1  have  persons  of  good  OfsA 
that  have  known  me  ihLse26  years:  I  but 
never  fu  hi  tied  my  word. 

Mr.  L(u'y,  My  lord,  1  have  nothing  msteriiL 
in  ujy  instructions ;  and  therefore  1  shall  not 
trouble  your  lordship. 

^i:\'y'Eyre.  My  lord,  1  am  counsel  for  Mr. 
Kinnfrstey.  I  admit  that  they  have  profsi 
tiiat  there  wos  an  intimacy  between  them.  It 
is  detrimental  to  niy  client  that  there  was  rack 
an  actjuaintance  when  the  one  was  parishioMr 
formerly  to  the  other,  and  that  this  acquaial^ 
ancc  was  ki^pt  up  to  the  last :  but  it  doth  Ml 
follow  that  they  arc  to  be  coniiiilered  as  onsi 
Jf  Mr.  Hales  be  never  so  gniUy,  it  doth  nSl 
appear  that  Mr.  Kinnersley  is  guilty.  AsM 
this  indictment,  the  charge  is  forginfi^  a  note  h 
the  name  of  Mr.  Kd wards,  and  indorsing  thi 
same.  It  is  admitted  that  Mr.  Kinnersley  kafi 
no  acquaiiitance  with  Mr.  Edwards :  but  ei 
the  otlier  hand  it  is  pretty  pUin,  by  Ike  Cfi^ 
dence  that  hath  been  given,  that  there 
acquaintance  between  Mr.  Edwards  and 
Hales.  They  were  near  neighbonrs: 
Edwards  hath  indulged  him  with  innknfti 
several  years.    Mr.Uakiisaiiiaaimisr 


Jbr  a  Misdemeanor. 

Rr  BUoy  jnn,  bath  bad  a  commia- 
aakniptcj  awarded  ai^inst  him :  It  ia 
ml  lor  attcb  a  perann  to  deal  rather  in 
pmoD'a  name  than  in  hia  own  ;  if 
there  be  an  intimacy  between  Mr. 
i  Mr.  Edwards,  Mr.  Hates  should  ap- 
r.  JSdwarda,  and  he  upon  his  request 
ife  bim  such  a  note,  I  do  not  wonder 
fentleaian  of  character  should  indorse 
ile  ainftied  b^  a  person  of  such  figure. 
^  MCIB  very  unnatural,  that  afler  their 
■iDtance  a  note  pa3'able  to  Mr.  Kin- 
w  trust  for  Mr.  Hales  should  be  in- 
'  Mr.  Kinnersley :  This  may  be  sup- 
ecate,  if  actually  he  did  indorse  the 
do  not  see  why  he  may  not  be  sup- 
easily  imposed  upon  as  the  other  gen  - 
iz.  Mr.  Thrup.  Ji  is  not  so  plain  a 
(that  Mr.  Thrup,  who  is  a  gentleman 
My  could  discern  it.  Why  must  we 
hen  that  Mr.  Kinnersley  roust  dii- 
If  then  Mr.  Hales  is  iruilty  of  the 
it  doth  not  follow  that  Mr.  Kinnersley 
W.  As  to  the  other  point,  it  is  no 
bat  there  should  be  the  name  of  Mr. 
ay  oo  the  back  of  the  note :  Any  that 
rge  a  note  will  not  scruple  to  forge 
MBCOt.  It  is  as  likely  as  possible,  and 
that  would  forge  a  note  in  Mr.  £d- 
mme  for  such  a  sum,  may  be  as  easi- 
aed  to  forge  an  indorsen^nt  on  this 
low  have  tliey  proved  that  it  was  in- 
f  Mr.  Kinnersley  ?  Two  or  three  gen* 
ave  been  produced  as  witnesses,  that 
n  his  hand  several  times,  and  from 
itade  of  the  letters  they  believe  it  to  be 
:  But  there  is  such  evidence  to  be 
f  given  of  one  man's  writing  like  ano- 
It  a  similitude  of  hands  is  not  to  be 
I  at.  It  is  not  to  be  wondered  at  that 
rould  be  guilty  of  forginjif  the  whole 
aid  indorse  it :  VVhtMher  there  is  any 
tin  the  hand  between  the  writin(;s  that 
Q  produced  and  this  note  and  indorse- 
jiit  be  left  to  the  jury. 
lieynoldf.  Have  vou  any  witnesses? 
rs/ry.  I  beg  a  word,  my  lurd. 
Reynolds,  Not  till  we  have  heard  the 
at  the  counsel  say. 

lather.  I  take  notice,  my  lord,  that 
tth  been  a  variance  among  the  wit- 
I  to  what  past  at  bis  examination  he- 
Richard  Hopkins.  The  only  caution 
I  given  him  was,  that  he  should  not  be 
ID  bia  answers,  as  your  lordship  hath 
e)  thought  him  very  rash  in  his  con- 
r.     We  shall  only  call  a  witness  as  to 

Rev.  Mr.  John  Haya  sworn. 
Imtker,    Mr.  Hayes,  please  to  give  my 
the  jury  an  account  what  passed  as  to 
of  1,6M)/. 

•  When  this  note  was  produced  before 
ifd  Hopfcios,  and  shewe<l  to  Mr.  Kin- 
spannewing  him  the  name  on  the 
the  Mtc^  he  abaolutely  denied  it  to  be 


A.D.  1729, 


[278 


Mr.  Mather,  Did  you  hear  Mr.  Mltford  in- 
terrupt ? 

Hayes,  I  remember  that  there  was  a  dispute 
between  sir  Richard  Hopkins  and  Mr.  Miifurd. 
There  were  minutes  taken  of  Mr.  Bird*s  exa- 
mination :  u|>on  the  reading  these  minutes,  Mr. 
Mitford  apprehended  them  not  to  be  riu^htly 
taken  accordiusr  to  the  evidence  that  was  given. 
Upon  this  Mr.  Bird  was  re-examined,  and  then 
there  was  another  question  proposed  concern- 
ing Mr.  Kinnersley's  going  to  Newgate  to 
visit  Mr.  Hales.  'J^hen  Mr.  Mitford  again  in- 
terposed. 

Mr.  Mather,  Was  that  the  reason  of  the 
interruption  ? 

Hayet.  Yes,  Sir,  I  believe  it  was. 

Mr.  Mather,  Was  there  some  other  part  io 
which  he  had  also  interposed  ? 

Hayes,  Yea,  Sir. 

Mr.  Ward  sworn. 

Mr.  Mather.  Sir,  were  yon  present  at  the 
examination  of  Mr.  Kinneraley  before  sir  Rich- 
ard Hopkins? — Ward,  Yes,  Sir. 

Mr.  Mather,  Give  us  an  account  of  the  in- 
terruption by  Mr.  Mitford. 

Ward,  Mr.  Kinnersley  was  examined  as  to 
the  note  of  1,260/. :  Mr.  Kinnersley  being 
examined  aa  to  that,  there  happenc^d  some 
words  t9  pass  between  bim  and  Mr.  Bird: 
after  some  hesitation  and  dispute,  he  having 
acknowledged  that  note,  it  was  put  down  in  the 
minutes.  After  that  he  was  examined  as  to 
this  note  of  1,650/. :  Upon  his  denying  that  it . 
was  his  hand,  Mr.  Kinnersley  was  askeii  some 
question  by  sir  Richard  Hopkins  concerning 
somewhat  that  he  had  formerly  said  ;  where 
upon  he  desired  to  be  exantined  in  the  c(mrt 
of  aldermen.  Mr.  Mittord  hereupon  desired 
him  not  to  desire  this. 

Mr.  Mather,  My  lord,  the  reason  that  we 
bring  this  witness  is  to  shew,  that  he  had  con- 
fessed all  that  he  could  at  that  time,  and  there 
was  no  resison  therefore  for  Mr.  Mitford  to  inter- 
pose for  the  preventing  Mr.  Kiunersley^s  mak- 
ing a  discovery. 

Kinnersley,  My  lord,  when  tliis  note  was 
shelved  me  before  sir  Richard  H(»pkins,  it  was 
the  first  time  tliat  I  ever  saw  it :  I  therefore 
denied  it  to  be  my  hand  ;  hut  l»v  looking  upon 
it  more  closely,  1  own  ihut  it  is  like  my  hrnd. 
Thoui^h  nonv  can  oblige  me  to  s:iy  any  thing, 
I  would  he  ccntent  to  he  examined  ;  and  thf>re- 
fore  have,  though  not  regarded,  stdemnly 
averred  ihat  1  was  not  privy  to  his  getting  of 
that  note  or  money.  As  to  the  ottier  note,  1 
owed  him  at  that  time  the  1,260/. ;  I  gave  him 
that  note  for  it,  and  would  not  uilh  tha*  8(deiri« 
nity  say  that  it  is  not  mine.  He  hath  got  it 
sonte  other  way  indorsed:  Jiut  as  to  ttiis  note 
it  is  not  mv  hand.  Had  !\Ir.  Hales  briMit;ht 
Mr.  £dwards*H  n(»te  to  me,  and  desirinl  me  to 
indorse  it;  though  1  own  that  J  tinnk  that  it 
hath  the  marks  of  forgery,  yet  if  Mr.  Thrup 
and  others  were  imposed  upon,  why  mi«r|it  not 
1  ?  Why  should  I  suspiict  him  more  than 
others  f  I  own  that  I  bad  a  great  contidei;c«  inr 


S79] 


5  GEORGE  II.         Trial  of  Wm.  Hales  and  T.  Kinnersley, 


liim.  SuppouD^  tbis,  will  yon  ooDdemn  me 
for  an  unjust  thing  ?  I  take  God  to  witneM, 
that  I  nefer  set  my  hand  to  that  note,  nor  nefer 
took  any  money.  I  beg  pardon,  I  will  say  one 
word  more :  the  ipentleman  hath  taken  notice 
rightly  that  I  have  spoken  rashly ;  it  if  an  op- 
pression, and  the  wise  man  saith,  that  "  Op- 
pression will  make  a  wise  man  mad,"  which  b 
worse  than  rash. 

Att,  Gen,  My  lord,  be  bath  intimated  that 
tliis  is  an  unjust  and  oppressive  prosecution :  I 
submit  it.    Proper  eTidenoe  hath  been  given, 
and  be  hath  replied  to  it  by  his  counsel.    The 
counsel  suppose,  that  it'  the  whole  note  was  Mr. 
Hales's  hand-writinfift  it  was  Tery  likely  that 
lie  would  not  scrupfe  the  indorsement.    Mr. 
Kinnersley  himself  seems  to  adofit,  that  for 
aught  he  knows  he  might  have  indorsed  snch 
a  note;  but  the  turn  that  he  gives  it  is  this: 
If  such  a  note  was  wrote  in  the  name  of  Mr. 
Edwards  payable  to  him,  he  might  indorse  it, 
being  brought  by  a  creditable  and  nonest  person. 
If  a  note  was  made  payable  to  him  by  a  gentle- 
roan  of  such   figure  and  character,   and  so 
brought  to  him,  be  thinks  that  he  might  indorse 
it,  and  would  ao  have  done :  But  it  is  impos- 
aible  that  it  could  be  fairly  done ;  there  must  be 
something  fraudulent  in  it.    The  evidence  on 
the  side  of  the  king  shews,  that  there  must 
have  been  a  conspiracy  between  these  two  per- 
ions  to  defraud  several  persons :  As  the  other 
note  was,  without  any  colour  for  it,  made  pay- 
able to  Mr.  Edwards,  his  name  being  indorsed 
upon  it,  he  beibg  a  person  of  ability  to  credit 
the  note ;  So  this  second,  on  the  other  hand, 
without  any  foundation  also,  because  no  colour 
of  dealings  between  them,  is  made  in  the  name 
of  Mr.  Edwards,  payable  to  Mr.  Kinnersley, 
and  Mr.  Kinnei-slev  s  name  indorsed.    Why 
sbuuld  Mr.  KiunerBley's  name  be  put  to  it,  but 
only  to  give  a  currency  to  this  note  P  When  a 
note  is  made  payabli^  to  any  person,  it  cannot 
be  negociated  by  any  other  without  his  hand 
being  put  to  it :  His  hand  therefore  was  not  so 
much  to  give  a  credit  to  the  note,  he  being  a 
man  of  no  substance,  as  to  give  a  currency  to 
the  note,  it  being  in  hb  name.    When  that 
appears  to  you,  it  is  (I  think)  sufficient  to  con- 
«moe  yourjud(;nients  tliat  Mr.  Kinnersley  is  a 

gartncr  in  this  forgery,  otherwise  be  would  not 
ave  indorsed  this  note  in  these  circnmstances. 
Serj.  Whitakcr.  My  lunls,  it  is  very  extra- 
ordinary for  a  person  to  pretend  such  a  note 
belonging  to  him,  that  never  had  had  any  deal- 
ings with  Mr.  Eiiwards.  What  proof  hath  he 
given  that  he  did  not  indorse  it  P  What  colour 
IS  there  to  say  that  this  is  a  rash  prosecution  ? 
Kinnersley,  BIy  lord,  1  beg  a  word.  I  say 
not  that  it  is  rash,  as  to  the  whole  prosecution : 
but  I  never  was  privy  to  any  wickedness  in 
this  note,  nor  in  anv  other:  If  I  had,  I  would 
never  have  appeare<f  here  in  my  ^wn.  My  cha- 
racter ought  not  to  exempt  me  if  1  am  guilty ; 
1  ought  to  abstain  from  all  appearance  oif  evil : 
Wlm  I  have  forfeited  that  character,  1  desire 
to  live  no  longer  among  mankind.  I  asked 
Mr. Uaki M what acoaimt I wu  mmtfntfmA 


whether  there  were  any  note  of  mine 
said.  Yes ;  there  was  a  note  of  1,650/.  p^ 
by  Mr.  Edwards.  Is  it  (said  1)  a  true 
Is  it  wrote  by  Mr.  Edwards  P  He  aha 
head  and  said.  Just  as  true  as  the  oth 
asked  him  whether  it  was  indorsed  P  To 
he  replied,  Yes<  Had  I  known,  my  lor 
the  note  was  indorsed,  I  need  not  nave 
Mr.  Hales.  He  b  ready  to  do  me  j 
though  he  must  thereby  take  it  upon  hi 
Your  lordship  knows  that  I  have  no  s^l 
racter  in  Suffolk. 

Judge  Reynoldi.  We  shall  not  neec 
Kinnersley,  to  go  to  Suffolk  for  youi 
racter.* 

Judge  Reynolds.  Gentlemen  of  the 
William  Hales,  late  of  London,  goldsrail 
Thomas  Kinnersley,  clerk,  atami  indict 
forging  a  note  under  the  hand  of  Mr.  £ 
Edwards,  for  1,650/.  payable  within 
months  to  Thomas  Kinnersley,  or  ordei 
the  date  thereof,  for  value  received :  At 
other  part  of  the  indictment  charge th 
with  publishing  the  same.  To  this  indn 
they  have  pletuied  NotGnilty:  The  qi 
you  are  now  to  determine.  Gentleiiie 
foundation  of  this  which  bath  been  insii 
by  the  counsel  on  the  aide  of  the  prose 
is,  tliat  these  gentlemen,  or  rather  the 
them,  Mr.  Hales,  having  an  acquaintanc 
Mr.  Edwards,  and  being  indulged  by  hi 
liberty  of  applying  to  him  for  franks,  the 
made  a  wrong  use  of  this,  and  by  con« 

*  In  Trinity  term  5  Geo.  there  was 
fonnation  against  this  Mr.  Kinnersley  a 
Moore,  as  being  evil-disposed  persons,  ii 
to  extort  money  from  my  lord  Sunder laj 
conspire  together  to  charge  my  lord  w: 
deavouringto  commit  sodomy  with  th 
Moore;  and  that  in  execution  of  tbi 
spiracy,  they  did,  in  the  presence  and  h 
of  several  persons,  falsely  and  malicioui 
cuse  my  lord,  that  he  '*  conatus  fnit  r\ 
neream  habere*'  with  the  defendant  Moa 
so  to  commit  sodomy.  Kinnersley  oi 
peared,  aud  pleads  to  iasue,  and  is  found  | 
and  several  exceptions  were  taken  in  ai 
iudgment,  see  Strangers  Reports,  vol.  1, 
but  the  Court  over- ruled  them  all.  Whe 
judgment  was  given  for  the  king,  and 
wards  the  Court  proceeded  to  sentenc 
told  the  defendant  Kinnersley,  nothing  ! 
being  a  clergyman  protected  him  from 
poral  punishment ;  they  fined  him  50* 
year's  imprisonment,  and  to  God  surei 
his  good  behaviour  for  seven  years.  In 
term,  5  Geo.  Moore  Wax  convicted  an 
tenced  to  stand  in  the  pillory,  suffer  a 
imprisonment,  and  to  nnd  sureties  lor 
years.  And  this  term,  Kinnersley,  o 
davits  of  his  being  indisposed,  moved  the 
that  lie  might  be  admitted  to  the  bene6t 
rules.  Sed  per  Curiam,  we  never  do  it  tor 
execution,  which  diflSera  from  the  case  of 
SOD  oommittad  for  hisb  treason,  who  bav 
bailed  00  account  of  iUoess.  lb.  I96.1bni 


'  a  M'ademtanor. 
«  if  ttiE  \eatn  tf  ih»  word  ■  fTree'  ioin 
•In  tlx^."  uiil  hy  trtiliog  aome  flilier  worJs, 
tejr  k>Tc  DOW  iDrmril  il  mlo  a  nrgociable  note 
fir  lb*  ntm  «f  l.USU/.  jiiynble  williiti  six 
■Mih*  M  Mr.  KliuierKle;,  or  hin  order;  And 
Aw  Mr.  KiBDcntkf ,  tn  ^rs  a  circiiUtion  tti 
feaaic,  and  make  il  ntfgociable,  baih,  la  cam ' 
tMBWB  wtib  Mr.  U>Ifb,  iDdaneil  bis  nsme- 
M*.  Uaar^*  \»  mpontitile  lo  any  body  lo 
«tMi  4W  wote  »  trinKferrtil  oTtr.  Genlle- 
■■.IKMakraul  ihlstoWtliecBSe,  they  tiave 
fttiMbsrouml  In  «liew  ihal  Mr.  Hale*,  fat 
mmi  liBF,  on  Mfml  preteoces,  prorared  a 
■ahir  *f  aaptrscTiptiftiiB  to  be  writleo  for 
taht  l>r  !llr.  Edwania,  who  is  a  niember  of 
fHfaMst,  and  particularly  (ome  auppnciip- 
tfiMiniMcli  circuroslaucea  as  were  moat  ac- 
■^iMadaWd  lo  aer*e  a  dmign  of  ihia  oature. 
iii  M  tU*  end  they  h»i>e  produced  Thomas 
■iMr,  ■  Mrrtaul  of  Mr.  Edwards's.  He 
■ilh,  Ihu  Ur.  lUIes,  lirina  near  Mr.  Ed- 
■«4a  in  Dulcc-sireei,  in  WeKtminater,  haili 
mtntA  than  applied  lo  him  for  frank  Fo?er8  to 
«ari  MWK  into  the  cuuntry:  thai  Mr.  Ed- 
««<i«  kaitt  PITCH  iiim  seTeial  for  thai  purpose, 
htf  ft  n  Si  ally  wrote  the  whole  sujiertcriptioii 
Vi^BiC  iHirmaiit  tu  the  directions  that  were 
piM  him:  that  In  July  Um  there  came  a 
■MMlsf  fVaak*.  SIX  of  them,  wlimruftive  have 
M  fnduced,  lo  be  franbed,  but  without  any 
Acoan  In  irboBi  to  vuperacribe  them.  Mr. 
IIbbi4«  *«i  dein«d  lo  frank  tbem  wilhont 
mn  MtpKncrijitiori :  Mr.  Edwards  refuseil  lo 
nifc  iMoi.  Hiiinis  directed  to  wbum  lo  aupn- 
■ntellMm:  Thu«  Iheaecoters,  upon  thai, 
WMaal  dooeal  ibal  lime.  But  ihea  lo  shew 
Ml  «lwl  pMt  aflerwards  llpnn  occnslnu  of 
iHhbitks  >cul  la  he  frinked,  Anoe  Clarke, 
a  Mrtanl  alau  lu  Mr.  Edwards  was  callad. 
ikMh,  Ihal  sometime aAerlbii,  Mr.  Hales's 
^iMH  cam*  a^in  ov«r  lu  Mr.  Edwards's 
blow,  and  told  her  that  Mr.  EdiranU  having 
i<— d  to  frank  his  master'^  cuiers  williout 
Wfamptiona,  \\*  had  bronghl  from  his  master 
■  faftrwf  ihtectiuns  what  aupvncriplions  he 
4Mr«d  Mr.  Bilwards  to  ]iut  lo  tbem.  Tlial 
■tpst  a(  dirrctions  hath  been  produced,  and 
Llh  hern  ■*>«!■  hy  Mr.  tloolh  to  be  Mr. 
tLt^mma  lnDd-wriiiii|r.  Tbey  trcre  very 
Ann  dvidfOna . 

T«o  In  Mr.  Lt'Tell,  of  HuDtiaston. 

TwawJohu  I'mli,  eMi.At  Bristol. 

T»a  Iwiftffeti  Mitford,  owj,  I^eler, 
iad  Ibey  miubl  inlvr,  lltit  as  ihese  superscrin- 
tma  wrra  icry  abort,  and  W  won' )  not  tsRC 
^■ucli  rfMim,  a  Tactnl  upace  would  liavcheen 
Maad-JEDI  tn  trritc  any  tiling  of  this  nniure, 
1\M  ■■  ri>«  maun  of  Ibeir  pradneJne  an  accounl 
'*'*  ~  icrioii,  which  dolh  nut  immtidiately 

uae.bntnnlv  at  they  areinclinahfe 
tt  (ome  such  IVank  may  hsTebcm 
Wfc  «*e  at  lo  anrh  «n  end  as  tbrsr  seem  lo 
iMahnrndengnnl  for.  And  thi-n,loBhewynu 
fciaa  which  tlivy  m^de  herrof,  tbc  note  [i 


"Iprflmiaelu  pay  in  Mr.  Thomas  Kiiuers. 
ley,  or  his  order,  withio  six  monihg  at\er  data, 
ibe  sum  of  siiteeo  hundred  and  fifty  pounda 
lor  ibe  tbIub  recalled, 

"  Marck'-iO,  17S8.  Sahdel  EDWaaw." 
and  on  Ibe  bark  il  is  indot«ed  with  the  oanie, 
Thomas  Kinnersley.  Gentlemen,  they  have 
insisted  upon  it  ihal  Ihe  neie  itsvlf  carries  the 
evident  marks  of  forgery  upon  il.  They  say 
ihnt  this  it  so  plainly  derived  from  Ibe  I'lanK 
cover  of  a  letter,  thai  Ibe  word  '  (Tree'  Is  not 
wholly  covered,  but  thul  still  some  of  il  ap- 
pean ;  thai  llie  stile  is  oniisDEd  '  for  llie  ralue 
received.'  '  The'  in  a  lar^je  hand,  and  then  af- 
terwards ■  value  received,'  the  u  of  a  round 
hand,  wliereas  all  Ihe  other  ee  me  of  a  ijuile 
diHerent  figure,  in  a  secretary  band.  Olher 
obsertaliont  they  have  also  made,  which  you, 
thsi  have  rieweo  the  note,  can  easily  jud^e  of. 


for  that  purpnie  they  have  produced  Mr.  Charl- 
ton Tbrup.  He  sailli,  that  on  May  92d  ta>tthit 
defendant,  Mr.  Hates,  brciii{;hl  this  note  to  him, 
deiirio^  bim  to  tend  him  three  boul.  notes  npoit 
il;  thai  he,  not  caring;  tn  have  bis  credit  en- 
gaged lo  lucb  a  decree,  refused  to  do  il;  bnt 
upon  bis  imporlUDity,  did  at  last  consent  to 
give  bim  a  promissory  note  of  400/.  upon  ihe 
security  of  Ibis  note,  whieh  Mr.  Hales  there- 
upon then  de|>osiled  in  bit  hands  ;  thnt  il  waa 
a  note  for  1,850/.  aipied  by  Mi.  Edxards, 
payable  to  Kinnersley,  and  indorsed.  Ha 
Bsith,  indt'ed,  that  be  did  not  Iticn  observe  the 
indortemeaL  Seeing  this  noie  signed  with 
Mr.  Edwards's  hand,  and  knowing  him  to  be  a 
mtn  of  ffr«ai  sufficiency,  he  was  not  to  atien- 
live  lo  tlte  other.  He  sailh,  that  be  kept  lliia 
note  in  his  band  till  alter  that  Mr.  Hales  waa 
taken  up,  aitd  then  he  delivered  it  hy  Iha  dire«> 
lion  of  Mr.  Edwards  loMr.  Boolh;  ihalbefora 
It  vent  out  of  bis  hands,  he  observed  the  in- 
dorsement. Hesweui'salgo,  thalil  received  no 
alteration  in  the  mtermedl ale  space  between  ita 
coming  into  his  hands  and  its  going  out :  it 
most  be  therefore  iudorsed  before.  He  sailb, 
that  at  to  his  own  note,  he  knnweth  not  what  is 
cume  of  it,  but  believes  I  but  il  is  in  the  hands  of 
Mr.  Maddoi,  at  the  Bank.  To  shew  that  this 
is  a  forircd  nole  they  bafe  called  Mr.  Spicer, 
who  halh  been  above  twenty  years  conoerned 
for  Mr.  Edwards  ;  ahout  ten  ur  twelve  as  his 
clerk.  He  sailb  Ihat  the  name  it  Mr.  Ed- 
wards's, and  that  the  ff  is  also  liis  ;  that  il  ia 
bis  roaster's  conttani  custom,  when  be  franha 
a  letter,  to  write  Ibe  word '  fTree.'and  ual  *  frank' 
over  his  name,  in  ihe  manner  wherein  ihis 
orig:inally  stood,  and  tbul  always  with  a  ff.  He 
aaitb,  Ihat  he  likewise  thinks  that  the  r  is  hit 
master'*  hand-writing,  hut  that  the  o  is  since 
crowdeil  in  bclween  Ihose  lettert.  He  thinks 
that  there  are  plain  footstrtis,  which ahew  Ihat 
the  first  of  ibe  Iwo  ce  wiilch  joined  lo  form 
the  woid'  ITree,'  hath  been  made  use  of  lofi>rui 
the  hrvt  ^rl  of  the  heuit  of  lliey,  and  the  other 
stroke  bein^dratrD  between  tlAf  and  the  other 


983] 


S  GEORGE  II.         Trial  of  Wm.  Hales  and  T*  KinnerHey^         [281 


tf  j  it  forms  the  word^'^  but  then  it  doth  not  stand 
at  usual  ofer  the  y.  And  then  be  observes, 
that  he  the  rather  believes  this  to  be  his  mas- 
ter's f,  for  that  he  always  writes  such  an  baud, 
and  all  the  rest  here  are  in  quite  another  hand. 
And  he  saith,  that  he  believes,  that  beioff  ac- 
quainted with  his  master's  aflfairs,  he  should 
have  known  of  it,  if  that  there  had  been  any 
such  transaction  of  his  master's,  and  that  this 
note  too  is  of  a  quite  different  form  from  any 
that  his  master  ever  delivered,  and  in  a  manner 
therein  his  master  doth  not  usually  transact 
his  affairs :  for  that,  as  he  is  a  man  of  fi^reat 
credit,  he  never  knew  him  give  a  note  for  time  ; 
and  in  the  next  place  he  is  so  very  cautious  that 
he  never  knew  him  give  a  note  but  that  he  wrote 
the  whole  body  of  it  with  his  own  hand,  whereas 
the  body  of  this  note  is  not  his  own  hand,  and 
therefore  contrary  to  the  method  that  he  usually 
observes.  Thus  far  the  evidence  is  product, 
in  order  to  charge  Mr.  Hales,  one  of  the  de- 
fendants :  but  tlien  in  order  to  prove  Mr.  Kin- 
nersley  a  partner  in  this  transaction,  they  have 
afterwards  observed  upon  the  indorsement  that 
this  note  beinnjr  made  payable  to  Mr.  Kinuersle}', 
it  could  be  of  no  use  tilliudorsed  by  him  to  ^ive 
it  a  curreiicv.  They  have  shewed  the  hand 
upon  the  hack,  and  in  order  to  prove  his  name 
wrote  there  to  be  his  hand,  as  in  cases  of  this 
nature  noihin<^  but  an  observation  of  the  simili- 
tude of  hands  can  be  expected,  they  have  called 
on  those  that  have  seen  his  hand,  to  give  their 
o|)inion  thereof.  The  first  man  expresseth 
himself  with  a  great  deal  of  caution,  seeming  to 
apprehend  ut  hrst  that  he  was  called  to  swear 

{)ositIvely  that  it  was  his  liand :  he  saith,  that 
le  hath  seen  him  write  several  times,  particu- 
larly at  least  three  or  four  times  the  last  year  ; 
that  tills  is  so  like  that  he  verily  Mieves  this  to 
be  hi;!  hand,  and  cannot  alter  Lis  judgment  as 
ixi  it.  To  the  same  purpose  they  have  also 
produced  another  person,  one  Mr.  John  Lin- 
coln: he  saith,  that  he  hath  seen  him  urite 
several  times,  and  put  his  name  to  receipts  in  a 
book  :  and  that  he  cannot  believe  but  that  this 
is  his  hand- writing.  Some  of  you  having  de- 
sired to  see  and  compare  with  this  note  the  other 
note  which  was  formerly  proved,  it  hath  been 
again  proved ;  and  as  the  person  aforemention- 
ed jiroduced  several  receipts  which  he  saw  him 
write,  you  have  had  them  also  to  look  upon : 
which  how  far  it  will  help  you  in  forming  a 
judgment  you  are  to  judge.  Further,  they 
say,  that  Mr.  Kinnersley  was  a  stranger  to,  and 
had  no  transactions  with  Mr.  Edwards.  They 
have  called  several  persons  that  were  present  at 
the  examination  of  Mr.  Kinnersley  before  sir 
Richard  Hopkins,  as  well  as  sir  Richard  hini- 
lelf,  who  all  say  that  Mr.  Kinnersley  himself 
owned  this,  and  wasgoin^  to  say  something 
further,  bad  he  not  l)een  mterrupted  by  Mr. 
Mitford.  8ir  Richard  Hopkins  hath  been  pro- 
duced. He  saith,  that  in  the  latter  end  of  Sep- 
tember last,  Mr.  Kinnersley  was  brought  before 
him,  charge<i  with  two  notes,  tiz.  one  of  1,260/. 
and  this  note  of  1,650/. ;  that  they  entered  into 
the  eTtminatioQ  of  the  fint  notei  which  he 


I  owned  very  frankly  to  be  his  note,  written  with 
his  own  hand ;  that  they  then  entered  upoo  the 
other  note,  which  he  verily  believes  to  be  tb# 
same  that  bath  been  here  produced ;  that  BIr. 
Kinnersley  having  denied  this  indoraemeDt  to 
be  his  hand,  he  desired  him  to  recollect  whether 
this  indorsement  was  not  his  hand  too,  for  that 
he  observed  a  very  great  likeness  of  the  hand 
between  that  and  the  note  which  he  had  owned 
to  be  his  hand- writing,  and  delivered  the  note  ID 
the  defendant  Kinnersley  to  look  u|Km ;  that 
upon  this  Mr.  Mitford  came  up  to  him,  and 
said,  '  Answer  nothing :  this  is  not  your  band- 
writing.'  He  saith,  that  upon  thii  Mr. 
Kinnersley  said  the  same  thing,  that  this  ww 
not  his  hand- writing.  He  saith,  tiiat  be  asM 
him,  w  hether  he  had  had  any  dealings  with 
Mr.  Edwards  P  That  he  replied  that  he  had  not, 
and  that  till  this  time  he  was  an  utter  stranfff 
to  his  person.  He  saith,  that  Mr.  Mitford  and 
he  baa  some  high  words  upon  this  occasn^ 
he  reproving  him  for  interposing  when  he  ap» 
prehended  that  a  further  discovery  might  have 
been  made.  They  next  endeavour  to  shevi 
that  there  was  a  correspondence  carried  on  in 
a  private  manner  between  the  two  defendaniL 
In  order  to  shew  this,  they  have  pitKlueed 
several  persons  at  whose  housesihey  have  mrt: 
one  of  them  is  Thomas  Bab ;  he  saith  that  he 
keeps  Peel's  coffee  •  house,  in  Fle«*t-street ;  thai 
the  latter  end  of  Inst  summer  Mr.  Ualee  very 
frequently  came  thither,  and  would  sometimes 
be  there  for  an  hour  or  two ;  that  he  oAsn 
asked  whether  the  minister  l\ad  been  thereto 
ask  for  him,  not  asking  fur  Mr.  Kinnersley  by 
name,  they  knowing  whom  he  meant,  haviDg 
often  seen  them  there  together ;  that  when  Mr. 
Kinnersley  came  in,  they  useil  to  retire  into  a 
private  room,  and  stay  there  together  for  some 
time;  that  one  time  Mr.  Hales  observed  Mr. 
Kinnersley  t^oing  down  Fleet-street,  went  out 
and  went  after  him  ;  that  sometimes  they  went 
away  together,  sometimes  asunder ;  some- 
times one  went  out  at  the  one  door  into  Fleet- 
street,  and  the  other  at  the  other  into  the  |>as* 
sage  to  Fetter- lane.  He  saith,  that  this  their 
resort  to  his  house  was  till  about  a  mouth  be- 
fore that  Mr.  Hales  was  taken  up,  and  was 
then  discontinued.  Mr.  Kinnersley  asking 
him,  whether  ihey  ever  called  for  pen,  ink  and 
paper .^  To  this  he  rejdiei,  No.  Of  the  same 
nature  is  the  evidence  oC  Thomas  Brooks  ;  be 
saith,  that  he  keeps  a  coffee-house  at  Downingn 
street,  in  Westminster;  that  Mr.  Kinnersley 
used  to  come  to  his  house,  send  for  a  porter, 
and  give  him  a  note  to  Mr.  Hales,  who  there- 
upon hath  come  thither  to  him,  and  they  have 
gone  together  by  themselves  to  the  t'urtlier  end 
of  the  room  ;  that  this  they  did  several  times, 
and  stayed  together  sometimes  several  houn. 
He  saith,  that  once  particularly  they  staid 
there  till  it  was  so  dark  that  he  usked  his  ser- 
vant why  he  had  not  carrieil  the  gentlemen  • 
candle;  who  said  that  he  had  carried  them  one, 
but  they  refused  it.  Gentlemen,  they  havn 
then  again  had  resort  to  the  examinatk>n  before 
sir  Richard  Hopkins:    Ihey  have, as  tothii^. 


W] 


Jit  a  Misdemeanor. 


A.  D.  1729. 


[286 


caned  Mr.  Wrigflit.    He  saith,  that  he  was 
pfcacnt  mt  that  eiamination;    and  that  Mr. 
KkuMralcy,  beiajg^  pressed  to  answer  several 
^acstioiis  pat  to  him,  was  in  some  emotion,  and 
■■ii,  I  will  tell  you  all,  give  me  leave ;  seeming^ 
Mms  to  take  time  to  digest  his  thoughts : 
ihiitlicnoiie  Mr.  Blitfbrd  came  up  to  him,  and 
Mttan  bold  his  tongue,  or  he  would  do  him- 
ariff  SMe  miachief,  or  words  to  that  effect. 
Bt  Mag  examined  as  to  some  particulars 
te  Mr.  Kinneraley  affirmed  to  have  passed 
fttfamitr  Richard  Hopkins  and  Mr.  Mitford, 
■tflkalnr  Richard  advised  him  to  take  his 
fiind^  advice,  he  denietb  this,  as  doth  also  sir 
lakwd  Hepkins  himself,  to  whom  Mr.  Kin- 
BCfriej  hereupon  appealed.    He  saith,  that  he 
tUakstkat  thn  interruption  waa  afVer  that  hav- 
iagowMd  the  other  note  to  be  his  hand  -writing, 
ka  kad  deaie<l  this  indorsement  to    be  his, 
air  Richard  thought  it  before,  and  de- 
to  pvevent  his  answering  him  on  that 
Tmt  have  also  pNroduced  Mr.  March, 
liiBr  I&chard  Hopkins's  clerk:  he  gives 
M  oineb  the  same  account.    He  saith,  that 
Mr.  KiBMrslejf  having  owned  the  other  note, 
~  ~    ~  ~  this  indorsement  to  be  his  hand,  sir 
serving  the  likeness  of  the  hand,  ad- 
to  recollect  himself,  and  consider 
vkctber  that  indorsement  was  not  liTs 
I  ISO  as  well  as  the  other  note,  for  that  the 
bwete  very  like;  that  Mr.  Mitford  upon 
■Herpoacd,  and  said,  *  1  would  have  you 
and   not  answer  that  question.'    He 
MB  that  air  Richard  advised  Mr.  Kinnersley 
makehia  friend'a  advice ;  but  on  the  contrary 
■ilh,  that  sir  Richard  was  a  little  warm  and 
hfiikiufleil  him  for  his  iuterposiiiGf,  as  being 
as  iaferrupliun  of  justice.    Tlii*}  is  the  evidence 
Ifcstteth  been  laid  before  you  as  to  this  note, 
kaft  lo  prove  the  forgery  uV  this  note,  and  to 
Aew  Ike  nse  that  was  made  of  it  both  by  Mr. 
Hales  and  Mr.    Kinnersley,  who  is  charged 
with  the  indorsing  this  note  in  order  to  make  it 
carreai.    They  are  called  upon  to  make  their 
(Itfeoce:    Mr.   Hales  stands  mute,  and  saith 
BOCLiDg.    The  facts  bear>ery  hard  upon  him, 
kt  being  supposed  to  procure  these  franks :    it 
Uioicd  him  therefore  to  give  some  account 
kav  be  came  by  this  note.    So  as  to  that  I  ap- 
prehend that  there  is  no  litfficulty,  Mr.  Hales 
BiUag  no  defence.     Bui  the  question  is.  How 
fu  Mr.  Kinneraley  is  proved  to  be  concerned  ? 
liis  counsel  have  endeavoured  to  sol\en  the 
fvirfenee,  or  make  it  not  applicable  to  Mr.  Kin- 
Doiley.    They  own  that  there  was  a  fami- 
liarity between  him  and  3Ir.  Hales:   but  then 
tktjr'aiy ,  that  there  was  also  a  familiarity  be- 
tween Mr.  Hales  and  Mr.  Edwards :   they  say 
teefore,  that  familiarity  with  Mr.  Hales  is  not 
anrimina]  tbinzf.     In  itself  it  is  not:   but  the 
fSHAioa  ia,  whether  a  criiiiinal  use  hath  Item 
■ide  of  it  ?  They  suppose  it  to  be  a  forged  iu- 
IVBement;  but  say,  that  the  same  person  that 
fcvgfd  the DOtemight  alsoforge the  indorsement : 
■ad  tbey  aay,  that  suppokiog  it  to  be  Mr.  Kin- 
Mslaj^  hand- writing,  it  may  be  well  supposed 
^^"^^  "impowd  upon.  And  they  would 


also  have  it  believed,  that  this  is  an  usual  thing 
for  one  person  to  indorse  another's  notes  among 
common  acquaintance.  But  how  were  they 
common  acquaintance,  when  Mr.  Kinnersley 
hath  acknowledgeil  that  he  had  never  seen  Mr. 
Edwards  in  his  life  till  afler  tbisf  They  say^ 
that  it  may  be  the  easier  supposed  that  Mr. 
Kinnersley  did  thus  give  credit  to  this  as  a  true 
note,  and  not  take  it  to  be  a  forgery,  since  Mr. 
Thrup,  who  is  a  man  in  business,  was  imposed 
u|M)n  by  it,  and  lent  400/.  upon  it.  Tbey  have 
called  al^o  aome  evidence,  not  directly  to  con* 
trovert  the  fact,  but  to  contradict  some  thii^ 
given  in  evidence,  relating  to  the  examination 
taken  before  sir  Richard  Hopkins.  To  tliia 
purpose  they  have  called  Mr.  John-Hayes.  He 
saith,  that  whether  this  indoraemeiit  was  bia 
writing  was  not  the  question  proposed  to  Mr. 
Kinnersley,  when  Mr.  Mitford  interposed,  he 
having  before  denied  that ;  but  that  there  waa 
another  question,  that  waa  then  proposed  to 
him  to  answer ;  whether  and  how  often  he  had 
been  to  visit  Mr.  Hales  in  Newgate  P  And  he 
saith,  that  as  to  that  it  was  that  Mr.  Mitford 
interposed,  and  advised  him  not  to  anawer  to 
that  question.  They  have  called  also  Mr. 
Ward,  who  was  present  at  the  same  time,  and 
gives  you  much  the  same  account.  He  ap- 
prehends that  there  was  a  dispute  about  the 
minutes  that  were  taken  of  what  had  passed, 
and  that  Mr.  Kinnersley  was  in  a  passion,  and 
desired  to  be  examined  in  the  court  of  aiders 
meu ;  and  that  then  Mr.  Mitford  interposed, 
and  advised  him  not  to  desire  this  \  that  the  in- 
terruption was  upon  that  extravagant  offer  of 
his,  and  that  upon  that  possibly  sir  Richard 
might  advise  hira  to  take  his  Irieud's  advice, 
that  is,  to  be  clear  and  not  so  rash  in  answer- 
ing the  Questions  put  to  him.  Mr.  Kinnersley 
himself  hath  laid  Wore  you  what  he  thought 
proper.  The  witnesses  that  were  called  (you 
have  doubtless  observed)  as  to  that  examma- 
tion,  both  of  them  say,  that  he  had  denied  it 
before  the  interposure.  Mr.  Kinnersley  speaks 
himself  and  seems  to  say,  that  he  doth  not 
know  but  that  it  may  be  his  hand,  though  how 
it  came  to  be  obtained  he  cannot  well  tell.  In- 
deed it  is  an  extraordinary  thing  how  his  name 
should  be  obtained  on  the  back  of  a  note  signed 
by  Mr.  Edwards.  Gentlemen,  if  any  other 
particulars,  material  for  their  defence,  have 
slipped  me,  you  have  heard  them,  and  they 
oii'jrht  to  have  their  weight.  The  question  is, 
Whether  and  how  far  he  is  a  party  in  this 
transactiou  ?  If  he  be  a  party,  thoujjh  he  doth 
but  the  one  part,  he  is  cquall  v  gudty :  every 
man  that  takes  part  of  these  things  is  equally 
guilty  of  the  whole,  and  stands  undefended.* 
The  note  then  must  be  taken  for  a  forged  note, 
and  probably  in  the  manner  that  they  have 
shewn.  The  thing  in  question  is.  How  far 
Mr.  Kinnersley  is  concernc<l  ?  The  name  Kin- 
nersley, you  see,  is  upon  it :  if  his  name  bail 
not  been  upon  it,  the  note  had  been  of  no  avail  ; 
for  there  bavin;;  been  no  transactions  between 

*  Sou  East^s  PI,  of  the  Cr.  c.  19,  §  59. 


SS7J 


3  GEORGE  II. 


Trial  of  WiUiamHaUSf 


[888 


them,  lie  could  not  have  deminiled  the  monej. 
Bat  the  maia  bitsinem  was  to  indorse  it,  that 
other  peraonf  that  knew  not  but  there  vaig\xX 
have  been  such  transactions  between  them, 
might  credit  it,  and  lend  money  uiion  it.  Whe- 
ther the  proof  that  is  given  you  that  tliis  is  his 
hand,  couoUmI  with  his  own  apprehension  that 
it  is  very  like  his  hand,  will  satisfy  you  of  it, 

2 on  must  judge.  If  ^ou  judge  that  it  is  his 
and,  the  next  Question  before  you  will  be, 
bow  far  it  couM  oe  put  to  a  note  of  Mr.  Ed- 
wards's? It  is  plain  that  there  could  be  no 
foundation  for  it :  if  then  you  think  it  satis* 
fhctorily  proved  that  bis  hand  was  put  on  the 
bac^  ot  this  paper  by  hira,  knowing  it  to  be  a 
note  of  such  value,  and  there  be  no  reason 
given  you  for  it,  you  must  look  on  him  as  a 
party ;  but  if  you  suppose  it  put  to  the  back  of 
Ibe  note  without  his  privity,  in  that  view  of  the 
thing  yoa  must  acquit  him. 

Jury  called  over. 

Clerk.    Are  yon  all  agreed  in  your  verdict  F 

Jury.    Agreed. 

Ckrk,    Who  shall  speak  for  yoB  ? 

Jury,    Our  foreman. 

Clerk,  How  say  you?  Is  William  Hales 
Guilty  of  the  misdemeanor  wherewith  he  stanils 
charged,  in  forging  a  note  for  1,650/.  tod  in- 
iloruug  the  same,  and  in  publishing  the  same 
as  a  true  note  and  indorsement,  knowing  it  to 
ba  so  forged  and  counterfeited,  or  Not  Guilty  P 

Foreman.    Guilty. 

Clerk.  How  say  you,  Is  Tliomai  Kinners- 
ley,  &c. 

Fweman.    Guilty. 


Mr.  Strange,  My  lord,  we  desire  that  Mr. 
Kinnersley  may  be  now  committed. 

Judge  "Rtynoldi,  Whence  was  he  brougfal 
hither  P 

Mr.  Strange.    From  the  Compter. 

Judge  Reynolds.  Well,  now  that  be  ii  co» 
victed,  he  must  l»e  committed. 

Kinnenley.     Whither,  my  lord? 

Judge  R^^lds.    To  Newgate. 

Kinnersley,  But,  my  lord,  there  arc  tm 
writs  against  me  which  fix  me  to  the  Gomplv. 

Judge  Reynolds.  They  will  follow  yea 
doubtless  to  Newgate. 

Kinnersley.  But,  my  lord,  the  order  of  Iba 
lord  ehiefjustice  was,  that  I  shoukl  he  oaa* 
mitted  to  the  Compter  till  discharged. 

Judge  Reynolds,  Your  being  ordered  Id 
Newgate,  is  a  discbarge  from  the  Compter. 

Kinnersley.  I  bless  God  that  I  go  back  ui- 
nocent  of  the  charge  against  me. 

Judge  Reynolds.  Jf  yon  do  in  your  om 
apprehension,  it  is  not  so  in  the  appeebenain 
of  the  jury. 

Kinnersley.  My  lord,  I  thought  I  bai 
cleared  that  matter.  If  Mr.  Hales  bad  broogbl 
me  that  note  to  sign,  I  believe  that  I  ahnlA 
have  signed  it:  hut  I  should  not  have  done  il^ 
if  1  had  known  that  Mr.  Edwards's  nuDe  wn 
fraudulently  obtained  to  it.  May  I  oever  sea 
the  faoe  of  Almighty  God,  if  1  was  ever  privTlt 
any  of  Mr.Hales'sfoigerieB!  IfyoarlMdnip 
please  to  direct  me  to  Newgate,  I  derirnll 
may  be  immediately,  for  I  am  ill,  bavug  baa 
here  so  long. 

Judge  Reynolds.  It  will  be  preaentlj,  fti 
the  Court  is  going  to  aiyocirn. 


477.  The  Trial  of  Wilmam  Hales,*  for  frauduleatly  forging  and 
counterfeiting  a  Writing,  purporting  to  be  a  Promissory  Note 
of  Samuel  Echrards,  esq.  to  Samuel  Lee,  for  Four  Thousand 
Seven  Hundred  Pounds:  3  Glorgg:  II.  a.  d.  1729. 


The  Jury  called  over  aud  sworn. 

Clerk.  0Y£Z,  Oyez.  If  ^y  one  can 
inform,  dec. 

Imdictmbnt. 

Gentlemenof  the  Jury,  William  Hales  stands 
indicted  by  the  name  ol  William  Hales,  of  Lon- 
don, late  goldsmith  ;  for  that  on  the  1st  day  of 
August,  m  the  8d  year  of  bis  majesty's  reign, 
be  did  fraudulently  forge  and  counterfeit  a 
writing,  purportinfjp  to  be  a  promissory  note,  in 
these  woiils  followmg, 

«  March  30,  1788. 
"  Six  months  after  date,  1  promise  to  pay  to 
Samuel  Lee,  or  hb  order,  the  sum  of  four  thou- 
aaod  seten  hundred  pounds,  for  y«  value  re- 
eeifed,  Samubl  Edwards." 

*  See  Ibe  prwedug  CaaasL 


and  that  he  did  knowingly  and  wittingly  pobUab 
the  same  as  a  true  note,  knowing  the  same  to 
be  so  forged  and  counterfeited. 

9/lr.  Strange.  May  it  please  your  kwdabip, 
and  you  gentlemen  of  the  jury,  this  is  an  in- 
dictment ag^nst  Nr.  William  Hales,  for  forg- 
ing a  note  in  the  name  of  Samuel  Edwam, 
esq.  and  publishing  the  same.  It  sets  forth, 
that  on  the  iRt  of  August,  in  the  2d  year  of  bin 
majesty's  reign,  he  forged  a  note  in  these  H'Onta 
following,  &c. 

And  it  further  sets  forth,  that  the  defenihmt 

Kublished  the  said  forged  note  as  a  true  note  of 
ir.  Edwards's,  knowiug  the  same  to  be  forged 
and  couutcrfHted. 

Sen.  Whitaker.  May  it  please  your  lord- 
ship,  1  am  counsel' in  this  cause  for  the  king. 
Gentlemen,  this  matter  is  of  the  same  naturo 
with  some  former  indictments :  I  shall  there- 
fiwe  take  up  but  little  of  yoor  line.    It 


8S9]  Jor  a  Misdemeanor.  A.  D.  1729.  [S90 

pnrt,  gratlanen,  to  ns,  that  this  is  the  effect  should  rome  upon  yon  for  the  affirminc^  of  thii 

nf  ftinie  firmnk  ooTers,  that  Mr.   Hales  hath  jiid<rineiit.    Upon  this  sir  Diby  Lake  was  io- 

frudalditly  obtained  of  Mr.  Edwards.     1  need  diiced  to  be  his  sccurir v ;  thus  he  came  to  haVe 

Ml  DOW  acquaint  you,  that  Mr.  Edwards  did  this  note  delivered  to  him.    Gentlemen,  when 

ht  some  time  induliire  Mr.  Hales  with  frank  we  shew  you,  as  we  must,  it  bciii^  afresh  case, 

coTcn,  which  Mr.  Ilalea  pretended  that  they  how  he  bad  fVanks  from  Mr.  Edwards,  theme- 

vere  lioi^ed  for  aenilinf|r  news  into  the  coun-  thofl  wherein  he  hath  made  this  use  thereof, 

trf .  This  note,  jg^ntlemen,  is  even  a  i^rosser  and  itien  that  this  note  was  thus  delivered  to 

fn^i  than  the  utlicrs  can  be  Rup|K)sed  to  be.  sir  fiihy  Lake ;    and  you  have  considered  the 

Bmeasam  of  4,700/.  which  Mr.  Edwards  is  several  circumstances  of  the  case,  it  will  appear 

soffHcd  tu  promise  to  pay  within  six  months  both  that  this  is  a  for^^ed  note,  and  hy  whom  it 

ifllefdile  to  Samuel  Lee.    This  Lee  we  have  %vas  for;Ted ;  that  Mr.  Hales  was  the  person  on 

into  the  chanictcr  of.     He  is  one  that  whr>m  it  must  be  charfrcd. 


l0 

Ihii  ^ ^ ^ 

for  4,700/.     Gentlemen,  when' you  come  in  betwet^n  that  and  liie  r;   and  that  there  not 

to  kiok  upon  this  note,  you  will  see  on  it  the  beini;'  sufficient    room,  therefore   the    word 

pUnestmarka  of  fbri^y  that  can  be.     When  '  pound'  is  crowded  in,  in  n  narrow  manner, 

ytu  ooroe  to  look  upon  it,  you  will  plainly  see  cuid  then  fullows  the j/i  so  that  it  is  not  possible  to 

thai   ■  ffree  Samuel  Edwards'  still    remains  s!>ppn::p  th it  i Cany 7;entlemnn  had  wrote  it  be- 

fiyhlc    There  is  the  double  /  which  Air.  fore  the  //  u  ns  wrote,  he  v.  ould  have  crowded 

Edwards    jfenerally    useth,  which  we   shall  tiic  word  <  pound'  into  no  narrow  a  room.    Bat 

yrsfe  br  witness.  And  then  between  the  j^*and  there  was  tliou  a  necessity  for  it. 

Ihtrtbereisano  struck  in,  which  you  will  T/iomai   Maddox,  Anne  Clarke,  and  Mr. 

IS  not  the  same  wntmrr  witli  ihe^  Booth,  were  called,  sworn,  and  deposed  as  be- 

le  with*  Samuel  Edwards.'  i\nd  then  fore ;  and  the  note  ol  direcliona  was  again  read, 

out  the  v«  you  will  see  the  two  ce  are  m*^  o  •  ^,  ^„«,„ 

i..»«.toiiimkeavwithastrokeatthcbottom  «     «/        -    ni  '       * ^^^t «..  iw  «n*. 

^«i^  -  u-*  *u-*  -.*'ii  *!.*-.                  •  -Li  Mr.  Slranee.   Please  to  look  on  that  note, 

?  ^rS^   L!  h  ■•?"*  P'^'y  """  *'<"«  Mr.  Kdwar.ls'8 ? 

F  ^SSS^.  !^1T.l"itiT  iT.if^"  Spiccr.  The  name  i.  bis,  the  ^and  the  r  i. 

i  J?!"i*^  ''*J"'v ''"  M?"*  "'^""'^'  also  hi"-    The  o  seems  no    to  Kc  of  the  same 

Inn  *  value  received.   You  will  see  a  con-  •  i         i  •      zv          ■           j  j  •       rm 

j.^u  i_^ii    -.«/*!  «••*  I.*  I     \  mk,  and  la  afterwards  crowded  m.    The  via 

depth  beneath,  and  that  it  must  be  cut  uq*  i,:g 


•ffft»  »on>ethiDg  ei«>.    How  it  was,  it  «.»-        „,  g^  y^,^^^^  -^  M,  Edwards's  way 

CBis  Mr.  Hales  to  shew.    As  to  the  method  off|.a»j,-  ^a 

vbcniDthis  came  to  be  discovered,  it  issuHi-         o  •       W?^^^  a .  i  T?.i.»<a»i.  »  c  Vm^^  u^ 

^:^^^»  II    -.     .u  «  «i  •   I    1 1  -  •       1        iSp:cfr,  *  Free  Samuel  Luwarus.    *  rrec  he 

Ci6Btt«tell  vou,  that  this  had  been  occasioned  ..«./ii., ...  •»_    -.i      a- 

I    ..    J-      •  c  *     r         I  ■     *i  usurilly  writes  With  a //. 

t|r  lae  discovery  of  a  note  forafcd  ui  the  name        itT-  c/  rh- 1*^      .  «««-  !,««.«  u:«*  :- 

Jr  If-   r«u-   -    -  I       ■      -    I  '.         -Mr.  Stranfre:   Did  vou  ever  know  nim  m 

•f  Jir,  uibsM>n,  an  apprehension  and  commit-  r  ^  i  -  i  I'li  1 1  r     i  vj 

_^.  ^^  •,     -I*  ,       '^'i    ^  ,, .  t'  frankiiirif,  make  use  oi  the  word  HrankV 

■eotof  Mr.  Hales;   that  this  jjavc  occasion        o  -^    •^     ^i-- 

for  several  persons  to  enquire  into  the  vpfiditv        \tl  ^c#   '  **' '  '  ii«  -  i     ^  i  « «^..  k*.«»  •« 

^.i  ' I  •  I.  .1        I    I  I  i-    -         ^If-  Strange.    How  lonff  have  you  been  ac- 

ihoje  notes  which  they  hid  received  irom  n„„;n,,.i  „:,f  h;^  v  *  ^ 

Nr.  Hales.     As 

!!I!!1  ^^^^  !!V*  !r".  T'^^rT  T'''  "*'''T       ^'^-  SUa^wx,    mx  vou  ever  know  him  any 

T^Z,  ^»\  '^^l^^**  »^.c^'"«  *"  ^"  discovered,  „.,,.^^  ,,,nn...,w..i  ..:...  s  ,.«.,nl  1^^  ?  ' 

thit  \Ir.  Hales  had 

lbi»  promissory 

SubqpI   Edwards 

BMMllhs    after  date  uf  i^aumiri  Ajt'i:,    lur  ^^HJUi.  Vi       t«,  t-*        ^      jI  :    i.    j.!..*  U-.;^-.  *« 

1. .1.        ^    -^    *u  *  •*  ^1     1  Mr.  Slianiic.    Uo  vou  think,  that  beinff  ac- 

h.»ed   OMrniHyJUke:  Mr  Hales  had  been  J,    ,,,,   ,,^,,^  ,.  -f  ,,,„^  ,   j  ^     '  J 

i»  k*e!i  on  the  evil  ilay  as  loncf  a»  possible,  it        c  x-       w     1 1   r       «•    «  r  ..k<«..m 

.„     •  .  »   "^   -  1   »     *•  I  S..:rcr.  i  cs.  Sir.  i  bolM*vo  tiiat  I  snoulu. 

wu  necessary  to  procure  some  substantial  per-         ,■      ...  tvi  «*   r -4i         <.«o»n<.  i..»« 

.^ .    I      I-  -ir     I-—       :- ivi     T    I  '  '*«r.  i^trntice.    What  lurther  reasons  nave 

mui  be  bail  for  him ;  sir  Biby  Lake  was  np-       ^    .    •   ,•    ^.i-       ..^i    ■      ..,„i 

^i;..     .    .  -  i_.  J.- "i        .1  'i*  you  to  believe  this  not  tone  his  note; 

pM  to,  bemsf  a  very  subslaiflial  f'entleinnn.  It  -^   c  ■         i        .    „     i    i-       #i  •   *..  k<«i.:.  •.rm«« 

L_-  tv^-.    r  o  _^     -    ir    t1 -i      ii  S-yurr.  I  can  never  hfMievr  this  t'>  be  liis  note, 

W^on.Wraof  firwr  an.Uoracon«.lcra^^^  for 'he  never  j;ir,^  a..v  promissory  ..-.ts  for 

•i,  that  be  was  dwire.1  to  be  bail  for  Mr.  ^.        „„^  „     •'„,„^  ^^  ^„  '  „i„,„,„  '„^i^      ^,^^ 

tulffi,  he  made  a  scruple,  and  rriused  it  at       •    i'       .        a   i  ■   „.  «  i  «..  i 

K.^    —  I     —La    •    I.  ii*     «     •*   ■»!     II  I  whole  note  with  his  oivn  liantl. 
WM:  at  length  to  induce  hirn  to  it,  wlr.  Hales 

•id  to  him.  Sir,  you  bhall  be  at  no  raaniier  of  ^'^  ^^'h  '-«'"<^  s-.v  irn. 

HA;    I  have  a  pronii^sory  note  for  4,700/.        Srrj.  Whiftilicr,  Sir,  pray  j-Ict-:^  to  jjive  ui 

•hicb  is  made  by  Mr.  E'hvjircls,  who  'n  a  sub-  an  arrount,.whpM  you  ^^-..w  il»it  ivi.r  Tr ;«.,  !:;")i 

Mftatial  man,  payable  nithin  a'lx  months::  this  wliat  fM*cas>on  ii  wa^  It  >  y^'  '.  l'»  y)'A,  uu-i  l>y 

Will  be  an  ample  lecurit^',  if  an  execution  ^thoin  it  \tas  dcUvLTcdtoymi  ? 

Vt>L.  XA II.  U 


•91]  S-GEORGB IL 

,  Sir  Biby  I^ke,  About  tiuatimtWeWemonih 
llr,  Williim  Hi}f»  sent  Mr.  Kiaaenle;  to  me 
al  mv  huuie  iu  Croiby-aifuaK,  wbo  UtU  me 
ibat  Mr.  Hilei  wu  arreued  upno  ■cconnt  uf 
abuaJgi^en  bv  him,  anJ  Blr.  Kobert  Hiles, 
to  Dr.  ftlnpletoii  at  CaoluHiury ;  tbat  the 
Doctor  hBTiog  arreateJ  Mr.  William  Halei,  be 
ilMired  Ibat  I  woutil  be  bail  tor  bin).  I  deaired 
Hr.  KiriDeriley  to  roeei  uie  Id  iheereniDg: 
we  tiien  weot  to  the  judge*  cbamben,  and 
give  bail  to  the  action.  I  tbought,  that  there 
feiug  no  difficuiiT  in  the  gentleinaD'a  appear- 
ance,  there  would  be  no  damage  in  doing  that 
ibr  a  (rinid.  Afterwards  Mr.  Halea  camehim- 
■eiftome,  and  desired  me  that  I  would  be 
bail  again  far  him.  I  lolJ  bim  that  it  waa 
Mmewliat  eztraorditian' ;  hot  that  however  I 
would  meet  him  at  Mr.  Tumer'aBt  Staples-iiia, 
b>  CDiiaider  what  to  do.  He  came  to  me  there 
aboat  four  or  fire,  and  brought  a  gentleman 
with  him,  who  be  told  me  waa  bit  attorney. 
Atfint,  he  told  me  not:  but  afterwards,  we 
imdeniaod  that  it  was  to  ■  Writ  of  Error  Ibat 
I  wai  deaired  to  be  put  iti  bail.  I  waa  then 
tirid  by  Mr.  Turner,  that  if  I  waa  bail  to  tliat,  I 
muM  pay  the  money  if  they  did  not.  Upon 
thb  I  totd  Mr.  Halet  tliat  1  cared  not  to  be  hail 
In  tuch  a  matter  ai  this,  unless  he  would  give 
me  Kund  aecurrly.  He  told  me  that  he  waa 
^iw  to  Peet'i  coffee- honee,  desired  that  I 
would  consider  of  it,  and  come  to  him  again.  I 
alaid  to  consult  Mr.  Ttrmer,  and  toM  him  that  J 
wovid  not  be  bail  except  Mr.  Halef  would  giTe 
«M  good  security.  I  theo  went  to  Pecl'i 
coffeehouse,  and  there  found  Hr,  Hales  and 
Mr.  Kinnersley  together.  1  took  Mr.  Hales 
to  another  part  of  the  room,  and  told  him,  that 
I  wonld  not  enJanger  myself  and  my  family 
W  far  as  tn  engage  for  such  a  sum,  it  being 
abuul  1,500^.  unless  be  would  give  me  good 
■ecurity.  Upon  this  he  put  His  hand  in  his 
po«^ket,  took  out  his  pocket  booh,  and  took  out 
of  it  tbii  note.  He  looked  upon  i1,  and  said, 
Ibat  it  was  a  promissory  note  Ibr  four  thousand 
and  <jdd  pounds,  .ini)  vras  |inyable  within  two 
or  three  months  afler.  Hn  put  it  into  my 
iMod :  1  looked  upon  it,  and  thought  it  was 
»ery  good  secnrily  to  me  for  siiph  a  sum.  Hf 
desired  that  I  would  kevp  it  iu  my  own  hand 
till  the  raooey  that  1  whs  security  for  was  paid ; 
but  said,  that  he  would  jmy  tho  money  tontf 
IbefcrelcouM  hecalled  upon-.  1  thought  I  had 
■officient  satisfaction,  and  went  thereupon  be- 
ftee  Ibe  Isnl  chief-iuttice  lluymond,  and  gave 
fcul  to  the  Writ  of  Error. 

Nei).  WkUaktr.  Sir,  I  would  desire  vou  to 
look  oo  the  notr,  and  on  the  twck  of  ft,  and 
tell  us  whether  it  bath  had  any  alteration  f 

Sir  Biby  Lake.  None,  Hir,  tliat  I  know  of. 
Bnt  I  must  give  yon  s  particular  account  of 
•tie  thing.  It  was  nut  ail  the  lime  in  thesanio 
cusliHly.  Before  1  came  there,  my  servant 
went  and  wailed  for  me  witli  my  hone  in  Hoi- 
boni,  1  beinz  going  out  of  town.  Going  tbere- 
^re  to  Air.  Turner's,  1  desired  bim  to  lay  it  by 
Ibr  no  in  his  dnwcr,  where  he  hath  otbo- 
fi|Mra  of  mine.    Acoordinglj  hedidlajr  itop; 


Trial  of  WmamHaUi, 

and  from  that  time  it  waa  (In,, 
Turner's  cuMody,  till  after  the  time  tj 
Halea  was  taken  up.    When  that  ha 

Harleof  the  million  bank  tent  a 

thereof.  Upon  that,  when  I  came  in. 
to  Mr.  Harle,  and  told  him  Ibat  I  had 
note  of  Mr.  Eilwarda's  in  my  hand ;  a 
I)  hearing  that  you  have  a  auapiclon  I 
.hat  is  in  your  bands  is  a  bad  note. 
.  reason  to  denre  yon  to  go  to  !i 
wards,  and  acquaint  bim,  that  1  bare 
note  iu  Mr.  Turner's  custody,  who  is 
Derbyshire.  All  thati  could  then  do, 
denre  Mr.  Turner's  clerk  to  send  to 
the  ker>  that  we  might  take  oat  the  I 
shew  It.  The  clerk  did  so;  and  afb 
time  bad  the  key  tent  him,  took  out  t 
and  I  desired  him  to  carry  it  to  Mr.  E 
Jt  was  the  same  day  that  the  note  beca 

Sir.  Turner  swoni. 

Serj.  Whilaker.  Mr.  Turner,  pray  [ 
kwk  upon  that  note,  and  give  us  an 
when  you  tint  saw  it  ? 

Turner.  1  believe  it  was  one  day  io 
Ifinniog  of  July  last,  about  five  or  sii 
ID  the  afleraooo.'  I  cannot  be  particul 
the  day,  bnt  I  believe  that  it  was  the  si 
that  sir  Biby  Lake  gave  bail  Iu  the 
Error.  He  then  brought  me  the  noti 
by  for  him.  1  verily  bdieve  thia  to 
same  note. 

8erj.  Whitaker.  Hath  it  had  any  al 

J^rner.  No,  Sir.  He  desired  me  I 
for  him  in  a  drawer,  where  I  had  othe 
papen:  accordingly  I  did:  I  new 
town  in  Au^^uDi.  AlUrwards  my  cli 
me  word,  tliat  sir  Uiby  L^ke  desireij 
would  send  up  the  key  of  the  drawers, 
to  his  notes  being  taken  out.  Upon  tli: 
up  the  key  to  my  clerk,  direclea  him  i 
drawer  the  noti.>  was,  desired  tliat  h 
take  il  out,  and  carry  it  to  sir  Biby  Lai 

Mr.  Jlfure  iwom. 

yir. Strange.  Dujou  remember.  Sir 
reuejied  a  key  from  Mr.  Turner? 

More.  Yes,  Sir. 

Mr.  Strange  Did  you  iheimpon  I 
note  in  the  druwer  ? 

Jlforr.  Yes,  Sir;  in  thedrawer  ofth 

Blr,  Strangt.  Did  you  make  any  all 
in  itP 

Mart,  No,  Sir;  I  took  il  out,  and  c 
to  Mr.  Edwards. 

Air.  StraHgt.  Hr.  Spirpr,  you  are  aci 
nith  iMr.  Edwards'K  nay  of  dealing. 

be  mves  au        '  ■'  '     - 

whole  note  f 

Sputr.  Yes, Sir;  [  never  knew  h 
any  bnl  tluit  he  wrote  the  whole  note. 

Hr.  Slienge.  Doth  he  use  to  givo  t 
lime? — Spicer,  No,  Sir,  never. 

Mr.  Strange.  Aly  brd,  we  DOW  da 
Uw  note  may  be  read. 


S9S]  for  a  Misdemeanor, 

Note  read.  •'  March  30,  1738. 

■*  Sis  months  after  date,  1  promiie  to  pay  lo 
SuMd  Lee,  or  bis  order,  the  sum  of  four 
~  ae? en  huodrcd  miuDds,  fibr  tlie?alue 

Samuel  Edwards." 

ladoraed,  «<  Samuel  Lee." 

Vr.  Strange.  You  will  obserre,  {jfentletneo, 
Aa  vai  *  ffree'  is  legible  atilt,  and  ubMir? e  how 
Ihiivd  *  poQiids'  is  crowded  in. 

Blr.  Bird  sworn. 

fci  Wkiiaker.  Sir,  do  yoa  know  Mr.  Sa- 
■ad  Lea  T-^Bird.  Yes,  Sir. 

Sari.  WkUuker.  What  is  he  ? 

Bird,  A  sea  faring  man. 

Bcri.  WkUoker.  Do  you  koow  his  wife  ? 

Bird.  Ytf,  Sir. 

Sen.  Wkilaker,  Did  she  nurse  a  child  for 
air.  Hales? 

Bird.  Yn,  Sir ;  two  for  se? eral  years. 

Soj.  Wkiieker.  Is  he  a  man  of  worth  ? 

Bird,  No,  Sir ;  be  is  not  worth  5/.  in  the 
wU. 

fai.  Rah^.  What  say  vou  to  this,  Mr. 
Bihif  You  see  that  they  fiaveffifen  an  ac- 
>  of  the  method  that  you  took  to  procure 
^ers.    This  note  they  say,  that  you 
as  a  true  note,  how  should  it  come 
that  such  a  |ioor  |M*rson  as  tliis  Lee  is 
Kse  OTer  such  a  note  to  you  ? 

Bala.  Mr.  Lee  gave  it  mc,  there  being 
MaicB  due  to  me. 

8tij.  Kdby.  If  you  can  prove  any  transac- 
fm  WtwecD  yoa  and  that  Lee,  to  induce  the 
jvytobelieTe  that  it  was  given  you  upon  that 
oaaderation,  it  will  he  pro|ier  now  to  do  it. 
Rifci   He  is  gone  abroad. 

Hej.  Raby,  Is  there  any  person  that  can  be 
witDcss  of  any  such  transaction  ? 

Btia.  No,  Sir. 

Hcr|.  Raby.  Gentlemen  of  the  jury,  William 
flalft  of  London,  late  proldsntith,  'stands  in- 
^Ktedfor  forging  a  note  for  4JU0/.  payable 
vithin  six  months  after  date  to  Samuel* Lee, 
oropler,  in  the  name  of  Samuel  Kdwonis,  esq. 
lad  for  publishing  the  same  as  a  true  note. 
Yoa  see,  gentlemen,  that  there  have  been 
feneral  witnesses  produced  to  shew  how  he  got 
pQsnsioo  of  frank  covers,  on  pretence  of 
•ending  news  into  the  country ;  and  that  he 
Mtti  a  paper  of  directions  for  some,  which  di- 
Rctioos  were  very  shorl,  ami  so  convenient  fur 
iW  writing  in  the  intermediate  space  over  the 
time,  such  a  note  as  this.  And  they  have 
■«oro  that  these  directions  are  his  hand, 
vkicb  were  sent  over  by  his  servant  to  Mr. 
Edwards  for  franks.  Now  to  shew  you  that 
this  note  wss  published  by  this  man  as  a  true 
SMe,  and  that  he  is  guilty  hereof,  sir  Biby 

lake  hath   appeared.      He  tells    you,  that 

Acre  were  two  several  applications  to   him 

^  W  bail  for  Mr.  Hales ;  thaf  he  complied 

MIy  with  the  one,  but  the  other  he  made 

*ac  icniple  of,  because  it  was  more  dan- 

(Kaos ;  it  beioff  to  a  Writ  of  Error,  and  for 

ite  1,500(.  He  was  therefore  more  cautious. 


A.  D.  17«).  [204 

and  would  not  do  it  without  security.  He  tells 
you,  that  upon  this,  this  note  was  offered  and 
deposited  in  his  hands  by  the  prisoner.  This, 
if  you  are  satisfied  of  it,  iixes  the  note  uptm 
the  prisoner.  Jt  appears  hereby,  that  it  «i*as 
in  the  hands  of  the  prisouer.  He  cannot  shew 
you  how  he  came  by  it :  that  then  is  a  strong 
proof  to  fix  the  charge  in  this  indictment  upon 
nim.  Where  a  forged  note  is  found  in  a  per- 
son's possessicm,  and  it  appears  that  he  offcretl 
it  as  a  true  one,  and  cannot  give  an  •^count 
how  he  came  by  it,  that  fixeth  the  charge  of 
forging  it  upon  him.  This  note  was  published 
in  the  city  of  London,  and  therefore  the  forgery 
in  the  indictment  is  fixed  there  :  for  it  is  im- 
possible to  know  certiiinly  where  a  note  is 
forged,  since  no  one  calls  evidence  to  see  him 
forge  a  note.  Thus  it  appears  to  have  been  in 
his  custody,  and  it  cannot  otherwise  be  proved. 
Other  witnesses  have  been  produced,  to  shevr 
that  the  note  hath  uot  been  altered  since  it  was' 
delivered  by  him.  Mr.  Turner  tells  you,  that 
he  received' it  from  sir  Bibv  Lake  the  day  that 
he  receive<l  it  from  Mr.  llales,  and  laid  *  it  by 
lor  him  in  his  drawer;  so  that  from  the  time 
that  it  was  published,  it  continueth  in  the  same 
state  that  it  then  vi'as.  Other  circumstances 
have  been  laid  before  you,  as  the  manner  of 
Mr.  Edwards's  making  out  any  notes.  He 
doth  not  give  out  any  promissory  note  made 
for  time,  nor  doth  he  ever  give  out  any  what- 
soever but  such  as  are  all  of  his  own  hand- 
writing. Another  circumstance  that  liath  been 
laid  botbre  you,  relates  to  the  person  to  \^  hom 
this  note  is  made  payable.  It  looks  like  a  con- 
trivance to  have  it  ull  in  his  own  management, 
in  the  hands  of  his  servant,  ami  within  his  own 
reach  ;  that  this  note  should  l>e  mnde  payable 
to  a  poor  man,  whose  wile  was  nurse  to  Mr, 
llales's  children,  and  the  witnfss  l»clieves  him 
not  to  be  worth  6/.  in  the  world.  How  should 
he  be  entitled  to  this  hill  for  such  a  sum,  which 
he  might  have  indorsed  to  any  other  person? 
No  one  sure  would  trust  such  a  note  with  such 
a  person.  He  could  not  lie  possessed  of  it  iu 
his  own  ri;;ht,  and  no  otlu*r  person  would  en- 
trust a  man,  not  worth  5/.  with  a  note  of  this 
value.  This  circuiiistunce  tliey  oifer  to  your 
consideration  :  an<l  tlioy  take  notice  of  some 
letters  which  shew  that  there  was  originally 

*  ffircp,'  wiiich  is  now  turned  into  *for  the,*  be- 
fore '  value  rccfived.'     Ii  appears  that  it  wa^ 

*  ffrcc  Satniicl  Edwards:'  and  it  i<)  almost  legi- 
ble notwithstandini;  the  alteration   that   iiath 

a  ■  ■       ■  ■ 

In  en  mnde.  He  Imih  suid  nothing  in  his  de- 
fence to  shew  how  he  came  hy  that  note.  He 
saith  that  l^e  ^nve  it  him.  Is  it  likely  that  a 
man  not  worth  51.  in  the  world  should  (five 
out  such  a  note  as  this  1'  1'lioii;r|i  there  is 
no  direct  evidence  of  his  for^iiii;  it,  that  makes 
no  alteiation :  if  he  directed  it  iu  he  done,  it  is 
the  same  thing  as  if  he  did  it  himself;  nor 
doth  it  appear  that  any  but  liiin«4*lf  is  concern- 
ed therein.  He  haviiifir  |iublished  it,  is  ifuilty 
not  only  of  the  piib:icaiioii,  bui  ot'  the  forging 
of  it :  if  you  believe  it  to  l)e  a  forged  note,  ho 
is  guilty  of  the  forgery.    His  publikhing  of  the 


295J  S  GEORGE  11. 

note  is  a  safficient  evidence  of  it.  If  a  maD 
had  receiFcd  such  a  note,  be  would  readily  say, 
I  received  it  of  such  a  person  on  such  an  occa- 
sioD :  but  there  hath  been  no  evidence  of  this 
nature  given.  If  you  ask  a  man,  how  he  came 
b^  this  or  that  things,  he  saith  another  gave  it 
iiiin :  that  may  be  said  in  every  crimiual  case ; 
it  is  often  said,  but  never  regarded  except 
proved.  You  are  tlicn  to  consider  all 
these  circumstances,  and  to  judge  thereupon 
whether  it  is  a  forged  note ;  whether  it  is 
likely  that  Lee  should  have  a  note  of  this 
value,  and  that  there  should  be  any  reason  for 
his  delivering  such  a  note?  There  has  been 
no  pretence  of  any  transactions  between  this 
Lee  and  Mr.  Edwards,  nor  any  colour  of  proof 
on  what  consideration  the  gentleman  should 
H'rite  such  a  note  payable  to  such  a  man,  and 
give  it  him.  Gentlemen,  here  is  as  full  and 
plain  proof  as  can  be  expected,  if  the  evidence 
swear  true ;  so  I  leave  it  to  you. 

Clerk.    Are  you  all  agreed  in  your  verdict  ? 

Jurif.  Agreed. 

Clerk.  VYho  shall  speak  for  you  ? 

Jury.  Our  foreman. 

Clerk,  How  say  you,  is  William  Hales 
Guilty  of  the  misdemeanour  whereof  he  stands 
indicted  in  forging  a  uutc  in  the  name  o\'  Sa- 
muel Edwards,  esq.  f(»r  4,700/.  and  pullishing 
the  same,  or  Not  Guiltv  ^—Foreman.  Guilty. 

Serj.  ]VJiilaker.  Af\'  lord,  the  note  being 
found  to  be  forged,  we  desire  that  sir  Biby 
Lake  may  deliver  it  to  Mr.  Edwards. 

Sir  William  'Thompson,  That  is  but  common 
justice. 

Mr.  Sf range.  My  lord,  there  is  another  in- 
dictment :  but  we  will  not  trouble  your  lord- 
ship with  thut ;  thercfurc  the  jury  may  be  dis- 
charged. 

Serj.  Whitahcr.  Bly  lord,  we  think  it  proper 
to  take  notice,  that  upon  the  three  indictments 
whereof  he  hath  been  found  guilty  on  the  sta- 
tute of  king  Henry  U,  for  obtaining  money  by 
false  tokens,  tlu're  can  l>e  no  fine  in  the  case  : 
VfQ  must  therefore  crave  corporal  punishment. 

Sir  William  Thonij/xon.  The  question  is,  uhat 
corporal  punishmeni  l*"  To  be  sure  he  will  be 
pilloried. 

Serj.  Whitaker.  The  pillory,  my  lord,  is  no- 
thing. The  gentleman  hath  endeavoured  to 
t^et  many  tliousaud  pounds  of  several  gentle- 
men :  now  he  is  only  to  look  through  a  wooden 
casement,  and  this  is  to  make  recompeiice. 
AVe  humbly  hope,  that  according  to  the  t\oiils 
of  the  act  of  parliament,  some  punishment  will 
be  ordered,  not  only  ignominious  but  cor|N)ial 
punishinciil,  as  the  words  are  very  exteM<>ive. 

Sir  WilUum  Thompson.  The  Court  lo  be  sure 
will  order  icnprisoiiuicnt,  as  well  as  the  pillory, 
and  security  afterward. 

Serj.  Whilakcr.  Hut  should  not  the  punish^ 
mem  left  to  the  discretion  of  the  Court  be  ex- 
tended lo  Komctliing  further? 

Sir  WilUum  Thompson.  1  am  not  for  extend- 
ing it  to  ti)rtijre.  1  know  not  any  precedent ; 
wniilil  I  beLMn  any  thing  of  tlibt  nature, 
-iog  himMlf  la  limited  by  our  bw. 


Trial  ff  WiUiam  Hdet. 


[«96 


nAa^ 


Serj.  Whitaker.  The  penalty  seems  left  to 
the  discretion  of  this  Court. 

Sir  William  Thompson.  I  would  not  extend 
it.  1  do  not  know  but  that  the  parliament  oiay 
think  of  something  else  afterwards. 

Serj.  Whitaker.  Well,  Sur,  1  have  laid  U  be- 
fore you,  1  submit  it. 

The  Judgment  of  the  Court : 
That  William  Hales  and  Thomas  Kinnefs- 
ley  should  stand  twice  in  the  pillory ;    once  in 
Fleet-street,  at  the  end  of  Fetter- lane,  and  once 
at  the  Royal  Exchange,  in  Coruhill. 

TIrat  Hales  should  pay  a  fine  of  fii\y  mtrk% 
suffer  five  years  imprisonment,  and  give  seca- 
rity  for  his  good  behaviour  for  seven  years  af- 
terwards.   And, 

That  Kinnersley  should  pay  a  fine  of  2001 
(an  hundred  on  each  indictment,)  suffer  two 
years  imprisonment,  and  give  security  for  hit 
good  behaviour  for  three  years  longer. 

Air.  Hales  begged  that  two  years  of  his  im- 
prisonment might  be  remitted  on  account  of  his 
age ;  but  it  was  not  granted. 

February  11  following,  Hales  and  Kinners- 
ley stood  in  the  pillory  at  the  Royal  Exchaogi 
in  Cornjiill. 

February  15.  They  both  stood  again  in  tbe 
pillory  at  Fetter- lane  end,  in  Fleel-sticat 
Kinnersley  stood  both  times  in  his  canoDial 
habit,  thinking  to  draw  comfiassiou  and  re- 
spect from  the  popuhice,  but  it  had  the  OM- 
tmry  effect. 

Feb.  18th  following,  died  in  the  Press-wd 
in  Newgate  the  said  William  Hales ;  and  April 
7,  1729,  died  in  the  same  place,  of  a  fcftfi 
Thomas  Kinnersley,  clerk. 

"  Forgery  is  now  made  felony,  without  be- 
nefit of  clergy  ;  as  is  likewise  the  publishing 
any  forged  deed,  will,  bond,  note,  indorsement, 
<Scc.  knowing  them  to  be  forged,  by  the  stat.  9 
and  7  Geo.  2,  which  see  for  the  several  parti- 
cular cases  there  mentioned.*' — Former  Edit. 

See,  also.  East's  Pleas  of  the  Crown,  c.  19« 

As  to  proof  by  comparison  of  hands,  to  which 
it  appears  that  recourse  was  had  in  some  of 
these  Trials,  see  in  this  Collection  AlgemoB 
Sidney's  Case,  toI.  9,  p.  8t7.  See,  also,  vol. 
19,  pp.  397,  et  seq.  vol.  16,  p.  200. 

At  the  time  whf  n  these  frauds  were  com- 
mitted by  Hales  and  Kinnershy.  it  was  usual 
for  privileged  persons  to  frank  letters  by  mere 
indorsement  of  their  names.  By  stat.  4G.  3, 
c.  24,  it  is  required  that  members  of  either 
house  of  parliament  shall  write  the  whole  super- 
scription thereof.  A  history  of  franking  is  in- 
serted in  the  Gentleman's  3lagazine,  voL  d-l^ 
p.  644. 

Some  years  after  these  cn<!r<  of  Hales  and 
Kinnersley,  a  curious  uttuuipt  was  made  by 
one  Fournier,  a  popish  priest  and  fugitive  from 
France,  to  dejfraud  bishop  llondley  of  8,900/.  by 
means  of  a  promissory  note  furled  on  a  frank. 
The  bishop  published  an  account  of  the  trans- 
action, of  wnicb  an  abridgement  is  inserted  in 
the  Supplement  to  the  Geutlemaii's  MagajeiiM 
for  the  yew  1757«    See,  also,  2  Vciey,  445. 


S971         Proceedings  in  ilii  House  of  Commons^  tfc.         A.  D.  1729« 


[898 


478.  Proceedings  against  John  Huc-gins,*  esq.  Warden  of  the 
Fleet,  Thomas  Bambridge,  esq.  Warden  of  the  Fleet, 
Richard  Corbett,  one  of  the  Tipstaffs  of  the  Fleet,  and 
Wm.  Acton,  Keeper  of  the  Marshalsea  Prison  :  3  George  II, 
A.  p.  1729. 


i  IlPORT    FROM    THE    COMMITTEE    OF 

THE  House  of  Commons  appoint- 
ed TO  enquire  into  the  State 
or  the  Gaols  of  this  King- 
dom, so  far  as  relates  to  the 
CRUEL  Usage  of  the  Prisoners  ; 
which  occasioned  the  following 
Trials. 

Jovb  90  Die  Martii,  1729. 

Mr.  Ogpktborpe,  from  the  Cominittee  ap- 
pmei  to  cnquive  into  the  State  of  the  Gaols  of 
Hhi  kHwdoin,  made  a  Report  of  some  progress 
vkMh  ibe  Committee  had  made  in  their  enquiry 
blilht  state  of  the  Fleet  prison,  with  the  Re- 
■riMH  of  the  Committee  thereupon ;  and  he 
mi  the  Report  in  his  place,  and  aUerwards  de- 
botdlhesame  in  at  the  table,  viz. 

The  Committee  find,  That  tlie  Fleet  prison 
eient  prison,  and  fonnerly  used  for  the 
I  of  the  prisoners  committed  by  the 
al-table,  then  called  the  Court  of  tlie 
SlvCbamber,  which  exercised  unlimited  au- 
ifaari()-,and  inflicted  heavier  punishments  than 
by  lar  Jaw  were  warranted. 

Aai  as  that  assumed  authority  was  found  to 
be  ao  intolerable  burden  to  the  subject,  and  the 
ncaoi  to  introduce  an  arbitrary  power  and  ^o- 
icremeni,  all  jurisdiction,  power,  and  autlio- 

*  See  New  Pari.  Hist.  vol.  8. 
**  Aad  here  cau  I  forget  the  geoerous  band 
Who,  touch'd  with  humau  wue,  redressive  scarcbM 
kio  the  horrors  of  the  gloomy  jail  ? 
l'r.piu«d.  and  uu heard,  where  misery  moans ; 
Where  sickness  pines  ;    where  thirst  nnrl  hunger 
And  poor  oiisfortune  feels  the  lash  of  vice,    [burn, 
Wtule  in  the  land  of  liberty,  the  land 
1(~bofe  every  Mrcet  and  public  meeting  i;low 
Wuhopen  freedom,  little  tyrants  racM ; 
j^cutch'd  the  lean  monM^  fiom  the  star\-ing  mouth  ; 
Tcrt  from  cold  wintry  limbs  the  tatteHd  weed, 
L«tD  robb'd  them  of  the  last  of  comforts,  sleip, 
Tb«  firee-bgm  liriton  to  the  dung*  un  cbainM 
'>r,  V.  Uie  lukt  of  cruelty  prevail'd. 
At  pk-asure  mark'd  him  with  inglorious  stripes ; 
And  cni»hM  out  lives,  by  secret  barbarouk  ways, 
T^atfor  their  country  would  have  toil'd,  or  bled. 
0  great  design  !  if  executed  well, 
Vnh  (latient  care,  and  wisdom- tcmper'd  zeal. 
Te  looi  of  twTcy  !  yet  resume  the  search ; 
INtg  forth  the  legal  monsterx  into  light, 
Vrmdi  from  their  hands  oppression's  iron  rod, 
Aad  bid  the  cruel  feel  the  pains  they  give." 

TaQMsoii's  Winter. 


rity  belonging  unto,  or  exercised  in  tlie  tame 
court,  or  by  any  the  judges,  officers,  or  mi- 
nisters thereof,  were  clearly  and  absolutely  dis- 
solved, taken  away,  and  determined  by  an 
act  made  in  the  16th  year  of  the  reign  of  king 
Charles  the  1st. 

And  thereby  the  Committee  apprehend  all 
pretences  of  the  wan!en  of  the  Fleet  to  taka 
fees  from  archbislio|>8,  bishops,  temporal  peers^ 
baronets,  and  others  of  lower  degree,  or  to  put 
tbem  in  irons,  or  exact  foes  for  not  doing  so, 
were  determined,  and  abolished. 

That  atler  the  said  act  took  place,  the  Fleet 
prison  became  a  prison  for  debtors,  and  for  con* 
tempts  of  the  Courts  of  Chancer^*,  Exchequer, 
and  Common  Pleas  only,  and  fell  under  thtt 
same  regulations  as  other  gaols  of  this  king- 
dom. 

That  by  an  act  of  the  92d  and  2dd  of  kinj^r 
Charles  the  2d,  the  future  government  of  all  pri- 
sons was  vested  in  the  lords  chief  justices,  the 
chief  baron,  or  any  two  of  thi-ro,  for  the  time 
being ;  and  the  justices  of  the  peace  iu  I^oudou, 
Middlesex,  and  8urry  ;  and  the  judges  for  the 
several  circuits  ;  and  thejusticcs  of  the  peace, 
for  the  time  being,  in  their  several  pn  clucts : 
And  {iursuaut  thereunto,  seveial  orders  uiid  re- 
gulations have  been  made,  uhich  the  present 
warden  of  the  Fleet  hath  not  regarded  or  com- 
plied  with,  but  hath  exercised  an  unwurranlablo 
and  arbitrary  power,  not  only  in  extorting  ex- 
orbitant fees,  but  in  oppressing  prisoners  for 
debt,  by  loading  them  with  irons,  worse  than 
if  the  Star  Chamber  vias  still  subi»isting,  and 
contrary  to  the  Great  Charter,  the  foundation  of 
the  liberty  of  the  subject,  and  in  defiance  and 
contempt  thereof,  as  well  as  of  other  good  lawK 
of  this  kingdom. 

it  appears  by  a  patent  of  the  third  year  of 
queen  Elizubeth,  recited  in  letters  patents 
healing  date  the  I9lh  year  of  king  Charles  the 
2d,  that  the  Fleet  prison  was  an  ancient  prison, 
called  Prisona  de  le  Fleet,  alias.  The  Queen's 
Gaol  of  the  Fleet ;  and  that  certain  constitu- 
tutious  were  then  established  by  agreement  be- 
tween Uichard  Tyrrel,  warden,  and  the  pri- 
soners ol'tlie  Fleet,  and  a  tabic  of  fees  annexed, 
in  which  the  fees  to  be  paid  by  an  archbishop, 
duke,  uiaiipiis,  earl,  or  other  lord  spiritual  or 
temporal,  are  paiticularly  mentionetl,  and  the 
tincascejtained  \ihieh  they  are  to  nay  for  the 
liberty  of  the  house  and  irons  ;  ana  that  these 
constitutiuus  and  orders  were  confirmed  by  the 
said  letters  patent  of  king  Charles  the  2d: 
Which  letters  |»ateut  grant  the  oHice  of  warden 
of  the  Fleet,  and  of  the  keeper  of  the  Old  Pa- 


3  GEORGE  II.  Proceedings  in  the  House  qfCommonSf         [SOS 

tbe  prifloners  in  the  rules  delirered  iiim,  to  be 
cannot  have  executed  the  trust  of  keepiiur  his 
prisoners  in  safe  custotly,  when  he  did  not  kaffm 
who  or  where  they  were. 

The  Committee  find  that  the  said  Thomas 
Bambridge,  who  for  some  years  acted  asde* 
puty- warden  of  the  Fleet,  and  is  now  actnallj 
warden  of  that  prison,  hath  himself  been  aidisf 
and  assisting  in  an  escape :  that  he  canted  t 
private  door  to  be  made  through  the  walls  of  lb 
nrison  out  of  the  yard  where  the  dogpc  are^  tbe 
key  of  which  door  was  kept  by  hiinself,  and  hk 
with  his  own  hands  opened  the  door  and  let  oat 
Boyce,  the  smuggler,  charged  at  tlie  lung*! 
suit  with  upwards  of  30,U00/.  wbo  WM  aftar- 
wards  seen  at  Islington,  and  hath  beeo  fetnd 
times  let  out  of  the  prison  by  Bambridge. 

The  Committee  find  that  the  said  Bambridgt 
hath  by  himself  and  his  agents  ofteo  refosed 
to  admit  prisoners  into  the  prison,  though  eon- 
mittcd  by  due  course  of  law :  and  in  order  to 
extort  money  from  them,  hath  often,  oontmj 
to  an  act  of  the  92ud  and  33d  of  king  GharUi 
3,  without  their  free  and  voluntary  cnMsei^ 
caused  them  to  be  carried  away  fh>m  the  pri- 
son gate  unto  a  public  victual hnjr  or  driokuigi 
house,  commonly  called  a  spunging-bouae,  be- 
longing to  him  the  said  Bambridge  as  wardsi| 
and  rented  of  him  by  Corbett  his  tipstaff,  aM 
hath  there  kept  them  at  exorbitant  chami, 
and  forced  them  to  call  for  more  liquor  ikan 
they  were  inclined  to,  and  to  spend  more  thaa 
they  were  able  to  afford,  to  the  defraudiDf  si 
their  creditors,  and  the  distressing  of  their  Ah 
milies,  whose  substance  they  are  compdM 
there  to  consume ;  and  for  the  more  eflcdnl 
making  them  stretch  their  poor  remains  of  eie- 
dit,  and  to  squeeze  out  of  them  the  charity  ol 
their  fi-ieiids,  each  prisoner  is  better  or  wom 
treated  according  tu  bis  expences,  some  beinj 
allowed  a  handsome  room  and  bed  to  them' 
selves,  some  stowed  in  garrets,  three  in  one  bed 
and  some  put  in  irons. 

That  these  houses  were  further  used  by  tK< 
said  Bambridge,  as  a  terror  for  extorting  mo< 
ney  from  the  prisoners,  who  on  secnrity  givei 
liuve  the  liberty  of  the  rules ;  of  which  Mr 
Robert  Castell  was  an  unhappy  instance^  a  mai 
bom  to  a  competent  estate,  but  being  onfortn 
nately  plunged  in  debt,  was  thrown  into  pri- 
son  ;  he  was  first  sent  (according  to  custom)  li 
Corhett's,  from  whence  he  by  presents  touBam 
briiij^  redeemed  himself,  and,  giving  security 
obtimed  tlie  liberty  of  the  rules ;  notwithstand 
in*j;  which,  he  had  frequently  presents,  as  thr 
are  called,  exacted  from  him  by  Bambridge,  aiM 
was  menaced,  on  refusal,  to  be  sent  radc  I 
Corl)€tt's  again. 

The  said  Bambridge  having  thus  unlawfallj 
exiortetl  large  sums  of  money  from  him  in  t 
very  short  time,  Castell  grew  weary  of  beiii| 
mnde  such  a  wretched  property,  and  resolvin| 
nut  to  injure  farther  his  family  or  his  creditor 
for  the  sake  of  so  small  a  liberty,  he  refused  ti 
submit  to  farther  exactions ;  upon  which  thi 
said  Bambridge  ordered  him  to  he  re-commit 
ted  to  CorbeU'i^  vhcre  tbe  small-pox  tbei 


S99J 

lace  at  Westminster,  the  shops  in  Westminster- 
hall,  certain  tenements  adjoining  to  the  Fleet, 
and  other  rents  and  profits  belonging  to  the 
warden,  to  sir  Jeremy  Whichc^t  and  his  heirs 
for  ever.  And  the  said  sir  Jeremy  rebuilt  the 
said  prison  at  his  oi^n  expence,  as  a  considera- 
tion tor  the  grant  thereor.  But  tlie  said  prison, 
and  the  custody  of  the  prisoners,  lieing  a  free- 
hold, and  falling  by  descent  or  purchase  into 
the  bands  of  persons  incapable  of  executing  the 
office  of  warden,  was  the  occasion  of  great* 
abubes,  and  frequent  complaints  to  parliament, 
till  at  length  the  patent  was  set  aside. 

And  a  patent  for  life  was  granted  to  Bald- 
win Leighton,  esq.  in  consideration  of  his 
great  pains  and  expences  in  suing  the  former 

Satentees  to  a  forfeiture,  and  he  soon  dying, 
ohn  Iluggins,  esq.  by  giving  5,060/.  to  the 
late  lord  Clarendon,  tlid,  by  his  interest,  obtain 
a  grant  of  the  said  office  for  his  own  and  his 
son's  life. 

That  it  appeared  to  the  Committee,  That  in 
the  yr:ir  1725,  one  Mr.  Ame,  an  upholder,  was 
carried  into  a  stable  which  btofHl  where  tbe 
strong  room  on  the  master's  side  now  is,  and 
was  there  confined  (being  a  place  of  cold  re- 
straint) till  he  died,  and  that  he  was  in  good 
state  of  health  before  he  was  C4>nfined  to  that 
room. 

That  the  said  John  Huggins  growing  in 
years,  and  willing  to  retire  from  bnsine&s,  anri 
nis  son  not  caring  to  take  upon  him  so  trouble- 
some an  office,  he  hath  for  several  years  been 
engaged  in  continual  negociations  about  the 
disposal  of  tbe  said  office,  and  in  August  last 
concluded  a  final  treaty  with  Thomas  Bam- 
bridge and  Dougal  Cuthbert,  esqrs.  and  for 
5,000/.  to  lie  paid  unto  him,  obliged  himself  to 
surrender  tbe  said  patent  for  his  and  his  son's 
life,  and  procure  a  new  patent  for  the  said  Bam- 
bridge and  Cuthbert,  which  the  said  Huggins 
did  accordingly  obtain,  and  Cuthbert  paid  m 
money,  or  gave  good  security  to  pay  2,500/. 
for  one  moiety  of  the  said  office  of  warden ; 
and  Bambridge  gave  land  and  other  security, 
which  tbe  said  iluggins  was  then  content  with, 
for  S,500/.  being  for  the  other  moiety  of  the 
said  office.  ' 

Tliat  Mr.  Huggins  being  examined  touchinsf 
an  instrument  signed  by  him  in  November 
1724,  appointing  Richard  Corbett,  one  of  the 
five  tipstafis  of  or  belongmg  to  tbe  Fleet  prison, 
acknowledged  that  he  bad  no  power  by  virtue 
of  any  patent  from  the  crown  to  constitute  such 
tipstaff,  but  that  when  he  came  to  his  office 
he  found  that  such  an  officer  had  been  so  con- 
stituted, and  be  took  that  for  a  precedent  to  do 
the  same. 

That  since  the  said  Thomas  Bambridge  has 
acted  as  warden,  the  books  belonging  tn  the  of- 
fice of  the  \i  arden  have  been  very  negligently 
kept,  and  the  discharu^es  not  duly  entered,  to 
the  great  prejudice  of  many  of  fiis  majesty's 
subjects  ;^  and  he  hath  not  regularlv  taken 
charge  of  the  prisoners  committed  to  his  care 
by  his  patent ;  and  hath  not,  as  be  himself 
coofeaetbi  e?  er  had  any  aotbentio    list  of 


Caaleil  ocquunted  liim  willi  liix 

Ml  Ib&l  (lislenifier,  aoit  Hint  be 

lliKl  llu;  [)iilling  liim  into  a 

iviiulil  occasion  iiis  deuili, 

befbri!  lie  could  xeltle  Iiih 

tre  a  S"*'^  intinilice  U>  lila  crc- 

woulil  expose   Ilia  family   lo  ile- 

ind  tlierefore  be  earai-sliy  detireil 

■igkl  eitber  \ie  sent  lo  tnulher  bouic, 

m  **»  alo  Uic  sin)  iuclf,  w  ■  Urnur.  Tiic 
WhKWj  COM  ot'thii  poor  gentlemsn  moved 
A*inis™U  uf  the  «aicl  Ilnnilirulere  l*)  COdi- 
■■•,  Mt  ib:i<  Ihey  also  used  their  iiimoBt  en- 
MMWi  lo  diiMiade  him  ftom  sendiii|;  ibis  un- 
hfBf  fricuDcr  lo  tbst  infected  house :  but 
IwifcHu,!  I«rctd  hini  lliilher,  where  lie  (as  be 
tead  Ih  tkvuld)  caui{lil  llic  small'iwx,  and  in 
tfrwdati  iDsd  thereof,  justly  cbarfpn^  the 
■UBuiknilftr  oidibiscleBlh  ;  and  UDlmjipily 
Iwriag  all  lii*  aflairv  id  the  greatest  confusion, 
■<iaHiti«roa*  family  of  small  ubildn-n  iiilbc 

ll  ifiii  strd  to  Ihe  Commillee,  that  the  let- 
>l(  sui  af  ibe  Fleet  tenements  to  fncluallei'*. 
fa  At  >*<«plioD  of  ^risnuers,  bfitli  been  bul  of 
tatrnctisAl,  aoditiat  the  tint  of  llieni  lelt  for 
faprpoar  was  to  Mary  Wbitwood,  nho  still 
MMaotmaDi  of  the  same,  and  that  ber  rent 
WB«d  3il.  tier  arm.  Iteen  iocreaaeil  lo  60'. 
■rfannaio  aunber  of  nriMDersitipulftied  to 
h^akapny  of,  to  enable  her  to  pay  so  great 
ana;  and  that  she,  to  procure  the  benclit  of 
klr^i  web  a  uuinhtr  nl  ptisoners  sent  to  her 
h^  lialh,  o*er  and  abore  the  increased  rent, 
I^Msrdlo  makeapresrnt  tolheHBid  Bam- 
Win  •(  fnrty  ([uiiieas,  a*  also  of  a  toy,  (as  it 
kOU)  haag  tbe  model  of  a  Chinese  ship, 
H^^aaiWr.  spt  insil'er,  far  which  fourscore 
InW-fKm  bad  (icrn  olTrTed  her. 

Ab*  iJm'  first  method  of  extortia;;;  money 
^■^  anlufipy  prisonen  ;  and  wliea  they 
^•alaocer  bearllie  misery  and  et|ieni'eof  a 
lfsipaB'Ti<HMe,  belbre  they  can  obtain  the  pri- 
•Afi  tf  hrtna;  adiniitcd  into  the  |<nsoo,  lliey 
■■•Uicedlaewnply  with  such  e\atbitant  fees 
■  1U  «d  Dambridge  thinks  fit  to  demaud, 
rtrt.  tflbey  do  not,  ihey  are  vure,  under  ta- 
Mi  |s«i*nce*,  of  bein^  turned  dDivn  to  the 
^^MM  SHki,  if  not  put  m  irons  and  diingeous ; 
■lllil*  baabcra  done  to  those  who  were  wilbnif 
■'afemi  to  pay  the  Ires  »labliEhe<l  by  the 
*~"'"  m  >n*dii  by  tbe  judges  ol  the  Common 
T(iD.  T«m  inr,  which  ought  to  hate 
^up  iasume  public  ptoce in  the  priaon, 
Kahich  (br  friaon'ri  might  bare  free  access, 
ta  via  avcirlrd  by  ihi!  said  James  Damea, 
pkMni  lo  unirr*  uf  the  said  Bambridge; 
^cb  taUe  iif  Ifi-a  srn'in*  lo  he  unreasonable, 
■■ua  It  oldtiTi-i  tiu-u  nlin  are  committed  for 
••  asini;  alitr  ' i' '-'-'-   tti  pay  such 


9«lSIH*  II 

H««T(ii 


1  JU.  a.rt<.i<  L  of  inch 

I    ^b«!i,in<  .iiiusfram 

I  fc  nlMtasiitc  priKiiic,  s,  il„.  i„ji,l  Biitubrid||:e 
I  ^"l  |MWad*  be  lias  a  righx,  as  warden, 
Ik  nnui  as  luliioilril  [unmt  of  cbtnging 


a  them  ' 


John  Ilug^m  anclolhtri.  A.  D.  1729. 

pristneri  from  room  lo  t^>om  ;  ofliirniti|[  tli 
iQlo  ilie  common. side,  thnn^h  tliey  bate  paid 
the  tnaater's  side  fee ;  and  loflicting  arbili  ary 
punishments  by  locking  llieni  down,  in  un- 
wholesome dungeons,  and  Idsdtnx  them  with 


e  iuataiicet  of  nhich  fal- 


Jacob  Alendez  Solas,  a  Portneorw,  was,  h 
far  as  it  appeared  to  the  Cnmniinee,  one  of  the 
fiist  prisoners  for  delit  that  erer  was  loadeJ 
tviib  irons  in  the  Fleet;  the  said  BamliriilD* 
one  liny  called  him  into  the  gale-house  of  ihc 
prison,  called  the  Lodge,  iTh(.Te  he  candid  liiin 
lo  be  seized,  fettered,  and  carried  to  Corbetl's. 
ibe  spungiuir-  bouse.Bnd  there  kepi  fur  upwards 
uf  a  we«k,  and  when  bron^it  back  into  the  pri- 
son, Bambriilge  caused  him  tn  be  turned  m[» 
the  dun^on,  called  the  Strong  Room  of  tha 
Master's  side. 

Tbis  place  is  a  vault  like  those  in  irhich  the 
dead  are  interred,  and  wherein  the  bodies  of 
persons  dyini!  in  the  said  prinonare  usually  de- 
posited, till  the  coroner's  inquest  haih  passed 
upon  them  ;  it  bas  no  chimney  nor  fire-place, 
Dor  any  light  hut  what  comes  over  Ihc  door,  or 
thraiiglia  hole  of  about  eight  inches  square,  ll 
Ib  ueiilier  paver]  nor  bonriled  ;  and  Ibe  rough 
bricks  apjiear  boib  on  the  aides  and  top,  bcinr 
neither  walnscolled  nor  ptasleivd  :  what  adda 
lo  the  dampness  and  stench  of  the  place  is,  iu 
being  built  orer  the  common  sewer,  and  ad- 
joining to  llieaiiikand  dung-bill  where  all  the 
naslioess  nf  tlie  prison  is  cast.  In  ihis  miser. 
able  place  the  poor  wretch  was  kept  by  llie  said 
Ilambridge,  manacled  and  shackled  for  oear 
two  montlis.  At  length,  on  leceiving  live  gui- 
Deas  from  Mr.  Kemp,  a  friend  uf  Solas's,  Bam- 
bridge  released  the  prisoner  from  bis  cruel  con- 
finement. But  though  his  chains  were  taken 
off,  his  terror  still  remained,  and  the  unbappj 
was  prevailed   upon  liy  that  ti 


re<|uirvd  of  him  1  and  the  Committee  ihem- 
selres  saw  an  instance  of  Ibe  deep  impression 
his  suffrrinin  had  made  upon  bim ;  fur  on  bit 
turmising,  Irom  souiEthiugtaid,  that  Baiiibridge 
was  to  return  again,  as  Warden  of  the  Fleet,  lie 
fainted,  and  the  blood  started  oitl  of  bis  luoulli 

CapMin  John  Mackpheadris,  who  was  bred 
a  merchant,  is  another  ntelancboly  iDaiaiice  of 
ihe  cruel  use  the  said  Bsmbridge  hath  made 
of  his  assumed  authority.  Mackphcadria  woa 
a  considerable  trader,  and  in  a  very  flntirishing 
condition UDli I  ihevear  ITUO.wben  beingbound 
for  large  sumslo  tW  crown,  forapersnnatter- 
warda  niined  by  the  misforlunes  ol  that  year, 
he  was  undone.  In  June,  1727,  he  was  a  pri- 
soner in  Ihe  Fleet,  and  although  be  bad  beiore 
paid  bis  commitment- fee,  the  like  fee  was  es. 
lorled  from  bim  a  second  lime  i  nnd  be  baviog. 
furnished  a  room.  Bambrirlge  demanded  an  cx- 
travngaoi  price  lor  il,  which  herefiuied  to  |iay  ; 
and  urged,  tlial  it  was  unlawful  fur  ihc  warden 
i«  demand  extrarao'int  rents,  and  ntl'ered  lo 
|»ay  whal  was  Ivguly  dqe :    ^olivitli«laodil>(f 


303] 


8  GEORGE  IL  Proceedings  in  the  House  of  Commons f 


which,  the  said  Bambrid-^e,  assisted  by  tlie 
laid  James  Barnes  and  other  accomplices,  broke 
open  his  room,  and  took  away  sercral  thinjfs 
of  great  value,  amongst  others,  the  king's  ex- 
teat  in  aid  of  the  prisoner  (which  was  to  have 
been  retamed  in  a  few  days,  in  order  to  procure 
the  debt  to  the  crown,  and  the  prisoner's  en- 
largement,) which  Bambridge  still  detains. 
Not  content  with  thia,  Bambndge  locked  the 
prisoner  out  of  bis  room,  and  forced  him  to  lie 
in  the  open  yard,  called  the  Bare.  He  sal 
quietly  under  his  wrongs,  and  getting  some 
poor  materials,  built  a  little  hut  to  protect  him- 
aclf,  as  well  as  he  could,  from  the  injuries  of 
the  weather.  The  said  Bambridge  seeing  bis 
unconcerned ness,  said,  **  Damn  him  !  ne  is 
easy.  I  will  put  him  into  the  Strong  Room 
before  to-morrow  *,"  and  ordered  Barnes  to 
pull  down  his  little  hut,  which  was  done  ac- 
cordingly. The  poor  prisoner  being  in  an  ill 
■tate  of  health,  and  the  night  rainy,  was  put  to 

Et  distress.  8ome  time  after  this  he  was 
at  eleven  o'clock  at  night)  assaulted  by 
ibridge,  with  several  other  persons  his  ac- 
complices, in  a  violent  manner;  and  Bam- 
bridge, though  the  prisoner  was  unarmed,  at- 
tacked him  wiih  his  sword,  but  by  good  fortune 
was  prevented  from  killing  him  ;  and  several 
other  prisoners  coming  out  upon  the  noise,  they 
carried  Mackpheadris  for  safety  into  another 
gentleman's  room;  soon  after  which  Bam- 
bridge coming  with  one  Savage,  and  several 
others,  broke  open  the  door,  and  Bambridge 
strove  with  his  sword  to  kill  the  prisoner :  but 
be  again  got  away,  and  hid  himself  in  another 
room.  Next  morning  the  said  Bambridge  en- 
tered the  prison  with  a  detachment  of  soldiers, 
and  ordered  the  prisoner  to  be  dragged  to  the 
lodge,  and  ironed  with  great  irons ;  on  which 
he  desiring  to  know  folr  what  cause,  and  by 
what  authority  he  was  to  be  so  cruelly  used  ? 
Bambridge  replied,  *'  It  was  by  his  own  au- 
thority, and  damn  him  he  would  do  it,  and  have 
his  life."  The  prisoner  desired  he  might  be 
carried  before  a  magistrate,  that  he  might  know 
his  crime  before  he  was  punished  ;  but  Bam- 
bridge refused,  and  put  irons  upon  his  legs 
which  were  too  little,  so  that  in  forcing  them 
on,  bis  legs  were  like  to  havo  been  broken ; 
and  the  torture  was  impossible  to  be  endured. 
Upon  which  the  prisoner  complaining  of  the 

Sievons  pain  and  straitness  of  the  irons,  Bam- 
idge  answered,  "That  he  did  it  on  purpose 
to  torture  him :"  on  which  the  prisoner  reply- 
ing, "  That  by  the  law  of  England  no  man 
oiuriit  to  be  tortured  ;"  Bambridge  declared, 
**  That  he  would  do  it  first,  and  answer  for  it 
aftei^ards ;"  and  caused  him  to  be  dragged 
awaj  to  the  dungeon,  where  he  lav  without  a 
bed,  loaded  with  irons  so  close  rivetted  that 
thev  kept  him  in  continual  torture,  and  morti- 
lied  his  legs.  After  long  application  his  irons 
were  changed,  and  a  suigeon  directed  to  dress 
his  legs,  but  his  lameness  is  not,  nor  ever  can 
be  cored.  He  was  kept  in  this  miserable  con- 
iSAaa  fbr  three  weeks,  by  wfaiefa  bis  sight  is 
yitly  prqodioad,  mid  io  daagcr  of  being  toil. 


The  prisoner,  upon  this  usage,  peti 
judges,  and  afler  several  meetings,  a 
hearing,  the  judges  reprimanded  Mr. 
and  Bambridge,  and  declared,  <<  Tha 
could  not  answer  the  ironing  of  a  nn 
he  was  found  giiilty  of  a  crime ;"  be 
out  of  term,  they  could  not  give  the 
any  relief  ur  satisfaction. 

Notwithstanding  this  opinion  of  th 
the  said  Bambridge  continued  to  kee 
soner  in  irons  till  Tie  h&d  paid  him  six 
and  to  prevent  the  prisoner's  recov< 
mages  for  the  cruel  treatment  of  hi! 
bridge  indicted  him  and  his  principal 
at  the  Old  Bailey,  before  they  knew  i 
of  the  matter ;  and  to  support  that  in 
he  had  recourse  to  subornation,  and  ti 
of  bis  servants  out  of  places  which 
bought,  because  they  would  not  swe 
that  the  prisoner  had  struck  the  sa 
bridge,  which  words  he  had  inserti 
fidavits  ready  prepared  for  signing,  a 
they  knew  to  be  false.  As  soon  as  1 
apprized  of  it,  they  applied  to  the  loi 
who  ordered  the  grand  jury  down  to  t 
where  they  fonnd  that  Bambridge  wa 
^es50r.  Bnt  the  bill  against  the  prii 
mg  already  found,  the  second  inquir 
late. 

The  prisoners  being  no  longer  abli 
the  charges  of  prosecution,  which  ha 
cost  100/.  and  being  softened  by  pron 
terrified  by  threats,  submitted  to  plea 
on  a  solemn  assurance  and  agreem 
with  Bambridge  before  witnesses,  of  fa 
one  shilling  fine  laid  upon  them  ;  bi 
as  they  had  pleaded  guilty,  Bambri 
advantage  of  it,  and  has  continued 
them  and  their  securities  ever  since. 

The  desire  of  gain  urged  the  said  B 
to  the  preceding  instances  of  crueltj 
more  diabolical  passion,  that  of  malice, 
him  to  oppress  captain  David  Sincia 
following  manner : 

At  the  latter  end  of  June  or  beg 
July  last,  the  said  Bambridge  declar« 
said  James  Barnes,  one  of  the  agei 
cruelties,.  **That  he  would  have 
blood;"  and  he  took  the  opportunity  < 
festival  day,  which  was  on  the  first  g 
following,  when  he  thought  captaii 
might,  by  celebrating  the  memory  o 
king,  be  warmed  witli  liquor  so  far  \ 
him  some  excuse  fur  the  cruelties  whi 
tended  to  inflict  upnn  him.  But  in-sc 
sure  he  was  disappoiuted  ;  for  cantaii 
was  perfectly  sober,  when  the  said  B 
rushed  into  Iiis  loom  with  a  dark  lai 
his  hand,  assisteti  by  his  accomplici 
Barnes  and  William  Piudar,  and  sup| 
his  usual  guard,  armed  with  muskets  i 
nets,  and  without  any  provocation  gi 
his  lanthorn  into  captain  Sinclair's  fai 
him  by  the  collar,  and  told  him  he  m 
along  with  him  :  captain  Sinclair,  tho 

Erised,  asked  fur  what,  and  bjr  what 
e  so  treated  him  P  Upon  which  Bi 


m 


iigahui  John  Huggins  and  others. 


A.  D.  1729. 


[306 


:.  iinikKiMd  etptaiD  Sinclair,  who  still  de*  i  seductHi  finnicby  indulpfinir  them  in  riot,  and 
"     '    •         ^       '    •       .••..•-     lerrifitui  otliers  with  fear  of  duress,  lo  swear  to 

and  subscribe  such  false  uffidavits  us  he  thought 
fit  10  projiarc  for  them,  on  several  occas^ions; 
in  all  which  wrongs  and  oppressions  John  Eve- 
rett also  actrd  as  one  of  the  said  Bambridjre's 
wicked  nccnmplires. 

That  the  said  Bambridge  being  asked  by  the 
Committee,  *'  By  nhat  authority  he  pretended 
;to  put  prisoners  into  dungeons  and  irons  ?"  an- 
swered, **  That  he  did  it  by  his  own  authority 
as  warden,  to  preserve  the  quiet  and  safety  of 
the  custody  ot  the  prison." 

But  it  appeared  to  the  Commiltee  by  the 
examinations  of  many  witnesses,  that  before 
the  time  when  Gyhbon  and  the  said  Bamlnridge 
I  acted  as  deputy- wardens  under  Mr.  Hug^inSi 
the  quiet  and  safety  of  the  custody  were  very 
well  preserved  witiiout  the  use  of  irons  or  dun* 
(j^eons. 

That  the  two  dun^^eons,  called  the  strong 
room  on  the  master's  side,  and  the  strong^  room 
on  the  common  side,  w«re  both  built  within 
these  few  years  ;  and  that  the  old  method  of 
punishing 'drunken  and  disorderly  persons  was 
putting  them  in  the  stocks ;  and  the  ponisb- 
ment  of  those  who  had  escaped,  or  attempted 
to  escape,  was  putting  them  uiMin  a  tub  at  the 
gate  of  the  prison,  by  way  of  public  shame,  or 
securing  them  without  irons,  in  their  proper 
rooms  for  some  days. 

And  tirat  the  said  duns^enns  were  built  in 
defiance  of,  and  contrary  to  the  declaration  of 
the  lord  Kinfsf,  when  lord  chief  justice  of  the 
Common  Fleas ;  who,  upon  an  application 
made  to  him  on  behalf  of  the  prisoners  of  the 

Fleet,  when  Mr.  Hucrj^ns  and  Gybbon 

ur^rcil  that  there  was  danger  of  prisoners  es- 
cnpinjj,  declared,  that  they  mi/^ht  raise  their 
walls  higher,  but  that  there  should  be  no  prison 
within  a  piisun. 

That  upon  the  strictest  enquiry,  the  Com- 
mittee civjld  not  find  that  any  pri*ioncrs  in  the 
Fleet  for  debt  had  been  put  in  irons  before  the 
said  Mr.  Ilu.«({;ins  had  the  ofiicc  of  warden. 

That  it  is  not  the  oi<ly  design  of  the  said 
Thomas  Bantbrid^e  to  cxt<irt  nior.-.  y  from  his 


Is  kBOw  by  what  aothority  they   so 
hw,  BMnbridge  grossly  insulted  him, 
"*',  bim  with  bis  cane  on  the  head  and 
wbilyt  he  was  held  fast  by  Pindar 
Hueb  base  and  scandalous  usage 
If  Aiijprtlcmiii,  who  bad  in  the  late  wars  al- 
l^iMliiiii  himself  with  the  greatest  coii- 
Wy,|iiiiliy  ind  honour,  in  the  service  of  his 
MtaOD  miny  the  most  brave  and  desperate 
MHi,  muit  be  most  shocking  and  intole- 
irikjjtlcafliiD  Sinclair  bore  it  with  patience, 
,fl|iifiriytO(;ooutof  his  room  unless  he 
ipMM;  vbereupon  the  said  Bambridge 
10  ruD  his  cane  down  his  throat,  and 
bii  gund  to  stab  liioi  with  their  bayo- 
rdbvhim  down  to  the  said  dungeon, 
thcCSimig  Room  ;    the  latter  of  which 
tiiyM,iBd  Bambridge  kept  him  confine<l  in 
iMvpandloithsoroe  place,  till  he  had  lost 
WPMffhiilimbs  and  memory,  neither  of 
jlttkH  he  perfectly  recovered  to  this  day. 
flmnnviting  cruelties  were  used  to  make 
fMMMmntmdre  terrible ;  and  when  Bam- 

aimid  he  was  in  danger  of  immediate 
he  rmioved  him,  for  fear  of  his  dy  in^^  in 
"ti  caused  him  to  be  carrieil  in  a  dying 
ifron  that  dnngeon  to  a  room  where 
IKIM  no  bed  or  furniture ;  and  so  unmer- 
4H^  fRvnted  his  friends  having  any  access 
jbKji,  thit  be  was  four  days  without  the  least 


^iffved  to  the  Committee  by  the  evidence 
.nMfND  and  others,  who  were  prisoners  in 

ebiK,tbat  when  captain  Sinclair  was  forced 
AMhstbeome  dungeon  he  was  in  perfect 


j^nSnclair  applied  for  remedy  at  law 
It 


the  said  cruelties  of  Bambridge,  and 
MpKarerf  a  Habeas  Corpus  fur  bis  witnesses 
jifcihwght  before  the  sessions  of  Oyer  and 
"■^i  when  the  said  Bambridge,  by  cohiur 
',UitiRnned  authoiity  as  warden,  took  the 
■■eriii of  Habeas  Corpus  from  the  officer 
•■"■Joty  h  was  to  make  a  return  of  them, 
■jMntnanded  him  to  keep  out  of  the  way, 
J^tbebiroself  went  to  the  Old  Bailey,  and 
iJ^A^y  indicted  captain  Sinclair  and  such 
*|il  vitoesies  as  he  knew  he  could  not  deter 
P>*BtVi  or  prevail  with  by  promises  to  go 
^Aetnith. 

JtMP  Sinclair  had  temper  enough  to  bear 
^■Hljr  almost  insupportable  injuries,  and  to 
^^  himself  for  a  proper  occasion,  when 


prisoners,  if  they  survive  his  inhuman  tieat- 


mciit,  hut  he  seems  to  ha>e  a  f.trther  \icw,  in 
case  it  eausui  ilentii,  of  possessiiip^  himself  of 
their  eflVets.  One  rv'mnrkabic  juouf  of  which 
the  Cunimittre  think  prnper  here  to  inseit,  viz. 

Mr.  John  Holder,  a  ^;'paMish  merchant,  was 
^^  -  ~.^^,.  .w.  wm  w.<^|^.  w^^«».w..,  ..  ..w  a  prisoner  iu  tlu^  Fleet,  nml  had  a  room  uhich 
Meihoukl  be  done  nim  by  the  laws  of  the     he  fitted  up  wi'.ii  his  own  t'urniture,  and  had 

with  him  all  \\\s  bof)ks,  aceounts  and  writiii^^ 
and  otljer  riVi  rJs,  to  the  value  dfab  >ut  30,0()0/. 
whicii  he  ('eclarcd  by  ailMiiivit,  upon  the  fol- 
lowing oecasiMu : 

The  baid  Thomas  Banjbrid^e,  by  foroe, 
turned  tliesp.id  Mr.  Holiler  (»vcr  to  the  common 
side,  and  took  possession  of  his  room,  in  whicli 
all  his  cilects  were. 

Mr.  Holder  remonstrated  stronijly  against 
this  usage,  and  Bambridge  refu^in^j^  to  restore 
him  to  his  room,  or  possession  of  !iis  eflects,  }'^ 
made  a  proptr  atadavil  m  otA*»^  \cv  ^VV^^  ^'*' 
X 


.  ta  the  said  Bambridge  ha«  forced  others 
VVfiogs  and  injuries  beyond  human  bear- 
Hi  i^  endeavour  the  avenging  injuries  and 
^P^vioiis  which  they  could  no  longer  endure. 
^Ji' it  appeared  to  the  Committee,  that  the 
*'BMBbridge,  in  order  to  avoid  the  punish - 
^  dae  to  these  crimes,  hath  committed 
ptTf  vid  hath  not  only  denied  admittance  to 
wiificitori,  who  might  procure  justice  to  the 
^^  prisoners,  and  in  open  defiance  to  the 
■*!  tebeyed  the  king's  writs,  but  hath  also 
VOL  XVII. 


307] 


3  GEORGE  II.       Proceedings  in  the  House  of  ConimunSj  SfC» 


jiidj^es  for  relief,  and  declared  that  be  feared 
his  eflects  ini^ht  be  embezzled  whilst  he  was 
thus  unjustly  forced  irom  theai,  and  that  he 
feared  Bainbriiige's  cruel  treatment  of  him 
would  be  the  cause  of  his  death :  the  miseries 
of  the  common  side,  which  he  dreaded,  had 
such  an  eHTcet  upon  him  (being  a  man  of 
an  advanced  age,  and  accustomed  to  live  in 
ease  and  plenty,)  that  it  threw  him  iuto  such  a 
fit  of  sickness  as  made  his  Hfe  despaired  of,  and 
io  his  illness  he  often  declared,  "  That  the  vil- 
lain Bambridge  would  be  the  occasion  of  his 
death."  Which  proved  true;  for  liambridge 
finding  Mr.  Holder  like  to  die  in  the  duress 
which  he  liad  put  him  into,  (for  his  own  sake, 
to  avoid  the  punishment  inflicted  by  law  upon 
gaolers  who  so  inhumanly  destroy  their  pri- 
soners) permitted  him  to  be  carried  back  to  his 
room,  where  in  a  few  days  he  died  of  the  said 
sickness,  contracted  by  the  said  forcible  re- 
moval of  him  to  the  common  side  by  Barn- 
bridge,  as  aforesaid. 

Air.  Holder  by  his  last  will  appointed  mnjor 
Wilson  and  Mr.  J;ohn  Pigott  trustees  for  his 
son,  a  youth  of  about  13  years  of  age,  who  had 
accompanied  hiiu  in  the  time  of  nis  contine- 
meot. 

This  young  gentleman,  aApr  bis  father's 
death,  locked  up  his  eflects  in  several  trunks 
and  boxes,  and  delivered  the  keys  thereof  to 
Mr.  Pigott  as  his  trustee,  who  locked  up  the 
room  and  took  the  key  with  him  :  but  the  said 
Thomas  Bambridge  caused  the  said  room  to  be 
broke  opeu  by  Thomas  King,  anotlier  of  his 
accomplices,  and  caused  the  said  effects  to  be 
seized,  after  that  he,  Bambridge,  had  forced 
Mr.  Pigott  out  of  the  prison,  (though  a  prisoner 
in  execution)  and  locKcd  down  major  Wilson 
(the  other  trustee)  in  the  dungeon,  to  prevent 
their  taking  any  inventory  in  behalf  of  Uie  heir 
at  law,  then  an  orphan. 

These  evil  praclicus  of  letting  out  prisoners, 
extorting  exorbitant  fees,  sufleriug  escapes,  and 
exercisingall  sortsof  inhumanity  for  gain,maiy  io 
a  great  measure  be  imputed  to  the  venality  of'the 
warden's  oflice ;  for  the  warden  who  buys  the 
privilege  of  punishing  others,  does  consequently 
sell  his  forbearance  at  high  rates,  and  repair  his 
own  charge  and  loss  at  the  wretched  expencc 
of  the  ease  and  quiet  of  the  miserable  objects  in 
his  custody. 

Upon  the  whole  matter  Uie  Committee  came 
to  the  following  liesolutiuns,  viz. 

Resolved,  That  it  appears  to  this  Committee, 
tliat  Thomas  Barobri<W,  the  acting  warden  of 
the  prison  of  the  Fleet,  nath  wilfully  permitted 
several  debtors  to  the  crown  in  great  suras  of 
roone}',  as  well  as  debtors  to  divers  of  his  ma- 
jesty's subjects,  to  escape;  hath  been  guilty  of 
the  most  notorious  breaches  of  his  trust,  great 
extortions,  and  the  highest  crimes  and  misde- 
meanors in  the  execution  of  his  said  office; 
and  hath  arbitrarily  and  unlawfully  loaded  with 
irons,  put  into  dungeons,  and  destroyed  pri- 
soners for  debt  under  his  charge,  treating  them 
in  the  most  barbarous  and  cruel  manner,  io 


high  violation  and  contempt  of  the  laws  • 
kiugtium. 

Resolved,  That  it  appears  to  this  Comi 
that  John  Huggins,  esq.  late  warden  < 
prison  of  the  I*leet,  did,  during  the  time 
wardenship,  wilfully  permit  many  consid 
debtors  in  his  custody  to  esca|>e,  and  w 
torioosly  guilty  of  groat  breaches  of  his 
extortions,  cruelties,  and  other  high  c 
and  misdemeanors  in  the  execution  of  hi 
office,  to  the  great  oppression  and  ruin  of 
of  the  subjects  of  this  kingdom. 

The  Resolutions  of  the  Committee  beii 
verally  read  a  second  time,  were,  upon  the 
tion  severally  put  thereupon,  agreed  ui 
the  House,  and  are  as  follow,  viz. 

Resolved,  nem,  con.  That  Thomas 
bridge,  the  acting  warden  of  the  prison  < 
Fleet,  hath  wilfully  permitted  several  d 
to  the  crown  in  great  sums  of  money,  ai 
as  debtoi-s  to  divers  of  his  majesty's  subje 
escape ;  bath  been  guilty  of  the  most  not 
breaches  of  his  trust,  great  extortions,  ai 
highest  crimes  and  misdemeanors  in  the 
cntion  of  his  said  ofiic£ :  and  hath  arbit 
and  unlawfully  loaded  with  irons,  put  int( 
geons,  and  destroyed  prisoners  for  debt 
his  charge,  treating  them  in  the  most  barl 
and  cruel  manner,  in  hip^h  violation  ant 
tempt  of  the  laws  of  this  kingdom. 

Resolved,  nem.  con.  That  John  Hui 
esq.  late  warden  of  the  prison  of  the  Flee 
during  the  time  of  his  wardenship,  wi 
permit  many  considerable  debtors,  in  his 
tody,  to  escape ;  and  was  notoriously  gui 
great  breaches  of  his  trust,  extortions,  < 
ties,  and  other  high  crimes  and  misdeinc 
in  the  execution  of  his  said  oifice,  to  the 
oppression  and  ruin  of  many  of  the  subjc 
this  kingdom. 

Resolved,  That  it  appears  to  this  11 
That  James  Barnes  was  an  agent  of,  ai 
accomplice  with  the  said  Tikoinas  Bamt 
in  the  commission  of  his  said  crinu's. 

Resolved,  That  it  ap|>ears  to  this  II 
that  William  Pindar  was  an  agent  of,  ai 
acc<impltce  with  the  said  Thomas  Bauil 
in  the  commission  of  his  said  crimes. 

iiesolved.  That  it  appears  tu  this  11 
that  John  Evcrt'tt  was  an  anient  of,  an 
accomplice  with  the  said  Thoaias  BamL 
in  the  commission  of  bis  said  crimes. 

Res'jlved,  That  it  appears  to  this  11 
that  Thomas  King  was  an  a^rf^Qt  of,  ai 
accomplice  xi  itii  the  said  Tliunias  Banifa 
in  the  commission  of  his  said  crimes. 

Resolved,  tiem.  can.  That  nii  humhh 
dress  be  presented  to  his  majesty  that  be 
be  graciously  plfased  to  direct'  his  attoi 
general  forthwith  to  prosecute,  in  the 
effectual  manner,  the  said  Thomas  Bamb 
for  his  said  crimes. 

Resolved,  nem.  con.  That  an  humble 
dress  be  presented  to  his  majc-stv  ilnii  hi 
be  graciously  pleased  to  direct  bis  attoi 
geucral  foruiwith  to  prosccutei  in  Ui« 


309] 


Trial  nfJohn  Htiggim. 


A.  D.  n2<>. 


[310 


■ffflclml  mtDner,  the  said  John  Hugvius  for 
a:4  cnincs. 

Rnolredy  That  an  humble  aiMress  be  pre- 
KMr^  to  hm  mHJcstv  that  be  will  be  ^raciuusly 
plttifd  to  direct  liis  attomry-f|;eneral  forth- 
with 10  pr09t!cute,  iotbe  ODost  c flertiinl  manner, 
ihcuid  James  Barnes,  William  Piniiar,  John 
IwMI,  and  Thomas  King,   for   their  said 


€Msed,  That  ttie  said  Thomas  Dambridjcfe 
It  SHunitted  close  prisoner  m  his  niaiesty's 
!■(  af  Newgate,  and  that  Mr.  Speaker  do 
■H  bis  warrants  acroriiin&^ly. 

Mrrrd,  That  the  said  John  Hugrgins,  esq. 
Iresninitted  close  prisoner  to  his  maitntjr's 
p«l  of  Newgate,  and  that  Mr.  Speaker  do 
■SK  his  warrants  according! 3' . 

Oirdered,  That  the  said  James  Barnes  be 
csanitled  close  prisoner  to  his  majesty's  gaol 
•TNevsmte,  and  that  Mr.  Speaker  do  issue  his 
vmiBla  accordinglv. 

Oidcred,  That  the  said  William  Pindar  be 
t— miued  dose  prisoner  to  his  majesty's  gaol 
tf  Newgate,  ami  that  Mr.  Hfieaker  do  issue  his 
vmants  accordingly.* 

Oidered,  That  the  said  John  Everett  be 
■■■itted  dose  prisoner  to  his  majesty's  gaol 
tf  Vrwgate,  and  that  Mr.  Speaker  do  issue  his 
■euordingly. 


Ordered,  That  the  said  Thomas  King  be 
committed  dose  prisouer  to  his  majesty's  (^ol 
of  Newgate,  and  that  Mr.  Speaker  do  issue 
his  warrants  accordini^ty. 

Ordercil,  firm.  con.  That  leave  l»e  given  to 
bring  in  a  Bill  to  diMilde  the  said  Thomas 
Bam  bridge  to  hold  or  execute  the  otHce  of 
warden  of  the  prison  of  the  Fleet,  or  to  have 
or  exercise  any  authority  rdating  thereto ; 
and  that  Mr.  0(;lethnri>e,  Mi*.  Earl,  the  loni 
Percivall,  and  Mr.  Hughes  do  prepare  and 
bring  in  the  same.* 

Ordered,  nem.  con.  That  lea?e  be  given  to 
bring  in  a  Bill  for  better  regulating  the  prison: 
of  the  Fleet,  and  for  more  effectual  i^event- 
tng  and  punishing  arbitrary  and  illegal  prac- 
tices of  the  wanlen  of  the  said  prison ;  and 
that  Mr.  Oglethorpe,  Mr.  Cornwall,  Mr.  Glan- 
▼ille,  and  Mr.  Hughes  do  prepare  and  bring  in 
the  same. 

Which  Bills  passed  into  a  law. 

They  also  enquire«l  into  the  state  and  coddi- 
tion  ot  the  Marshalsea  prison,  and  ordered  a 
prosecution  against  William  Acton  for  murder. 
See  the  fdlowing  Cases. 

*  As  to  some  of  the  proceedings  hereupon, 
see  4  Haiseli's  Precedents,  title  Iropeachment, 
chap.  3. 


479.  Tlie  Trial  of  John  Huggins,*  esq.  Warden  of  the  Fleet  Prison, 
for  the  Murder  of  Edward  Arne,  at  the  Sessions-House  in 
the  Old- Bailey,  May  21,  before  Mr.  Justice  Page,  Mr.  Baron 
Carter,  and  others  his  Majesty's  Justices  :  3  Gjeokge  IL  a.  d. 
1729.t 


Tuetday^  May  20, 1729. 

Proclamation  was  made  for  all  persons  cou- 
CRBcd  to  attend. 

CL  nf  Arr,  \  OU  good  men,  that  are  im- 
yiaaellcd  to  enquire,  &c.  answer  to  your  names, 
ladsafe  your  tines.  John  Huggins,  hold  up 
%hand.    (Which  he  did.) 

CUrk,  Thou  standest  indicted  hy  the  name 
•f  Jeba  Huggins,  esq.  warden  of  the  Fleet,  Aec. 
[The  Indictment  being  inserted  with  the  Spe- 
ciii  Verdict  at  the  end  of  tliis  Trial,  is  omitted 
^.]     How  sayest  thou,  John  Huggins,  art 

•  See  Fitz^ib.  177.  1  Barn.  358,  396.  S 
^  882.  S  liord  Raym.  1574.  East's  Pleas 
■f  the  Crown,  chap.  5,  §  92.  See,  too,  8  Term 
Bip.  457,  and  the  Cases  which  follow  this  Ar- 
tde.    tier,  too,  3  P.  Wms.  494. 

t  These  Trials 


of  Huggins,  Bamhridge  and  |  i^^"  ™rown, 
were  all  taken  in  shirt- hand  by  Mr.    P«t«  Sujoumey, 
I  to  the  Committee  api^nted    T°^™r.P'^' 


like  BkCDD,  (Clerk  to  the  Committee  appointed 
kcoqmre  into  the  gaols  of  the  Fleet,  Narshal- 
■a,  4w.)  who  in  nis  life-time  asked  200/.  for 
it  csyy  ofthea.    jForawr  JBtfi^ioii. 


thou  guilty  of  the  felony  and  murder  whereof 
thou  stamiest  indicted,  or  Not  Guilty. 

Huggins.  Not  Guilty. 

Clerk.  How  wilt  thou  be  tried  ? 

Huggins.  By  Gi>d  and  my  country. 

Clerk,  God  send  thee  a  good  deliverance. 

Wednesday f  May  21. 

Proclamation  was  made  for  information. 

Clitk.  Thou  the  prisoner  at  the  bar,  these 
men  that  thou  shah  hear  called,  and  personally 
appear,  are  to  pass  bet^reen  our  sovereign  lord 
the  king  and  thee,  upon  the  trial  of  th}'  lite  and 
death;  therefore,  if  thou  wilt  cballeuge  them, 
or  any  of  them,  thy  time  to  speak  is  as  they 
come "^ to  the  book  to  be  sworn,  before  they  are 
sworn. 

Jury. 

Philip  Frusliard,  Thomas  Clayton, 

John  Hoar, 
Martin  Wardell, 
Richard  Pitt, 
John  Milward,  John  Price, 

Daniel  Town,  James  King, 

Clerk.   John  Uuggitis,  bold  up  thy  hind. 


311]  3  GEORGE  n. 

OVhich  he  did.)  Yoo  of  the  jury  look  upon 
the  prisoner  (and  was  goings  on.) 

Muggins,  M V  lord,  the  disUoce  is  too  ^^reat 
to  be  hf  ard :  1  desire  I  may  come  to  the  inner 
bar;  for,  rov  lord,  when  any  niGonTenieuce 
happens,  it  is  the  constant  rule  to  admit  the 
prisoner  to  come  there :  it  was  done  in  the  Case 
of  Sanders  and  Clifton.  • 

Mr.  Just.  Jfage.  Whenever  the  Court  con- 
cei?GS  an  inconvenience,  it  has  been  allowed  : 
but  I  csDiiot  allow  it  till  then. 

Clerk.  You  trentleinen  of  the  jury  look  upon 
the  prisoner;  he  stands  indicted  by  the  name 
of,  &c. 

Prout  the  Indictment  muta^u  mutandii, 

Huggim.  1  must  desire,  mv  lord,  to  have 
the  indictment  read  in  Latin.  (VVhich  was  ac- 
oonlingly  done.)* 

Mr.  Holland.  (Member  of  parliament  for 
Chippenham.)  My  lord,  and  you  ^ntleroen 
of  the  jury,  I  am  of  counsel  for  the  kingf ;  and 
this  is  an  indictment  against  John  Huggins,  for 
aiding  and  abetting  James  Barnes  in  the  mur- 
der of  Edward  Arne ;  that  John  Huggins  was 
warden,  and  one  James  Pames  was  then  his 
agent,  who  did  in  November,  in  thf  11th  year 
or  his  late  majesty,  make  an  assault  upou  Ed- 
ward Arne,  and  took  Arne  involuntarily,  and 
confined  him  in  the  strong  room  (without  the 
eoiofort  of  lire,  olose-stool,  or  other  utensil), 
built  near  the  place  where  excrt*ments  are 
thrown  out,  a  place  very  unwholesome,  and 
most  dangerous  to  the  health  ;  that  Arne  fell 
sick  in  the  said  room,  and  languished  till  the 
7th  of  December,  and  then  dieil;  that  Hug- 
giuR,  through  l)i«  cruel  dis|K)sition,  l»eing  an 
opjir(>t»sor  of' the  prisoners,  di.l,  &c. 

8crj.  Ches/iitc.  My  lord,  and  you  gentlemen 
of  the  jury,  James  Barnes,  who  stands  indicted 
for  the  murder  of  £ilward  Arne,  is  tied  from 
justice ;  anil  John  Hoggins  the  prisoner  at  the 
liar,  also  btoiids  indicted  for  aiding  and  abetting 
in  the  said  fact.  He  was  then  warden  of  the 
Fleet,  and  had  the  custody  and  care  of  the  pri- 
soners then  committed  to  his  charge ;  there- 
fore it  will  be  necessary  to  let  you  know  what 
bounds  the  law  sets  to  gaolers,  and  In  prisoners. 
The  law  sets  fences  to  them  both:  the  gaoler 
is  to  be  protected  in  his  duty,  supported  and 
niaintained  in  it;  and  it  is  juitifiable,  if,  in  de- 
fence of  himself,  he  destroys  a  luaii,  and  com- 
mits an  act  of  felony  :  on  t'iie  other  hand,  if  by 
any  unnecessary  tyranny,  or  restraint,  any  of 
the  prisoners  come  by  u*n  uniiriiely  death,  it  is 
murder  in  the  gaoler ;  and  this  lost  is  princi- 
pallv  nccesHary  for  your  attention. 

F^duard  Arne,  on  the  12th  of  May,  ir25, 
wa'i  committed  upon  mesne  process;  he  was 
a  quiet,  peact'sihle,  and  inuflPi-nsive  man,  and 
coutiuued  i;o  till  Septeml^er  in  that  year,  ihe 
gcntlrinan  at  the  bar,  not  com ent  with  'iii'  tuMne 
Kccurity  that  his  predtcrssors  hud,  took  it  in  his 
bead  to  innke  a  strong  room,  which  was  built 
about  three  months  before  the  death  ot  Edward 


Trial  of  John  Huggins^ 


[312 


*  See  A  Note,  i A  foi.  19,  p.  1998. 


Arne ;  it  was  like  a  vaolt,  boiU  Of«r  the  oon- 
mon  sewer,  near  a  kiystall,  where  the  filthy 
matter  was  lodged,  nothing  but  bridDi  and 
mortar,  not  tiled  or  pointed  ;  and  in  thia  ooe* 
dition,  about  September,  one  Barnce,  aervaat 
of  the  defendant,  came  to  the  said  Arne,  M  ha 
was  sitting  in  the  cellar,  rushed  upon  hioa,  aid 
took  him  away  to  the  dungeon,  a  place  v^bcM 
nobody  had  been  put  in  before;  in  this  nii 
place  of  restraint  he  was  confined,  though  l» 
was  in  a  quiet  condition :  there  was  no  fire»  mm 
flre-place,  no  light  but  through  a  hole  ever  the 
door,  and  a  little  hole  by  the  aide,  big  eoeadi 
to  put  a  quart  pot  in  at ;  there  waa  not  Im 
want  only  of  fire,  or  fire  place,  but  there  mm 
no  chamber-not,  no  convenience  for  the  eMa  af 
nature,  so.  that  it  roust  fall,  and  be  convene 
with  it :  the  place  was  so  moist,  that  dropa  qf 
wet  ran  down  the  wall  The  roan  immediaisly 
lost  his  voice,  his  thn»at  was  swelled,  and  hm 
clothes  rotted  with  the  dampneas  of  the  placi^ 
and  the  poor  man,  huving  a  feather -bed, 
into  it,  and  the  feathers  stuck  ckiae  to  bin.,  ( 
in  this  condition  he  lay;  but  one  day,  the 
being  open,  he  got  out,  and  ran  into  the 
mon  hall ;  he  looked,  gentlemen,  mecc  like  n 
feathered  fowl,  than  an  human  creatare.  Thii 
waa  represented  to  Mr.  Hoggins,  who  gene^ 
rally  Uved  in  the  country,  and  did  net  oome  li 
the  gaol  so  often  as  he  ought ;  but  at  one  tiiB% 
when  he  was  at  the  prison,  he  aaw  tbe  HMjk 
and  the  poor  man  just  saw  him,  his  eye  fal( 
the  door  was  cloi>eil,  and  he  died :  the  wsidi^ 
gentlemen,  bad  the  door  shut,  and  ordered  him 
to  be  lucked  up,  and  he  continued  so  locked  m 
from  September  till  the  80th  of  October;  aai 
it  is  wonderful  to  think  (if  he  had  not  been  n 
man  of  a  very  strong  frame)  how  he  cookl  have 
continued  there  so  I'-ng.  It  moved  the  eeen- 
passion  of  his  fellow- prisoners,  who  applied  la 
have  him  released  out  of  that  place,  but  that 
not  being  done,  a  little  care  was  taken  toatp 
tend  him.  Gentlemen,  at  the  time  when  Mr. 
Gybbon  was  deputy,  some  of  the  priaonen 
askefl  him,  Why  he  did  not  take  care  ot'  Arne, 
fertile  man  cannot  speak?  And  anawer  waf 
made  by  Barnes,  Let  hint  die  and  be  damned  ; 
and  this  was  in  the  prcsent*e  of  the  warden* 
Gentlemen,  1  must  observi.  lo  you.  that  for  ee- 
cnrity  of  the  lives  of  prisnuers,  the  corooer^ 
inquest  ought  to  sit  upon  ihem,  to  see  if  may 
marks  c<HiTd  be  found  to  give  an  inforniatioa  u 
the  cause  of  death,  but  this  was  not  done:  ibia 
is  the  tiubstance  of  the  evidence,  which  cnnnaC 
be  aggravate<l. 

Ait.  Gen.  (sir  Philip  Yorke,  afWrwarda  ceil 
of  Hardwick  and  lyird  Chancellor).  My  lord, 
and  you  i;ent!enwn  of  the  jury,  I  am  ot  coun- 
sel for  the  king,  and  this  proseGuti<>n  is  the 
cfftfCt  of  a  useful,  compassionate  enquiry  ooo- 
cerning  the  gaols,  so  it  was  found  nccesaery 
to  bring  the  cause  liefore  you,  that  gaolers  OMy 
be  punished,  who  have 0|i|M>riunity,  and  bevn 
endeavoured  to  oppresa  the  imfortuuaie 
■iider  their  charge  and  |»ower.  It  ia 
there  ahonld  be  gaols  awl  prisons,  and  that 
aona  should  be  under  confinement  i  but  mtitm 

1 


1]  for  the  Murder  of  Edward  Arne. 

■riaNlHK  ii  io  tlidr  power  to  CMnmii  op- 
Hl^     IMBWtulcruclliea,  Io  the  kai  of  tfaa  livu 


A.  D.  1199. 


tSM 


WH  Aitv*.  Al  thM  time  e* cd  tbs  prwoner  niv 
him  laQgnuh  ;  hit  speech  wu  lout,  nod  tfaea 
b«  Ungublied,  and  cuaunued  ia  Ihe  duDgeon 
till  tbt:  time  «f  bis  deatli ;  thu  will  app«tr 
cltfviy  by  tbe  eTidence,  (bit  Le  dieri  in  duraw, 
aud  ibat  the  di4tein|tcr  (here  coatracted  wa* 
ibe  OGcaaion  of  hii  death.  The  next  eonai- 
deraiiuD  ia,  who,  and  what  was  lUe  occaiion  of 
hit  death  ;  it  it  the  doty  of  ths  gaoler  to  ban 
a  coroner's  iuquett  la  oof  uire  into  tlie  death  t£ 
a  pritnaer,  foT  hit  own  justili cation,  who,  hy 
haTing'  tiie  cududv  or,  and  the  ttower  ajet  kw 
priMDen,  nay  deatmy  tlieia ;  ttietefore,  if 
there  was  do  particular  reanoa,  why  thould  it 
Dot  Itavfl  beea  done?  Though  he  raaaot  pi«- 
Icud  to  thew  a  (larticular  onler  why  be  did  not. 
When  I  OMiaider,  that  uotbinif  cguld  badOM 
but  by  his  authority,  DOtbing  dune  but  by  bia 
direction,  tLit  wan  bis  (Mriicular  ordar. 

If  b"  wbu  was  Ibe  |irinci|ial  gaoler,  wh» 
bad  tlie  authority  to  coofioe  oiio,  and  ia  dii- 
charge  bim  froui  an  iinprojier  coDfiuenenl,  wb* 
saw  him  there  did  not  relesK  bim,  but  iiMlMd 


imbhie  brick  and  nortar:  opan  wkat  diet  in  duress  of  the  t^auler  by  bard  enpflw-. 
MMIailaNluiJl,  tbf  prisuBcr  will  gireyou  menl,  in  •  cruel  mannvr,  uaueeesaary  to  (ba 
■i^RM.  it  lie  liBil  Buy  autbaritjr  for  bjild-  gauter'i  safe  caWody,  it  is  death  by  la*  ;  if  lb* 
■i  Otin^  are  lu  take  care  ol  prisoaera,  gnoler  ia  not  aosnerable  fur  tliw  act,  wbal 
■■■■•iKiUdaii&t^iiB  10  putlbcm  in;  tbe  needii  the  dead  pMWJOt  Io  be  enquired  after  by 
*fc  *«"  ou  lit},  bui  Tcrydsmp  and  no-  i  ajuryf  Justice  ouiflil  be  d'loe,  iel  it  fall  ob 
^^■Mt,  «>  uiually  sneh  placet  oiusi  he.  wlioinil  will;  aud  I  do  not  doubt,  botthajurf, 
wlititticiriihtamling  in  ibe  cellar  iiMfeii'  I  for  Ihevakeol'lheir  oalbs,  will  liud  liiin  ifuiky. 
Wf,  Stnn,  wlia  was  eutriiKcd  with  the  Sol.  Gea.  (Hou.  Hr.  Talbot,  alUrwank  k 
■Mlfltf  |irisi)net«,  Bei/eil  him  and  p«l  him  Peer  and  I»rd  Chapcellor.)  We  will  call  sor 
■Mfln, ind  he  wasihprepiitwitliont  any  etideucrto  proie  the  facta. 
^Wifpmigiaii  la  sHKiain  life;  there  w 


ce  of  the   alBiott  op- 

tt  cruelty.    Hr.  Hug- 

_.._  Fleet  prison,  and  had 

cuHaJy  of  the  priaonen,  and 

Ml^paull),  nr  by  liis  deputy,  to  take 

■  MpiB,  >iiiiu  is  answerable' for  tbem  : 

~  "'    '   itiie  came  a  priaoner  io  May 

iauad  ibere  lilt  he  died.     At  bis 

I,  be  liKlged  Willi  -one  Bcbcrt 

f  difference  bappeniug  betweeu 

tek  Ku  uiiiKd  out  of  that  room,  and  Iaj 

.    aditniuiiiialitll.    This  nabappy  raao  wsa 

I  alakiLHilKnt  ia  bii  aeuacs,  which  his 

■■I  al|;lil  reisanohlv  oeoaaion ;  be  was 

fuiet  oMu  ;  nt  about  tbis  lime, 

t*  jjchetiie  of  baTioe  a  pritou 

.■hub  »  as  the  ooeaaMH)  ofibeir 

f  op^rmioae  u|>oii  ibe    prisoaera. 

inaninas  tbeoereotcdin  (ha dud- 

ftniih,  cominouly  called 


iMiblc  w],fre  yoo  niiKbt  put  a  liule  driok 
ifltHUKs  III'  bail  an  opportunity  uf 
It.  ami  wiiiieliaiea  nooe.  Undi;r  this 
111  |ieraii>  u»s  krpt,  without  any 
Mo  p.a!<r  nature;  thedescri^ou  it 
iiu  more  evtry  Irady  to  cnmpaHainn. 
•l[u<:eoil  lu  w  iih  him,  and  he  ripped 
crfpi  lotu  il  lo  keep  himself  H-arin, 

litrssiiji'k  to  hia:i  by  reason  of  his 

•*f  bnm^ar^  wiUi  bin  own  ordure,  which 
■W  Ml  a|i|>OTliiiiiiv  of  dnjfl|[  out  of  llie 
m-  Dunau  ilii-  uliule  time  whilat  Arne  wih 
*bal,  Mr, llii^rgius,  wlio  was  then  narili'n, 
[  «t  »>«,  ihou^b  be  ought  to  bate  corae 
'■B'laadbis  duly  retjuirel  him  so  In  do : 
vSoggins  looked  upon  him  thete,  aodaaw 
Wtia  tbai  ooodiiion,  io  tbe  place  built  by 
■tvs  order;  but  the  priaoner,  ao  far  fram 

RUflt  any  relief,  or  maoriog  him  out  of 
afiacmeiit,  orilered  llie  door  to  be  locked 
f  ■  kta  prcBotce,  be  being  warden,  aud  by 
aaalborily.  Tliit  affectiog  cnudilion  tiie 
WMaa  wa«  in,  aud  Jn  tbe  ciiwaraitaikce  be 
■sia,  he  augbt  to  hate  rdierod  bim.  tie- 
•danbcMiant  were  made  to  Gybbon,  and 
kvifaaaersaat*  uf  tlte  warden,  tu  desre  this 
t^ifiy  man  to  be  releaaed  i  lellu:s  were  sent 
Mw  bianiaeraUe  cmtdition,  that  he  vat 
I  likely  to  live,  and  to  desire  that  he  mi^lu 
tm  atitt  m  futyar  «urta|lj  j  but  aalbtng 


Call  Richard  Longbom.     (Who  wat  awoni,  aa 
were  all  ibe  rest  that  appeared.} 

He  produced  a  copy  of  Mr.  Huggiot'a 
patent,  brarin)^  dale  the  S2d  July,  the  19lh 
queen  Aon,  wlucb  U^  proved  to  be  u  true  oo|)y, 
and  Mich  part  of  it  wat  raad  as  prored  him  to 
be  warden. 

Huggint.  Uy  lord,  I  desire  the  Habendum 
may  be  rtad.  by  which  I  hare  a  power  to  ap- 
poiut  a  deputy  or  depuliea  for  and  durjug  inj 
oat  oral  life. 

Mr.  Just.  Page.  I  don't  know  what  use  yon 
will  make  of  it;  but  you  may  call  fur  it  ia 
yourdetieDce. 

JUAert  Bigrave  awom. 

Sol,  Gtn.  Do  you  know  ibe  prisonCTf 

Btermc.  Vpry  well, 

Sol.  Gtn.  Uuw  loagbareyOD  known  hittf 

Bigravt.  I  knew  him  when  J  waaCkrkof 
the  faiiarB,  in  April  17S5. 

Sot.  Gen.  Did  he  aci  i 

Bigratie.  lis  was  warden,  but  did  BOtact; 
Mr.  GybbcD  was  deputy  lo  .Mr,  Huugiiu. 

Sot.  Gen.  Who  conalituted  you  Ckrli  ofliia 
PajwrsP — Bifirave.  Mr.  Hugf^nt. 

Sol.  Gtn.  Were  Ibr  securities  tsken  ia  tba 
aaiue  of  ftlr.  HuggiusP 

Bigrave.  The  security  booda  were  taken, 
and  returns  madeiu  tbe  Dame  of  Hr.Uo^ 


1.4. 


r      -■•■^ 


--        -^-    *'»2 


■    ■  1 


«Z"     . 


1/'. 


•#•■    _ 


--      >* 


I  I 

M 


« . 


«  — — - 


Ff> 


I    •  •     ,1   •'>    n  •f.fi 


I 


'  '     ,•  i  -        --  ^    -IS     ▼  -~-     1 

.      »'.    *      .!  I*    --■-■■  -     '.--•:•*. 'Mis   -■ 

■ '    "        !»•:*■  •..-  .  ni":         ;    n 

■-  -.  •   ■»'  «  \ Jt- z '• '- '■'■    •-'•'     :•■■•-    ':  .  ;- 

••  •      •/   ■»■•.•'  i  •»<:.■■»-■  ■.  5  .  'i-  -—^ 

V  v^/      »«■»   ;  i**  ■     I.*-*  *  A ••--•;    • 

."*  .   ».'  :    ;.'«^  Vi  Mr  'rf-.w:-..      u;. 

»•'•   ;»•  -f'.  .•^r  i«»n  .'•%t<'1  t**   I 

■ 

thff"*     '1  tin  wurrrkiitH  were  gene! 


Jiit  the  Murder  ofEdtioard  Arne. 


▲.  D.  1729. 


[318 


0  office,  aod  signed  and  gealed  in 
Lbey  were  filled  up  by  Mr.  Oyl>bou, 
lod  sealed  by  Mr.  ilu^gins. 

.  Id  whose  name  were  the  war- 
led? 

The  warrants  were  returned  in  the 
!r.  iluggins,  but  by  the  direction  of 

D. 

.   Was  Barnes  my  servant  or  Mr. 
He  was  allowed  to  be  a  servant  to 

D.       ' 

ke  Page.    I  will  ask  a  question 

.  1  must  beg^  leave,  my  lord,   to 
lestion  more,  and  then  will  make 
rations  upon  the  evidence. 
,ce  Page,  It  is  not  proper  to  break 
\  evidence  to  make  any  observa- 

.  This  is  the  grand  point. 
ice  Page,  Whetlier  it  is  or  no,  that 
mod.  If  you  insist  u|)on  makinfi^ 
kfl  now  you  shall ;  bin  I  think  it 
yom:  prejudice,  tor  by  that  you  will 
d  from  making  your  remarks  upon 
'  the  evidence. 

.  My  lord,  1  will  then  submit. 
ice  Page.  If  you  will  ask  Mr.  Bi- 
Dore  questions,  you  may  proceed. 
.  Did  you  hear  of  any  ill-usage  from 
oan  (meaning  Mr.  Arne)  P 

I  remember  Mr.  Arne  was  there, 
lew  no  such  man,  and  heard  he  was 
groom. 

.  Did  you  hear  of  any  alteration 
ade  in  the  strong  room  while  Mr. 
lere? 

I  never  heard  of  any  alteration 
time. 

,  Did  not  Gybbon  keep  two  distinct 
le  and  the  same  hutise  ? 

in  the  ycnr  1725  he  did. 
I.  .  Pray  distinguish  nicely  as  to 
ggins,  and  Gybbon,  whether  Barnes 
»loyed  as  watchman  while  Huggins 
il,  and  Gibbon  deputy- warden;' 

lie  was. 

,  Who  put  you  into  your  office? 
Sir.  Uuggins  put  me    into  the 

1  made  an  agreement,  and  was  to 
il  me  out  of  each  day -rule. 

D  Carter,    Who  made  the  agree- 

I  made  the  acfreemcnt  with  Mr. 
id  paid  700/.  to  Mr.  iluggins  and 
I. 

D  Carter,  Who  put  3Ir.  Barnes  in  ? 
Blr.  Gybbon. 

B  Carter,  fiow  do  you  know  f 
1  beard  so. 

CSall  Richard  Bishop. 

Wlial  arc  vou  ? 

was  tipstaff  to  Mr.  Hucfgins,  pre- 
HMpm  came  to  his  utfice,  and 
ll.lSrit.    . 


Sol.  Gen,  Who  was  deputy  then? 

Bishop.  There  was  no  deputy- warden,  only 
Mr.  Dickson,  Clerk  of  the  Papers. 

Sol.  Gen,  When  did  Gybbon  come  there f 

Bithop,  In  the  year4724. 

Sol,  Gen.  What  time  did  Arne  become  a 
prisoner  ? 

Bishop.  In  1724  or  1725,  T  brought  him 
down  from  the  judges  chambers,  and  put  him 
at  the  Vine  as  usual. 

Sol,  Gen.  Why  did  3'ou  not  bring  him  into 
the  prison  ? 

Bishop,  Because  he  thought  to  give  se- 
curity. 

Sol.  Gen.  Was  not  that  a  spunging- bouse? 

Bishop.  Yes. 

Sol.  Gen,  How  long  did  he  continue  there  ? 

Bishop,  About  two  months. 

Sol.  Gen,  Where  did  he  lie,  when  he  went 
into  the  gaol  ? 

Bishop.  When  he  went  into  the  gaol,  1  did 
not  trouble  myself  about  it. 

Sol,  GcH.  Do  you  remember  the  building 
the  strong  room  ? 

Bishop,  I  do  remember  its  being  built  in 
1725. 

Sol.  Gen,  What  sort  of  a  place  is  it? 

Bishop,  1  have  seen  the  outside,  but  n<sver 
saw  the  inside;  1  believe  it  is  built  over  the 
common-sewer,  and  but  a  little  way  from  the 
dunghill;  the  ashes  and  dirt  of  the  boose  is 
flung  down  there. 

Sol,  Gen.  Did  you  see  Mr.  Arne  there  ? 

Bishop,  I  saw  him  once  in  the  long  room 
out  of  his  clothes,  before  he  was  brought  into 
the  strong  room,  and  I  complained  to  Mr. 
Gybbon,  and  said  he  ought  to  be  sent  to  Beth« 
lem,  but  he  put  him  in  the  strong  room. 

Sol.  Gen.  Can  you  tell  of  any  complaints 
made  about  Ame's  being  put  there  ? 

Bishop.  I  did  apply  to  Mr.  Gybbon,  and  said 
it  was  better  to  keep  him  in  his  own  room,  ^or 
if  a  wise  man  was  put  there  it  would  make 
him  mad  ;  and  it  would  have  made  me  mad  if 
I  had  been  put  there  myself;  and  i  heard  Mr. 
Gybbon  speak  to  Mr.  Hopkins  to  acquaint  Mr. 
Huggins,  that  as  Mr.  Taylor  was  one  of  the 
governors  of  Bethleni,  and  Mr.  Hu|;gins's 
friend  and  acquaintance,  he  might  easdy  gft 
him  in  there. 

Huggins,  It  was  no  part  of  the  office  of 
warden  of  the  Fleet ;  but  1  might,  by  a  friendly 
office,  use  my  interest  with  Mr.  Taylor,  and 
that  would  shew  me  more  a  humane  man,  than 
one  guilty  of  cruelty. 

Sol.  Gen.  Did  you  see  Mr.  Huggins  in  the 
gaol,  during  the  time  Mr.  Arne  was  in  the 
strong  room  ? 

Bishop.  1  saw  Mr.  Huggins  there  several 
times,  but  can't  say  whether  then  or  not  when 
Mr.  Arne  was  in  the  strong  room. 

Sol.  Gen.  Was  he  any  way  abusive  ? 

Bishop.  1  never  heard  that  Arne  was  any 
way  abusive,  or  needed  any  such  restraint. 

Sol.  Gen.  What  was  James  Barnes  ? 

Bishop.  He  was  to  take  up  people  that  the 
wardeu  directed  him  to  take  up,  and  acted  .as 


319] 


S  OEORGB  IL 


watchniaD  in  thei^,  and  wm  lerruit  ttiMler 
the  warden. 

Sol.  Gen,  What  time  waa  Arne  pat  id  the 
strong  room  ? 

Buhop.  lie  came  into  the  priaoD  before  the 
alroog  room  waa  bailt. 

Soi.  Gen,  Do  you  remember  when  it  waa 
bnitt^ 

BUhop.  It  waa  built  in  1795, 1  belieTeatthe 
latter  part  uf  the  summer  season. 

M,  Gen,  Do  you  remember  the  time  while 
Ame  waa  there? — Bishop,  I  do. 

Sol,  Gen.  Waa  there  any  thing  of  eonse- 
quence  done  in  the  gaol,  without  the  direction 
of  Mr.  HugginsP 

Bishop,  Nothing  of  couseqnence  was  done 
without  bia  direction ;  but  the  common  busi- 
ness of  the  gaol  waa  done  by  Mr.  Gybbon's 
direction. 

Sol.  Gen*  Did  you  ever  speak  to  Mr.  Hug- 
gins  in  relation  to  Arne's  confinement  ? 

Bishop,  1  believe  I  might  speak  to  Mr. 
Gybbon,  and  1  beliere  I  might  speak  to  Mr. 
Huggioa,  for  1  frequently  did  speak  to  him 
about  business. 

Sol,  Gen,  What  condition  was  Mr.  Ame  in, 
when  brought  to  the  Fleet  f 

Bishep,  I  think  he  was  in  his  senses,  he  was 
inoffensive,  and  I  think  there  wss  no  occasion 
to  confine  htm ;  I  saw  him  several  limes  walk- 
ing about  the  yard,  and  if  he  had  been  confined 
to  his  own  room  anv-body  might  have  looked 
after  him,  even  if  it  nad  been  a  child. 

Ss/.  Gen,  Had  be  any  bed  whilst  in  the 
Strang  room? 

Bishop,  I  think  he  had  no  bed  there,  it  was 
a  dark  place,  I  could  not  see  into  it. 

Sol.  Gen,  Did  Hug^ins  use  to  come  there 
after  Gybbon  was  deputy  ? 

Bishop.  I  saw  Mr.  Huggins  there  several 
times  afcer  Mr.  Gybbon  was  deputy- warden, 
and  Huggins  used  to  give  directions,  during 
the  time  Gybbon  was  his  deputy,  and  Hop- 
kins used  to  bring  orders  to  Mr.  Gybbon  from 
Mr.  Huggins. 

Sol.  Gen,  In  what  condition  of  health  was 
Mr.  Arne  when  he  was  brought  in  P 

Bishop.  He  was  in  a  good  condition  of 
N  kealth,  and  in  his  senses  ;  ami  I  believe,  lieing 
put  in  the  strong  room  in  the  Fleet,  would  have 
killed  sny-body,  and  thai  iliat  forwanled  Arne's 
death,  and  he  would  not  have  died  so  soon  if 
lie  had  not  been  there. 

Huggins.  When  von  Rpoke  to  Mr.  GyNion 
to  apply  to  me  to  make  intei-est  to  the  governor 
of  Bethlera,  whether  it  was  guatenus  wardrn, 
or  only  as  I  was  supposied  tu  have  acquaint- 
ance or  interest  ? 

Bishop.  It  was  l»  apply  to  you  as  warden. 

Huggins.  Were  there  not  women  prisoners, 
and  meu's  wives  in  ttie  gaol  ? — Bishop.  Yes. 

Huggins,  My  lord,  it  was  very  unfit  for  a 
maa  to  go  naked  about  where*  there  were 
women,  and  it  waa  §1  lie  aliould  be  con* 
Ased  somewhere.  Whose  aervant  was  JanKs 
Baraca? 

Biaktj^.  Mr.  Ojkbaii*a. 


Trial  of  John  Huggins^ 

Mr.  Justice  Page.  At  the  time  when 
about  naked,  was  there  no  other  room 
could  have  been  put  in  ? 

Bishop.  There  certainly  were  oChe 
where  be  mifi^lit  have  i»een  put. 

Mr.  Justice  Page.  How  often  have  3 
him  naked  ? 

Bishop.  1  saw  him  naked  but  once. 

Mr.  Btfron  Carter,   You  said  Gybb 
some  directions,  and  Huggins  gave  1 
rections;   now  during  the  time  that 
acted,  did  the  prisoner,  Mr.  Huggins.  | 
directions  as  to  the  m(»ving  of  prisonen 

Bishop.  My  lord,  I  never  meddled  w 
was  done  in  the  inside  of  tlie  prison, 
inform  yon. 

Call  Mr.  John  Cotton. 

At  I.  Gen.  What  ofiicer  are  you  b< 
to  the  Fleet?— Co^^ora.  Clerk  ot  the  ¥ 

Alt,  Gen,  Pray  see  what  time  A 
committed  ? 

Cotton,  He  was  committed  the  13th 
1725>  at  the  suit  of  John  Martin  am 
upon  mesne  process. 

Huggins,  I  desire  he  may  see,  whei 
bec:ime  a  prisoner  P — Cotton.  In  Hilar 

Att,  Gen,  Is  not  Barnes  still  a  priisc 
what  is  beoome  of  him  P 

Cotton.    He  was  a  prisoner,  and 
liberty  of  the  gate;  and  when  the  ord 
House  of  Commons  came  for  taking 
custody,  be  ran  away,  and  Corbet  ha 
voured  to  find  him  out,  but  could  not. 

Att.  Gen.    Was  Arne  charged  in  ex 

Cotton.  No,  he  was  not. 

Call  Mr.  Thomas  Farrington. 

Aft.  Gen,  Did  you  know  Edward  ^ 

Farrington,  I  did,  and  the  first  timt! 
came  into  the  prison,  it  was  l>etween 
and  28th  of  June,  1725.     He  was  sc 
at  the  V^ine  before. 

Att.  Gen,  What  state  of  health  was 

FaYrington,  When  he  cnme  into  1 
prison  he  was  in  a  gotxl  state  of  he 
tree  from  any  sort  of  dclirioiisness,  am 
sa^  him  do  any  ihiug  amiss  to  man, 
or  cliild. 

Ait  Gen.  Do  you  remember  his  be 
finetl  in  the  strong  n>om  P 

Farrington.  1  do  remember  Ins  be 
fined  in  September,  and  that  he  died  in 

Alt.  Gen.  When  was  the  first  t 
knew  of  his  contineinent  ? 

Farrington.  The  first  time  I  ever 
his  being  confined,  I  heard  he  was  ca 
the  strong  room  by  Barnes,  by  the  din 
Gibbon,  dc|»iity- warden  to  the  prisot: 
bar,  and  he  had  lain  bel'ure  that  in  n 
with  Kul>ert  Shaw,  and  upon  some  di 
being  turneil  out  of  that  room,  he  th 
the  common -hall.  U|»on  a  bed  of  I 
which  he  laid  upon  part  of  a  broks 
bedstead. 

Att,  Gen.  Wlien  was  tbe  first  liiM 
Ame  in  the  strong  rooss  f 


»l] 


Jor  the  Murder  of  Edward  Arne. 


A.  D«  1729. 


[S2S 


1.  I  Htw  him  the  very  day  he  was 
pstio. 
Att.  Gen.  What  sort  of  a  place  is  it? 
Furington.    It  is  a  room  arched  o?er  liJce  a 
nuh,  aDil  bad  been  new  erected  about  six 
vedu,  and  the  walls  were  very  damp  and  wet ; 
jta  ught  strike  off  the  drops  with  your  hand 
Hc  lbs  dew  on  the  top  of  the  fgnms  in  a  morn- 
ing; ibere  was  no  wainscot  nor  plastering, 
Ikytvm  some  boards  at  the  bottom,  but  wbe- 
Ihv  oiirely  boarded  I  can't  tell.    It  was  a 
nrilaidied  over,  and  when  Ame  was  carried 
hMiilBd;  there  was  a  window  over  the  door 
llm^rters  of  a  yard  long,  and  another  on 
ikaie  of  the  door  seven  or  dght  inches  long, 
mihm  wide,  and  no  fire- place,  and  the  com- 
Ms-Kwer  runs  under  it. 
Alt.  Gen.  Wliosupplie<l  him  with  victuals  ? 
fvringion.    I  saw  Mr.  Louden  give  him 


Att.  Gen.    Who  kept  the  key  of  the  room  ? 

Icrrington.  Barnes. 

Att.  Gen.  From  the  time  that  Mr.  Ame 
■winlfi  the  prison,  which  was  between  the 
lOlkftBrf  V8th  of  June,  till  he  was  put  in  the 
rotini,  what  state  of  health  was  he  in  ? 

Immgton.  Ue  continued  in  a  good  state  of 
till  a  little  before  he  was  put  in  the 
room,  and  then  he  grew  somewhat  dis- 
;  ami  from  the  time  he  was  put  in  the 
roam  he  altered  every  da  v,  grew  hoarse, 
mi  atltiteould  not  speak,  and  he  grew  weaker 
id  vtakcr  every  day  ;  about  the  beginning  of 
Offcerbe  hwt  bis  voice,  he  grew  then  delirious, 
ttinpl  o|ieD  his  bed,  and  crept  into  the  fea- 
tbm,  lod  fine  day  came  to  the  chapel  with  ex- 
cicanit  and  feathers  sticking  ubout  him  like 
a  niifpye,  lieing  forced  to  case  nature  in  that 
p'ace;  ind  after  that,  I  saw  the  prisoner  at  the 
ur,  led  Hopkins,  looking  into  the  strong 
imb  (die  door  being  open)  upon  Arne,  and 
Anenas  lyinc  in  the  bed  ript  open,  and  covered 
■uch  'Jynix  as  high  as  hisi  navel. 

An.  Gen.  Dill  you  hear  Arne  speak  ? 

i'%rnn^toa.  He  was  very  hoarse,  and  could 
BK  fpeak,  but  lilted  up  his  eyes,  and  looked  at 
MLllut^i^iu't. 

Ait.  Gen.  Did  HufTgios  then  sec  him  ? 

Farrin^tun,  Mr.  llugt*ins  must  see  him,  if 
k»u  rpii  blind. 

An.  Gin,  Did  yon  hear  them  speak  ? 

hrriHffton.  Mr.  Hoggins  and  Hopkins 
*^leretf ,  but  I  did  not  hear  what  they  said ; 
ktHa^ifins  shook  his  hoad,  then  Barnes  shut 
^duor,  and  Hn^^gius  and  Hopkins  were  then 
Ngauray. 

Mi.  Gen.  How  long  after  was  it  before 
Inedieil? — Fnrrington.  About  fourteen  dayh. 

Mi.  Gen.  Did  you  see  Aru«  Initwcen  this 
^•f  Hiiffgiu*  being  there  and  his  death  ? 

hrringlon.  I  saw  him  the  morning  before 
nM^  tnd  at  that  time  he  was  so  weak,  he 

^  not  stir  any  way,  but  there  lay  gaping 

vbe. 

Ml  Gen.  U'hat  was  the  occasion  of  his 
M  ia  that  languisbing  condition  ? 

tirrim^tiin.  Arne'i  coBfinemeat  was  the 
TOL  XVII. 


occasion.  I  was  in-the  strong  room  three  days 
myself  with  one  Smith,  my  legs  were  so 
swelled,  that  the  small  wus  as  big  as  my  thigb^ 
and  1  never  knew  a  day's  sickness  till  tliattime^ 
and  if  I  bad  continued  a  week  longer  it  would 
have  killed  me,  and  I  was  forced  to  buy  paper 
to  ease  nature  in,  and  fling  it  out  of  the  window. 

Att.  Gen.  What  is  tlie  situation  of  that 
room? 

Farringfon.  Its  situation  is  at  the  furthest 
part  of  the  prison  northward,  and  there  is  a 
sewer  under  it,  into  which  runs  the  water  from 
the  pump  to  carry  off  the  excrements  of  the 

Erison,  which  are  emptied  into  it,  and  the  dung- 
ill  was  then  about  six  yards  from  it. 

Att.  Gen.  What  distance  is  there  between 
the  strong  room  and  the  dunghill  now  f 

Farrington.  About  eight  yards,  and  all  the 
nuisance  of  the  house  is  flung  there,  and  them 
are  very  bad  smells. 

Att.  Gen.  What  was  the  occasion  of  Um 
death  of  Arne? 

Farrington.  I  think  it  was  the  strong  room 
was  the  occasion  of  it,  for  it  was  enough  to 
kill  the  strongest  body. 

Att.  Gen,  Did  Arne  die  there? 

Farrington.  He  did,  and  Mr.  Huggins  al- 
ways said  he  had  authority  to  put  persons  in 
tlie  strong  room,  or  irons,  which  1  can  prove 
under  his  hand  (and  was  going  to  pidl  out  a 
paper,  which  not  being  allowed  as  evidence,  he 
desisted.)  I  saw  Mr.  Huggins  a  second  time 
walking  upon  tlie  Bare  with  Gybbon  and 
Levinz,  between  the  hours  of  eleven  and  one,  a 
week  or  a  fortnight  alter  which  he  was  at  the 
strong  room, 

Aic.  Gen.  IIow  long  did  Mr.  Huggins  stand 
looking  upon  Mr.  Arne  in  the  strongroom  ? 

Farrington.  Ahout  three,  four,  or  five 
minutes,  and  he  then  stood  looking  at  the  door, 
as  I  now  .Mand  looking  at  the  counsel. 

Att.  Gen.  Was  Ame  let  out  of  the  strong^ 
room  afterwards? 

Farrington.  I  never  heard  that  Ame  was 
afterwards  out  of  the  strong  room  till  he  die<l. 

Huggins.  Did  iiol  you  make  some  aiiidavits 
by  way  of  complaint  to  the  Court  of  Common 
Pleas i* — Farrington.   Ves. 

Hugging.  Please,  my  lord,  to  ask,  Whether 
or  not  Mr.  Arne  was  meutioned  in  that  com- 
plaint  that  he  made  ? 

Farrinf^ton.  I  never  made  but  three  afKdavits, 
two  of  which  1  have  in  my  hand  in  print,  hut 
don't  remcmlier  Mr.  Arnt's  being  muotioucd 
in  either  of  ihem. 

Huggins.  My  lord,  the  affidavits  tend  chiefly 
to  the  sending  of  coflins  in.) 

Mr.  Just,  raiic.  If  \:>u  intend  to  make  any 
une  of  those  attidavits,  they  must  be  produce*! 
and  read. 

31  r.  Richard  Tulthorpc  sworn. 

Att.  Gen,  Did  you  know  Edward  Arne? 

Fidth^rpe.  I  did,  I  was  a  prisoner  then  my- 
self, he  was  brought  in  the  latter  end  of  Augu^^t^ 
and  I  remember  him  a  prisoner  In* fore  he  was 
confined  ia  the  strong  room  i   i  being  ia  the 

Y 


StS] 


3  GEORGE  IL 


cellar,  one  Barnes  and  two  or  three  other  aer- 
▼anta  of  the  wardena  took  bim  by  TioleDce  and 
carried  Kim  there. 

Att  Gen,  Had  you  been  in  his  company , 
and  bad  conTersation  v^ith  bim  ? 

FuUhorpe.  1  had  several  times* 

Ait.  Gen.  Was  he  disorderly  ? 

Fulthorpe.  He  might  be  a  little  in  liquor, 
but  he  did  nothing  to  offend  any  one,  and  gare 
DO  disturbance  to  the  company.  He  was  car- 
rieil  by  Barnes  into  the  strong  room. 

Alt.  Gen.  What  sort  of  a  place  is  the  strong 
room? 

Fulthorpe.  It  is  a  place  like  a  dungeon,  with 
A  hole  on  the  side  big  enough  to  put  in  a  full 
pot  of  beer. 

AU,  Gen.   How  big  is  the  room  P 

Fulthorpe.  The  room  is  about  half  the  big- 
ness of  the  Court  where  the  counsel  sit,  and 
atands  near  the  duncrbill,  and  the  sewer  runs 
under  it.     I  saw  it  opened. 

Att.  Gen.  What  was  over  the  common 
ptwer? 

Fulthorpe,  There  were  boardslaid  loose  over. 

Att,  Gen.  What  was  between  the  common 
•ewef  and  the  boarda  P 

FuUharpe.  Nothing.  The  walls  were  green. 
It  was  not  tiled  in,  and  had  scarce  been  built 
above  a  week,  and  was  as  wet  as  any  thing 
could  be. 

Att.  Gen.  Who  put  Ame  into  the  strong 
toomP 

Fulthorpe.    Barnes  and  some  others,  then 

Crisoners,  who  acted  under  the  warden,  took 
im  out  of  the  cellar,  put  him  in  there,  and 
locked  him  up. 

Att.  Gen.  Did  you  see  Mr.  Hnggins  during 
the  time  Ame  was  there  confined  P 

Fulthorpe.  I  saw  Mr.  Huggins  twice  there. 
I  saw  him  at  the  strong  room ;  he  went  along 
with  Gybboo  and  Hopkins,  and  Mr.  Huggins 
laid  bis  hand  upon  the  door,  and  looked  in,  the 
door  being  open. 

Alt.  Gen.  How  long  was  he  there  P 

Fulthorpe.   A  minute  or  two. 

Att,  Gen.  Who  was  there  besides  P 

Fulthorpe.  Several  belonging  to  the  Fleet. 
I  believe  Barnes  was  there. 

Ati.  Gen.  How  long  before  the  death  of 
Anie  ?'--'FuUhorpe,  About  a  month. 

Att.  Gen,  What  condition  was  Ame  in  at 
the  time  he  was  put  in  there  P 

Fulthorpe.  When  he  was  put  in  there,  he 
was  a  little  out  of  the  way  when  fuddled,  but 
when  sober  as  well  aa  any  man ;  when  1  came 
to  the  door,  there  used  to  be  a  smell  enough  to 
atrikc  one  down. 

Att,  Gen.  How  long  was  Ame  in  the  strong 
room,  before  you  saw  him  there? 

Fulthorpe.  I  went  the  next  morning,  and  at 
aeverai  other  times. 

Att,  Gen,  How  long  was  Arne  there  P 

Fulthorpe,  About  six  weeks. 

Att.  Gen,  What  condition  waa  he  in  when 
Uuggins  looked  upon  him  P 

Fmitkorpe,  Ha  wta  ?«ry  ill  when  Hnggint 
laakad  upon  jam/ 


Trial  of  John  HugginSf 

Att.  Gen.  What  do  yoa  think  waa  tb 
aion  of  bb  death  P 

Fulthorpe.  The  confinement  and  the 
ness  of  the  room  gave  him  his  death. 

Att.  Gen.  Had  Mr.  Huggina  spoke 
Ame  taken  out? 

Fulthorpe.  He  had  not,  for  the  dc 
shut,  Mr.  Huggins  being  then  present. 

Att.  Gen.  How  came  you  to  be  then 

Fulthorpe.  I  wanted  to  speak  to  Mr 
gins  about  business,  for  the  payment  of 
drawn  upon  Huggins  by  one  Lewis. 

Att.  Gen.  How  came  Arae  to  cut  hia 
pieces,  and  creep  into  the  feathers  P 
.    Fulthorpe.  It  was  occasioned  by  his  ( 
raent;  there  was  no  fire  there,  and  I 
the  confinement  was  the  occasion  of  hit 

Huggins.  How  oflen  did  you  know 
out  P — JWthorpe.  Two  or  three  times. 

Huggim,  How  long  were  you  a  p 
aflerP 

Fulthorpe.  I  was  discharged  by  the 
Grace. 

Att.  Gen.  How  came  you  to  be  pre 
the  time  Mr.  Hoggins  looked  into  the 
room? 

Fulthorpe.  I  waited  for  an  opportt 
speaking  to  him  about  a  note. 

Mr.  Tudor  Smith  sworn. 

Sol.  Gen.  Did  you  know  Edward  An 

Smith.  1  knew  Mr.  Arne  very  well,  a 
he  was  in  the  Fleet  prison.  I  remem 
time  of  his  coming  into  the  Fleet  prii 
was  with  him  in  the  sponging- house,  ai 
he  was  carried  into  the  Fleet  prison. 

Sol.  Gen.  Where  did  he  lie  P 

Smith.  In  the  room  of  one  Robert  Shi 
continued  there  about  a  fortnight  oi 
weeks ;  but  upon  some  quarrel  was  turn 

Sot.  Gen.  When  Arae  came  out  of  th< 
was  not  his  bed  turned  out  with  him  ? 

Smith.  It  was;  upon  which,  he  thei 
the  common -hall  for  some  time. 

Sol.  Gen.  Did  you  see  Arne  carried 
strong  room  ? 

Smith,  I  was  in  the  cellar,  when  he  \i 
ried  to  the  strong  room ;  Barnes  toe 
away. 

Sol.  Gen.  What  was  Barnes? 

Smith,  I  apprehended  him  to  be  Mr 
gius's  servant. 

Sol.  Gen.  What  did  you  see  done  by  I 

Smith.  I  did  sae  Barnes  come,  and  tal 
by  the  collar,  and  he  said.  He  must  g< 
with  him.  Arae  said,  Where?  Barnes 
No  matter  where,  you  must  go  along  wi 
and  the  next  monung  I  saw  Arae  in  the 
room. 

Sol.  Gen.  What  state  of  health  wa 
when  carried  there  ? 

Smith.  He  was  in  an  ill  state  of  healt 

Sol.  Gen.  What  sort  of  a  room  was  i 

Smith,  It  was  newly  built,  very  dam| 
nauseous  place.  I  knowing  him  befe 
under  more  than  common  concern,  #0 
Araa  how  ha  did?    And  he  said  Ban 


^  the  Murder  nf  Eihmrd  Arm,  A.  D.  1729. 

Smith.  1  received  ao  aoBwer  tVoiu  Mr. 


uknl  liim  if  lie  had  a  bed  ? 
H«aiilbebMt  nobrdi  but  the  nut  day  a  bed 
■t>  imii|;b(  to  hil». 

HtL  ((«•.   Ilov  lone  did  he  lie  there? 

Smui.  A  moDtb  or  six  weeks ;  I  tiwied  him 

U.  Cm.  Wi8  lli«re  any  lirp-|ikce,  any 
0»ik,  ar  Aoy   thing  oeceuary  tu  ease  na- 

iiiA  There  vnu  no  (ire-place,  no  candle, 
Mt^Btctwjry  tooseimtureiu, and  hewui 
kriado  all  thai  nature requiTPd  (here;  and 
■^itiaie,  when  I  carried  drink,  nieai,  ur 
A*kiB,  1  hare  been  forced  to  hold  my  nnae. 

U.  Gn.  What  place  was  tliere  tu  let  iu  the 

SjwA.  Tbere  was  a  place  oTer  the  door  witli 
•  loot  in  letigtb,  anil  another  bole 

' 1  a  fool  and  bull*. 

Dill  yoM  give  any  rolica  lo  Mr. 

'  :  L.i-  condition  litis  muii  was  in  ? 

^hh.    iJnriiigbern  B  pritoiicr  some  lime,  1 

k    ^ftii4  Ivr  tliB  benefit  of  the  rules,  and  he  re- 

I    tBifi  lat  IV>r  the  iiberly  of  the  rules,  and 

I    IhffaiH  and  Oybbnn  insisted  upon  10  guineus 

I    ■■(;  aoil  I  »  rute  foar  letters  of  the  usage  I 

I    Molted,  ItAfing  palil  seTeral  snuia  of  money  ; 

I     <4di  1  sent  to  Mr.  Hui;gias  by  Robin  tlie 

[      mr,  and  did  in  one  of  them,  of  the  Ath  of 

Qato,  mrniioD  Mr,  Aroe's  coofinemeui. 

It.  Bamn  Carter.  To  what  uurpose  wa 
tekUrrf 

imii.  II  partly  related  to  my  own  buslnesi 

■■dl  mtniiooed  that  tbe  slri>ng  loetu  kus 

'"'  ::■  <  fit  for  ii  Christian  to  be  in,  and  Mi 

,1   n  very   miserable  CO ndiiian  ;  an 

"  *iicb  a  condilion,  1  ^lehima 

;:..  ^.'Mii.  beiDfc  in  ■  mannVr  nakeil  tor 
ku  •<  ii.icrin^,  lie  bad  ripped  open  hia  bed, 
<UkJe<,l  mio  the  feathers. 

Xr  Baran  Carter,   Did  you  lake  any 
••ttt  leilrr  »l  bis  lying  in  ilie  fealliera  ? 

'  ~L  I  had  wrote  in  the  letter  almul  neeine 
Salotbe  fcutheri,  aiid  direclnl  ilie  letter  to 
Ib.Higjpaa,  al  liU  houiw  in  Bl.  Martin  Vlane, 
"i  ■«  ii  by  Robin  the  porter.    I  spoke  to 

M  Jwtice  Page.  Thiit  waa  not  material. 
Barim  Carlrr,     Did  you  ever  aee  Mr 
U  in  (be  gaol  f 

L    1   BCter  did,  but  wtlelied  an  oppor 
W«tm*iatC  him. 

**       )  Carter.      What  condition   wa' 

•  M  n  muwrnble  (ceue ;  and  1  taki 

llic  cause  of  hii  death  ;  and  that 

1*1  by  lieiii^  in  »iuch  a  condiiion. 

ku.     I  deaire  he  mav  be  asked, 

fnir  I  liAiJ  oome  into  the  Fleet  prisuo, 

N  ham  seen  nie  ? 

I  brlii*e  1  <ihuu!d. 
-itt.  D'dyiiietetaee 

^     I  ant   Ur.   Hugicins  two  or  three 

W,  u  ibe  lime  ibe  oruilionoii 

Hiumt.  1  rfetire  lie  may  be  aakei),  my 
M,  tf  ba  itKnni  My  auiwct  frtm  me  tu  the 


m 


nessf-.5ni,(S,  It  did. 

Jtoberl  Satitlclair,  the  porter,  iwi 

Atl.Gcn.  It  that  ibeman,  Robin? 

Smith.  It  la  the  man  I  scut. 

All.  Ocii.    Did  you  carry  any  lettcn 
Mr.Smilli? 

Haintclair. 
brnugbt  aiiswi 

reason  of  the  dislnnce  of  the  time,  cannot  re- 
lueniber  the  delirery  of  the  letters,  but  govs 
tbe  answers  to  Mr.  Sniiih. 

Att.  Gen.    Do  you  remember  about  what 

Sainlclair.  I  cannot  uy  about  what  time. 

Att.  Gen.  Did  you  carry  any  letters  from 
Mr.  Smith  toMr.  HagiipnBr 

Saintciair.  I  carried  aereral  letlera  lo  Mr. 
H  ufgiiis  from  Mr.  Smith,  and  always  return- 
ed an  answer  to  whom  I  dchrered  them. 

lluggim.  My  lord.  I  desire  he  mav  be  ask- 
ed, if  he  ever  delivered  a  letter  from  Air.  Smith 
turner 

Saiittelair.    I  cannot  iay    I 
Ho|{g'ins  at  his  own  house. 

T^tmat  Paine  swoi 

Alt.  Gen.  Did  you  know  Edward  Arne? 

Faille.  I  did,  and  remember  hi*  being  put 
in  the  Pleei  prison. 

Att.  Gtn.  What  itate  of  health  was  lie  iu 
when  lie  esnit  there? 

I'aittt.  He  was  in  a  good  state  of  health.  I 
was  in  company  with  him  and  raplaiu  Bat«- 
niao,  who  was  al  cards,  and  Ame  was  at  play, 
and  did  not  seem  to  he  lunatic ;  unil  ooe  James 
Bamea  came  imo  the  rnom  whdat  1  wai  in 
I'umpauy  drinking  with  tliem,  and  Arne  iras 
rloiii|c  nolhinir  disorderly,  and  Barnes  forced 
liim  into  the  strong  room,  and  I  was  then  hv. 

Att.  Gen.  WliowasBai'uesf 

Painr.  Barnes  was  a  prisoner,  and  was  made 
m  watchman  by  Gybbon,  »ho  gate  him  tbe 
liberty  of  the  (rale. 

Att.  G(R.  What  was  his  husineil? 

Paine.   He  was  a  watchmBD. 

All  Gen.  Whose  servant  (lid  you  look  upon 
taiui  in  bfi> 

Puint.  1  looked  upon  him  la  be  a  servant  of 
Mr.  UyhtHin'n. 

All.  Gen.  Did  you  ever  see  Mr.  Huggins 
there  ? 

Paine.  I  never  saw  Mr.  Hoi;gius  there,  Itut 
when  llie  priiihoouiariea  were  Uiere, 

Alt.  Gen.  What  sort  of  a  place  was  it  befora 
it  wan  niude  s-i  ? 

Puine.  It  wna  ■  stable  where  tlie  cocki 
and  heub  roosted. 

All.  GcR.  Did  you  see  it  after  it  waa  eow 
verted  into  a  strong  room,  belbre  Mr,  Arne 


387] 


8  6E0BG£  U. 


Paine.  I  cannot  s&y :  bot  there  wai  tn  ill 
smell  came  both  from  the  necessary-hooae 
and  from  the  dunghill. 

Att.  Gen.  What  condition  was  Arne  in, 
ader  lie  was  put  in  by  Barnes  ? 

Paine.  Arne  ^w  outrageous,  and  tore  his 
clothes  and  beddmgf. 

Au.  Gen.  What  condition  of  health  was 
Arne  in  ? 

Paine.  I  never  talked  to  him  but  through 
the  hole  in  the  wall. 

Au.  Gen.  How  was  he  before  he  died  7 

Paine.  J  was  discharged  before  he  died. 

Att,  Gen.  What  kind  of  alteration  was  there 
inhisToiceP 

Paine.  He  was  a  little  hoarser,  abd  I  could 
not  see  him,  but  only  as  I  talked  to  him 
through  the  hole. 

*    Att.  Gen,   Was  it  a  fit  place  to  confine  a 
prisoner  in  ? 

Paine.  It  was  not  a  fit  place  to  confine  pri- 
soners in  without  danger  of  their  lives. 

Huggint.  WaK  there  a  court  of  Inspectors 
tw  governors  of  the  Fleet  ? 

Paine.  There  was  such. 

Huggint.  Did  they  not  ballot  once  a  month  ? 

Paine,  We  once  balloted  for  steward  and  in* 
spector. 

Huggint.  Did  not  the  court  of  inspectors 
place  Arne  in  the  strong  room  f 

Paine.  Tlie  inspectors  did  not  so  much  as 
▼isit  the  strongroom. 

Huggint.  if  any  complaint  had  been  made, 
was  not  tbe  power  vested  in  the  court  of  in* 
specters  to  redress  ? 

Mr.  Just.  Page.  Mr.  Huggins,  that  is  not  a 
proper  question. 

Huggint.  My  lord,  I  desire  he  may  be  asked 
then  iifiw  long  it  was  before  Mr.  Arne  died 
that  he  left  the  prison  ? 

Paine.  1  was  dischai^ed  in  September,  about 
the  0th. 

Huggint.  The  8th  of  September,  my  lord, 
wlucb  was  about  six  weeks  before  Mr.  Arne 
died. 

Mr.  Just.  Page.  When  was  the  strong  room 
built  ? — Paine.  lo  Mr.  Gybbon*s  time. 

Uug^ins,  My  lord,  if  BIr.  Oybbon  built 
the  strou^  room,  there  is  reason  to  believe  be 
paid  for  it. 

John  Bouch  sworn. 

Att.  Gen.  Did  you  belong  to  the  Fleet  f 

Bouch.  I  did,  I  was  turnkey  there. 

Att.  Gen.  When  was  (he strong  room  built? 

Bouvh.  It  was  built  in  1735,  the  latter  end 
of  the  suuimer,  by  the  direction  of  Mr.  Huggins. 

Att.  Gen.  During  the  time  that  you  be- 
longed there,  did  not  Mr.  Huggins  come  fre- 
quently ? 

Bouch.  He  came  now  and  then,  not  jejff 
oflen. 

Att.  Gen.  When  was  Arne  put  in  the  strong 
room  ? — Bouch^  He  was  put  in  about  August, 

Atlt.  Getu  Did  you  know  htm  before  he  was 
earried  there  P 

'Bweh.  IknewhimTerywdliindnofvriair 
any  ill  offered  by  him. 


Trial  of  John  Hugghif 

Att.Gen.  Whose  order  wis  te  pn 

Bouch.  He  was  put  in  by  the  orde 
Gybbon  and  Mr.  Huggins. 

Att.  Gen.  Did  he  die  in  that  place  f 

Bouch.  He  did. 

Att.  Gen.  How  long  was  he  there? 

Bouch.  About  a  month  or  six  weeks 

Att.  Gen.  Did  you  see  Mr.  Huggi 
during  the  time  Arne  was  in  the  strou] 

Bouch.  I  cannot  say  I  did. 

Att.  Gen.  Who  was  it  orer-kx 
building  the  strong  room  ? 

Pouch.  Mr.  Huggins,  wnen  he  can 
lodge. 

Att.  Gen.  Was  he  there  when  the 
was  a- raising? 

Bouch.  1  cannot  be  certain,  but  I  n 
there  was  a  direction  of  the  Court  < 
mon  Pleas  for  BIr.  Huggins  to  ins 
gaol,  and  that  he  came  once  a  week  i 
order  from  the  Court  of  Common  Plet 

Att.  Gtn.  What  was  the  conditio 
room? 

Bouch.  The  room  was  newly  built  ai 

Att.  Gen,  Did  you  carry  any  lett< 
Huggins  relating  tu  Mr.  Arne  ? 

Bouch.  1  did  carry  a  letter  from  a 
Mr.  Arne's,  and  he  was  so  weak  thei 
could  not  speak. 

Att.  Gen.  Where  did  you  carry  it  1 

Bouch.  From  the  Fleet  prison. 

Att,  Gen,  What  was  it  about  ? 

Bouch.  It  was  about  getting  Arne  hi 
a  gentleman  gave  me  the  letter,  audd* 
to  oring  an  answer  as  to  Arue*s  havir 
berty  of  tbe  rules ;  and  I  went  my 
saw  Mr.  Hoggins,  and  gave  him  tli 
he  opened  it,  and  said  he  would  sen 
swer  by  Mr.  Hopkins. 

Att.  Gen.  When  was  this  ? 

Bouch.  It  was  in  October,  about  a 
fore  Arne  died. 

Att,  Gen.  Where  did  Arne  die  ? 

Bouch.  He  died  in  the  strong  roo 
him  two  days  before  he  died  ;  he  wa: 
if  dead  then,  and  very  weak  and  ill. 

Att.  Gen,  .What  Kind  of  a  place 
strong  room  ? 

Bouch.  It  was  a  very  sickly  place 
of  the  common  sewer  running  under  1 

Att.  Gen.  What  message  did  Mr. 
send  by  Mr.  Hopkins  as  to  the  letter '. 

Bouch.  Mr.  Huggins  sent  word  b 
Hopkins,  that  he  would  inform  Mi 
friend  what  was  to  be  done. 

Att.  Gen.  Who  was  it  built  tl 
room? 

Bouch.  One  Fry,  a  bricklayer,  to< 
tions  from  Mr.  ituggins,  at  Mr.  h 
own  house,  and  I  was  present  when 
there. 

Att.  Gen.  Who  paid  for  the  buildh 

Bouch,  {  believe  Mr.  Huggins,  for 
a  master  bricklayer,  and  I  saw  him  th 
business  afler  the  building  was  finishe 

Att,  Gen,  How  came  you  to  be  the 

Bouch,  I  went  there  Q&eD  to  geli 
Mr.  Huggiw. 


3»] 


fir  the  Murder  of  Edward  Ame. 


A.D.  17S9. 


[5S0 


Mr. 


Alt.  Gen,  When  were  yon  turnkey  ? 
houch,    I  was  not  turnkey  till  after 
Aroe's  deatb. 
Att.  Gem,  Did  yon  ice  him  in  the  strong 


fiiMcA.  I  saw  him  in  the  strong  room  twenty 

tioct,  fur  I  Has  then  endcafouring  to  get  to  be 

tnitej. 

itt  Gen.    Whom  had  ^nu  the  pkice  from  f 

Hodk.  From  Mr.Hnggins ;  and  during  the 

tef  vas  endeavouring  for  it,  I  saw  Mr.  Ame 

■tteMroogroom. 

James  Tucker  vwom. 

Atl.  Gem.  Do  yon  know  the  place  (hat  is 
oiled  the  ttmng  room  in  the  FJeet  prison  ? 

l\uker.  1  do,  and' was  employed  by  the 
WeUiyer  ind  carpenter  to  make  the  iron- 


Att.  Gem*    Whom  did  you  make  out  your 

"to? 

Tkeker,  I  made  it  out  to  Mr.  HugginSi  as 


Att.  Gen,  Did  you  ever  speak  to  any  body 
about  his  relcascnierrt  P 

Le  Vointz.  Whilst  he  was  in  this  place,  I 
met  with  Mr.  Oopkins,  and  spoke  to  him  to  ac- 
quaint Mr.  Huggins,  that  it  was  im{>ossible  but 
that  Arne  must  perish,  if  continued  in  that 

iilace ;  and  if  he  did  not  speak  to  Mr.  Huggins^ 
[  would  send  to  him  myself;  to  which  Hop- 
kins replied,  he  would ;  aud  afterwards  1  mat 
with  him,  and  asked  him,  whether  lie  bad 
spoke  f  lie  told  me  he  had  spoke  to  Mr.  Hug- 
gins,  who  said  it  was  no  busiuess  of  his. 

Mr.  Just.  Fage.  That  cannot  be  given  ib 
evidenire,  for  it  is  only  hearsay. 

Le  FoiutM.  [Stuniiing  up  again.]  I  aaw 
Mr.  Iluggius  upon  the  Bare,  with  one  Levins, 
a  QnakiTf  then  a  prisoner  in  the  bouse,  and 
Mr.  Gybbfiii,  during  the  time  Arne  was  in  the 


stmn*;  room. 


Alt.  Gen.  Who  paid  you  ? 

Tucker.  1  made  the  bill  out  in  Mr.  Hug- 
|infs  name,  and  was  paid  by  Pindar,  and  a  re* 
BSft  WIS  given  in  full  of  that  bill. 

Mra.  Eliz.  Le  Fointg  sworn. 

Jt't.  Gen.  Did  you  know  Edward  Arne  ? 
hPointt.  I  did. 

Ait.  Gen.  Do  you  remember  him  a  prisoner 
is  ike  Fleet,  and  bis  confinement  in  the  strong 


1/  PointM,  I  do ;  be  had  been  confined  two 
vrihree  fla3'S  befure  1  went  to  him  ;  the  first 
tm  I  saw  him  sittin«r  upon  a  bench,  and  the 
Bvutme  in  Win  feather-bed,  and  lie  was  cover- 
AirhKvin,  and  hi:i  l>ed  lay  on  the  floor. 

.-'/:.  (J in.  What  condition  of  health  was 
kio* 


LtPmntz.  I  nevpr  found  him  any  way  dis-     ^as  after  the   tire   happened  in  liell-Savage 


kiDp^reiK  only  disordered  by  the'col(f  and 
dut.pD<rss  of  ihe  place. 

Alt.  Gin.    Was  not  his  voice  altered  ? 

le  Pol  fit  M,  He  had  a  shivering  hoarseness 
SpOD  liiui. 

Att.  Oen.  How  long  did  he  continue  there  ? 

le  Point:.  He  continued  there  seven  weeks, 
*  ibfereaboats. 

Alt,  Gen.  What  condition  wns  the  place  in? 

Le  PointM.  It  was  building  in  July,  and  J 
Rmember  the  finishing  of  it  some  time  in  Au- 

Alt.  Gen.  W^hen  was  Mr.  Arne  put  in  ? 

le  Points.  He  was  put  in  as  soon  as  it  was 
fiii»faed. 

Att.  Ccn.  Do  you  believe  that  was  the  oc- 
caioQ  of  bis  death  ? 

If  Puir.tz.  It  was  impossible  to  be  other- 
^ ;  fur  the  huililing  was  so  very  green,  that 
S«u  might  pull  the  moriar  from  the  bricks 
*A  Tour  fingers,  and  it  was  impossible  any 
hiv  eould  be  continued  therein  for  seven  weeks 
iQQut  being  killed  by  the  dauipness  of  the 
fhoe ;  and  I  verily  believe  that  confiuemrnt 
*■  the  occMioa  of  Ame's  death. 


Serj.  Cheshire.  Which  way  did  he  come 
upon  the  Bare  ? 

Le  Pointz.  I  cannot  tell ;  there  were  then 
but  two  ways,  one  by  the  strong  room,  and  ikm 
other  through  the  house. 

Serj.  Cheshire.  Whereabouts  is  the  strong 
room? 

Le  Pointz.  The  strong  room  was  built  near 
the  Bare,  und  joins  to  the  end  of  the  house  ; 
and  I  saw  them  walkinjg;  together ;  aud  that 
he  could  not  well  come  in  or  out  niiiiout  com* 
ing  near  the  stronpf  room. 

8erj.  Cheshire.  What  did  you  think  was  the 
occasion  of  his  coming  there  ? 

Le  Pointz.  To  take  a  survey  of  the  walls, 
which  were  then  finished,  for  that  I  saw  him 
look  up  at  them. 

Serj.  Cht shire.  Did  you  know  Mr.  Iluggins? 

Lc  Pointz.    J  knew  him  very  well. 

Serj.  Cheshire.  When  wasjhisp 

Le  Pointz.  I  lake  it  tu  Ik*  some  time  in  Oc- 
tober, about  fourteen  days  before  Arne  died  :  it 


yard. 

Thomas  Levinz  was  called,  and  being  m 
Quaker,*  refused  to  take  an  oath,  and  there- 
fore cuuld  not  be  admitted  an  evidence. 

Jluiigins.  It  is  a  <rreat  w  hilc  ai(o  since  this 
matter  happened  ;  there  is  iki  notice  taken  by 
the  course  of  the  evidence  how  this  matter  has 
gone  on,  and  therefore  it  was  \>ry  difficult  to 
answer  particularly  thereto  ;  this  1  do  sideinu- 
ly  affirm,  that  during  the  t.ine  Arne  was  there, 
1  never  lieard  of  his  name,  that  he  died,  or  was 
in  the  strong  room,  till  that  I  was  iu  the  Fleet 
to  be  examined  :  that  I  never  was  seen  in  tlie 
Fleet  prison  while  Arne  was  in  the  strong 
room ;  and  that  no  one  of  the  kin^^'s  witnesses 
has  said,  that  I   used  any  hard  words  aliout 

*  *Mn  the  case  of  Bambridj^e  (postca)  the 
appellant's  counsel  called  u  (Quaker,  and  in- 
sisted that  this  is  a  ci\  il  suit,  in  w  hich  he  mig[ht 
be  a  witness.  But  the  chief  justice  said,  it 
was  to  this  purpr>se  a  eiiininal  iirucieding,  and 
therefore  he  couid  not  be  a  witness.  Strange'i 
Reports,  vol.  2,  p.  85C.''— IWicr  Edition* 


331] 


S  GEORGE  U. 


Trial  of  John  Iluggint, 


[SSi 


Mr.  Arne.^  There  was  a  suggestion  of  mj  get- 
iing  Arne  into  Bethlehem,  it  was  oo  part  of  my 
office  as  warden  of  the  Fleet,  bat  1  might  by  a 
friendly  office  use  my  interest  with  Mr.  Tay- 
lor ;  and  that  would  shew  me  more  a  humane 
man,  than  one  guilty  of  cruelty. 

That  some  of  the  prisoners^  who  were  wit- 
nesses, were  discharged  the  prison  the  7th  of 
September,  so  it  was  not  likely  that  they  should 
be  able  to  swear  as  to  Arne's  death,  who  did 
not  die  till  October. 

As  to  Gybbon  being  deputy,  the  first  evi- 
dence to  be  produced  will  oe  the  act  for  insol- 
Tent  debtors  m  1725,  to  prove  that  Gybbon  car- 
ried iu  a  list  pursuant  to  that  act ;  and  deliver- 
cm!  it  as  gaoler,  and  swore  to  it ;  and  I  must  de- 
sire, that  Mr.  Tanner  may  read  the  clause  in 
that  act  of  parliament,  where  gaolers  are  di- 
rected to  make  out  a  list  of  prisoners. 

Att,  Gen,  If  you  would  prove  Mr.  Gybbon 
warden,  you  must  prove  what  consideration  lie 
gave,  and  what  stile  he  bore. 

Mr.  Just  Page.  Did  the  commissioners  in 
that  act  take  notice  who  was  deputy-warden  or 
not  ?  Let  it  be  deputy,  or  how  it  would,  they 
took  no  notice  of  that.  1 1  would  be  no  evidence 
for  the  king. 

Huggitu.  It  will  prove  that  Gybbon  aeted. 

Mr.  Just.  Page.  We  shall  see  that  when  the 
act  of  pariiament  is  read.  I  allow  Gybbon  did 
act  in  tact. 

Att.  Gen,  If  he  has  a  mind  to  prove  Mr. 
Gybbon  deputy,  he  must  prove  it  by  his  depu- 
tation. 

Serj.  Cheshire.  It  is  too  early  to  offer  this 
before  the  deuutation  lies  before  us ;  therefore 
I  submit  it,  it  it  is  not  too  soon  to  offer  this  in 
evidence. 

Mr.  Just.  Page.  I  cannot  direct  the  prisoner 
how  he  should  proceed ;  whether  this  may  be 
of  advantage  to  him  I  cannot  find.  If  he  be 
charged  from  a  particular  fact  that  did  arise 
by  Gybbon,  why  should  not  Huggins,  by  the 
same  rule  of  reason,  justify  himself  by  any 
other  act  done  by  Gybbon  ? 

Vide  Act.]  Then  the  clause  in  the  Act  of  In- 
solvency iu  the  year  1725,  was  ordered  to  be 
read. 

Mr.  Just  Page.  I  do  not  see,  upon  reading 
of  the  act,  it  affects  any  thing  that  has  been 
said.  1  take  it  that  the  officer  acts,  and  makes 
returns,  and  the  law  does  not  say  whether  it  is 
the  warden  or  the  deputy  < warden.  Mr.  Hug- 
gins,  1  dare  to  say  you  yourself  will  own  it; 
and  the  use  that  you  would  make  of  it  is  to 
shew,  thit  he  acted  as  warden. 

Huggins.  FuUhorpe  was  discharged  the  7th 
of  September.  1  desire  Mr.  Tanner  may  pro- 
duce the  list,  and  that  it  may  be  read  to  skew 
that 

Mr.  Just  Page.  If  Fulthorpe's  evidence  was 
laid  aside,  yet  there  are  witnesses  enough  to 
prove,  that  they  saw  vou  there :  however,  I 
most  take  notice  of  wnat  Fulthorpe  said ;  he 
aid,  that  Arne  was  a  peaceable  man,  and  then 
gtre  a  defcription  of  the  room  i  ind  nid»  that 


I 


the  floor  was  covered  with  a  few  boards ;  and 
that  he  saw  the  prisoner  twice  in  the  Fleet,  and 
that  he  was  there  at  one  time,  and  k)oked  in  at 
the  door,  and  then  the  door  was  shut,  and  ht 
went  away.    This  defence  seems  but  trifiing. 

Huggins.  I  intended  it  as  to  the  credit  of  the 
witness. 

Mr.  Just.  Page.  The  man  has  sworn  ho- 
nestly, and  if  it  was  struck  out  of  the  evidenes 
it  would  not  signify ;  and  I  must  a  little  asskt 
vou,  as  no  counsel  is  allowed  but  in  cases  of 
high  treason.  You  were  going  to  shew  the  act 
of  the  deputy,  without  shewing  what  authority 
was  given  to  the  deputy.  If  yon  have  any  in- 
strument or  agreement  by  which  yoa  consti- 
tuted Gybbon  deputy,  you  must  produce  it 

Huggins,  My  lord,  1  cannot  produce  it,  be- 
cause It  is  in  the  hands  of  the  widow  GyblMNi, 
or  some  other  person ;  and  we  are  at  this  time 
in  eouity. 

Mr.  Just.  Page,  Affairs  of  this  nature  have 
always  been  done  by  indenture — as  the  aherifii 
of  London  to  their  under-sherifi*— and  then  yos 
must  have  a  counterpart. 

Huggins.  My  ku'd,  I  never  made  any  Meh 
indenture ;  I  desire  Mr.  Tanner  may  he  asked* 
who  appeared  as  warden  upon  the  Inaolvcnl 
ActP 

Tanner,  Mr.  Gybbon,  my  lord. 

Mr.  Just.  Page,  Do  you  believe  he  waa de- 
puty or  not  f 

Tanner,  I  looked  upon  Gybbon  as  a  proper 
officer. 

Mr.  Just.  Page.  Who  do  you  think  wu  war- 
den? 

Tanner.    I  cannot  say  who  was  warden. 

Mr.  Just.  Page.  I  thought  you  would  Ml 
have  equivocated.  You  are  a  good  officer,  but 
I  shall  never  eutmine  you  as  a  witness. 

John  Jeffreys^  Keeper  of  the  Compter,  swora. 

Huggins.  Mr.  Jeffreys,  pray  acquaint  the 
Court  what  agreement  was  niacie  between  Mr. 
Gybbon  and  me. 

Jeffreys.  There  was  a  writinsf  made,  and  I 
was  a  witness  to  it,  but  did  not  know  what  it 
was. 

Mr.  Just.  Page.  Mr.  Huggins,  the  questions 
that  you  ask,  you  must  firbt  explain  to  the 
Court. 

Huggins.  1  desire  Mr.  Jeffreys  may  be  ask- 
ed, if  he  was  present  at  the  agreement  ? 

Jeffreys.  I  was  present. 

Huggins.  Was  there  any  writing  signed  f 

Mr.  Just.  Page.  You  must  take  care  to  pro- 
duce the  writings  if  you  examine  to  them. 

Huegins,  1  have  sent  a  mau  for  the  reoeipl 
of  1,000/. 

Mr.  Just  Page.  1  cannot  comply  for  thi 
same  title  made  under  your  grant  to  lie  givca 
in  evidence  for  the  grantor :  it  was  a  lilie 
from  you,  and  how  you  will  do  to  prove  tbif 
by  word  of  mouth,  I  cannot  see  how  it  can  be 
done ;  for  when  a  treaty  comes  into  artichp 
and  writing,  the  treaty  by  word  of  mouth  Nil 
an  end  witnout  the  wntieg  ia  prodiiecd. 


WJ 


Jiif  the  Murder  of  Edward  Arne. 


A.  D.  1729. 


ISSi 


Huggiiu,  I  was  going  to  explain  myself, 
iid  wu  o?er-raled. 

Mr.  JnsL  Page.  Whenonce  articles  are  come 
10  be  a  conveyance,  except  it  is  to  explain  that 
csBfcyance,  and  except  it  is  to  discover  some 
firtnd  even  in  the  conveyance  when  given,  it 
CHMl  be  spoke  to. 

f]Hr.  Baron  Carter  being  gone  out  of  Court, 
■wicmned,  and  Mr.  Justice  Page  took  no- 
iv lihmi  of  what  had  passed  in  his  absence.] 

Mr.  Hoggins's  aim  is  to  shew,  that  Mr. 

Gjttoo  was  sole,  entire,  acting  warden  ;   and 

llslio  act  uf  Gybbon's  should  affect  him  ;  and 

Mibe  late  Act  of  I  nsolvency  read,  and  thought 

1i  have  read  the  schedule,  but  that  could  not  be 

md.    Mr.  Huggins  asked  who  brought  in  that 

KUdule,  and  -asked  Mr.  Tanner,  whether  Mr. 

G)kbon  brought  in  that  return  as  deputy  or 

M;  who  said  that  he  did  not  know  who  was 

Mnlen,  but  that  Gybbon  was  the  proper  offi- 

cw:  now  Huggins  carrying  this  matter  fur- 

te,  wouki  have  Gybbon  appear  to  be  his  de- 

|Mv,  ind  has  now  called  Jeffreys  to  prove  that 

dipiitBtioD.      Jeffreys  says,   that  it  was  in 

viiiBg,  and  1  could  not  allow  Jeffreys  to  c;ive 

■  criifence  what  was  in  writing.     Huggins 

■U  is  answer,  that  there  was  no  counterpart, 

■ilhat  Gybbon's  widow  had  such  appuint- 

wmL    I  submit  it  if  it  was  not  his  act  and  deed, 

if  Vr.  Gybbon  allowed  uf  it 

Htegins.  My  lord,  it  is  only  a  receipt. 

J^ryi.  My  lord,  it  was  a  receipt  for  1,000/. 
lid  no  agreement. 

fiiffMs.  Mr.  Gybbon  agreed  T\ith  me  for 
Wi.  per  annum  ;  and  liking  thobar^a>.n  made 
«4!faHt  of  1,000/.  and  this  was  all  tlie  writing 
krtnefaus,  and  in  it  declared  that  ho  was  to  pay 
^Xs'.  ptr  ann.,  on  condition  of  haviug  the  rents 
•f  ilie  house  anil  sh«.;)s  in  Westminster- ball, 
iirf  rpqiiire<l  a  deposit  of  1,000/.  and  a  parole  of 
thneynrs  may  amount  to  a  leasp  or  demise. 

Mr.  Barou  Carter,  .4t  kix  months'  end  Gyb- 
ks  desired  to  haf  e  it  renewed,  and  came  to 
the  cub«^|ueut  agreement  for  900/.  |)er  ann. 
Jv  three  years.  If  the  Court  could  see  that 
i^^reement,  whether  it  do  not  amount  to  a  lease, 
LHcre  may  be  a  demise  in  it,  but  how  far  the 
Coon  will  lay  their  commands  to  produce  it, 
seihall  not  now  di-ternii':o  ;  it  would  bo  very 
kird  to  have  it  out  of  hLs  power,  and  not  to  ad- 
Bit  him  to  give  evidence. 

Att,  Gen.  The  law  recjuires  the  best  evidence 
&u  \%  to  he  given  ;  supposinr;  that  (hat  writiiiir 
*H  lost,  he  might  he  admitted  to  cfive  evi- 
4iBce  that  it  wai*  lost.  Jf  it  was  in  ilie  hands  of 
Hy  officer  of  the  crown,  and  they  wantcd'lo  be 
tviitted  to  give  evidence  as  to  the  contents, 
■Wlber  upon  giving  evidence,  that  the  thinj;; 
VHin  bciiifiT,  and  in  the  hands  of  a  third  per- 
^  ihey  should  give  parole  evidence  as  to 
Irt. 

Mr.  Just.  Page.  Hiippose  a  man  receive  mo- 
^  by  false  tokens,  hnt  by  some  accident  it  is 
fHiato  other  hands,  and  he  uses  all  the  care 
lid  art  be  can  to  get  it,  and  pmyes  that  he  can- 
at  it,  it  would  be  hard  to  couvict  a 


man,  if  he  cannot  come  at  the  writing.  It  is 
the  same  in  cases  of  life  and  death,  by  forgery 
and  false  deeds. 

Mr.  Baron  Carter.  I  agree  your  notion  is 
right  in  cases  of  civil  actions,  for  if  he  can't 
give  such  evidence  as  the  law  gives  against  it, 
be  has  a  remedy  ateqiuty  ;  but  in  this  case, 
where  a  man  stands  indicted  for  murder,  where 
can  he  have  his  remedy  ?  I  am  sure  we  sbouhl 
be  guilty  of  murder,  if  we  insisted  on  it ;  Hug- 
gins ought  to  give  an  account  that  he  can't 
come  at  such  agreement. 

Uuggim,  Mr.  Jeffreys  says,  that  he  applied 
to  Mrs.  Gibbon,  and  Mrs.  Gybbon  told  him, 
that  It  was  m  the  hands  of  one  Wilson,  her  clerk 
in  court,  and  he  could  not  tell  whose  hands  it 
was  in. 

Jeffreys.  I  have  a  copy  of  that  writing,  which 
has  been  in  my  hands  long  before  any  contest 
happened  to  Mr.  Hugg[ins,  for  it  was  written  al 
the  same  time  the  receipt  was  given. 

Mr.  Just.  Page.  Is  it  a  true  copy  ? 

Jeffreys.  I  believe  it  to  be  a  true  copy,  and 
that  there  has  been  no  alteration  made  in  it. 

The  Copy  of  the  Writing  read And  itap* 

peared  to  be  witnessed  by  Mr.  Jeffreys,  the 
26th  of  June,  1723. 

Huggint.  Have  yon  had  any  conversation 
with  Mrs.  Gvbbon  lately  ? 

Jeffreys.  Mrs.  Gybtion  came  to  me  about 
fourteen  days  ago, 

Huggins.  Was  there  any  talk  of  any  ioch 
thing  as  a  lease  or  articles  of  agreement  P 

Jeffreys.  There  was  no  such  u  ord  mentioned 
as  a'leasc  or  articles  of  agreement. 

Huggins.  Do  you  know  of  any  articles  of 
agreement  ? 

Jeffreys.  I  don't  believe  there  were  any,  for  I 
was  very  conversant  with  Mr.  Gybbon,  but 
never  heard  him  ask  after  them. 

Huggins.  How  long  did  Gybbon  continue  in 
that  otiice  ? — J^ff'tys,  Three  years. 

Alt.  Gen.  U  hat  do  you  mean  by  that  -of- 
fice ;  did  he  continue  to  act  for  those  three 
years  ? 

Jrffreys.  He  did,  and  one  year  longer,  which 
I  applied  to  Mr.  HuGC^ins  for  him  to  do. 

Mr.  Just.  Page.  You  were  present  at  theset- 


tlin^Lj^  of  the  account  between  Mr.  Huggins  and 


present 
Mr.  Hi 
Mr.  (ivhbon:    at  the  bottom  of  the  account 
there  ure  some  items  that  have  no  sums  to 
them  :  pray  how  did  that  happen  ? 

Jrlfreys.  My  lord,  it  was  not  settled. 

Mr.  Just.  Page.  Was  any  thing  mentioned, 
who  was  to  he  at  the  charge  of  repairs  during 
the  four  years .' 

JifJ'rtK's.  Mr  Husfcfins  made  a  memoranduiQ 
at  the  bottom  ot  the  paper. 

Huggins.  1 1  M  as  settled  at  the  end  of  four 
years. 

Mr.  Just.  Pu^:e.  The  repairs  of  the  prison 
were  left  a  blank. 

Uusifiinf:.  1  answer  to  that,  my  loril,  that  it 
was  settled  at  t!ie  end  of  four  years :  Mr.  Jef- 
freys wuN  then  present.  Your  lordkhip  scems 
to  take  it  for  a  Icu^e  of  three  years. 


SS53  SGEOBGSn. 

Mr.  Just.  Fuge.  It  is  neitbtir  the  one  nor  the 
other,  either  lease  or  agreement. 

Huggint.  My  lord,  Jeffreys  ^aid  there  was 
BO  ott^  agreement. 

George  WeUanduwmn* 
Huggins,  When  did  Gjbbon  enter  upon  hb 

Wellend,  Mr.  Gybbon  entered  at  Christmas, 
1733^  and  I  was  concerned  for  Mr.  Gybbon 
before,  and  by  his  direction  acted,  and  he  al- 
ways paid  me  my  fees,  and  I  never  reeeifed 
any  thing  from  Mr.  Hoggins. 

Bugfins.  Who  bore  allexpences  relatiiig  to 
the  en^T^Wellaiid.  Mr.  Gybbon. 

mggins.  How  lonc^  did  he  act  f 

Wmand.  Mr.  Gybbon  was  in  fonr  years  and 
a  half. 

Huggins.    What  do  yon  know  abont  Ame  ? 

WeJkind.  I  was  there  then,  "and  Ame  was 
«emmitted  about  the  middle  of  May,  and  at  the 
^  latter  end  of  Senlember,  Hopkins  was  sent  into 
the  country  to  Shropshire,  and  I  acted  till  Oc- 
tober, and  I  was  requested  by  Mr.  Gybbon  to 
go  to  the  Company  of  Upholders  relating  to 
Mr.  Ame.  He  was  brought  in  May,  and  put 
at  the  Vine,  and  made  liis  escape,  and  then 
grew  disordered  in  his  senses.  Some  of  the 
prisoners  came  and  brought  a  bed  of  Mr.  How- 
ard's, and  1  saw  bim  stark  naked  ;  and  it  being 
desired,  he  was  piH  in  -ttre  strong  room  at  the 
mraeot  of  the  pritKiners. 

Muggins,  nil  at  was  done  open  yonr  appli- 
cation to  the  Companr  of  Upholders? 

Welland.  They  took  care  of  him. 

The  witness  had  a  book  in  his  hand,  which 
be  called  a  check- book. 

Huggins.  Pray  give  an  account,  whether  I 
gave  any  direction  relating  to  the  prisoners  ? 

Welland.  I  never  saw  Mr.  Huggins  there 
but  twice,  and  that  was  when  the  Prothonota- 
riea  were  there. 

Huggins.  When  had  you  that  book  deliTered 
to  you? 

Welland.  Two  days  before  Mr.  Fitch  died ; 
the  book  was  brought  into  my  hands,  which  I 
iMntinued  to  act  in  till  Mr.  Bigrave  came  in. 

Huggins.  By  the  writing  in  that  book,  1  can 

Eove  Hopkins  out  of  town.    When  was  Hop- 
ns  out  of  town? 

Mr.  Just.  Page.  I  will  call  Fulthorpe  to 
dear  up  this  matter. 

Fulthorpe  was  called  again. 

BIr.  Just.  Page.  When  was  it  you  saw  Mr. 
Hoggins  at  the  Fleet  prison  ? 

Fulthorpe.  It  was  some  time  before  I  was 
discharged.  It  was  about  a  month  bef^^re  Mr. 
Arne  died,  and  I  likewise  saw  Air.  Farrington 
at  the  same  time.  Mr.  Hopkins  was  there, 
and  then  came  in  with  Huggins. 

Mr.  Just  Page.  How  oiWu  did  you  see  Mr. 
Huifiritis  there  P 

Fulthorpe.  I  saw  him  twice  at  the  prison, 
hut  ones  at  the  strong  room. 

Mr.  JuBL  Po^e.  What  time  of  the  day  was 
It  jrott  uw  Mr.  uuggins  th«t  ? 


Trial  of  John 

)  Fulthorpe.  It  was  between  elereo  ant 
and  there  were  there  Mr.  Huggms,  M 
kins,  and  Barnes ;  and  I  saw  Mr.  1 
walkmg  upon  the  Bare,  when  Lev 
duaker  was  there,  and  I  believe  Mr. 
with  them. 

Thomas  Farrington  was  again  call 

Mr.  Juat  Page.  Who  was  at  the 
room  when  you  saw  Huggins  there? 

JVirrtR^^ofi.  There  were  Mr.  Huggii 
Jdns,  and  Barnes  there. 

Huggins.  I  beg  leave  to  observe,  t 
thorpe  was  discharged  on  the  7tb  of  $e| 
and  whether  I  may  not  be  allowed  to  i 
Welland  again,  to  know  if  Mr.  Gy  bboi 
give  all  orders,  and  to  prove  that  the  t 
usage  was  not  to  have  the  coroner  bit  a 
dies  in  mesne  process? 
_  Mr.  Just.  Page.  You  may  ask  wb 
tions  you  think  proper,  for  I  will  stay 
to>morrow  morning,  to  give  you  an  c 
nity  of  going  on  wiSiyour  defence  in  yi 
way. 

Huggins.  I  desire  then,  my  lord,  he 
aaketl,  whether  Gybbon  did  not  give  al 
relating  to  the  prisoners  ? — Welland.  I 

Huggins.  Whether  the  coroner  wa 
in  to  sit  upon  any  bodies,  but  in  executic 

Welland.  We  never  had  the  coroi 
upon  execution. 

Huggins.  Whose  servant  was  Barne 

Welland.    Mr.  Gybbon's   servant, 
Gybbon  pay  him  money. 

Huggins,  Did  you  ever  see  roe  and 
together? 

Welland.  I  don't  believe  I  ever  did. 

Huggins.  At  whose  request  was  Aro 
the  strong  room  ? 

Welland.  At  the  request  of  the  prisni 

Mr.  Just.  Page.  Name  at  whose  rec 
was  put  in. — Welland.  I  can't  tell. 

Mr.  Just.  Page.  How  came  you  to  k 

Welland.  I  was  in  the  lodge. 

Mr.  Just.  Page.  Were  you  then  pros- 

Welland.  I  was. 

Mr.  Just.  Page.  Can't  you  name 
tbem  ? 

Welland.  No,  none  of  tbem  are  n<»w  i 

Mr.  Just.  Page.  Was  not  Farringtoc 
prisoner? — Welland.  He  was. 

Mr.  Just.  Page.  How  long  is  it  sic 
were  concerned  in  the  prison  ? 

Welland.  In  Michaelmas  1722,  and 
nothing  of  it  before. 

Mr.  Just.  Page.  Was  there  not  a  be 
the  warden  for  day-rules  ? — Welland. 

Mr.  Just.  Page,  To  whom  was  the 
accounted  for? 

Welland.   It  was  accounted  for  to 
The  Clerk  of  the  Papers  always  rtca'w 
money,  and  I  have  been  there  several  t 
the  jMiyment  of  money. 

Mr.  Lee.  Was  it  not  usual  to  give  mo 
the  liberty  of  the  rules  ? 

Welland.  Mr.  Gybbon  made  it  a  cui 
take  two  guineas  m  er ary  lOOl.  for  the 


S7] 


Jbr  the  Murder  of  Edward  Arne. 


A.  D.  17S9. 


[SSS 


Mr.  Im.  Do  tov  know  of  any  mooey  paid 
to  Mr.  Hoj^giiis  r 

WcUand.  I  doo't  know  any  was. 

Mr.  Ite.  Were  yon  there  when  the  strong' 
1MB  wBs  built? 

Wftiand.  I  was,-  and  Ame  was  the  first  per- 
too  that  was  pat  in. 

Mr.  Le€.    I  ask   you,  whether  it  was  all 
%tti^?^WeUmd.  i  belieTe  it  was  floored. 

■r.Lar.  Was  it  not  an  arclied  Tanlt? 
Wdknd.  It  was  a  kind  of  a  vault,  and  there 

fMahncb  in  it. 

Mr.  Lee.  Where  was  it  situated  ? 

Wdkmd,  It  wtt  about  three  yards  from  the 
Miff. 

■r.  Lte.  Had  Ame  a  bed  there  ? 

Wdiand,  He  had  abeil  in  it. 

Mr.  Lee.  Was  he  not  in  a  naked  condition  ? 

Wtlkmd,  He  was  in  a  naked  condition,  which 
pscccded  from  his  madness. 

Mr.  £er.  Was  (hat  a  place  fit  for  a  man  in 
hiicoodiiioD  to  be  kept  ini* — Welland.  It  was. 

Mr.  Lte,  Is  there  any  phce  so  had  in  the 


WdUnd.  There  was  a  worse  phice  where  I 
kv,  calledjniius  Cesar's  ward. 
Mr.  Lit.  How  could  it  be  worse T 
Wdlmnd.  Because  many  people  lay  in  it. 
Mr.  Lee.  Whether  writs  were  not  directed 


»,  or  Locum  Tenenti? 
WtUand.  They  were. 

Ik.  Lee.  Whom  were  the  writs  returned  by  ? 
Wdknd.  By  Mr.  Hugg^ns. 

John  Brovniii^  sworn. 

ftflpss.  How  lon|^  ha?e  you  known  the 
fkn  prison  ? 

Brnnitig.    I  hare  been  a  prisoner  there 
^•vrtwenty  years. 

Bn^ginB.  When  any  body  died  in  the  Fleet, 
osept  in  ezucution,  was  there  any  coroner's 
^notP 

Bnuning.  Never,  but  when  in  execution, 
Mr.  Dickson,  who  was  Clerk  of  the  Papers  be- 
fcre  Hui^gins  came,  told  me  so. 

Hug^in$.  My  lord,  the  prison  beings  very 
fall,  it  being  against  the  time  of  an  insolvency, 
ike  prisoners  grew  very  riotous,  and  JVfr. 
Gybbon  could  not  come  in,  so  that  there  was 
00  place  but  the  strong  room  to  put  Arne  in. 

Mr.  Samuel  Green  sworn. 

Huggins.  What  was  the  state  of  the  prison, 
ao'I  tlie  condition  of  it  in  1725  P 

Green.  1  was  had  in,  in  February  1724,  and 
tame  out  the  latter  end  of  June  1725,  and  J 
applied  to  Mr.  Gibbon  in  February  17 34  for 
a  ruoffi  :  31  r.  Gybbon  said  he  could  not  help 
•e  to  one ;  then  I  applied  to  the  prisoners, 
and  gave  a  guinea  and  a  half  to  them  for  one. 

UuLgint.  Was  there  a  court  of  inspectors  T 

Orctn.  Yes,  and  I  was  one  of  them,  and 
fvery  prisoner  that  came  in  paid  5s.  in  order 
U  apply  to  the  Court  of  Common  Pleas  to  re- 
(iiUitf  the  fees. 

Htigght.  You  did  pbice  people  in  rooms. 
Did  yuu  punish  any  prisoners  ? 

VOU  XVJI. 


Green.  I  can*t  say  we  did. 

huggint.  Did  the  warden  dare  to  come  in  ? 

Green.  He  did  not. 

Mr.  Just.  Fage.  Could  the  prisoners  set  open 
the  gales  ? 

Green.  They  could  not  set  open  the  gates, 
liecsuse  there  was  a  turnkey. 

Huggins.  Did  Mr.  Gybbon  offer  to  come  in  f 

Green,  He  did. 

Mr.  William  Howard  sworo. 

Huggiru.  Did  you  know  £dward  Ame  ? 

Hoxard.  Mr.  Arne  came  in  about  thre* 
weeks  before  I  went  out,  aad  he  was  in  the 
same  room  where  I  was,  and  wanting  sonse 
goods,  Arne  offered  me  much  more  than  I 
thought  they  were  worth ;  for  which  reason  I 
did  not  apprehend  him  to  be  in  his  right  under* 
stondinsr! 

Htfggint.  Did  you  desire  him  to  bring  some 
friend  ? 

Howard.  I  think  I  might  desir«  him  ta 
bring  some  friend. 

Huggins.  How  much  might  be  offer  ? 

Hovttrd,  He  offered  me  nine  ^iueas,  but  I 
took  three,  when  I  sold  them  to  his  friends. 

Mr.  Daniel  Woodcock  sworn. 

Huggins.  What  do  yon  know  of  Edward 
Ame!* 

Woodcock.  He  came  into  the  Fleet  prison  in 
1725,  and  I  was  a  prisoner  a  year  and  a  half 
before  that,  in  July  1733,  and  continued  thera 
till  September  1725:  and  1  remember  Arne's 
being  there  some  time  before  I  was  discharged. 

Huggins.  Were  you  there  when  he  was 
carried  into  the  strong  room  ? 

Woodcock.  I  was. 

Huggins.  Were  you  in  the  cellar  when  h€ 
was  taken  from  thence  ? 

Woodcock.  1  were  upon  the  stoirs  when  he 
was  carried  into  the  strong  room :  He  lay  up 
and  down  in  the  gaol  in  the  common-hall  and 
cellar,  till  he  was  carried  into  the  strong  room, 
and  he  was  in  it  till  I  cnme  away. 

Huggins.  Were  you  ever  in  the  strong  room  P 

Wiwdcock.  I  uas. 

Huggins.  Do  you  remember  the  building  of 
\i?^Woodcock.  1  do. 

Huggins.  How  near  to  the  laystall  and  dung- 
hill is  ii? 

Woodcock.  Within  eight  or  ten  yards. 

Hhgginf.   Arc  there  any  lights  ? 

Woodcock.  There  is  a  place  to  put  in  drink  at, 
on  the  side  of  the  door. 

Huggins.  What  is  the  wall  made  of? 

Woodcock,  Lime  and  brick,  as  other  walls 
are. 

Huggins.  How  long  was  it  finbhed  before 
Ame  was  carried  in  P 

Woodcock.  1  can't  be  certain. 

Huggins.  Did  you  see  Arne  let  out  at  any 
time? 

Woodiock.  I  saw  him  let  out,  and  be  ran 
about  stark  naked. 

Huggins.  Did  you  ever  sec  him  naked  be- 
fore he  Was  put  in  Uierc  ? — Woodcocks  No- 

Z 


339}  S  GEORGE  U. 

Huggint,  Did  yoa  e? er  lee  me  at  the  prison  f 

Woodceck,  Yes,  when  the  prothonotaries 
were  there. 

Ifuggint.  Did  yoa  think  you  shooid  hate 
knowD,  when  1  came  there  ? 

Woodcock.  It  was  as  well  known,  as  if  the 
kinfif  had  made  a  public  entry. 

Hugfim.  Was  it  not  for  tbe  prisoners'  secu- 
rity to  have  Anie  pat  there  ? 

noodcock.  1  thmk  it  was. 

Hii^^mf.  Who  sold  Ame  his  goods? 

Woodcock.  Captain  Howard  soil  Ame  bis 
goods.      ^ 

Uuggint,  My  lord,  I  mast  ohsenre  that  the 
court  of  inspectors  punished  prisoners.  Did 
not  the  inspectors  punish  their  own  prisoners  ? 

Woodcock.  Yes,  they  pat  them  in  the  stocks. 

Uuggint.  Could  Nr.  Gybbon  come  into  the 
prison? — Woodcock.    Uc  could  not. 

Mr.  Just.  Page.  Why  then  did  yoa  not  all 
go  out  of  prison  ? 

Huggins.  Did  not  the  court  of  inspectors 
dispose  of  rooms  ? 

Woodcock.  I  can't  say. 

Huggins.  Did  yoa  see  Barnes  carry  Ame  to 
tbe  strong  room. 

Woodcock.  1  saw  Ame  as  he  was  going  to 
the  strong  room  with  fiames ;  and  tnere  was 
a  complaint  made  to  the  court  of  inspectors; 
but  not  about  this  man,  but  about  others. 

Huggins.  Was  he  a  qaiet  man  ? 

Woodcock.  1  saw  no  other,  than  his  running 
about  like  a  madman. 

Huggins.  How  many  days  was  Arne  in  the 
Strong  room  before  yon  were  let  out  of  prison  ? 

Woodcock.  1  was  let  eat  about  the  4tn  or  5th 
of  tSeptember,  there  was  an  application  made  to 
the  Court  of  Common  Pleas,  and  I  made  an 
affidavit  against  Barnes. 

Mr.  Samuel  Humphry t  sworn. 

Huggins,  Were  not  you  steward  of  the  court 
^f  inspectors? 

Humphrys.  I  Was  steward  for  some  consi- 
derable time. 

Huggins.  When  was  the  court  first  erected, 
%j^  upon  what  occasion  f 

Mr.  Baron  Carter,  Mr.  Hugi^ins,  how  you 
can  apply  this,  I  can't  apprehend.  Mr.  Hnm- 
phrys,  what  do  you  know  of  Ame  or  the 
strong  room  f 

Humphrys.  Mr.  Ame  was  a  prisoner  there, 
when  I  was  there  first. 

Mr.  Baron  Carter.  Where  was  he  when  he 
came  first  P 

Humphrys.  A  person  of  his  name  came 
there,  whom  I  knew,  and  I  went  with  him  to 
see  Mr.  Arne,  and  he  lived  intemperately. 
This  gentleman,  after  he  had  been  there,  had 
supplied  him  with  money,  which  he  spent  in 
liquors ;  and  after  some  time  he  was  much  al- 
tered in  his  way,  and  1  saw  him  one  day  walk- 
ing with  his  hat  and  wig  off  in  the  ram,  and 
took  notice  of  it ;  ami  after  that  he  proceeded 
to  furtlier  extremities,  and  took  up  ahrick«bat, 
Md  throw  ed  it  upon  the  Bart. 


Trial  ffJohn  Huggins, 


[840 


Mr.  Just  Page.  Do  you  belicfft  be  had  any 

sign  against  any  body  ? 

Humphrys.  I  Mieve  be  had  not, 

Mr.  Just.  Page.   Did  he  ever  hit  any  body  P 

Humphrys.  I  do  not  know  that  be  did,  bat 
we  hod  apprehensKMis,  that  ha  might,  alW 
being  in  that  condition ;  he  was  an  olyeet  of 
great  eompassioa. 

Huggins.  What  was  bis  bebaTioor? 

Humphrys.  His  behaviour  was  soch,  Ifall 
he  was  not  fit  for  a  bed-fellow. 

Huggins.  Do  yoa  know  any  thing  of  Us 
beiuff  put  into  the  strong  room. 

Humphrys.  Before  he  was  put  into  tbal 
place  1  was  discharged. 

Huggins.  Do  you  remember  that  yon  nw 
me  there? 

HiMRpAryi.  I  don't  remember  I  saw  yo« 
there,  except  when  the  protbonotariei  wera 
there. 

Huggins.  Was  that  room  built  when  ysn 
were  there  ? 

Humphrys.  According  to  the  best  of  mj 
memory,  that  room  was  built  while  I  wss 
there. 

Huggins.  Was  it  not  a  stable  before  f 

Hufnphrys.  There  was  a  stable,  butldool 
apprehend  it  was  built  on  that  spot. 

Huggins,  Were  you  present  at  any  thnc^ 
when  the  prisoners  desired  to  ha?e  Arne  prt 
into  the  strong  room  ? 

Humphrys.  I  do  not  know  it ;  it  waa  ate 
that  I  came  awa^. 

Huggins.  Did  Gybbon  dare  to  ooom  klif 
the  prison  without  leave  of  the  inspectors  P 

aumphryt.  Mr.  Gybbon  was  very  anwiBhg 
to  come  in,  and  I  believe  the  reason  was,  be 
could  not  come  in  with  any  safety.  Mr.  Gyb- 
bon sent  one  day  to  some  f;entlemen  of  the 
master  side  to  know,  if  he  might  ▼eoturs  wilb 
safetv  to  the  Fleet  prison,  for  that  be  bad  a 
mind  to  see  the  repairs ;  upon  which  answer 
was  returned,  that  he  might  come  in ;  and  Mr. 
Gybbon  came  in,  and  1  went  about  with  him. 

Huggins.  1  desire  he  may  be  askedt  whe- 
ther if  any  man  wag  injured,  wonld  tbey  mit 
have  complained  of  it  ? 

Humphrys.  I  was  there  when  Ame  came  in, 
and  discharged  before  he  was  put  in  the  strong 


room. 


Mr.  Thomas  Dean  swora. 


Huggins.  Did  you  sec  me  in  the  prison 
daring  the  time  Mr.  Arne  was  there  P 

Dean.  During  the  time  I  was  there,  which 
was  till  the  12th  or  14ih  of  September,  yoa 
were  not  there ;  I  was  discharged  on  the  7tb« 
but  stayed  a  week  after. 

Huggins.  Was  it  the  opinion  of  the  prisoncn 
that  Air.  Ame  should  be  coufined  ? 

Dean.  It  was. 

Huggins.  Who  provided  him  victuals  P 

Dean.  Oue  Mr.  I«oiiden  found  him  in  meal 
and  drink,  and  he  was  allowed  for  iL  I  havt 
seen  Mr.  Louden  in  the  room. 

Huggins,  Who  kept  the  key  of  the 
roomP 


tlu  Murdtr  of  Edward  Ame. 


A.  D.  17». 


isa 


know  wbo  kept  ilie  kej. 
you  nee  Arne  there  f 
«  aMo  Ame  >b  ilie  strong  room. 
-  Wbeii  was  he  carried  there  ? 
_.     .   .I«HUC(immille<l  to  thGatroagroom 
iiJalfiOrtti*li«einiiing  of  Auguat. 
"  - --  .  Did  yoj  «ee  me  wiih  Gvbhuii  f 


I  1 


iml  I 


:    Bare 


1  Uie  jiriuiD,  lod  was  upon  the 
1*MHb  liini. 
ill.  Gn.    Did  not  Gjbbon'a  Mrranl*  come 

An.  Tb«Tdiil,BndG}-bl>niieBnietoeh*pel. 
JK.Gm.  WberealMXim  n  ibe  diapel  f 
bu.  Tite  chapel  i(  within  tbe  walls  of  tbe 

ituGm.    ir  Mr.  Gybboo  dared  to  venture 
If  INM  Id  chipel ;    bow  came  lie  not  tu  corae 


fli|fMi.  Pleace  to  »k,  irbetbcr,  if  between 
4*bMn  often  and  lirelre  1  had  bccu  tbere,  I 
WMwt  have  been  aeen  ? 

Dtm.  Captain  Patiiaon  and  otben  went 
liHllhcpnaDonitb  Mr.  Gjbbon. 

bggbu.  Tbe  question  is,  II'  I  bad  been 
tMh  whMker  jou  would  not  hare  seen  me  t 

Dka*.  I  tboubl. 

fftfprf.    Had  nut  Ame  a  broken  coosli- 

h.  Band  Carter.  Mr.  Hu^ins,  I  cannot 
iWl  yos  lo  gu  into  llial  evidence;  1  don't 
Jtovwhatadraiitage  it  will  be  to  vou,  you  are 
H^M  pFTJodice  youraeir;  lur  if  be  had  a 
Mag  eonadtntion,  lliere  was  less  reaacn  lu 
Itttiai  inlo  Ibestrang  room. 

Mr.  John  Louden  mom. 

8^ftiai.  My  lord,  be  pleased  lo  uk  Mr. 
hmtm,  whetbcr  be  bad  tbe  care  and  custody 

Hr.Juat.  Pagt.  Answer  that  qiiealion. 

IjBi/rn.  I  knew  Mr.  Arne  befure  be  came  to 
pnoo,  I  bad  uime  acquaintaoue  with  him  ;  be 
ant  ialo  prison  about  tbe  Utter  euil  of  June, 
■■Imoe  K^ullenteu  Bpuke  to  me  to  have  Mr. 
liBC  Wile  with  me,  and  be  allnwed  me  5s.  per 
waafe;  but  tlw  fcntlemei)  jcrew  uneasy  at  hii 
Amoc  wiih  tlietD,  because  thai  he  was  sume- 
Anf  otn  of  or Jer,  and  somelimealter  growing; 
mna,  tlir  uentieman  with  wham  he  luy  quar- 
nUfd  with  him,  and  1  could  not  afford  to  board 
kin  any  Ioniser,  he  not  beiog  able  to  pay  me ; 
urfnAcr  he  wia  turned  from  my  table,  aome  of 
tt*  Uphntdin'  Company  came  and  desired  me 
l»il»ebiin  aa  usual ;  and  etery  iDoming  I 
Mmed  hJBi  a  breakfast,  and  a  plate  of  not 
vkUBb  ud  drink,  and  I  had  the  key  of  the 
■Ma  ta  two  w  tbm  diva  after  be  was  put  in. 

Mr.  JimL  i'oge.    llaw  came  yon  by  tbe 

Zjurfsw.    floRielimes  it  was  half  ao  t 

tAnr,  Hid  1  Mid,  if  tbcy  would   not  lei 
hi**  Uw  k«),  1  wuubl  not  furnish  hiin 


Mr,  joaL  Pa^t. 


B  key. 


Louden,  Though  t  bad  thekey,  and  had  tbe 
liberty  of  going  in,  I  bad  no  power  to  let  him 
out.  He  was  nercr  out,  from  the  time  he  waa 
put  in,  but  once,  and  that  was  when  some  ser- 
•BDta  of  ihe  Upholders' Company  came  to  aes 
him,  anil  then  Barnes  lacked  bim  up  a^in ; 
and  ivben  he  was  out  be  was  siurk  naked,  and 
ran  into  the  chapel  with  the  feathers  all  about 
him,  and  I  went  lo  take  lum  lo  carry  him  in 
again,  but  he  was  very  sturdy,  and  would  not 
let  me. 

Htiggins.  Ill  all  the  time  you  bad  the  h 
and  tbe  custody  of  bim,  which  was  from  tl 
Ihird  day  after  Ills  goiog  into  Ihe  room,  till 
three  days  of  his  coming  oiil,  did  you  lee  mt 
in  the  prison? — Louden.  1  did  nnt. 

Huggins.  Do  you  think  you  should,  if  I  bad 
comeP — Louden.  Yes. 

Huggifu.  If  1  had  been  In  the  bouie,  should 
you   hareseen,  or  heard  of  it  ? 

Louden.  I  should. 

Buggini.    Did  any-body  sit  up  wlih   Mr. 

Louden.  There  was  somflxidy  sat  up  with 
him  a  few  nights  before  be  died. 

Huggiiu.  I  submit  it  lo  you,  my  lord,  whe- 
ther 1  hIikII  produce  the  people  of  the  Up- 
botdriVCompHny  tbalsat  Up  with  him. 

Mr.  Just.  hu'.   That  will  be  of  uo  great 

Huggim.  Was  there  a  court  of  inspectors, 
who  gurerned  Ihe  prisoners? 

Louden,  Yes,  there  was. 

Iluggiiti,  Do  you  renii^mher  yoD  saw  Mr. 
Gjbhon  there  then  ?—iai<Jf«.  No. 

Hnggim.  Did  the  prisuoera  disjiose  of  their 
rooms  ? — Louden.  Yes. 

Sir.  Baron  Curler.  I  don't  understand  very 
well  what  way  you  propoae  to  make  your 
defence ;  if  Mr.  Gyhbun  liad  the  sale  power, 
(hen  tbe  court  of  inspeclora  could  nut;  firat 
Mr.  Huggins  is  not  coocerued,  because  Gyb- 
bon  waa ;  and  then  he  could  not  be  concerned^ 
because  the  court  of  inspectors  was.  Mr. 
Huggins  I  take  tn  be  wiu^en,  and  Gybbon 
deputy -warden. 

An.  Gen.  What  kind  of  a  place  is  tbe  Strong 
room? 

Loudrn.  It  is  a  brick-wall,  nod  arched  oTcr 
with  bricks,  and  the  floor  is  boarded,  and  at 
that  time  a  beiicb  went  across  the  room.  There 
is  a  bole  OTcr  the  dour,  with  four  or  live  iron 


inh3 

tbe  side  ;  it 

was 

I^W 

huAt 

room 

about 

eight  week 

belo 

eAr 

put  ill 

, there 

was 

lire 

plac 

,  no 

any 

conve- 

Alt.  Gen.  Was  it  not  the  occasion  of  his 
death? 

Louden.  It  was  possible  it  miijht.  I  Iieliev* 
it  might  do  him  prejudice  as  to  his  health. 

All.  Gen.  Did  it  hasten  his  death  ? 

Louden.  I  du  nut  know  but  it  might  ^  1  bt- 
lieve  it  did  hasten  bis  dealh. 

.((t- Gen.  Wlmgaveyoulhekey? 

Louden.  Tbe  turnkey  ;  uud  1  team 


MS] 


8  GEORGE  11. 


Triai  qfJohn  HuggmSt 


[S44 


Att.  Gen.  As  yon  evne  to  take  charge  of 
it,  did  you  alivays  keep  the  key  ? 
'  Louden,  Soinetimea  1  had  it,  and  sometimes 
they  had  it. 

Sir,  Just.  Page,  Do  you  beliere  you  could 
have  lived  there  six  weeks,  if  you  had  been  put 
in  that  room  ? 

Luuden,  1  doD*t  believe  I  could. 

Morgan  Gwyn  sworn. 

Huggim,  Were  you  a  prisoner  all  the  while 
Mr.  Arne  was  there  ? — Ovyn.  Yes. 

liuggini.  Did  you  seo  mein  the  house  dar- 
ing that  time? 

Gwifn,  I  difl  not  hear  that  you  had  been  in 
the  house  all  the  time  be  was  a  prisoner  there, 
nor  did  I  see  you. 

Huggins.  Do  yon  think  if  I  had  come,  you 
should  have  seen  me  ? 

Gwyn.  1  do  think  1  should. 

Huggins.  My  lord,  1  have  witnesses  to  prove 
that  {  was  in  Hampshire  from  the  b^inntng 
of  September  till  the  middle  of  September ; 
that  one  part  of  the  time  that  Hopkins  and 
myself  are  said  to  be  at  the  strong  room  1  was 
out  of  town,  and  another  part  that  Hopkins  was 
out  of  town. 

Wm.  Huggint  sworn. 

Mr.  Just.  Page.  You  are  son  to  the  pri- 
soner? 

Wm,  Huggint,  I  am,  my  lord ;  I  hare  a 
house  in  Hampshire,  and  1  remeoaiber  by  se- 
Teral  circumstances,  that  my  father  came  there 
the  1st  of  September,  and  continued  till  the 
14tb  or  15th. 

Huggins,  Was  I  from  your  house  during 
that  tiuieP 

K'»i.  Huggins,  Neither  my  father  nor  myself 
were;  that  being  tbe  long  vacation,  my  father 
was  absent  from  bis  business,  and  was  out  of 
town  at  sir  George  Oxenden's. 

Richard  Smith  sworn. 

Hugnint.  I  desire  he  may  be  asked,  my 
lord,  whether  he  saw  me  in  Hampshire,  iu 
1725,  at  my  son's  P 

Stnith,  Mv  lord,  I  saw  Mr.  Hoggins  in 
Hampshire  about  tlie  14tli  or  15th  of  Sep- 
tember in  that  year ;  and  he  was  likewise  there 
some  time  in  August. 

Mr.  Just.  Pu^c,  Was  Mr.  Huggins  twice 
there  in  that  summer? 

Smith,  He  was  there  for  a  great  many  days 
at  one  time. 

Mr.  Just.  Page.  Did  he  go  op  to  London, 
and  come  down  again  ? 

Smith    I  cannot  say  whether  he  did  or  not. 

Mr.  Just.  Page,  Did  he  come  up  and  down 
sevrral  time.^  ? 

Smith.  He  was  constantly  there  for  some 
days. 

Mr.  Just.  Page,  What  are  yon  ? 

Smith.  I  am  trnant  to  the  estate  which  Mr. 
Huggins  purchased. 

Robert  Knight  sworn. 
Huggins.  Do  ynu  kuow  of  my  beiog  at  roy 
son's  bouse  in  Hampshire,  in  1795  f 


Knight.  Yoo  were  there  between  tlie4lh  and 
11th  of  September,  and  stayed  15  days. 

Huggins,  When  did  Iretura? 

Kntght.  The  15th. 

Huggins.  Was  1  there  in  Augsst  loo  f 

Kmght.  You  were  there  bctweeo  the  flUi 
and  14th,  and  stayed  seren  days. 

Charles  Bird  sworn. 

Huggins.  Do  you  know  of  my  being  al  ay 
son's  house,  in  Hampahire,  in  17S5  ? 

Bird,  You  werethere  in  August,  1795,  abont 
the  7th,  but  J  cannot  soy  bow  long  you  «t>f0i 
there ;  then  you  came  down  on  the  1st  of  Stp- 
tember,  and  returned  the  15th  oi  thm  sum 
month. 

Huggins,  My  h)rd,  I  wentfcom  tbanotkls 
fierkshire. 

James  Green  sworn. 

Huggins.  Did  you  see  me  in  Hampskare  al 
my  son's  in  1735  ? 

Green.  I  was  a  serrant  then,  and  liwi  m 
Hampshire  at  the aame  time;  and  yoo 
there  on  the  1st  of  September,  and 
till  the  11th ;  and  in  the  same  year  yao  wan 
there  iu  August. 

John  Tucker  sworn. 

Huggim,  Whom  are  you  serf  ant  to? 

Tucker.  To  air  George  Oxendca. 

HugginM.  Was  I  any  time  in  BeriuhiMflB 
1785? 

Tucker.  You  werethere  in  September,  tfii| 
and  on  tbe  17th  I  carried  yoo  from  WittaahiBi 
in  Berkshire,  to  Henley  upon  Thames. 

Huggins,  Did  you  carry  me  any  farther? 

Tucker,  No. 

Mr.  Just.  Page.  When  did  Mr.  HngiriBS 
come  there  ? 

Tucker.  I  did  not  mind  that ;  I  know  Ike 
time  when  I  carried  him  from  theoca,  bat 
cannot  tell  when  he  came  there. 

Sir  George  Oxenden  sworn. 

Sir  G.  Oxenden.  My  lord,  Mr.  HusginsasMl 
be  came  from  his  ^n's  about  the  15tb  of  8s** 
tember,  and  .came  to  Hi'oley  abont  the  lYta. 
I  remember  very  well  that  Mr.  Huggios  was 
at  my  house  in  Berkshire,  because  sir  Ccail 
Biftbop  being  there  (it  was  the  day  before  av 
after  Watlingtiin  fair,  which  was  the  18tk), 
Mr.  Huggins  offered  to  purobsse  a  little  fans 
of  liim,  wbich  Mr.  Huggins  said  he  woald 
make  a  present  of  to  his  »on,  wliicli,  I  thought, 
was  a  kmd,  good-uatureil  act:  be  went  away 
on  the  17tli  or  laih,  and  I  rather  believe  it  waa 
the  18ih,  because  on  that  day  1  went  to  Wal» 
lii!(rton  fair. 

Mr.  Just.  Page.  How  long  did  Mr.  Hu|^ 
gins  stay  at  your  house  ? 

Sir  G.  Otenden.  Mr.  Hoggins  was  not thara 
above  two  days,  and  said  that  he  came  ooiaf 
Hampshire. 

Daniel  Hopkim  sworn. 

Huggins.  I  fliwrt  obser? e,  mj  laN|  tka  wKr 


Jor  iJie  Murder  of  Edward  Arne^ 


A.  D.  175». 


[8M 


•Md,  Uuit  Mr.  Hopkins  was  witli  me, 
ikithe  WM  premit  at  the  strontr  room. 

Ur.  Just  Pmge,    Mr.  Hopkins,  pray  when 
M  JOB  go  oui  •t'lowo  P 

Mcflmu.    I  went  ID  the  Oxfoni  ootch  on 

Ifiadaj,  the  97th  of  September,  1735,  and 

|«li  Word  that  oifrbt;  and  on  Toesday  took 

Iks  Wsicester  coach  to  Moreton  in  the  dtarsb, 

saAvoft  from  thenoe  lo  a  pUce  called  Barton, 

tsmiHr.  Oakley 'a,  a  relation's. 

Ambs.  When  did  yoQ  return  ? 

Bjfhii.  I  camt  back  on  the  14th  of  Oc- 
Mv  ■  Ibe  same  year. 

B^lfinM,  I  desire,  my  lord,  ha  may  be 
liirf,  tfatar  he  aaw  ne  m  the  prison  in  the 
■sdi  of  September? 

BtfkUm,  no,  nor  in  October ;  for  yon  were 
MtCBOMback  on  the  19th. 

Ibgfm.  Were  yon  at  the  door  of  the  strong 
1MB  with  me  f 

Utfkimt   No,  I  WM  there  by  m vself. 

Im^OUsAire.  Do  you  know  Mr.  Fairing- 
Mf^Bipkim.  Yes. 

In.  Cieikir§*  Don't  you  rsmember  that  he 
IWiHRe  with  you  ? 

Brnkkm.  I  dea't  remember  any  eompany 
VHtkcre  then. 

Iq.  CAesftire.  Was  Barnes  there  ? 

BbUm.  No. 

k^Ckakin.  Who  opened  tlie  door  ? 

iMiai.  I  cannot  tell. 

%  Cktakirt.  Did  you  see  Mr.  Aroe  ? 

Wytmi,  I  saw  him  there  ;  he  was  naked  ; 
kthsd  something  aboot  him  white,  but  1  can- 
Majr  what. 

m  Ckakire.  Had  vou  no  discourse  about 
^wm?'^ Hopkins,  No. 

Herj.  Cktskire.  Did  not  Mr.  Gybbon  send 
J9§  Is  Mr.  Hoggins  aboot  Arne  P 

Btfkuu.  No. 

8w|.  Ckahire.  When  you  were  at  the  door, 
M  you  aot  whisper  to  aoy  ooe  P 

napkin$.  No. 

Stg.  Ckakire.  Whose  servant  was  Barnes  ? 

BtffkinM.  He  was  servant  to  Gybbon. 
Isn.  Ckeskirt,  Who  named  him  a  watch* 

Hapkiitt,  He  was  a  watdunan  when  I  came 
;    and  1  saw  Gybbon  pay  him  several 


fls^  CAcsAire.   Whom  were  you  appointed 

Bmpkimi,    I  was  recommended  to  Mr.  Gyb- 
bsn  by  Mr.  Huggins. 
8ar|.  Cheshire.  Dad  you  do  any  business  for 

9 


jkins.   Yes,  and  attended  him  constantly 
H  hb' house  every  morning  ;  but  1  never  had 
SMr^iBg  for  that  trouble. 
■■i.  Cheshire.  Did  you  buy  your  place  P 
Hafkim§»  No. 

flBi|.  Cheshire.    Did    you   take  all   those 
Fs  In  Mr.  Hoggins  for  nothing? 


Memkms.  He  had  seklom  any  thing  for  me  to 
);    I  was  in  the  morning  generally  with  him 
■Bt  seven  o'clock,  and  left  him  by  nine. 
«iq.CiH4M.D9j9BlnowMrs 


Hophms,  Yes. 

Serj.  Cheshire.  Had  you  no  discourse  with 
her  about  Arne  as  to  bis  condition  ? 

Hopkins.  I  do  not  remember  I  bad. 

Ser).  Cheshire.  Mr.  Hopkins,  pray  consider 
with  yourself,  and  answer  directly,  whether  or 
no  Mrs.  Le  Pointz  did  not  desire  you  to  speak 
to  Mr.  Hugffins  about  Arne,  and  you  said  you 
would,  and  mat  you  came  to  her  alter,  and  told 
her,  that  you  had  spoken  to  Mr.  Uumins,  and 
that  he  said  it  was  no  business  uf  his?  Pray 
consider,  and  recollect  yourself. 

Hopkins.  I  cannot  recollect  it. 

8er|.  Cheshire.  How  did  Arne  come  into  the 
strong  room  P — Hopkins.  1  do  not  know. 

Seij.  Cheshire.  How  long  was  he  there  P 

Hopkins,  Six  weeks. 

Scry.  Cheshire.  How  long  was  it  in  that  time 
before  you  heard  he  was  there? 

Hopkins.  It  could  npt  be  long. 

Serj.  Cheshire.  How  long  after  the  beginninnf 
of  the  six  weeks  was  it  that  yon  saw  him  there? 

Hopkins.  I  cannot  tell  how  long ;  it  could 
not  be  long. 

Serj.  Cheshire.  Was  there  any  matter  in  the 
gaol  that  you  did  not  acquaint  Mr.  Huggins 
with  P 

H(^kins.  I  seldom  acquainted  him  whh  any 
/>f  the  transactions. 

Serj.  Cheshire.  Do  you  remember  you  ac« 
quainted-  him  with  this  man's  being  in  the 
strong  room? 

Hopkins.  I  do  not  know  I  did. 

Serj.  Cheshire.  Did  you  hear  aoy  complaint 
of  his  being  in  that  place  P 

Hopkins.  I  cannot  say  that  1  heard  any 
complaint  of  tiis  bcinj;  there. 
I  ^$c^j.  Cheshire.  1  have  in  my  hand,  Mr. 
Hopkins,  an  exaniinaiion  of  your's,  and  1  would 
have  you  consider  with  yourself,  and  I  will  ask 
YOU  one  question  or  two.  Do  you  think  the 
kcepiuif  the  man  in  that  place  m  us  tlie  cause 
of  his  death? 

Hopkins.  I  had  been  very  credibly  informed 
of  the  indisposition  of  Arne  before. 

Serj.  Cheshire.  Upon  the  oath  >'0U  havetakeo, 
was  not  A  roe's  lieincf  C4»nfined  in  that  place  the 
occasion  of  his  death  P 

Hopkins.  1  cannot  say,  upon  the  oath  that  I 
have  tai(eo,ithat  it  was,  as  he  was  mad  and  sick 
before  he  was  put  in  the  strong  room.  I  believe 
the  madness  was  the  occasion  of  his  death. 

Att.  Gen.  How  long  after  Mr.  Arne  was 
confined  was  it  that  you  saw  him  P 

Hopkins.  I  «annotsay  how  long  ;  I  balievt 
it  was  in  the  mouth  of  September. 

Att.  Gen.  Did  not  you  see  him  more  than 
once? — Hopkins.  1  do  not  remember. 

Att.  Gen.  1  ask  you  again,  Did  not  yon 
see  him  more  than  once? 

Hopkins.  1  do  remember  I  saw  him  a  s^ 
oond  time  lying  on  the  floor,  and  the  upper 
part  of  his  body  was  then  naked. 

Alt.  Gen.  Was  suy  pri^uer  in  the  Fleet 
contiued  in  such  a  strong  room  before  ?  * 

Hopkins.  None  was  put  in  there  befofnp  nor 
in  any  such. 


S47] 


S  GEORGE  li. 


Ati.  Gen.  What  kind  of  room  was  itf  I 

Hopkins.  The  roof  was  arched;   it  was  built  - 
eren  with  the  i^rouud,  and  bailt  not  long  before 
Arae  was  put  in  there. 

AU,  Gen.  Did  you  obaervethe  condition  of 
the  wall  ? — Hopkins,  The  room  was  damp. 

Att.  Gen,  What  officer  were  you  belonging 
to  the  Fleet  P 

Hopkins.  I  was  Clerk  of  the  Inquiries. 

Att.  Gen.  Did  not  you  go  to  Mr.  Hugglns 
frequently  P 

Hopkins.  I  went  to  Mr.  Muggins  three  or 
four  times  a  week. 

Att.  Gen.  What  did  you  go  to  Mr.  Hug- 
gins  upon  P 

Hopkins,  J  went  to  him  about  his  own  bu- 
tioess. 

Att,  Gen.  Did  you  never  attend  him  on 
nominjifs  about  the  business  of  the  prison  ? 

Hopkins.  I  hare  acquainted  him  with  some 
things. 

Att,  Gen,  Did  not  yon  acquaint  him  with 
natters  of  consequence  in  the  prison  P 

Hopkins,  I  dicf,  if  they  were  matters  of  any 
consequence,  or  extraordinary. 

Att.  Gen.  Did  not  yon  acquaint  Mr.  Hug- 
gins  with  Mr.  Ame's  being  there  P 

Hopkins.  The  reason  is  why  I  did  not,  that 
I  went  out  of  town  on  the  27th  of  Septembo', 
•nd  did  DQt  return  till  the  14th  of  October. 

Att,  Gen.  I  ask  you.  Whether  you  betiere 
in  your  conscience  you  did  acquaint  Mr.  Hog- 
gins or  not  P 

'    Hopkins.  It  is  very  likely  I  did,  if  I  was  de- 
sired. 

Att.  Gen.  Do  you  believe  in  your  conscience 
you  did,  if  you  were  desired  P 

Hopkins,  Why,  I  rerily  believe  in  my  con- 
science 1  did,  if  1  was  desired. 

Att,  Gen.  How  do  you  know  Ame  was  mad  P 

Hopkins.  I  heard  that  he  was. 
.    Att.  Gen.   Would  not  hb  own  room  have 
been  a  sufficient  confinement  P 

Hopkins.  I  bdieve  it  would. 

Att.  Gen.  Did  vou  receive  any  order  from 
Mr.  Hoggins  for  the  relief  of  this  man  P 

Hopkins.  I  do  not  know  that  I  did. 

[Upon  which  his  Examination,  which  was 
taken  belbre  Edward  Hughes,  esq.  upon  oath, 
was  read,  to  shew  his  prevarication.] 

Mr.  Just  Page.  I  ask  you,  Whether  in  the 
month  of  September,  there  were  not  a  great 
many  people  discharged  out  of  custody,  and 
whether  there  was  not  any  one  room  that  be- 
came empty  P 

^  Hi^kins.  I  believe  there  was,  for  fifty  or 
sixty  persons  were  then  discharged ;  but  I  had 
nothing  to  do  with  the  affair  of  rent. 

Mr.JaaLPage.  Was  there  any  room  better 
Ihan  the  strong  room  empty  ? 
-    HopJans,    Any  room  was  better  than  the 
ttrongroom. 

:    Mr.  Just.  Page,    How  long  was  Ameoon- 
timied  there  after  the  7th  of  S^itember  P 

Hmkiu.  lit  was  ooBtiaiwd  tb«  till  he 
died7 


Trial  of  John  HuggitUf 

Mr.  Jnst  Page,  Was  there  toy  roe 
house  so  bad  as  that  P 

Hopkins,  I  do  not  know  of  any. 

Mr.  Just.  Page,  When  so  many  n 
charged,  might  there  not  be  a  room  tl 
might  be  put  in  P 

Hopkins.  1  do  not  remember  any  di 
of  rooms. 

Mr.  Just.  Page,  Were  there  no  plac< 
where  the  fiflv  or  sixty  lay  P — H<^kin 

Mr.  Just.  Pate,  \Yas  tnere  not  a  re 
for  one  man  to  Re  in  P — Hopkins.  Yes 

Att.  Gen.  Had  you  any  discourse 
shop  about  ArneP 

Hopkins.  I  do  not  remember  he  ev 
to  me  about  him. 

Att.  Gen.  Did  Mr.  Gybbon  never 
you  in  the  presence  of  Bishop,  to  spea 
buggi--.  that  «>»e  ««  rS^t  ST 
AmeP — Hopkins,  He  did  not. 

Att,  Gen.  Did  Mr.  Gybbon  ordei 
speak  to  Mr.  Huffgius  to  get  him  into 
hem,  and  to  spebk  to  Mr.  Taylor  to  gel 

Mr.  Just.  Page,    I  must  observe 
Huggins  owned  that  he  only  did  it  ( 
of  Ame's  being  got  into  Bethlehem)  as 
and  not  otta^cfiifs  warden. 

Mr.  Lee.    Mr.  Hopkins.    I  ask  yo 
ther  vou  at  any  time  spoke  to  Gybboi 
one  dse,  to  give  Mr.  Huggins  notice 
being  in  the  strong  room? 

Hopkins,  I  do  not  know  that  I  did. 

Thotnas  Smith  sworn. 

Huggins,    What   resolution   did 
holders'  Company  come  to,  as  to  the  c 
ing  Ame  out  of  the  Fleet  P 

Smith.  He  was  servant  to  the  Coi 
Uudertakers  at  Exeter  Clianffe. 

Mr.  Just.  Page,  Do  you  know  if  i 
to  be  discharged,  or  how  P 

Smith.  Martin  and  otiiers,  membc 
said  company,  first  arrested  him,  and 
carried  to  a  bailiff's  in  Hare-court, 
there  a  considerable  time,  and  then  ^ 
ried  to  the  Fleet ;  and  upon  an  appli 
the  Company  of  Upholders,  they  agre 
charge  him,  and  get  him  into  Bethleh 

Huggins.  My  lord,  he  was  a  vei 
man  biefore  he  came  there  ;  and  1  d 
witness  may  tell  you  what  condition  h 

Smith.  In  the  month  of  April,  1722 
in  a  weakly  condition. 

Mr.  Just.  Page.  Mr.  Huggins,  I  a 
mityou  into  that  evidence. 

Huggins,  I  desire  to  call  peopl 
character. 

Mr.  Thomas  Ame  sworn. 

Huggins.  He  was  chief  moumer  to 
desire  he  may  acquaint  you  what  rel 
vras  to  him. 

Ame.  Edward  Arne  was  my  nnde' 
know  that  he  was  in  prison ;  he  lay  sc 
at  an  officer's  house,  and  from  thenci 
moved  to  the  Fleet. 

&sggm*  WheA  did  y oa  go  t«  tiitt 


t\e  Murder  of  Ed^^ari  Arne.  A.  D.  1729.  [350 

ttflierp  in  my  conscience,  be  would  not  hava 
been  guilij  of  Ibe  cnielly  laid  lo  his  charge. 
RoUrt  finer,  PSq.KiTorii. 


.    —  doy«  Wfore  lie  ilied  I 
.  .      eiiquiKd  for  liiro,  and  lliey 
locked  ufi,  Biid  directed  me  lit  go 
■■      Terningbsm'sraan. 
^—.^  —         door  shut  ? 

irK.  It  waipadlocbeil;  belly  down  at  the 
mk  ff  Uia  loom  Dear  the  door,  aod  I  found 
•a*  nvt  alioiil  him.  He  koew  me,  and  look 
Mti  the  biuid;  be  wu  then  very  ill,  aod 
«Mdlwdty  speak.  I  asked  him,  what  hbs 
tewt  of  bis  rin^,  sesi,  (^Id-headcd  caae, 
iM  Mtcr  Uiing*  of  laluef  lie  spoke  very 
failj  I  wilk  much  dilltciilly  undentood  l>y  a 
tmt  mm  mrI  tlicu,  that  one  SearU,  a  mercer, 
Wm  tome  ttf  them ;  aud  afleriratdB  upon 
«fi>y  Tinmit,  that  be  bad  hia  gold  walch, 
•Wl  he  biid  lent  tiim  Iburleeii  guioeai  iipoo. 
AifpjtL     Did  be  make  any  coru|iUiul  to 

Jrot.     He  was  not  cnjiable  of  complaining, 

Btfpnd.  What  slate  of  bealLh  wai  he  in 
Un*  be  csoM  there  ? 

Art.  1  belicre  be  wat  in  a  waatiug  condi- 
im  bdare  be  wat  arretted. 

in.  Otm.  Did  you  bear  any  complaiot  u  to 
thkM(>n  the  ftronf;  ruoin ! 

A»  By  bim  I  did  not. 

JItOn.  At  Ibe  lime  when  you  came  la 
ttlia,  wai  (be  room  in  a  condllion  lor  a  tick 
•TtPtfliBaaP 

Jf^  I  Miete  it  wai  not  fil  for  a  tick  or  a 
wlHan  to  lie  in  it. 

Jtt.  Cen.  How  long  do  you  think  jou 
MU  h«>a  liTcd  if  you  hod  (mcd  confined  in 

ir^.     I  coold  nol  bare  lived  six  or  leven 
itjigWdiiHild  not  believe  any  man  alive  could 
4*Aac«x  orieven  week*. 
Ja.Citn.   How oflen  were  you  Iherer 
Arm.   I  nevev  Mw  it  but  ooce. 
JU.  Gtn.     Ita  you  think  you  could  have 
M  tUn  tLX  weeb  f 

Jmt.     I  tJiiuk  I  could  not  live  six  weeks  in 
ttMiiU  titv  or  cundle. 
My  Ion!,  I   desire  to  call  some 

Hr.  Jbu.  J'«^.  Tbnl  you  may  do  if  vou 
tekfii. 

Sr  CtM'g*  OmiuIch,  hart,  sworn. 
Sr  C-  Ofrndm.  My  lord,  I  have  known  Mr. 
BanlBa  akani  nine  jeara,  bm  have  bet'n  more 
MnSdwl*  acqiuininl  wilb  bim  these  four  or 
kvcyeantait  prntl ;  I  never  took  him  lo  be  an 
M  MlMul  or  barlnmiis  man,  and  do  not  believe, 
vinUftj,  ka  would  do  an  inhumane  thing  to 
ny  aar. 


irMti  HittdtCoii 


a,  liart.  sworn. 


Haffuu.  Pray  gitu  un  account  liow  long 
}«iba*e  known  me. 

Sr  /.  CmIm.  My  lord,  I  have  known  Mr. 
IqpfWa  atoail  font  or  tltc  year*,  and  hate  bad 
«in«M  ■■  h«  a  ipiiMl  deal  wiih  bim.  I  lielierc 
Wuhcfood-aaluraJ,  bunaoa  mao  ;  and 


Finer.  My  lord,  I  have  known  Mr.  Ifugginf 
ever  since  I  can  remember  any  thing  at  tdl,  ha 
bas  been  concerned  lor  onr  family  tlieae  forty 
or  Sfly  years,  and  I  lived  with  him  two  years 
together ;  and  I  take  him  to  be  a  good-natured 
and  humnue  man ;  and,  in  ray  conscieni'?,  be. 
lieve  be  would  not  be  guilty  of  a  cruel  thing  W. 
any  man. 

John  Hedgeii  esq.  swom. 
Bedga.  My  lord,  I  have  known  Mr,  Hii^. 
gins  about  six  rears,  and  always  took  bim  Inr 
a  good-nalured  and  humane  man  ;  and  hsf* 
since  had  an  opportunity  of  knowing  sereral 
instances  of  lus  generosity  and  good-nature 
wilbonl  fee  or  reward:  1  have  known  bim  six 
or  seven  years  as  a  general  ncquain lance,  and 
he  was  very  good  natured  and  humane ;  and 
some  time  since  I  have  known  some  iustaoccs 
of  great  generosity  and  good-natore,  merely 
for  the  pleunieol  doing  good,  without  fee  or 

John  Knighl,  esq,  sworn. 
Knight.  Mv  lord,  I  have  knotrn  Mr.  Uug- 
gittslliese  ei(|ht  or  nine  years  past,  and  fre- 
quently had  opportunities  of  being  in  convema. 
lion  with  faim,  end  I  always  took  bira  to  be.  at 
far  as  any  man  hiing  Irom  doing  any!  thing 
that  was  cruel ;  and  always  acted  agreeable  to 
the  character  of  a  humane  man  ;  and  1  am 
very  sorry  any  such  thing  sbould  ke  laid  tu  hit' 
charge. 

Chritlophcr  Tiilton,  esq.  sworn. 

TilUon.  My  lord,  t  have  known  Mr.  Hug<r 
gins  these  five-and-thirty  years,  not  super&< 
cially,  but  in  narticular  friendship,  and  have 
(bund  him  in  all  instances  a  man  unblamable; 
and  1  never  saw  any  thing  lending  to  cruelty 
or  ill  usage  ;  and  have  alws"  "  '"  "  "  '  ' 
far  these  ibiity-fire  years. 

Major  Churchiit  swom. 

Major  Chtirchili.  My  lord,  I  have  known 
him  these  fuiiy-fiTe  years,  and  have  had  fre- 
quent communication  with  him,  and  alwayf 
found  him  a  friend  and  a  roan  of  humanity, 
despising  of  money  ;  there  was  one  thing,  in  « 
most  particular  manner,  I  will  acquaint  yon* 
lordship  of 

Mr.  Just.  Page.  I  can't  admit  you  into  ft 
pailicular  character,  but  you  may  go  en  with 
a  general  one. 

Major  Clturchiil.  I  never  thought  him  ca- 
pable in  lb  ought,  word,  or  deed,  of  doing  a 
cruel  thing. 

ThomiuG'tbion,t9t\.  sworti, 

Oi&jnn.  My  lord,  1  bave  known  Mr.  Hog- 
gins for  tbeae  seven  or  eight  years  past,  and 
lound  him  lo  act  with  gawl-Dature,  lultgrity, 
hosaw,  asd  bspsauitj,  ,.l 


always  found  him 


351] 


S  6B0RGE  II. 


Thft  Rer.  Dr.  Fttru  (Hector  of  St.  Mar- 
tin's in  tlie  Fioktoi  afterwirdt  Bishop  of  Ro- 
chester,) sworn. 

Dr.  Featxe.  My  lord,  Mr.  Hugfpns  is  a 
Teatry  man ;  and  I  have  had  naore  uarticakur 
reason  to  converse  with  him  freqaeoiiy  on  that 
account,  and  f  ne? er  found  any  tbinff  in  him, 
that  was  any  way  consistent  with  wnat  is  laid 
to  his  charj^f  and  have  constantly  foond  him 
at  church. 

Edward  Thompton^  esq.  sworn. 

Thompum,  My  lord,  1  bare  known  Mr.  Hugf- 
gins  these  seven  years,  and  have  had  frequent 
experience  of  acts  of  his  friendship  snd  jfood- 
liature,  and  never  discovered  any  thing  m  bis 
kehaviour,  but  the  utmost  good- nature. 

Thomas  Wotfari^  esq.  tfworn. 

,Woo4ford.  My  lord,  1  have  known  Mr. 
Muggins  many  years.  I  have  been  with  bim 
both  sober  ai\d  mellow,  and  never  have  dis- 
•avered  any  thing  barbarous  or  cruel  in  him ; 
and  I  verily  believe  he  could  not  be  guilty  of 
any  such  act  if  he  knew  it  at  all. 

Jmeph  T^^loTf  esq.  sworiK 

Tt^lor.  My  lord,  I  have  transact^  a  great 
deal  of  business  with  Mr.  Hu^ns,  and  wtud 
him  act  with  candour.  Sometimes  I  have  been 
oonctmed  against  him,  and  sometimes  with 
him ;  and,  ir  ever  I  bad  sn9|iected  any  thing  in 
him  tending  to  cruelty,  1  assure  you,  my  lord, 
i  would  have  shann«l  bis  company  instead  of 
seeking  it,  as  I  have  done. 

Martin  Bladen^  esq.  sworn. 

Bladen,  My  lord,  I  have  known  Mr.  Hu^- 
gins  many  years,  and  have  lived  by  him  m 
the  country  tliese  eight  or  nine  years;  and  the 
character  that  be  has  had  is,  that  be  is  a  good- 
natured,  himiane  man ;  it  has  been  his  whole 
business  of  life  to  leave  a  good  character}  and, 
therefore,  I  canU  believe  he  wouM  do  an  ill- 
natured  act. 

John  LadCf  esq.  afWwards  sir  John  Lade,  bart 

sworn. 

Zaifs.  My  lord,  I  hare  known  Mr.  Hog- 
glns  ibese  forty  years^  and  have  seen  a  great 
aumy  kind,  compassionate  things  of  him. 

Sir  CharUt  CoXf  kut.  sworn. 

Sir  CharU$^Cox.  My  lord,  I  have  known  Mr. 
Hoggins  these  forty  jrears,  and  have  had  fre- 
quent dealings  Wi^  him,  and  alwavs  observed 
him  to  be  a  man  of  charity  and  hnmaoity  ; 
and  I  have  ooofted  bis  company  from  the  good 
•pinion  1  Ifave  Irad  of  bim,  and  don't  brieve 
that  he  would  be  guilty  bf  any  inhumanity. 

Bimttd  Hakty,  esq.  sworn. 

Batey.  My  lord,  I  faaTc  known  Mr.  Bag- 

■tar  tbirff  jraars,  and  have  been  oonver- 

#liii  bitt,  mi  UA  dbdftrvation  I  have 

•f  hiui i% thall bav*  fbind kirn Mdoua 

4 


IS 


Trial  qfJohn  Hugpns, 

to  do  good  offices,  where  bo  had 
reward,  and  never  found  bim  coveto 

Sir  Jamc$  Thomhiilf  knt.  sw 

Sir  James  Thornhiii.  My  lord,  1 1 
Mr.  Huggins  for  these  twenty- five 
I  was  pro»d  of  the  hononr  of  nis  ao 
I  have  never  seen  or  heard  of  the 
act  that  he  has  done  by  any  one 
was  to  repeat  the  instances  of  gc 


t 


Mr.  Just.Pa^e.  Sir,  you  can't  t 
to  do  that. 

Thomas  Martiny  esq.  swor 

Martin.  My  lord,  I  bsTe  known 
gins  these  thirty  years,  and  that  he 
great  many  kind  and  good  natnred 
never  knew  him  a  vain  man,  but  th 
throBgh  good-nature. 

Colonel  ^^gui  sworn. 

Col.  Negus.  My  lord  I  have  knowi 
gins,  a  great  many  years,  and  alw 
upon  bim  to  be  a  good-natured  man 
it  was  impoanUe  to  think  be  coul 
natured  an  act,  as  laid  to  his  charge. 

'  Campbell,  esq.  swor 

Campbell.  My  lord,  I  have  knowr 
'ns  irom  fifteen  to  twenty  years,  a 
und  bim  behave  himself  with  int«| 
profession,  as  a  good  natured  man,  a 
thought  his  genius  far  superior  to 
natured  thing.  1  always  bad,  and 
good  opinion  of  him. 

Hoggins.  My  lord,  it  appeared  to 
shin,  that  Mr.  Oybbon  was  the  actii 
ana  that  Barnes  was  bis  servant. 
No  argument  can  be  drawn  from  th 
not  sitting,  the  custom  of  the  place  is 
but  as  to  sny  application  to  get 
Bethlem,  that,  my  lord,  can't  be  ap| 
gualemts  warden,  for  it  woold  be  oa 
good-natured  act:  If  Barnes  put  hii 
not  my  servant;  if  so,  then  the 
roust  fail. 

That  as  to  the  witnesses  they  wen 
and  they  are  natural  haters^  of  their  i 
I  never  went  to  the  prison*  but  li 
dred  people  about  me,  and  I  must 
seen  by  many  ;  there  was  no  preteM 
any  barbarity  lo  any  man,  nd  uione; 
torted  :  and  when  J  could  no  way  bi 
by  it,  no  one  can  think,  my  lord,  J 

g guilty  of  murder,  where  no  wnefit  or 
y  it  could  arrive. 

Mr.  Louden,  my  lord,  who  had  the 
the  man,  and  had  the  key  till  three  d 
his  death,  had  never  seen  me  there ; 
that  had  the  key  did  not  know  of 
there,  who  shoufd  P  1 .  shewed,  my  1 
was  out  of  town  in  September,  anc 
waa  out  of  town  till  the  14ih  of  C 
that  it  was  impossible^  that  we  twc 
there  togetlier.  All  the  other  witm 
bttve  beev  called  agaiist  oatiwoiik 


353] 


Jbr  the  Murder  qfEdxnard  Ame* 


A*  Di  170* 


[354 


Up  from  that  day  to  this  in  prison,  had  they 
B^  hut  tbor  hononr,  or  kMt  their  desimis. 

I  BCf cr  saw  the  man,  nor  beard  there  was 
■ch  a  prifoaer,  and  to  morder  a  man  for  no- 
thiif ,  God  Almighty  knows  there  nerer  stood 
a  au  at  this  bar  with  more  innocency  than 

fle^  CJkahire.  It  is  plain  on  the  king's  side, 
Ihil  a  sahjcct  has  been  murdered ;  and  what 
Mr.  Hi|giD8  has  endea?oured  to  show  is,  that 
ht  Kicr  acted,  but  had  a  deputy,  and  that  de- 
fif  vas  aooouDtable,  if  any  body,  for  he  had 
M  acfnaintanoe  of  this  thing ;  your  lordship 
hikeanl  the  witnesses,  and  J  don't  doubt  but 
ti  relate  the  e? idence  fully. 

1W  Counsel  for  the  Prisoner  objected  to  Mr. 
ftijeaat  Cbei hire's  replying. 

llr.  iost.  Fage,  I  am  of  opinion,  brother,  you 
cntrepljr. 

8er|.  Ckahire.  But  1  may  say  something 
livlMt  baa  not  been  gi?eo  already  in  evidence. 

Ati,  Gca.  Mr.  Huggins  endeavours  to  shew 
Ail  GjrbboD  was  the  acting- warden.  No,  my 
M,  aehher  by  a  lense  or  deputation  Gybbon 
smM  aoc  be  appointed  warden. 

Ir.  Just.  Page,  Mr.  Attorney,  I  cannot  admit 
}M  to  enter  into  any  reply,  but  if  you  have  any 
tnlflHe  you  may  call  them. 

Elijah  Beavii  sworn. 

AtL  Gem,  Were  yoi\a  prisoner  in  the  Fleet, 
ii*aycarl7«3.^ 

BsBMff.  Yea,  and  I  had  the  liberty  of  the 
nisi,  hi  the  year  1793 ;  and  in  the  year  17S4, 
lomsntitled  to  he  cleared  by  the  Act  of  In- 
tfbeaey,  but  hecaate  I  could  not  give  the 
vaiiu  money  enough,  was  continued  till  the 

a  1725,  and  I  usmI  to  see  Mr.  Hopkins  at 
v's,  where  Gyblion  kept  his  office,  and  it 
■M  ffeoerally  accepted  by  every  body,  that 
jftafas  brought  directions  from  Muggins  to 
GjhoB  every  Jay. 

Aii.  Cen.  Have  you  heard  Hopkins  say, 
te  be  bad  directions  from  Mr.  Huggins  to 
Gjbboo,  and  that  he  came  from  Huggins. 

Beans.  1  did  not  hear  any  particular  di- 
RctioDa. 

Rickard  BUkop  sworn. 

Alt,  Gen.  IVho  gave  directions,  as  to  the 
■uagrment  of  the  ^ol  ? 

Bithop.  The  particular  things  were  done  by 
Roijgins'a  directions;  but  the  common  things 
vitboot. 

Joteph  Johntcm  sworn. 

Ait,  Gen.  Do  you  know  of  any  directions 
WaKbt  from  Mr.  Huggins  by  Mr.  Hopkinsi  to 
Kr.  GybboD 

Jckiiom,  I  have  heard  Mr.  Hopkins  say,  that 
kcaoM  from  Mr.  Huggins,  and  that  he  bid 
bacoine  every  murniug  to  him  ;  and  that  one 
tae  Mr.  Hoggins  sent  word  back  by  Hopkins, 
te  1  should  be  locked  up. 

Uwrrf  HugheSf  esq.  (a  member  of  the  House 
of  Commons)  sworn. 

J^tt.  Gen.   Sir,  what  have  you  heard  Mr. 
VOL.  XVII. 


Hoggins  declare,  as  to  the  acts  he  did  doring 
the  time  Oybbon  was  his  deputy  f       ' 
Hughes.  My  lord,  it  appeared  to  me 
Mr.  Baron  Carter,  Sir,  you  are  not  to  tell  os 
of  what  appeared  to  you,  but  what  you  know  of 
your  own  knowledge. 

Hu£he$.  My  lorS,  I  can't  tell  how  knowledge 
should  come  to  me,  until  it  appeared  to  me. 
(After  some  pause  Mr.  Hughes  went  on.) 

My  lord,  Mr.  Huggins  was  ordered  to  attend 
the  committee,  and  while  Mr.  Huggins  was 
there,  he  was  asked,  what  escapes  had  happened 
during  the  time  he  was  warden  ?  He  said,  he 
could  not  give  an  account  of  them,  there  hail 
happened  so  many  ;  but  said,  that  Oliver  Read 
had  escaped,  and  when  he  was  taken,  that  he 
Mr.  Huggins  had  ordered  Corbett  the  tipstaff  to 
nut  him  in  irons,  which  were  sent  for  from 
Newgate  by  his,  Huggins's  directions,  and 
owned  that  he  did  it  by  virtue  of  his  authority 
for  an  escape ;  this  confession  Hogeina  maiie 
himself,  and  owned,  that  he  had  paid  500/.  for 
such  escape  that  Read  had  made. 

Mr.  Baron  Carter,  Was  it  Mr.  Huggins  or 
Mr.  Gybbon  ordered  him  to  be  put  in  irons  ? 

Hughes,  1  did  not  say  it  was  BIr.  Gybboa 
bid  him  be  put  in  irons,  but  it  was  Mr.  Hug« 
gins,  and  that  he  ordered  him  to  be  put  in  irons 
as  warden,  and  in  all  escapes  he  acted  as 
principal,  for  he  |mid  500/.  for  that  escape. 

Mr.  Baron  Carter.  About  what  time  was 
this? 

Hughes,  It  was  upon  the  first  escape  that 
Read  made ;  it  was  in  the  year  1726,  that  Read 
got  off  those  irons,  and  made  his  second  escape^ 
and  was  re-taken ;  and  then  he  was  put  in  the 
dungeon. 

Mr.  Baron  Carter,  Was  there  any  particu- 
lar time  mentioned  ? 

Hughes.  I  have  recollected,  and  it  was  in  tha 
year  1726 ;  what  points  out  the  time,  is  Read*s 
escape. 

Seij.  Darnell.  That  paper  produced  by  Jef- 
freys amounts  to  a.  lease. 

Mr.  Just.  Page  and  Mr.  Baron  Carter, 
Whenever  an  agreement  is  made  to  make  a 
lease,  that  can  never  be  esteemed  a  lease* 

Proclamation  was  made  to  keep  silence. 

Mr.  Just.  Page,  Gentlemen  of  the  jury,  this 
is  an  indictment  against  Mr.  Huggins  the  pri- 
soner at  the  bar,  and  one  Barnes,  tor  the  mur- 
der of  Edward  Arne.  The  indictment  ia  in- 
deed ])arTicnlar  ;  the  indictment  tnkes  notice, 
that  Hu^ius  was  warden  of  the  Fleet  the  1st 
of  October,  in  the  late  king's  reign  ;  that  he 
being  warden,  had  the  government  of  the  pri- 
soners in  tbe  timA  that  Barnes  was  an  agent  of 
his,  who  is  Aefi  from  justice,  it  sets  forth, 
gentlemen,  that  Barnes  seized  upon  the  said 
Arne,  and  carried  him  to  a  place,  called  the 
Strong  K(K)iii ;  and  that  Jlnggins  was  aiding, 
al>etting,  nnd  assisting  in  carrying  him  to  that 
place,  anii  he  was  continued  there  the  space  of 
six  weeks  ;  that  this  is  a  place  of  cold  restraint, 
and  u  room  newly  built,  made  of  brick  and  mor- 
tar, very  wet  and  until  to  live  in;  that  this 
I       S  A 


555]  S  GEORGE  IL 

Barnes  did  oontiiiu^  him  in  this  place  for  six 
weeks  in  a  most  iMtrbarous  and  vile  manner, 
and  not  allowed  him  any  necessaries,  iosorauch 
that  he  had  no  chamber-pot,  he  was  without  lire 
or  ftre- place,  and  liad  only  a  little  bed.  This  is 
the  nature  of  the  dungeon.  It  is  a  vault  arched 
over,  and  in  the  wall  a  little  hole  big  enough  to 
put  a  quart-  pot  in  at.  It  is  built  over  a  common 
sewer  adjoining  to  a  laystall,  where  all  the  dirt 
and  fihh  of  the  prison  lies,  which  made  it  not 
only  so  noisome,  but  very  unwholesome,  that 
the  continuing  this  person  so  long  in  this  place 
was  the  occasion  of  his  death.  That  Mr. 
Huggins  was  acquainted  with  it,  bnt  shewed 
him  no  favour  ;  he  was  not  let  out,  and  died  in 
the  middle  of  October.  He  died,  gentlemen, 
by  this  duress  of  the  prisoner.  I  will  say  bnt 
little  to  what  the  law  is  in  this  case ;  a  prisoner 
for  debt  is  only  taken  like  a  distress,  and  kept 
there  till  he  or  his  friends  can  pay  the  debt  for 
him.  Imprisonment  is  no  punishment,  it  is  not 
taken  as  part  of  the  debt ;  for  let  a  man  lie  ever 
80  long,  his  heirs  at  law  cannot  be  exempt  from 
the  debt,  but  if  thev  have  effects,  are  answera- 
ble for  it.  He  is  kept  only  iu  such  manner  as 
he  may  be  forth- coming  and  safe ;  this  being 
the  case,  he  is  to  be  kept  in  here  in  a  becoming 
way,  as  the  warden  may  be  safe,  and  the 
prisoner  forth-coming,  nut  in  no  other  de- 
gree that  the  prisoner  should  be  punished,  by 
any  unreasooanle  restraint.  If  this  Arne  was 
kept  in  no  other  way  than  became  the  subject 
of  the  king,  in  that  reasonable  manner,  so 
that  yon  may  take  it,  there  was  no  torture,  ill 
usage,  or  any  act,  but  such  as  was  fit  and  de- 
cent for  conhnement,  no  duress ;  then  and  in 
that  case,  though  he  died  there,  it  will  not  be 
munier. 

But  if  by  the  evidence  that  has  been  called, 
it  appears  that  this  mom  was  an  unfit  place  to 
lay  tnis  man  in,  that  it  must  be  the  means  of  his 
destruction,  that  (being  in  such  imprisonment 
as  the  gaoler  cannot  justify)  will  be  duress  ;  if 
they  carry  that  point,  it  is  part  of  the  common 
law,  the  ancient  law,  and  very  rightly  observed 
by  the  counsel,  that  it  will  be  murder.  It  would 
be  very  hard  to  take  away  this  law,  though  in 
his  own  defence ;  as  be  wns  entrusted  with  t!ie 
life  of  the  king's  subject,  he  was  answerable 
for  him,  and  the  coroner's  inquest  ought  to 
have  sat  unon  his  bo<ly  ;  the  law  is*so  much 
afraid  of  the  loss  of  the  life  of  a  subject,  that 
tlie  king  will  have  an  enquiry  to  see  what  is  be- 
come of  the  life  of  the  prisoner.  It  was  opened 
by  the  counsel  for  the  king,  that  it  was  wilfully 
omitted ;  on  the  other  hand  it  was  urged  that 
this  custom  seemed  to  be  asleep,  and  that  it 
was  hard  to  lay  a  great  wei'^ht,  where  it  had 
not  been  so  long  practised.  Gentlemen,  there 
have  been  great  numbers  of  witnesses  called, 
and  therefore  I  cannot  give  it  word  for  word, 
but  will  repeat  as  far  as  is  necessary. 

Mr.  Longborn  was  called  to  prove  the  first 
part  of  the  indictment,  that  Huin^ins  was  war- 
den ;  and  he  proved  the  copy  ot  the  letters  pa- 
tent granted  to  Mr.  Huggios,  who  might  act  by 
himself  or  deputy. 


Trial  of  John  HttgpnSf 


I 


Bigrave  gave  an  account,  th'at  Hiig| 
patent  bore  date  on  the  25th  of  July,  ii 
ISth  year  of  the  late  queen  ;  that  Mr.  Hog 
though  warden,  did  not  act  himself,  but 
pointed  Gybbon  as  deputy  ;  and  that  seen 
were4aken  by  Huggins  not  by  Gybbon,  tl 
to  be  considered  in  fioint  of  law,  that  tb 
must  be  brought  against  him  as  warden 
the  making  of  a  deputy  does  not  dischargt 
of  his  duty ;  in  several  cases  be  doea  not 
tinue  answerable,  for  iu  civil  cases  the  dem 
answerable,  therefore  the  security  isr  lo 
with  him.  It  is  a  very  strong  eviileooe 
the  wai-den  still  continues  warden,  ihi 
ought  to  see  to  the  escape  of  prisoners,  foi 
is  not  only  trusted  to  the  honesty  of  the 
den,  but  be  is  to  take  the  best  care  be  a 
escapes.  He  says,  that  Gybbon  did  bu, 
place,  that  he  did  oversee  and  look  afiie 
aifairs  of  the  Fleet,  and  filled  np  several 
rants,  but  always  in  H  uggins's  name ;  tbi 
did  apprehend  that  Barnes  was  only  a  se 
to  Gybbon,  and  that  Gybbon,  no  doubt,  ba 
immediate  trust  of  the  gaol ;  and  that  Bi 
was  a  runner  to  Gybbon,  and  not  Hugg 
servant.  He  agreed  what  this  place  was ; 
it  was  arched  over ;  that  it  was  eight  feet  i 
eleven  feet  lon^,  and  nine  feet  high ;  tl 
was  built  very  little  time  before  Arne  was  < 
mitted  there ;  he  could  not  describe  the  v 
situatiou,  but  gave  an  account  that  it  was 
nigh  the  dunghill  and  filth,  had  no  cbii 
nor  chimney- place,  and  had  only  two 
holes  to  let  the  air  in.  He  gives  an  acoou 
Hopkins ;  that  he  looked  upon  Hopkins 
Gyobon's  servant,  besides  that  he  was  dc 
Mr.  Hugs^ins  at  his  house  in  St.  Martin's- 
and  generally  went  backward  and  forward 
days  to  Mr.  Huggins,  and  was  able  to  give 
an' account  of  what  happened  in  the  g^ol. 

Hopkins  tells  you,  ne  was  Clerk  of  th 
quiries,  and  that  all  the  security -bonds 
letl  with  Gybbon,  but  left  in  blank ;  and  ' 
he  had  enquired  into  the  securities,  the  sect 
bonds  were  filled  up  by  Gybbon  ;  that  Qj 
received  all  the  money,  and  he  heard  that 
bon  was  to  pay  400/.  per  annum  for  it,  but 
all  went  on  in  the  name  of  Huggins. 

Bishop  says,  that  he  was  tipstaff  under  ] 
gins  ;  that  he  did  pay  for  his  place,  whict 
him  300/.;  and  that  about  1724  or  1725 
was  brought  a  prisoner  first,  and  was  carr 
the  Vine,  and  tuere  continued  about  a  m 
and  afterwards  was  carried  into  prison,  an 
with  one  Shaw,  and  upon  a  quarrel  was  li 
out,  and  the  strong  room  was  built  at  tlie 
end  of  the  summer ;  and  it  must  be  gra 
it  was  not  fit  for  mortal  man,  scarce  any  I 
to  be  in.  Gentlemen,  this  room  is  totally 
for  any  roan  to  be  put  in ;  and  that  it 
strongly  proved,  that  from  the  nature  ol 
place,  and  the  circumstances  of  the  weatb 
was  the  occasion  of  his  death ;  that  it  wai 
built,  not  almve  three  or  four  yards  fron 
dunghdl,  and  that  every  thing  of  nature 
done  in  it ;  there  was  no  chair,  no  prov 
only  an  old  bed.    That  he  saw  him  before 


Murder  of  Edward  Amg. 

Barnes  came 


tjtf  (bout  tilled  in  the  comnDn-yBrd,  aad 
«pM  lliii  •Ed  tdl  GyltboiiorbJim  and  tbat  il  w 
Ml  di  for  Uie  (HKir  inui  lo  be  left  alone,  so 
«H  OtUt   For  liiiQ  lo  ^  In  Betblcbeni ;     and 
WjBOoafUr  lUe  man  waB|iiil  inlo  llie strong 
mn.     Tn  ga  along  witb  Mr.  lIugginB,  I  muni 
likkaiMicc  uraiioUertation  lie  made 
m  •««  unfit  I'ltr  a  man  to  go  naked  ahoiit 
^■|lEi«rv  were  wotucD  ;    and  il  wa»  lit  he 
dadUb  oalined  aomuwbere,    lie  (s]>eakiDK 
rf  bkaft)  give*  snnie  nccouul  nr  Barnes,  ai 
^WtocuuDl  wb«Q  lb«  roomwaa  built,  jiut 
VklMr  eudol'tlieyear;   itiat  he  did  hear  he 
«itn  a  my  nild  canditioni  tliat  Barnes 
^m  v/  tbnu  dill  npiirelieoil  Gylbnn  lo  h 
4r«A  powvr  i  but  Ibnl  Gybboo  acled  hy  the 
li^ltity  ofilf.  Ilii^gios;    bul  thai  beivouid 
i|flf  to  Hr.  H  ug^a  about  it,  and  did  ask  the 
•■■■aet  i(  it  wat  not  proper  to  gel  hi 
hwhhfcwB ;   aod  HuggipiolMErved  ' 


raf  ibc  office  of  warden  of  the  Flevt,  but 
ni^l  br  a  friendly  office  use  his  interest 
«M  Ui.  Tajlor,  and  Ihat  would  ehew  him 
»««kliaouiie  man  than  one  guilty  ofcruelty. 
Vfcf*  aoT  ibitig  special  hapjiened,  thai  waK 
tHdMMbv  Clug^ins',  Ihat  tliough  Arne  was 
b  iktl  codililiQn,  thaui;h  there  was  no  occasfoo 
«Ua*rJ,  and  uu  cause  for  putting  him  inin 
ftanoni,  Hu^iiit  not  otily  a  principal,  {vho 
il  iKoirablF  lor  his  ileputy,  wai  ofien  in  the 
lbl,aiu]aair  liimaereratlimei  whilst  Gylibon 
««4i)>uiy,aiid  Arne  in  that  coniinemeol,  and 
Mgne  iinlfri  abnul  several  thint^  of  moinenl. 
Ifwdabnew  (fu disordered,  hut  never  did  any 
N  IhiBf  to  pot  him  in  ftar  and  hazard ;  the 
mm  an«  Jid  any  hurt,  he  mlg-ht  drink,  but 
talkn*  wereotlierronnislo  |>ulhim  in  ;  no 
ffeveMilH  lie  found  to  |>ul  this  man  in  so  bad 
MIA*.  >Vbea  he  wa*  turned  out  frnm  Shaw 
WW  ■  liille  place  that  he  put  up  in  the  coio- 
»•«  luli,  aiid  his  Eooila  were  carried  down 
IWn.  It  ins  very  hard  lo  imaifiiie,  if  he  was 
■M  *«r*  well,  if  be  wni  a  liltle  distempered,  il 
na  1  FT)' (t  ran^  thai  no  place  could  be  found 
Wlb*  tirvnfc  room  to  put  hiui  in.  VVheo  I 
■Mcla  uk  the  queatioii,  if  there  were  other 
■Mm  «bri«  it>«  uian  might  be  kept  with 
^tiy,  il  waaMid,  ihat  th«rewereroauis  where 
ha  tui^t  hf  put  in  fliiMy  ■,  but  it  was  not 
AMgLt  fit  he  sJiuahl  go  into  a  place  fil  lor  a 
ChiMian  la  tff*  in,  bul  iulo  Ihia  plactr. 

Mr- (.^«4i0D.  by  the  Umk.  shews,  hewaa  td- 
at»t\  a  \M\*oaet  on  ineane  process  in  M2i,\o 
A^fce  did  nM  rajiiir,.'  Ui  M  kept  in  the  same 
Metan*  ■>  on  ■xrciilioii.  The  cate  of  the 
farfw  H  la  kreji  snalu  cuiluily,  liul  not  so  ^cal 
■•  antxie  iwaeoi ;  if  a  man  in  eMCuliun  liir 
IMCii,  wai  to  eicape,  he  must  pay  the  whole 
:  iHiacuniigt dcblhnoQiiieiineprocessi 
K*«(wit«ris  sm  aiiHwerahle.  the  ^auler 
**  -W  ftf  Ibo  irbt,  ihe  ((auler  is  n"  tunher 
"tte  ibaD  for  Ihe  perion ;  to  that  ilie 
■  AM  •»  K'MI.  the  daDner  wni  nnt  la 
t  inay  he  Uie  reason  that  the 

tm,  hn-aBO  the  Uaxard  is  not  so  ijreiil  i 


A.  D.  1729. 
and  thai  he  wii  ■ 


M^ 


.tchmau 
Ihere. 

Farriiigtnn  apprrbends,  that  Aroe  came  it) 
about  Ihe  middle  of  June,  and  thai  he  was  in 
good  health  when  he  came  in,  and  that  be 
jievei  knew  him  do  au  ill  tliii]«r.  uoi'  that  he 
iiould  drink  ;  that  there  wna  no  danger  of  hi* 
breaking  priinn.  That  he  was  i,ut  into  the 
etruuf;  room  in  Septemlier,  and  conliuueil 
Iherein  till  the  middle  of  October.  When  he 
first  Cftone  into  the  prison  he  lodged  wiih  one 
Koberl  Shaw,  and  Shaw  threw  his  bed  out  of 
■he  room  ;  he  then  put  bis  bed  iipoD  a  settle, 
>nd  he  lay  therelill  he  was  carried  to  the  Strong 

He  did  uot  fee  Arnc  locked  in  the  Simng 
Aeom,  bill  did  see  him  taken  away,  and  tays, 
that  the  room  was  Dot  built  abo^e  six  weeks 
before  the  poor  man  was  carried  there.  That 
it  wan  m  very  wet,  creen,  and  so  much  outing 
from  the  marlar,  that  one  might  witb  oue'c 
hands  strike  Ihe  drops  off  the  wall ;  and  gate 


Alhei 


r,  that  it 


not  tiled  lo,  and  be  was  contiuued  there  from 
the  middle  ofSeptember,  to  the  middle  of  Oc- 
tober, end  lay  in  a  miserable  condition,  not  only 
having  his  own  excrements  slicking  about  him. 
bul  the  fe.ilhers  of  Ihe  bed,  having  opened  U 
and  crept  rato  it  for  warmth.  I  need  not  take 
notice  of  the  silualion  of  Ihe  place,  ihat  has 
been  fully  desciibed.  There  were  only  two 
Biiiall  hole*  to  )el  in  Ihe  air,  there  was  no  fire, 
nor  fire-place.  He  says,  ihal  ufu-r  some  lime 
the  poor  roan  grew  hoarse.  One  of  Ihe  wit- 
nesses aays,  iTial  be  had  a  shivering  hoarse- 
nea,  andso  continued  hngeringon  till  be  died  : 
before  he  died  he  came  lo  a  bad  hoarseueM, 
anrl  his  senses  and  voice  were  so  fair  gone 
afierwnrds,  Ihat  be  could  not  speak ;  tlien 
nature  failed,  befell  away,  and  death  grew 
upon  him,  then  be  grew  delirious,  and  in  Ibii 
poor  condition  he  had  noihing  bul  a  feather- 
l>ed,  which  a  gentleman  bad  lent  him,  laying* 
in  the  dirt  in  bis  own  excremenls,  and  in  k 
nasty  condition,  and  no  way  left  lo  preserve 
life,  but  to  cut  his  bed  open,  and  lo  lie  in  tha 
feaihera  as  long  as  he  cuuld  :  being  in  thia 
■nisnable  condition,  he  came  into  the  church 
more  like  a  fealliered  lb»l,  than  a  human 
creature,  Ihat  the  featbera  stuck  all  ahuiit 
hiu)  ;  be  burst  nut  and  came  to  the  church  ; 
lie  was  remanded  hack  again,  aud  had  no  oom- 
totlor  relief.  Farringlon,  oneof  ihecvidencei 
■ays,  Ihat  he  saw  Hopkins  and  Uutfgiusal  ihe 
iloornfiheHlrong  KiHim.and  the  door  tvaiopeq, 
nnd  Hugginti  looked  upon  him.  aud  Hopkins 
and  Muggins  whispered,  aud  talkod  uigeiher, 
but  he  uas  nnt  near  enough  lo  bear  nbu 
was  said,  bul  HiiKg>u>  shook  bit  head  ;  not 
only  Gybhon  bni  Huggias  himself  locked  him 
up,  with  Uames,  aud  Ibis  ivasal  Uie  lime  whto 
the  door  was  open,  and  Barnes  ktpt  ilie  key. 
Il  was  when  the  door  was  o|,en,  and  Huggiiia 
looked  in  upon  him,  thediscuunie  you  will  biiit 


SSgj  S  GEORGE  II. 

Hiifjfeins  knew  of  it  then,  and  then  might  hafe 
saved  his  life  ;  he  might  have  taken  the  proper 
care  as  he  ought  to  have  done  of  him ;  if  Mr. 
Hug^ins  had  flone  his  part,  it  would  have  heen 
no  onjection  to  Huggins,  and  if  he  difl  nothing 
at  thai  time,  you  will  judge  how  far  he  did  pity 
the  roan,  whether  he  did  know  of  it  before  or 
BO,  if  he  was  privy  to  his  being  kept  in  that 
dui-PFs.  he  had  sufficient  power,  and  nothing 
could  bar  him  of  having  the  superior  power, 
for,  in  the  presence  of  his  deputy,  be  might 
act;  he  that  put  the  man  under  duress  uot 
only  was  told  of  it,  but  saw  the  misery  of  it ; 
it  makes  him  in  law  a  priucipal.  That  place 
was  so  damp,  that  he  himself  was  in  there,  but 
three  days,  and  was  almost  killed  in  that  time. 
It  made  his  legs  swell,  and  he  had  been  dead, 
if  he  had  continued  there  longer.  That  man 
died  therefrom  the  noisomeness  of  the  place. 

Fulthurpe  says»  that  Arne  and  another  pri- 
soner were  drinking  with  him  a  pot  of  ale  (that 
gentlemen,  don't  create  great  anger  in  the  Fleet.) 
The  witness  says,  that  he  paid  five  shilfings 
per  week  for  boanling,  and  Barnes  came  up 
and  seized  upon  Arne  aud  carried  him  away, 
but  he  did  not  go  to  follow  him  ;  that  Ame 
'was  very  quiel,  and  he  went  the  next  day  to 
see  how  it  was  with  him,  and  there  were  loose 
boards,  which  he  apprehended  to  lie  on  the 
common  sewer,  and  the  walls  were  all  gieeu 
and  wet,  and  that  it  was  a  miserable  place : 
that  the  man  continued  six  or  seven  weeks  in 
this  Strong  Room. 

He  says,  that  he  saw  Huggins  come  twice 
into  the  Fleet,  while  Arne  was  in  the  Btroug 
Room,  but  whether  it  was  the  time  that  Far- 
riugton  was  there  can't  be  certain  ;  but  that 
Huggitiii,  Hofikins,  aud  Barnes  were  there, 
and  were  luokiner  u|)on  him.  When  he  came 
there  a  second  time,  he  can't  say  that  Hug- 
pns  came  to  look  on  Arne,  for  that  he  stayed 
there  only  half  an  hour,  to  take  care  of  the 
prison  and  prisoners  ;  that  Arne  was  in  health 
at,  and  before  the  time  he  was  put  in  there, 
aud  that  he  went  to  give  him  some  drink  at  the 
hole,  and  the  stench  of  the  room  was  so  great 
that  it  was  liLeto  strike  him  down.  He  says 
that  to  the  best  of  his  judgment  on  viewing 
the  place,  that  it  was  itiipossible  for  a  man  to 
live  there.  He  did  see  Arne  out  two  or  three 
times,  but  they  turned  him  in  again. 

Smith  says,  that  Arne,  for  whom  he  had  a 
great  concern  (which  matter  is  of  great  conse- 
quence, that  requires  the  utmost  attention),  was 
carried  to  the  Vine,  and  then  carried  to  the 
gaol ;  that  Barnes,  who  was  a  servant  to  Hug- 
gins,  as  Ame  was  drinking  iu  the  cellar  with- 
out being  the  least  troublesome,  seized  upon 
Arne,  and  carrietl  him  to  the  Stroug  Room  :  he 
lay  upon  the  bare  ground,  and  had  nothing  to 
rest  him  upon ;  the  description  of  the  room  that 
he  gives,  is,  that  there  was  no  fire-place,  no 
candle,  nothing  to  ease  nature  in,  such  a  stiok 
that  he  was  forced  to  hold  his  nose,  extremely 
^ret|  and  in  no  condition  fit  for  any  one  to  lie  in ; 
he  havug  no  credit  with  Ojrbbon,  wrote  to 
Hoggins  sersrd  tettersi  and  in  one  of  them 


[96C 


Trial  of  John  HugginSf 

mentioned  the  said  state  of  Ame,  and  sent  it  b; 
Robin  the  porter,  he  sent  it  by  the  eossiiwi 
porter,  but  did  not  prove  that  RobiadeKvere 
the  letter  to  Hoggins,  or  brooght  ab  answei 
and  was  of  opinion,  this  barbanras  treatacs 
was  th  e  death  of  the  poor  roan . 

RoIho  was  examined  as  a  witness,  be  said  h 
did  not  know  what  the  letters  were :  he  4k 
what  he  was  paid  for,  but  can't  take  upon  Im 
to  swear,  whether  the  letters  were  delivered  I 
Mr.  Huggins,  and  what  tiie  coatents  of  Ik 
letters  were  ;    there  is  a  chasm  in  that  psif 

Paine  savs,  that  Ame  was  in  a  good  strt 
of  health,  that  he  might  drink,  butliiers  wa 
no  ground  or  occasion  to  put  him  in  the  stieq| 
hold,  that  Barnes  was  servant  to  Gybboe,  asi 
that  Gybbon  acted  as  chief* wanleo,  and  Ihi 
the  prisoner  at  the  bar  did  not  act.  He  gan 
an  account  bow  the  room  was  built,  that  it  wii 
very  damp,  that  Arne  grew  iKkarse,  and  lost  hii 
voice ;  and  he  believes  any  person  ooiUd  not  k 
there  without  danger  of  losing  his  life. 

Bouch  says,  that  he  wus  turnkey ,  and  gsn 
an  account  when  the  strong  room  was  Mill, 
and  apprehended  it  was  built  by  Huggins;  Ikil 
Huirgins  did  come  to  the  lodge,  but  can't  my 
whether  he  came  into  the  prison  or  no ;  M 
says,  that  the  poor  man  died  after  in  Odsbsr, 
and  that  he  carried  a  letter  to  Mr.  Hoggisii 
wrote  by  one  uf  Arue's  friends:  that  be  gave  it 
to  Huggins,  \\\\o  ofiened  it,  and  reed  it,wbi 
said,  that  he  must  leave  it,  and  Mr.  Hsj^ 
gins  would  acquaint  him  with  the  nature  of  IM 
rules  ;  he  further  said,  that  Mr.  Hogffins  M 
not  act  singly  and  solely,  and  I  don't  ksse 
how  iiuleiMl  he  could,  1  dou't  know  bow  bs 
could  controul  a  piincipal,  he  might  oas- 
trout  n  deputy;  he  says,  he  did  apply  N 
Mr.  Huggins'  to  be  turnkey,  and  was  vcr) 
often  in  the  prison,  and  saw  Ame,  and  gave  ii 
account  of  his  being  in  that  lanffuisbing  osa^ 
tion,  and  that  he  died  there ;  the  chief  of  hi 
evidance  is,  that  Mr.  Huggins  came  often  I 
enquire  about  the  affairs  of  the  gaol,  and  thi 
he  was  still  principal  warden,  and  if  any  tUni 
wrong  was  done,  he  ordered  it  to  be  rectiM 

Tucker  was  emplo3'ed  to  make  the  iron  wsril 
but  don't  s:iy  by  whom  ordered. 

Mrs.  Le'Pomtz  says,  she  saw  Ame  in  lb 
Strong  Room,  and  when  Mr.  Huggins  wi 
last  there,  she  saw  him  on  the  Bare,  and  llu 
he  could  not  come  in  or  out,  without  conii^ 
near  the  strong  room,  and  that  it  was  imposaU 
for  him  to  go  out  upon  the  Bare,  but  In  gob 
that  room. 

For  the  prisoner,  he  does  insist  upon  acfwi 
ways  of  making  his  defence.  He  says  tbis  m 
in  1735,  and  therefore  it  is  not  to  be  ezncdsi 
that  he  can  give  so  good  an  account  as  if  it  hs 
been  a  more  recent  prosecution ;  tbb  IfaiB 
had  slept  for  three  or  four  years.  It  was  tabi 
notice  by  Mr.  Attorney  how  this  came  now  b 
a  strict  examination,  and  a  very  honourable  em 
snd  that  he  mentioned  was  the  icason  it  eid 
not  esGspe  the  eyes  that  were  so  diligent ;  ibi 
is  the  answer  to  that  ptrt  of  the  deflnee:  Mm 
ether  part  of  his  defwee  ii|  whelliir  ki  «m 


far  the  Murder  of  Edward  Am 


A.  D.  1729. 


Hm  wtlh  Mr-  GyliboD,  who,  tie 
G*  anle  inaiiD|[«inent,  he  wm  vi'ti- 
piH  himidl'  into  a  stale  of  iii»rti'iu. — lie 
iitgrvr  It  fini  fW  l)>e  |iri*oti  only  (ut  hall  a 
nv,  aud  thrn  Ojilibon,  willing  In  lake  llie 
■UttMita  and  proBU,  waa  tu  nay  togelbet 
mULfK  tan.  wliich  wSB  aurrrd  on.  Ano- 
I  Wpw  «l  ht«  dcTpnce  lliai  lir  mnile.  wbh,  ilitit 
b  Mru*l«)l  Mr.  Gybbon  willi  the  rnanaee- 
■■taf  ike  uffice  ;  [le  Imil  to  little  knowMire, 
Mbeh>4  Mrvrrawnnor  hrsnl  ur  lliu  oatiie 
tf  InMt,  nor  never  knew  iliat  ihere  u  as  auch  a 

AwilhLT  tDaileriiittsleJiipoD,  that  tlierewere 
tat  «l(nat««,  Ihal  were  all  tnistahcn,  bdJ 
•atMcreitil  U  all  ought  tn  liegiv#n  lolhein  ; 
■J  h  won't  be  terj'  lualerml.     Some  uf  his 

kter  lb«T«.  enj  ollien  that  he  naa  nnt  U 
UoM,  lookine  upun  ir.  thai  be  wus  not  cou> 
vwil  at  all.  1  o  prove  tliia  he  calls  tvilDesaca, 
■inUnl  itt.  Tanner  lo  read  ilic  laaolvent 
to,  ikai  itrputieB  were  In  make  rcliirna  of  pri- 
■■ars.  To  jiroTe  the  till  of  Ihe  prisoDera  was 
mned  Uy  Mr.  Oyblmn.  be  wouUI  have  pro- 
tari  an  afidnvit.  bul  il  wh<i  tiol  suffirieut  lo 
bpnf.  Mr.  Tannrr  waiaiknl,  whelher  at 
•eliMatbe  list  »«i  ileliverril,  Mr.  HucK'"* 
MiMilwanlcnr  HeilidnollliinLfilloanswer 
ftu  ^iMiltou,  and  I  diil  nut  preuil  very  tar: 
it  I  aludl  <l>ew  you  Gybbnn  was  only  depuly. 
Tkwti  wilneutliit  HBg  called  was  Jeffreys, 
hikv  bow  far  Gybbon  was  ooncerat^  in  the 
*fct;  he  wa«  by  when  ihv  aL-Tvement  was 
Mle,aad  M^ncd  by  Mr,  Huggini.  and  when 
■  CBM  M  be  a  queiiion.  wbeo  that  wai  la  be 
■Od.  HirlliFril  waa  aa  aifreement  or  not,  he 
mMoui  irll  where  it  was,  it  wa«  out  of  hia 
fPBir,  be  CO  Id  not  prudui-e  it  ihen.  Jeffreys 
«id  il  W3a  an  acquiliance  :  upon  that  tiag- 
pM  radeacotirvd  lo  |,'ct  the  pu  per,  and  that 
Mm  wm  a  copy  nf  it  laken,  and  that  il  wai  a 
Kwoipy,  tbcn  ibkt  rreeipl  waa  proper  lo  be 
Mrf:  MUen  llial  rime  lu  be  read,  you  will 
«Hariar  wkai  il  waa;  il  wm  neither  leaiie  nor 
dtpataliMi,  only  an  avrecment  tar  a  lease,  w  liai 
MM  waa  lo  W  paid,  and  how  long  he  waa  to 
-Iwait.  It  watarercipl  tor  ■  depuaittif  1,000/. 
1  ibcrc  waa  a  proper  covenant  and 
■  (D  Iv  perliirmcd.  I  dun'i  go  to  argue 
"")  oT  il,  ifa  man  had  aureed  lo  hold 
nulil  be  a  tease; 
hnd  Bb[reed  cer- 
yt«ts,  thai  woald  bare  been  a 
fitftlM  aAc*,  aiiil  uaufficieot  evidence  of 
MMn,t(itiliaaolhin)(b>iiao  a^reeineai 
fBtoiinn,  or  a  leaae.  In  ilricttiew  of 
•  BBlbingi  lliuughibia  may  not  be  in 
rbw,  ti  It  <iiif)i<'>eut  between  them  lor 
B  l«  be  depul}  iu  (act.  who  came  with 
I  hktnir  of  Mr.  Iluggini  and  with  hia 
;  llitl  he  WBh  di'puly  in  tact  dill  carry 
b  jwi>.aud  ihat  Hit|{frt»*  wh«  chief  ill  tlie 
and  had  the  coutroiil  tliereof.  That  a 
J  ia  aMilnuaiaUe  by  ibc  jitincipal,  aitd 


I  wlieD  Ihe  principal  ii  there  no  man  can  mak« 
I  a  flepnty  to  execute  the  office.  Thia  waa 
dated  26  June,  17S3,  for  l,U00f.  and  SOOl, 
per  annum. 
I  The  next  waa  Mr.  Welland ;  Ibete  waa  a 
]  (HMxl  deal  said  by  him  about  ihe  coroner** 
Billing  upuD  drad  noilies,  not  very  much  lolbe 
I  imrposi' ;  and  then  be  gave  an  icoount  that 
!  Gybbnn  did  act  during;  four  yeara,  but  what 
,  was  l>e«!OrDe  uf  ihe  repaira,  who  was  lo  do 
'  that,  I  do  not  find  ;  as  lo  the  repairs  and  taxes, 
I  it  is  mil  settled  In  ihis  day.  If  upon  ibe  foot 
'  merely  from  the  tnisl  and  conlidepce  ono  bad 
I  of  ibeolhtr,  if  all  Ihe  e^pences  were  paid  by 
Air.  Ilugginc,  then  be  buill  the  strDnif  room  ; 
I  howAer  he  was  liable  tu  the  charge.  You  will 
Qonvider,  geurteDieo,  by  what  law  lliia  ean  be 
I  built  i  it  wBi  putting  a  show  of  cruelty  in  thia 
I  ofiice.  which  ibey  were  no  way  jutiified  to 
'  build:  things  lor  torment,  and  not  Ibrlheaer- 
ricenf  the  rustoily.  ihiiursof  that  kind  are  not 
(0  he  done  at  the'will  of  the  gaoler,  It  alwaya 
oukI'I  to  he  done  by  nrder  oftheir  auperionr; 
ifinthe  city,  <li«  act  moat  be  done  by  tha 
mayor  and  ahlermen  ;  if  not,  by  the  com* 
mun-council:  if  iuth*  county,  it  la  notintb* 
power  of  tlie  gaoler,  it  must  be  done  by  the 
seasioos ;  there  ate  so  many  gentlemeu  of  the 
se^iootloaee  what  is  proper  to  be  done  and 
decent  for  Christiana,  that  Ihere  is  no  danger 
of  erecting  aoy  place  of  torment  I  do  not 
know  what  authority  either  Gybbon  or  Hug- 
gins  had  lo  build  it;  Hug^us  might  bars 
pulled  it  down,  and  Gybbuii  would  have  been 
answerable  fur  the  cnniempi.  There  is  oo 
aereemsnt  appears  between  HuKgini  and  Gyb- 
bon that  would  clear  it  up ;  betides,  as  to  ibe 
repairs  we  are  lelt  in  the  dark  Blili. 

Wetland  says,  that  io  Ihe  year  1T25,  AriK 
was  stark  oakeil  before  be  was  put  in  the 
strong  room.  Huggins  urved,  that  it  was  not 
designed  for  any  such  piiriraae.  Welland  does 
not  deny,  hut  that  there  were  other  place*  in 
the  gaol  to  |iut  him  in :  Ibis  was  in  Ihe  very 
year  when  the  act  passed  for  insolvent  debtors, 
when  fifty  or  tixu  were  discharged  0i>  the  Tib 
of  September,  before  that  time. 

Another  part  of  bia  defence  is,  that  Ihe  room 
was  neither  his  nor  Gybbon'a  to  answer  for; 
that  there  was  a  couri  of  the  prisoners,  wbo 
formed  Ihemselve*  into  a  jurisdiction,  and  made 
what  order  and  rulea  they  pleated,  and  Ibal 
tbey  were  so  trouUesome  that  GvbboD  was 
afraid  to  go  into  the  gaol :  I  do  not  know  what 
excuse  this  is,  it  would  bare  been  very  lit  for 
them  to  have  applied  to  another  place:  and 
though  Welland  does  say,  Ibal  there  wai  a 
reqiieit  of  some  of  the  prisoners  to  have  him 
put  into  the  stroog  room,  all  Ihe  terror  this 
man  put  any  body  in,  was  flinging  a  brick* 
baton  the  Bare,  not  aiming  at  any  one,  and  this 
forced  them  tu  put  this  man  under  tha  restraint 
of  the  slrong  room-  Il  waa  the  request  of 
ni.hody,  it  was  nobody  did  it ;  it  was  rery 
much  to  hate  auch  a  combination,  but  every 
body  knows  that  Welland  is  an  attorney,  and 
hat  beta  taken  notice  of  in  tUa  courla.    TIkjf 


XS] 


9  GEORGE  11. 


Triid  qfJ(An  Huggitu^ 


tS6i 


hiTe  oot  girco  any  accouut  of  any  man's 
being  put  in  there  before.  This  man  being  iu 
m  sick  condition,  \V«lland  was  desired  to  go  to 
the  upholders  at  Exeter- change,  Ihey  are  very 
compassionate,  and  do  assist  people  of  their 
fallofrsbip ;  and  he  had  some  relief  given 
liim.  He  says,  that  he  never  kneiv  Mr.  Uug- 
gins  give  any  direction  in  the  management  of 
any  matters  after  Mr.  Gybbon  became  deputy, 
mnd  gave  an  account  as  to  the  coroner's  sitting 
upon  dead  bodies ;  that  he  took  Barnes  not  to 
bo  Hnggins's  servant,  and  Gybbon  therefore 
was  answerable  for  tlie  act  of  Barnes.  He 
aever  ao  much  as  saw  Mr.  Hugginsand  Barnes 
together,  and  that  he  did  not  so  much  as  know 
•ny  rule- money  paid  to  Huggins ;  that  Gvb- 
bon  generally  was  paid -the  fees,  for  Gybbon 
paid  900/.  per  annum  to  Hoggins.  Whether 
a  man  takes  the  fees  all  at  once  or  not,  it  is  the 
^amo  thing. 

Green  says,  that  be  applied  to  Mr.  Gybbon 
IB  order  to  have  a  room,  and  Mr.  Gybbon 
could  not  go  into  the  gaol  for  fear  of  this  court 
of  the  prisoners ;  but  at  last  says,  that  he  did 
get  himself  a  room  in  the  house,  and  did  lie 
there ;  that  be  aiiprehended  Gybbon  was  the 
principal,  and  did  act. 

The  next  witness  was  one  Howard,  who  was 
a  prisoner  there  before  Ame  came  in  ;  he  was 
fint  carried  into  the  spunging- house,  and  at 
last  brought  into  tlie  gaol.  When  he  came 
there  be  bad  nothing  to  lie  on,  and  Howard 
had  a  lied  to  sell,  which  Ame  had  a  mind  to 
porcbaae.  Howard,  gentlemen,  did  not  give 
an  account  of  any  freenesa  Ame  was  guilty 
of ;  but  that  Ame  offered  more  for  the  tilings 
than  he  sold  them  for :  whether  Arno  was  not 
in  haste  for  them,  or  whether  offered  more  for 
them  than  they  were  worth,  I  cannot  think  an 
aigumeut  of  madness. 

Woodcock  gave  an  accoont  of  the  poor 
man's  being  there,  that  he  was  let  out,  and 
after  a  little  time  drove  in  again,  and  during 
all  this  time  he  never  saw  Hu^gins  there ;  for 
he  should  have  seen  him  it  he  had  come. 
Gentlemen,  Mr.  Huggins  put  it  hard  upon 
calling  these  people. 

Humplireyssays,  that  Arne  was  a  man  of 
some  suWance,  and  said  that  he  did  no  harm 
nor  hurt ;  that  be  did  some  odd  acts,  and  then 
he  was  carried  and  put  in  the  Strong  Room  in 
the  oianner  you  have  beard,  and  staid  there  till 
he  died ;  and  never  saw  Hut^gins  there  till 
about  the  midflle  of  September. 

Louden  says,  that  he  keiit  a  boarding-house, 
and  boarded  a  good  many  there  at  6<.  per  week, 
and  Arne  was  one ;  that  afterwards,  when  he 
came  to  quit  the  house  and  was  carried  into 
the  Strong  Room,  he  was  desired  by  the  Up- 
holders Company  to  take  some  care  of  him ; 
that  the  key  was  kept  by  Barnes,  so  that  there 
was  a  difficulty  to  canry  and  supplv  him  with 
provisions ;  that  be  aaid  be  would  give  it  up 
unless  he  had  the  key ;  that  he  had  no  autho- 
rity to  let  him  out;  and  that  he  did  keep  the 
key  till  three  dava  before  ha  died,  and  then  de- 
lif^iodjtupt    UehMgirevanaoHHiiit^ftbat 


act  of  Arae's  running  about  with  the  feathen, 
and  said  lie  never  saw  Huggins  and  Gybbon 
there,  at  the  time  that  Ame  was  in  the  strong 
room;  and  that  Huggins  was  warden^  aid 
Gybbon  was  deputy.  He  has  given  an  ac- 
count of  the  room  when  built,  and  of  the  aul 
condition  of  it. 

Gentlemen,  Mr.  Gwyn  said  the  fame;  bat 
that  he  never  saw  Huggins  there. 

Another  matter  that  Mr.  Huggins  insistid 
upon,  to  prove  the  evidence  not  to  be  true,  wis, 
that  he  was  not  in  town. 

The  first  witness  that  he  called  was  his  saO| 
who  said,  that  from  the  first  of  September  in 
that  year  his  father  came  down  to  him  in 
Hampshire,  and  continued  till  the  14th  or  15th, 
and  staid  14  or  15  days ;  i  do  not  find  bat  it 
might  be  after  that  that  he  was  at  the  Strong 
Room. 

Smith  proves  the  same,  and  that  he  was 
down  there  before  in  August. 

Knight  said,  that  he  was  there  in  August 

Bird,  servant  to  Mr.  Huggins,  junioTt  wuit . 
that  he  was  there  in  August  seven  days ;  aid 
that  be  was  there  the  1st  of  September  like- 
wise. 

Tucker  says,  that  he  was  employed  by  m ' 
Geonre  Oxenden,  and  that  he  sent  hit  coach 
with  Mr.  Huggins  from  Wittenham  to  Henlty- 
upon-Thamca  about  the  15tli  of  September. 

Sir  George  Oxenden  agrees  with  the  aw- 
vant ;  and  says,  that  on  the  17ih  or  18ih  tht 
prisoner  came  to  his  house,  and  went  aw^ 
the  18th  or  19th. 

I  must  observe  to  you,  gentlemen,  that  fiev 
that  time  to  the  death  of  thip  man,  there  mt$ 
account  given  to  you  where  he  was. 

Hopkins  gave  evidence  to  shew  the  wit* 
nesses  mistake.  Farring:ton  swore,  that  what 
Huggins  looked  in,  Hopkina  was  with  him  at 
that  time ;  and  Hopkins  said,  that  be  went 
out  of  town  to  Oxford,  and  did  not  return  till 
the  14th  of  October.  Huggins  came  from  sir 
George  Oxenden's  about  (he  18th  or  19th,  aai 
I  do  not  hear  from  any  body  that  he  amtinned 
out  of  town ;  and  it  is  natural  to  believe  he 
came  to  town,  for  Henley  is  the  road  to  cone 
up  to  London.  Hopkins  said,  he  did  not  go 
out  of  town  till  the  S27th  of  September,  ao  that 
from  the  19th  to  the  28th  both  might  have 
been  at  the  Strong  Room  ;  and  I  believe  thk 
was  the  time,  may  be  it  may  be  the  19th. 
Hopkins  did  not  go  till  the  27th.  What  I 
must  leave  to  you,  gentlemen,  is,  that  thii 
witness  said,  it  could  not  be  true  that  he  and 
Huggins  could  be  together.  Thtje  were  abent 
ten  days  from  the  17th  to  the  281  h,  and  it  ap- 
pears they  were  both  in  town ;  and  it  don 
seem  to  come  pretty  nigh  the  time.  You 
gentlemen,  Huggins  came  again  a 
time ;  the  first  time  does  seem  lo  tally, 
ran  very  well,  if  not  both. 

Gentlemen,  you  must  take  this  with  yeU| 
whether  Hopkins  does  not  confirm  what  rai^ 
riugton  aays,  though  he  said  he  was  out  ef 
town.  Farrington  says,  once  u|ion  a  tiuMS  ha 
was  aft  theStning-Roflai  doer  i  the  (loorwasey«9k 


Jhfi^  the  Murder  of  Edward  Ame» 


A.D.  17S9« 


[98d 


;  be  did  tee  the  wiinesn,  (meaning  Hop- 
d  that  Arne  crept  into  the  feathers  of  hia 
id  Hof^int  said,  that  he  was  there,  but 
J  not  see  the  feather-bed ;  that  he  was 
sthine  half  iip  aud  half  naked,  which 
p  rmttier  contimos  than  weakens  the 
e.  He  (llopktofi)  does  contradict  ano- 
itter ;  that  he  does  not  know  that  Mr. 
s  was  there  at  the  room,  or  that  he 
r  him  there;  that  he  (Hopkins)  was  at 
Df^-room  door,  and  that  he  was  in  the 
lanner  as  the  witness  that  was  there 
ind  he  does  contradict,  that  Barnes  was 
It  of  Huggins^  and  says  that  Hng- 
8  not  to  be  at  the  charge  of  executing 
ce.  Ail  that  Hopkins  says,  is,  that  he 
rk  of  the  Inquiries,  and  that  lie  did  apply 
Hoggins,  and  that  Mr.  Huggins  did 
ik  fit  to  put  him  in,  but  he  sent  him  to 
I  to  be  Clerk  of  the  Inquiries.  But  that 
derk  to  Mr.  Huggins  at  his  home,  he 
I  it ;  bnt  in  a  very  extraordinary  man- 
t  be  took  him  to  do  his  business  for  no- 
He  said,  that  the  management  of  this 
PM  not  solely  and  clrarly  under  Mr. 
t ;  bat,  gentlemen,  as  to  things  of  con- 
es there  Mr.  Hoggins  was  called  in,  so 
ippeara  that  there  was  a  view  of  his 
after  the  prisoners;  and  it  was  ?ery 
■tlrmen,  that  he  should,  for  he  was  the 
Bit  upon  all  occasions.  Hopkins  sayS| 
t  does  not  remember  any  discourse 
ne  with  Mr.  Hoggins,  but  if  he  was 
be  belieres  he  might  do  it ;  but  does  not 
ler  he  was  desired  to  do  any  thing  as  to 
It  acems,  jpentlemen,  that  he  was  exa- 
a  a  strict  manner,  and  a  wise  enquiry 
8  appears  by  an  examination  taken  be- 
vani  Hughes, esq.  which  was  produced, 
fws,  that  he  had  given  evidence  to  you 
r  to  that  examination.  In  that  he  says, 
s  was  warden ;  and  that  he  (Hopkins) 
nil  the  Fleet  to  liim  every  day,  and  told 
s  whatever  was  considerable  that  was 
Te ;  and  told  him  of  Arne.  He  agrees, 
re  was  a  discharge  of  prisoners  on  the 
>eptember,  1725,  when  50  or  60  were 
^ ;  and  cannot  say,  but  when  they 
oe,  bu»  that  there  was  room  enou'^^Ii  to 
le  in.  He  denies  that  Bishop  and 
spoke  to  him  about  Anie,  which  Bishop 

icxt  witness  is  Mr.  Arne,  who  was  a  re- 
the deceased;  he  savs,  that  the  ffrst 
be  received  of  his  miserable  condition 
ot  a  week  or  ten  days  before  the  poor 
!d ;  be  then  went  to  sec  him,  and  found 
>TelKng  at  the  door,  that  he  was  not 
come  hoarse,  but  almost  s|)ecchless: 
crept  down  and  fallen  at  the  door,  and 
%  dog.  He  found  him,  upon  o]>ening 
',  in  a  bad  condition  :  his  voice  was  so 
K,  that  it  was  a  difficulty  to  understand 
im  bad  a  gold  watch,  and  he  did  get 
im  bj  balf  words  and  sentences  where 
aad  said,  that  the  place  was  not  fit  for 
ysie  whatsoerer,  neither  sick  nor  well ; 


and  that  beeoukt  not  have  lired  a  wjeck  in  it. 

Gentlemen,  1  asked  one  of  the  witoeaaea,  whe 
appeared  to  be  a  very  atrong  man  (Louden),  if 
he  had  been  there  half  the  time,  would  it  net 
have  been  the  occasion  of  his  death  ?  Who 
owned  that  it  would. 

The  observation  ray  brother  Carter  made  if 
very  just :  that  if  a  atrong  roan,  being  put  into 
that  tilthy,  vile  place  it  would  kill  him,  to  pot 
into  such  a  place  him  that  wanted  bealtb, 
death  was  more  sure.  If  he  was  a  weak  man, 
there  was  no  danger  of  bis  eacaping,  no  danger 
of  going  out. 

As  to  bis  being  in  that  room  being  tbe  occa- 
sion of  his  death,  there  need  not  much  be  aaid. 

And  what  ia  aaid  by  Mr.  Huggins,  except 
one  thing,  carries  little  or  no  weight;  and 
there  is  oulv  that  can  deserve  your  considera- 
tion, whether  he  did  die  by  the  cruelty  of 
Gybbon  or  Huggins  P  That  be  did  die  bj 
duress,  it  is  not  to  be  supposed  to  the  contrary. 

That  in  point  of  law,  wherever  there  is  a  de- 

Euty  ap|iointed,  the  8U|)erior  must  answer ;  lor 
ad  a  prisoner  of  30,000/.  escaped,  Mr.  Hug- 
gins must  have  paid  the  money. 

In  criminal  cases  I  do  not  think,  that  tbe 
warden  or  any  other  officer  should  answer  for 
murder,  anieas  be  was  privy  and  consenting.  If 
this  sole  act  was  Gybbon's,  and  Huggins  no 
ways  consenting,  1  think  tbe  murder  lies  open 
Gybbon,  not  Hoggins.  Though  this  was  the 
act  of  Gybbon  and  Barnes,  whoever  has  a  band 
in  it,  and  the  authority  and  power  as  he  had, 
if  it  is  true  that  he  saw  him,  and  he  would  not 
give  a  helping  hand  to  assist  him,  the  excepted 
rule  of  Scripture  would  be  true,  •  That  he  that 
is  not  for  me  must  be  against  me :'  and  if  be 
was  any  way  privy  to  the  carrying  him  and 
confiniug  him  there,  he  must  answer  tor  the 
murder  both  in  this  and  the  next  worid. 

If  tliis  is  the  act  of  Gyhbon  solely,  Hoggins 
is  not  to  answer  for  it;  but  if  Huggins  was 
privy,  and  be  was  warden,  he  could  and  ought 
to  have  relieved  him.  , 

One  tbincT  more,  in  tlie  latter  part  of  the  de- 
fence Mr.  H  uggins  made  for  himself,  wa8,;to  call 
vast  numbers  of  gentlemen  of  the  first  quality  ; 
sir  George  Oxenden,  sir  John  Hynde  Cotton, 
in  all  alwut  twenty  he  callcil  to  his  character 
and  credit ;  and  if  \hcsc  gentlemen  are  not  suf- 
ficient, 1  do  not  know  what  will  be:  his  cha- 
racter has  been  fully  estaliliHhed  ;  but  I  mutt 
observe  to  ^ou,  whatever  the  character  a  man 
heai-s,  if  he  is  guilty  of  that  act  which  destroys 
his  character,  his  character  goes  for  nothing : 
if  there  was  difficulty  or  great  doubt  happened 
upon  circumstances,  whether  Mr.  Huggins 
was  guilty  or  not,  then  it  was  the  constant 
practice  to  be  govemc-d  by  a  character:  I 
think  nobiMly  can  have  a  better ;  he  has  had  a 
very  great  character  given  him. 

Not  long  since  a  person  produced  twenty- 
seven  |ieople,  that  gave  him  a  character,  with 
no  comparison  to  this,  only  the  greatness  of 
numbers. 

Notwithstanding  which,  it  there  was  not 
doubted,  he  bad  committed  the  fact;  and  the 


967]  8  GEORGE  IL 

jufj  Terj  justly  brought  io   their  Ttrdict, 
fuilfy. 

Vmicts,  in  ooiivicting  of  people,  are  to  be 
foanded  apon  the  e?idence  thil  the  jury  has 
had  before  them :  aod  I  hope  1  do  not  express 
myself  so  for  them  to  found  themselves  upon 
any  thing  I  have  said  ;  for  they  will  determine 
aooordiug  to  the  evidence  that  has  been  before 
them. 

Mr.  Attorney  General  produced  three  wit- 
nesses, that  came  to  nothing. 

I  must  take  notice  of  one  piece  of  evidence 
given  by  Mr.  Hnghes,  a  gentlemsn  of  probity 
and  distmction,  one  of  the  committee  appointed 
by  the  House  of  Commons.  He  tells  ^ou, 
that  when  Mr.  Huggins  was  under  examina- 
tion before  the  committee  relatiufi^  to  escapes 
daring  the  time  he  was  warden,  Huggins  con- 
fessed so  many  had  escaped,  he  could  not  re- 
member them  all :  he  owned  one  Oliver  Read 
had  escaped,  and  was  retaken ;  and  that  he 
himself  sent  to  Newgate  for  irons,  and  ordered 
Read  to  be  stapled  down  and  ironed  ;  and  that 
he  owned  he  paid  500/.  to  Read's  creditors  for 
the  escape  of  Read :  This  was  whilst  Oybboo 
acted  as  deputy. 

Mr.  Huggins  does  gire  this  answer  to  that ; 
that  Hopkms  proved  that  Gybbon  acted,  and  so 
he  was  warden  in  law ;  1  canuot  tell  what  con- 
ditioD  Gybbon  was  in,  and  what  security  he 
had  given ;  Huggins  was  liable  for  all  escapes. 

1  hare  taken  pains  to  state  the  evidence  to 
you  as  fully  as  I  can ;  and  I  hope  you^ill  con^ 
aider  it ;  and  that  God  will  direct  you  to  do  for 
the  best 

Then  one  was  sworn  to  keep  the  Jury,  and 
they  withdrew,  and  Mr.  Justice  Page  and 
Mr.  Baron  Carter  left  the  bench  ;  and  Mr. 
fleijeant  Raby  with  the  lord  mayor  remained 
there ;  and  in  about  two  hours  aud  an  half  the 
Jury  returned. 

Clerk  of  Arraigns.  Are  you  all  agreed  in 
your  rerJict  ? — (hnnes.  Yes. 

Clerk.  Who  shall  say  for  you  ? 

Omnet.  Foreman. 

Clerk.  John  Huggius,  hold  up  thy  hand. 
(Which  he  did.)  L(x>k  upon  the  prisoner :  Is 
he  Guilty  of  the  felony  and  mnrder  whereof  he 
■tanda  indicted,  or  Not  Guilty  ? 

Foreman.  We  are  sgreed  to  bring  in  our 
f  erdict  special  to  the  Court. 

Att.  Gen.  What  is  there  doubt  in  point  of 
lawr 

8eri.  Rahy.  What  that  doubt  is,  must  be  re- 
ferred to  the  Court. 

Foreman,  Was  there  any  medium  between 
inghiin  in  Guilty  or  Not  Guilty  ? 

Serj.  Raby.  You  may  find  the  fact  specially, 
and  refer  the  special  matter  to  the  Court.  If 
any  matter  of  law  arises  upon  that  doubt,  it 
will  be  explained.  You  may  give  a  general 
?f  rdict  in  order  to  refer  that  to  the  judgment 
of  the  Court.  You  must  agree  upon  the  fact ; 
you  must  state  the  special  matter :  It  is  usual 
Io  state  the  point  of  law  that  you  doubt  in. 
U  yM  have  toy  doubt  ai  to  the  law,  that  you 


Trial  qfJohn  HugginSf 

must  refer  to  the  Court ;  but  aa  to  the 
you  must  determine  yourselves. 

Ait.  Gen,  What  is  it  nMkes  the  qu 
doubtful  P 

Serj.  Raby.  The  jury  do  believe  the  pi 
in  some  messure  guilty,  but  not  of  the 
indictment. 

Foreman.  We  cannot  find  any  of  th 
deoce  come  up  to  shew  be  was  aidiog,  ab 
and  at^ting'bames  in  putting  him  ii 
room. 

Seij.  Raby.  Call  over  the  jury. 

Cl.rfArr.  Answer  to  your  names.  (^ 
they  did.)  Are  you  all  agreed  in  your  vc 
Is  John  Huggins  Guilty  of  the  murd< 
felony  whereof  he  stands  indicted,  o 
Guilty  ? 

After  considering  sometime  among 
selves,  the  Foreman  spoke  as  follows : 

Foreman.  We  agree  the  prisoner  wi 
cessary  to  the  murder  committed  upon  £ 
Arne,  but  that  it  was  not  premeditated  in 
that  he  lias  been  privy  to  the  cause  < 
roan's  death,  and  might  have  preven 
Two  witnesses  swore,  that  Mr.  riuggi 
at  the  door  of  the  dungeon,  and  saw 
there ;  and,  as  he  did  not  discbarge  him 
time,  he  was  accessary  to  that. 

Serj.  Raby.  If  lie  wss  privy,  he  was 
of  that:  if  he  was  privy  ana  consenting,  if 
concur  in  that  act,  he  is  guilty;  for 
implv  malice. 

If  he  died  by  duress,  and  he  was  cone 
and  consenting  to  it,  then  he  was  guilty 
act,  in  that  he  had  power  to  redress  it,  \ 
not.  If  he  was  privy,  you  must  consid* 
was  concurring. 

Att.  Gen.  If  he  was  privy  and  consec 
does  imply  it. 

In  all  special  verdicts  the  jury  nev* 
malice. 

In  no  special  verdict  they  find  ma1ic< 
Foreman.   8evei*al  of  us   don't  thii 
guilty  of  the  malice. 

Atl.  Gen.  The  law  will  imply  the  mi 

Serj.  Raby.  You  are  to  consider  and  j 
fact. 

Foreman,  We  all  agree  that  Arne  i 
duress  ;  there  are  two  witnesses  to  prov 
but  that  the  prisoner  had  no  forethough 

The  Jury  again  considered  among 
selves;  but  not  immediately  agreeing 
drew,  and  staid  out  some  considerable  Ui 
then  relumed. 

Clerk  of  Arraigns,  Are  you  all  agreei 

Foreman.  **  W  e  are  agreed,  that  ther< 
ficient  evidence  to  prove,  that  they  s 
Hugt^ius  at  the  strong  room. 

**  We  agree  that  he  was  warden  of  tl 
prison  ;  and  that  he  was  head-wardei 
time  the  fact  happened,  as  mentioned  in 
dictment ;  and  that  Gybbon  was  dept 
acted  as  such. 

*'  That  James  Barnes  appeared  Io  u 
servant  to  Gybbon,  and  was  emploj 
acted  under  him*  in  taking  car«  of  tha  pi 


Jor  Ifie  Marder  o/Edwsrd  Arn 


A.  D.  I72i 


■rani  Arae,  iu  ihe  in-  j  durets  ol'lha  raid  imiirisoDmral  antl  ilctaining 
,  tben  and  tbere  a  prtMner  in  id  the  roum  alorctaiil,  ilied,  \a  wit,  at  Luodun, 
being:  they  Inrtiier  find,  that    &!C.     Aiul  they  furtlier  liiid,  ihnt  durini;  the 

""  "'     "''      '■"     '      '  "      "  iddelaiiiini-uf  ihewiJ  BdHuril 


■,  iheTlh  or  September, 
m't"  I9th  ynr,  ttc.  in  and  upon  (lie  laid  £d- 
Mrt  Arae,  a  ftriauDor  Iu  the  same  priiou  theu 
■  iftnMalil  li«ui^,  in  manner  and  foroi  as  in 
ttaaaliMlivinMnt  i*  >|iv('ifiBd,  made  an  t$- 
a^  ■  I  bfin  Ihe  itid  Edward  Arne,  then  and 
IkR  vnlioul  hi*  consent,  in  manner  anil  Ibroi 
■■•be  ■aiil  indleliaent  iaipeeilieil,  touli,  and 
im  A«  •*><!  Edward,  Arne  to  a  cerlaln  room 
MfeM  iIm>  luid  priwn  then  newly  huill,  in  the 
■■•  ndictnicnt  tnenlioned,  wiihout  hi>  <.'on- 
■M.  !b  niautfer,  flee,  eonreycd  and  led,  and 
t^  tke  aaid  Edward  Arne,  in  Ihe  auid  room 
Itr  a  laog;  line,  to  tvH,  fiir  ilie  space  of  rnrly- 
InTdata  from  tliencF  next  following',  without 
Ike  MMcnl  of  liini  the  said  Edward  Arue,  In 
■MMr.Aco,  rtnntlEOnrd  auti  detained,  and  him 
to  tMd  Edminl  Arne,  (h«n  and  ilieret  for  all 
to  lim*  laU'tnciKioned  in  that  room,  <  ahaqne 
*MlMMin*  iffnia  nevnun  sine  aliqua  matula, 
■^■pbia,  it\  ali^no  aliodujustnodlutensili,'  [□ 
hmlta  anil  be  Hiihinit  hia  eongeni  iu  roinner, 
fet  forcctl  :  aad  liiey  I'urther  find,  that  the 
••Ikaf  Ihe  aajdnuim  were  made  of  bricks  and 
flnv  I  and  al  lh«  aaid  lime  of  the  impriion- 
tmt  nt  iIm  aaiil  Edwiinl  Arne  in  the  same 
n^  my  dam]! ;  and  that  (he  said  room  was 
Mate  uicr  (he  connnon  se(Ter  of  Ihe  aaid  pri- 
aa,  near  tlie  place  ■  alii  Konles  el  finiiis  pri- 
'  «ne  prwda'tff  necnon  eicrcnienta  prii'in^rio- 
'  t^B  pne'dl<\toruiii  adtiino  iiaualiter  p<wiia  fiie- 
'•W,'  by  mann  whereof  (lie  uiid  ronm  wsb 
tnfin'  imwhutesDme,  and  if  really  danfferous 
■  toUe  uf  any  perton  daliined  in  (he  same: 
mai  Ibej  further  liiid,  that  the  said  James 
toss,  at  ibcaaid  lime  of  (lie  imprisonraeni  of 
to  M«d  EilwBtd  Arne  in  thai  room,  well  knew 
tot  Ae  caid  room  had  then  lieen  newly  built ; 
ni  ibM  (be  traUi  of  thai  room  were  itiuile  of 
teiifta  Odd  DiorUr,  and  were  llien  rery  damp ; 
aalthat  Hie  mid  room  wan  siluate  so  aa  atbre- 
m1;  aod  (bey  further  llml,  that  during  the 
«U  iftfiMdiDeiit,  and  detaining  of  (he  said 
Mwanl  Ariie  In  iIk'  «Aid  room,  to  wit,  liy  ihe 

nof  Aftcrii  days  at  Uaat  before  Ihe  deaih 
■  said  Edward  Arne,  the  said  John  Hug- 
fio*  hMv  that  the  aaid  room  had  been  ihen 
Wwly  built,  and  tliat  ihe  walls  of  that  room 
nn  mmI*  af  brichi  and  inoilar,  and  then  were 
fcap;  but  whether  the  said  Johu  Hugging 
lanr,  ilMrtsn  theiaid  7th  day  of  Heptembcr, 
is  IIm  19<ti  vrar,  \<:.  ihe  jurors  know  nul :  anil 
■brj  fan\%*t  fmrl,  ihitl  die  said  Edward  Arne. 
toiH*  ihr  tiid  itn|>riLaiiiiielit  and  detaining  of 
fcha  lb:  Kul  Edward  Aine  in  tbs  said  roiiro,  to 
W.  Ac  HHh  da^  uf  liie  same  month  of  Sep 
*  '  in  llir  J'ilh  year  abotesaid,  by  diircai 
i««  im|iri*>>DiDenl  and  delainiii|;,  b«< 
fc  IB  (he  laid  room ;  anri  iherehy  from 
c  loih  day  uf  Hcpi*mlier,  ill  (he  13(1 
•nud,  until  thr  VWh  iliy  of  (Ictubri 
n  IWlhiwIntf ,  ill  Ihe  said  mom  lan^ish' 
al  20Uid»y  «1'  Oolubcr,  in  Ibi 


rftoM 


imprisoniDcni  ai 

AriiC  in  the  ssiil  room,  to  wit,  by  the  H)iace  ol 
lilleen  days  at  least  before  the  ileaih  of'ihE  said 
Eilnard  Arne,  Ihe  said  John  Huitt^ins  was 
loce  preseiil  at  the  said  room,  and  iheu  and 
here  saw  the  said  EHward  Arne  in  that  room, 
inder  the  duress  of  ihe  said  Imprisonment,  and 
Ihen  and  there  lumed  away  ;  and  the  aaid 
James  Barnes  locked  the  door  of  Ihe  ramt 
room,  al  the  sunie  lime  in  whicb  (be  w\<\  John 
Hii^ltiDS  turned  away  al  alilreaaid  (ihe  tauic 
Edward  Arne.  at  the  laiil  time  in  whii.-h  the 
aaid  door  was  locked  by  tlie  said  James  Barnes, 
being  in  (he  said  room  iindf  r  duress  of  tlie  said 
imprison  men  I.]  And  they  fjnlier  And,  that 
the  said  Edward  Arne,  in  ihe  Kiid  room,  ainler 
duress  of  the  said  imprisonment  remained,  and 
was  cominueil  from  the  eaiil  lime  in  which  Ihe 
said  door  of  the  said  room  waa  sn  locked  by  the 
■lid  JanuM  Barnes  as  atbresiid,  nnlil  the  said 
hich  (be  said  Edward  Arne  su  as 
aforesaid  died  ;  and  they  t'urlher  Bnd,  that  the 
soil!  John  Huifgin*  sometimes  acled  aa  warden 
or  keejier  of  the  aaid  prison,  daring  the  line  iK 
which  be  the  sam«  Thomaa  Gyhlmn  was  de- 
puty of  llie  said  John  Hii|;ginH  in  (beaaidoE- 
llce  as  atbresuid;  but  whether  upon  the  whols 
inatler,"  ftc. 

The  Record  of  this  Indictment  and  Special 
Verdict  bein^  removed  into  the  Kini^'s-tiench 
by  C'erliurari,  it  waA  argued  on  'I'uMday  the 
leih  ol  Jniie,  1730,  by  >lr.  tVilles,  liir  the 
kin^  i  and  Mr.  Serjtiuit  Eyre,  for  the  priaoncr. 
And  on  the  lait  dny  uf  Michaelmas  lerm  Ibl- 
lowing,  atier  the  case  bad  been  arf;ufd  on  the 
14th  of  November,  Bl(ier|eant's-inn- hall,  hettire 
all  the  twelve  judges,  the  lord  chief -justice 
(Raymond)  deUierral  the  opiuioo  of  the  judt^es. 

In  this  case  two  questions  have  been  made, 
first.  What  crime  the  facts  foonil  ujuki  Barnes 
in  ihe  !^pecial  Verdict  will  amuunt  lo  i  Second, 
Whether  the  nrmnner  at  tlie  bar  is  found  guilly 
of  the  sume  offence  with  Barnes  f 

First,  As  lo  Ihe  lirsl  question  !(  is  very  plain, 
(hat  (he  facts  Oniml  upon  Barnes  do  anwunt  to 
murder  in  hiui.  Murder  may  he  cummitteil 
without  any  stroke.  Tbc  law  has  not  cuiifineil 
the  olTence  tu  any  purticuinr  cn'cumstuiices  or 
manner  of  killing  i  hut  there  are  as  many  waya 
to  commit  iniirder,  as  lliere  are  tii  di-itrov  « 
man,  pnirided  the  act  b«  dune  wllh  mafir«, 
(iiher  express  or  implied.  Hale  V.  V.  -id,  8 
tuM.  ;)V.  Murder  is,  where  a  fierwon  kills  anii- 
Iher  of  ibiidiiii!,  so  he  dies  wilhin  a  year  niid  k 
day.  Hale  P.  C.  43.  And  malice  "niny  he 
either  expresaed  or  implied.  In  (liiit  caw  th« 
jury  ha*e  toiind  ihe  molioe  exproM  ;  fur  (he 
facia  chxrgeU  on  Barnes  ore  laid  inllie  indict- 
mei't  lo  be  *  ex  msliliaiiua  iineimirilala,' In  wil, 
ilial  he,  liavinn  the  eusindy  nf  Arne.  assnulied 
him,  and  carried  him  to  Ihisuuwholcsoine  room, 
and  conBiieil  liim  Ihere  by  tbrce  auunisl  hia 
will,  aad  witboiU  bii  c«BNat,«id  wi 


871] 


8  GEORGE  II. 


Trial  of  John  Huggtust 


[9» 


dictment  sets  forth,  <<  That  Joho  Hnggini, 
from  the  1st  day  of  October,  in  the  12th  year 
of  the  late  kinff,  to  the  1st  day  of  January  next 
following,  andlongf  before  and  after,  was  war- 
den of  the  prison  of  the  Fleet,  &c.  and  that 
James  Barnes  was,  darioff  that  time,  serf  ant  to 
John  Huggins,  and  empToved  abont  the  care 
of  the  prisoners ;  and  that  James  Barnes,  *  ez- 
'  istens  persona  crudelis  nature  et  immanis 

*  dispositionis  erga  prisonarios  in  eadem  prisona 
■  ezistentes,'  on  the  1st  day  of  Noyember,  in 
the  12th  year,  Sec,  made  an  assault  upon  one 
Edward  Arne,  then  being  a  prisoner  in  the 
same  prison,  under  the  custody  of  the  said 
John  Huggins,  and  him  the  said  Edward  Arne, 
then  and  there,  with  force  and  arms,  &c.  un- 
lawfully, feloniously,  wilfully,  and  of  his  ma- 
lice aforethought,  and  without  the  consent  of 
the  said  Edward  Arne,  took,  and  him  with  force 
and  arms,  &c.  to  a  certain  room,  within  the 
prison  aforesaid,  then  newly  built,  unlawfully, 
&c.  conveyed  and  led,  and  him  the  said  Ed- 
ward Arne,  with  force  and  arms,  &c.  in  the 
said  room,  for  a  long  time,  to  wit,  for  the  space 
of  six  weeks,  then  next  following,  unlawfully, 
&c.  imprisoned  and  detained,  and  him  the  said 
Edward  Arne,  then  and  there,  with  force  and 
arms,  &c.  for  all  the  time  last  mentioned,  in 
that  room, '  absque  solamine  ignis  nccnon  sine 
«  aliqua  matula,  scaphio,  vel  aliquo  alio  hujus. 

*  modi  utensili,'  unlawfully,  &c.  forced  to  re- 
main and  be  (the  walls  ot  tlie  aforesaid  room, 
made  of  bricks  and  mortar,  at  the  aforesaid 
time  of  the  imprisonment  of  the  said  Edward 
Arne,  in  the  same,  being  very  moist,  and  the 
room  aforesaid  being  situate  over  the  common 
sewer  of  the  said  prison,  and  near  the  place 

*  uhi  sordes  et  iiinus  prisonie  predictoe  necnon 

*  excrementa  prisonariorum  pnedictorum  ad- 
'  tunc  usualiter  posita  fucrunt,'  by  reason 
whereof  the  room  aforesaid  then  nas  very  un- 
wholesome, and  greatly  dangerous  to  the  life 
of  any  person  detained  iu  the  same.")  And 
the  indictment  further  sets  forth,  **  That  the 
said  James  Barnes  and  John  Iluggins,  at  the 
said  time  of  the  imprisonment  of  the  said  Ed- 
ward Arne  in  that  room,  well  knew  that  the 
said  room  had  then  been  newly  built,  and  that 
the  walls  of  that  room,  being  made  of  bricks 
and  mortar,  were  then  very  moist,  and  that  the 
said  room  was  mi  situate  as  af(»resaid."  And 
the  indictment  fiiithcr  sets  forth,  **  That  the 
said  Edward  Arne,  during  the  imprisonment 
and  detaining  aforesaid,  iu  the  said  room,  viz. 
the  7th  of  November^  &c.  by  duress  of  the 
same  imprisonrntnt  and  detaining,  liecaine  sick, 
and  thereby  from  the  same  7th  day  of  Novem- 
ber, until  the  7th  day  of  DeceinlH?r,  then  next 
folluvving,  in  the  room  aforesaid,  languished, 
on  which  said  7th  day  of  Decenilier,  the  said 
Edward  Arne,  by  duress  of  the  imprisonment 
and  detaining  aforesaid,-  in  the  room  aforesaid, 
dieil,"  &c.  The  indictment  further  sets  forth, 
**  That  the  said  John  Hoggins,  being  a  person 
of  a  cruel  nature,  and  savage  disposition,  and  a 
grierouB  and  inhumane  oppressor  of  the  pri* 

IB  the  iiuiM  priaoBi  undtr  hit  custody 


being,  during  his  said  imprisonmeiil  and  de- 
taining of  the  aforesaid  Edward  Arne,  in  tht 
room  aforesaid^  viz.  the  said  7th  daj.  of  No- 
vember, &c.  and  divers  other  days  and  tinwii 
during  that  imprisonment  end  detalnioff,  al 
London,  &c.  feloniously,  wilfully,  end  of  In 
malice  aforethought,  was  present,  aiding,  tkd^ 
ting,  comforting,  assisting,  and  maintaioijf 
the  aforesaid  James  Barnes,  fekmiously,  wt 
fully,  and  of  his  malice  aforethoughtt  the  wui 
Edward  Arne,  in  manner  aforesaid,  to  kill  lai 
murder :  and  so  theiurora afbresaid, apoD  tbek 
oath  aforesaid,  say.  That  the  said  Jamee  BenM 
and  John  Hoggins,  the  said  Edward  Arne,  it 
manner  and  form  aforesaid,  feloniooslyy  wiU 
fully,  and  of  their  malice  aforethought,  did  kil 
and  murder,  ag[ainst  the  peace,*'  dte. 

On  Not  Guilty  pleaded  by  the  priaoacr, 
Huggins,  the  jury  find  a  Special  Verdict,  u 
follows :    *■  That  queen  Anne,  by  her  hetM 
patent,  bearing  date  the  93d  of  July ,  in  the  ISA 
year  of  her  reign,  granted  to  John  Hnggim^ 
named  in  the  indictment,  the  office  of  wuda 
or  keeper  of  the  Fleet,  and  keeper  of  the  priMm, 
and  gaol  of  the  Fleet,  situate,  &o.  and  of  ths 
prisoners  then  committetl,  or  to  be  committd 
to  the  prison  and  gaol  of  the  Fleet  aforesaid ; 
and  the  capital  messuage  for  the  custody  of  tlN 
prisoners,  and  thirteen  messuages  in  the  pariifa 
aforesaid,  and  all  other  messuages,  &c.  and  all 
that  rent,  fee  or  salary  of  7/.  12f.  Id,  yearly, 
pB\-able  and  to  be  paid  by  the  hands  of  the  she- 
riffs of  her  city  of  London,  and  her  oonnty  d 
Middlesex,  Ike,  and  all  other  rents,  &c.  sod 
him  the  said  John  Huggins,  warden  or  keener 
of  the  Fleet,  and  of  the  prison  and  gaol  of  the 
Fleet  aforesaid,  for  herself,  her  heirs  and  soe- 
cessors,  did  make,  ordain,  and  constitute,  bj 
the  same  letters  patent :  to  have,  hold,  enjoy, 
and  exercise  the  said  office,  messuages,  lawn 
&c.  to  the  aforsesaid  John  Huggins,  by  bimi 
self,  or  b^  his  sufficient  deputy  or  deputies,  (bi 
and  during  his  natural  lite,  in  as  ample  mil' 
ner  and  form  as  sir  Jeremy  Wbichcot,  barond 
or  any  otiier  warden  of  her  prison  of  the  Flee 
aforesaid,  the  said  office  and  other  the  pre 
misses,  or  any  of  them,  had  before  had,  held 
used  or  enjoyed,  or  ought  to  have  bad,  held 
used,  or  enjoyed  ;  with  the  usual  averments 
anti  they  farther  find,  that  the  said  John  Hug 
gins,  1st  of  ^^eptember,  in  the  ISlh  of  tlie  lat 
king,  and  for  <livers  years  before,  and  oonti 
uuully  from  tliencc  after,  until  the  1st  of  Jl 
nuary   then   next   following,  was  warden   < 
keeper  of  the  naid  prison  of  the  Fleet ;  and  thfl 
one  Thomas  Gybbon  for  all  the  same  time  wi 
deputy  of  the  sjid  John  Huggins  in  the  ni 
ofhce  of  warden  or  keeper  of  the  prison  of  tl 
Fleet  aforesaid,  by  the  same  John  Huggn 
appointed,  and  acted  as  such  bis  deputy :  aa 
they  further  find,  that  James  BaroeB,'in*tl 
indictment  nametl,  for  all  the  same  lime  wi 
servant  of  the  said  Thomas  Gybbon,  depoly  t 
the  said  John  Huggins,  in  the  same  office  i 
as  aforesaid  being,  and  acted  under  the  MU 
Thomas  Gybbon,  6ce,  in  and  about  the  eai«i 
the  prisoners  committed  to  the  aaii  PIMMi  h 
2 


^T  the  Murder  ofEdteard  Artie. 


I,  iben  an<l  there  a  prisoner  in 
a  lietngt  tbey  I'anhcr  Auil,  llint 
_  *  Banin,  the  Tlh  of  September, 

liAa  IStfa  jicsr.  Sec.  in  and  npnn  tbe  aaid  Ed- 
•■ri  4rar,*a  priaoner  in  ibe  uune  primu  then 
nyiRMwJ  ttftag,  in  mannt^r  and  torni  as  in 
lb*ii<io<licim«nt  it  apeciBed,  made  >0  as- 
tMh.lBi1  Itiin  the  said  Edward  Acne,  llien  anil 
llv  laiUtiiiil  Ilia  cniiii(rnt,  in  manDcr  and  farm 
■■  Ibe  *Bwl  imlialinL-ot  it  tpecilied,  took,  and 
Mi  tta*  avid  Bdwanl,  Arne  to  a  certain  room 
•Mm  ibo  uid  priKiii  then  tietrly  built,  in  the 
•■i  tniliniuvpl  ineiitliined,  wiihout  his  unu- 
ai,  m  manaer,  Ace.  convened  and  led,  and 
km  tltt  taM  Edward  Ante,  in  llie  avid  room 
Itr  •  laag  timv,  (a  nit,  fur  ibe  space  ot  fiirty- 
bar  day*  rtwu  ijiirnce  next  rollnwinui'.  vtitliout 
Ibt  OBKunt  or  him  the  tniil  Edward  Ame,  in 
tmmm,6ie,  implMHiHl  auu  daUined,  and  bim 
••■mI  Edward  Anie,  ibwi  and  there  lor  all 
Ife*  IMM  lMt-«nent)(ineit  in  that  room,  '  alnqne 
'MlHtisc  iffnii  a#unno  tine  altijua  tnatula, 
'■afbia,  til  aliauo  alio  liiijneroodi  ulensili,'  to 

kt  fcmni  -.  and  they  further  ttud,  that  Ibe 
lali  of  tbe  toid  room  were  made  of  bricks  aud 
^nff  ]  anil  ax  Uie  (aid  time  of  tbe  imprison- 
■Mt  of  tbe  laid  Eilwurd  Arna  io  tbe  tame 
•■•  tcry  d»mp  ;  and  Ihat  the  said  room  waa 
aMMotert)i«  commnn  sewer  of  the  said  pri- 
a%  nMr  die  place  '  nbi  snrdes  et  (imiis  prl< 
*m^  prBdii-iK  necnnn  eiuretnenta  |iris<in»rJD- 
'ns  ofwihctorum  adtnno  utualiier  piwiin  fiie- 
*(■>,'  by  rt««Dn  whei«of  Ibe  soid  rwm  was 
ta*an  noitboleaoDla,  andgreaily  dan^rous 
l«4«Mcufany  peraon  detained  in  Ibe  aame: 
miHttj  further  llnd.  that  tbe  said  Jnmea 
IkIM,  al  tile  (aid  lime  of  the  ioiprisoament  of 
lk««Ml  Eilward  An>e  in  that  room,  well  knew 
tbUAsBM)  niom  had  then  btan  newly  built; 
md  Ifan  Ibe  nillB  of  that  room  virre  made  of 
taafta  and  mortar,  and  were  then  very  damp ; 
tad  that  iIm'  mid  ronm  wat  ailuale  bo  as  afore- 
«mI:  aod  Ibey  lutther  llnd,  that  dnring  tht 
wit  in|iri«iBioeiit,  and  dclainiDg  of  ibe  said 
UvanI  Am*  in  tbe  auid  room,  to  wit,  hy  Ibe 

nsf  llltem  days  al  Uatt  before  the  death 
t  ttid  Rdward  Arne,  the  said  John  Iliig- 
finBk>r*  tkat  the  asid  room  had  been  then 
kEwljr  built,  and  that  ibe  walls  of  that  ronm 
Mt»  otMfe  of  bricks  and  iiiorlsr,  and  then  were 
4ra|l;    but  whether  Ibo  «aid  John  Hnttcios 
knoi,  ibii  nil  ihe  sDid  7th  day  of  Se|ilember. 
i<(- jurori  knownot:  tnd 
liii'  aaid  Edward  Arne, 
-'iDisut  and  detaining  of 
Vi  lie  in  llie  said  roiim,  bi 
i<  il,.:    \uili  <l,i\  (.1  tiic  same  month  ol'Sep. 
MMvr,  Ml  Utc  riib  ypar  RboTe»id,  by  durcai 
(ftha  tatne  in)|iri«iiiitoent  and  detaining,  ba- 
I  ibc  taid  riiniD ;  anij  thereby  from 
I  Kitli  duy  of  Hepleiiiber,  in  tbe  13ll 

Cahavcaaiii,  until  ibe  <imh  day  of  Otitnbei 
■m  hllowiD|[,  III  tbe  said  room  lanf^ttb- 
4-  M^  iluy  of  Ueh^r,  in  lbs 


duressof  Ihenaid  imprbuDinenl  and  i)eiaiiii 
in  the  room  afnrenaid,  died,  to  wit,  at  Londuo, 
&ic.  Aud  ihey  further  Aud,  thai  duriiiir  the 
iprisonment and ilelainin;j;ul'lbe aaid  Eilword 
'ne  in  llie  said  ruum,  w  wii,  by  the  siiace  of 
HIteen  days  at  least  before  the  death  of  the  said 
Edward  Arne,  the  said  John  Huc^int  was 
once  present  at  ilic  said  iwtin,  and  then  auiI 
ibere  saw  the  said  Eilwaid  Arne  in  that  rooiu. 
under  ihe  duress  of  the  said  i  in  prison  in  eiit,  aud 
then  and  there  tnmed  away  ;  and  the  nid 
James  Barnes  looked  Ibe  door  of  tlii-  ram* 
room,  at  the  same  time  in  which  tbe  stud  J'lhu 
Hitcgins  turned  away  aa  nlbrrsaid  (the  Miiiie 
Edivard  Arne,  at  the  niil  time  in  wliicb  the 
fflud  door  was  locked  by  tlir  said  Janies  Ilame*, 
being  in  ifae  said  room  lunlcr  duretis  of  llie  said 
imprisiiniiieot. )  And  they  furilier  find,  that 
Ibe  laid  Edward  Arne,  in  the  siid  room,  nndec 
iluress  of  tbe  said  iniprisonmenl  remained,  and 
Iras  continued  IVom  the  said  lime  in  uhicb  the 
said  door  of  ihe  said  room  was  to  locked  by  the 
■aid  J  a  met  Bamcsas  aforesaid,  until  tbe  said 
time  in  which  ibe  said  Edvard  Arne  so  as 
aforesaid  died  ;  and  they  further  And,  thai  the 
said  Juhn  Hui;gios  sonietimes  Bcled  aa  warden 
or  keeper  of  ihe  said  prison,  duriae  the  time  in 
which  be  the  sniiie  Thomas  GyblioD  wasde- 
puty  of  the  said  John  Hitgigins  in  Ibe suid  of- 
fice as  aforesaid ;  but  whether  upon  Ihe  wbot« 
luatler,"  fee. 

The  Record  of  this  Indictment  and  Special 
Verdict  beiiiBT  remoied  into  the  Kini;'s-I>ench 
by  Ceriiurari',  it  was  argited  on  'I'undiy  the 
iblb  of  June,  1730,  by  Mr,  Wi)let,  fur  the 
Ving ;  and  Mr.  Serjeani  Evre,  for  tbe  priwiner. 
And  ou  the  last  duy  of  Michselrats  teem  fol- 
lowing, after  tbe  cose  bad  been  argunl  on  Ihe 
IMb  ot'Nnvember,  at  8er|eaat's- inn-hall,  befi>re 
all  the  iwelie  judges,  the  lord  chict-justice 
(Raymouit)  dettiered  tbe  opinion  of  the  judge«. 
In  this  case  two  t|Uestions  have  been  made, 
Hrst,  Wbal  crime  Ibe  facts  found  U)>nii  Baraea 
m  ibe  Sjiecial  Verdict  will  Miimunt  to  F  Second, 
Whether  ihe  nrisnner  allhu  bar  is  tiwad  guilty 
of  the  same  offence  witb  Tlarnes  ? 

First,  As  to  Ibe  tiret  ifueMioo  it  is  rery  plain, 
that  the  facts  found  upon  Barnes  do  aninuiit  In 
tniirder  in  him.  Murdn  may  be  commiiled 
without  any  stroke.  Tbe  law  has  not  confined 
IbeoOence  lu  uny  partiouUr  circunistuncet  or 
manner  of  kilbng;  butihereareasmauy  waya 
to  comuiit  niunler,  as  there  are  l<>  dr'^iroT  ■ 
man,  |>ri>Tidvil  ibv  act  bo  dune  witb  malioe, 
Kit  her  «K  press  or  implied.  Hale  P.  C.  -Iti,  3 
Inst.  it.  Murder  is,  where  a  iiemun  kilfs  ana- 
ttier  of  ibatiOiF,  so  be  dit«  wilbin  a  year  and  a 
day, -Hale  P,  O.  43.  And  malice  iiiay  be 
either  eapreaseil  or  implied.  In  tbi*  case  the 
jury  have  I'oiind  the  malice  iriipress ;  liir  the 
facta cb urged  on  Bameture  laid  inlhcindict- 
meiil  to  b«  '  ex  mahlia  'na  ptwcni^iiata,'  Io  wit, 
ibtl  hf,  liasinf!  the  custody  of  Arne.  oBHinlled 
him,  and  carrit'd  him  to  this  unwhoksome  room, 
and  confined  him  Iheiv  by  tbrcv  ausins:  bis 
will,  tttid  witbout  bit  G«iMuit,aad  withuut  pro- 


873] 


S  GEORGE  II. 


Trial  of  John  HuggifUf 


[376 


per  support,  *  ex  maliiia  sua  preecofloUU ;'  by 
means  ui  wliicli  he  laiiguittlieti  and  died.  And 
Ibe  jury  have  found  that  Baroeii  did  all  these 
facts,  *  luodo  et  iurma  prout  in  indictamento 

*  pnedicio  s|iecifticatur.' 

ilut  upon  tiudiui^oi' these  facts  tlicreis  also  a 
plain  malice  arising  in  construction  of  law. 
l£ule  P.  C.  46.  The  law  implies  malice  in  re- 
spect of  the  person  killiupf.  If  a  prisoner,  bv 
durtss  of  the  gaoler,  comes  to  an  untimely  eniT, 
it  is  murder.  It  is  not  necessary  to  make  it 
duress,  that  there  should  be  actual  strokes  or 
wounds.  And  in  3  Inst.  55,  the  potting  into  a 
duu^j^eon  is  duress,  or  into  a  place  toe  strait,  S 
Inst.  01,*  pluis  arctmentque  defoit,'  Cromp. 
VO,  I'he  untimely  end,  nieniioned  by  lord 
chief  justice  Uale,  is  what  is  meant  by  Briton, 
cap.  11,  fol.  18*  If  a  man  die  in  prison,  the 
coroner  is  to  take  an  inquest  upon  the  view  uf 
the  body  ;  and  if  it  is  found  by  the  inquisition, 
that  the  person  was  brought  nearer  to  death, 
and  faitner.  from  life,  *  per  dure  gard  del 
gaoler,*  it  is  felony. 

The  reasons  why  the  law  implies  malice  in 
■uoii  cases  are  plain.  Because  it  is  a  breach  of 
Lis  duty,  and  of  the  trust  which  the  law  has  re- 
jjosed  in  him.  A  prisoner  is  not  to  be  punished 
in  gaol,  but  to  be  kept  safely.  Flet.  38, 
Bract.  105.  The  act  also  is  deliberate.  And 
the  nature  of  the  act  is  such,  as  that  it  must 
apparently  do  iiarm.  It  is  also  cruel ;  as  it  is 
committed  upon  a  person  that  cannot  help  him- 
self. And  it  is  committed  by  force,  and  without 
the  consent  of  the  prisoner.  So  that  the  charge 
in}  the  indictment  against  Barnes  is  murder  ; 
and  the^e  facts  thund  in  the  verdict,  as  to 
liiui,  fully  maintain  the  indictment,  and  amount 
to  murder.  But  Barnes  is  not  before  the  Court, 
lie  having  tied  (as  it  is  said)  fi*om  justice. 

Second.  The  next  question  is,  Whether  the 
prisoner,  lluggins,  is  found  guilty  of  the  same 
offence  as.  Barnes ;  or  how  far  it  appears,  by 
this  Special  Verdict,  that  he  has  bten  aiding 
and  assiikting  to  Barnes  in  the  committing  of 
these  facts  i* 

In  the  indictment  the  offence  is  as  strongly 
charged  upon  Huggins  as  upon  Barnes.  The 
indictmeni  charges,  that  the  prisoner  at  the  bar, 
duiing  the  impribonnientof  Arne  in  the  said 
room  (the  situation  and  condition  of  which  the 
indictment  expressly  charges  Hoggins  to  have 
the  knowledge  of),  on  the  7(h  of  November, 

*  et  diversisjdiebus  ct  vicibus,'  during  that  im- 
prisonment, feloniously,  voluntarily,  and  of  his 
malice  aforethought,  was  present,  aiding,  abet- 
ting, comforting,  aud  assisting  the  said  Barnes, 
the  said  Arne  felnniously,  and  of  his  malice 
aforethought,  to  kill  and  murder,  i3cc.  which  if 
found  by  the  verdict,  would  certainly  be  murder 
in  the  prisoner.  But  there  is  a  great  diflereuce 
in  Uie  finding  the  verdiiit.  As  to  lluggins,  the 
jnry  have  only  ibuud  tbe«e  facts,  viz.  That  be 
had  the  office  of  warden  i>f  Che  Fleet,  &c. 
granted  to  him  by  letters  patent  of  22  Juiy, 
la  Ann.  to  hold  for  his  life,  and  to  execute  by 
himself  or  hbi  deputy:  That  he,  1  Sept.  12 
Geo.  1,  and  befort  and  from  thtuMto  11  Jan. 


12  Geo.  1,  was  warden  of  the  Fleet:  That 
Tliomas  Gybbon  was,  and  for  all  thai  time 
acted  as  his  deputy  in  that  office:  that  Jamci 
Barnes  was  for  all  that  time  servant  of  Gybboo, 
aud  acted  under  him  about  the  care  of  the  pi> 
sonerfy  and  particularly  about  the  care  of  Arne: 
tlien  tiiey  find,  tliat  Barnes  assaulted  ami  ovw 
ried  by  force  the  said  Arne  into  the  room,  ntf 
kept  him  there  against  his  consent,  prout  in  At 
indictment,  forty-four  days:  then  tbev  iai 
the  situation  and  condition  of  the  room,  wnerdiy 
it  was  very  unwholesome,  aad  dangerous  to  tM 
life  of  any  person  kept  therein  :  that^  Huy- 
gins,  during  tlie  imprisonment  of  Ame  ie  tM 
room,  viz.  tor  fifteen  days  before  Arue's  death, 
knew  that  the  room  was  then  lately  built,  aad 
that  the  walls  were  made  of  brick  and  moitar, 
and-  were  then  damp ;  but  whether  be  knew  it 
the  7th  of  Soptember,  ignorant :  that  Ame,  tbt 
10th  of  September,  12  Geo.  1,  by  duress  of 
imprisonment,  became  sick,  and  laoguiahed  It 
tile  20th  of  October,  and  then  died  uy  duKti 
of  imprisonment  in  the  said  room :  that  during 
the  imprisonment  of  Ame  in  that  room,  via* 
'  |>er  spatium  quindecim  dierum  ad  minut'  be- 
fore his  death,  lluggins  was  once  present  tt 
that  room,  and  then  saw  tlie  said  Ame  in  ihH 
room,  *  sub  duritie  imprisontmenti  prndicti  te 
adtunc  et  ibidem  teavertit,'  and  the  said  Jtmai 
Barnes,  the  same  time  as  Hoggins  turned  bin* 
self  away,  locked  the  door ;  the  said  Ame,tt 
tlie  time  when  the  said  door  was  locked  kf 
Barnes,  being  in  the  said  room,  *  sub  duilit 
'  imprisonamenti  probdicti ;'  and  that  Amt  le* 
mained  under  that  duress  till  his  death  :  ihit 
Uug^ins  acted  sometimes  as  warden,  dudig 
the  time  Gybbon  was  deputy :  but  it  is  Ml 
found  that  he  acted  as  viardeii  during  the  coo- 
finementof  Arne. 

The  judges  are  all  unanimously  of  oninioii, 
that  the  facts  found  in  this  Special  Verdict  dt 
not  amount  to  murder  in  the  prisoner  al  tks 
bur ;  but  as  this  S|iecial  Verdict  is  found,  they 
are  of  opinion  that  be  is  not  guilty.  Though  he 
was  warden,  yet  it  being  found  that  there  was  a 
deputy,  he  is  not,  as  warden,  guilty  of  the  facts 
committed  under  the  authority  of  his  deput^r- 
He  shall  answer  as  superior  for  bis  deputy  Of 
villy,  but  not  criminally.  It  lias  been  settled, 
that  though  a  sheriff  must  answer  for  the  of^ 
fences  of  his  gaoler  civilly,  that  is,  be  is  sub* 
ject  in  an  action  to  make  satisfactioii  to  the 
party  injured,  yet  he  is  not  to  answer  criminally 
for  the  offences  of  his  under  officer.  He  onlj 
is  criminally  punishable  who  immediately  dos 
the  act,  or  permits  it  to  be  done.  Hale  P.  C.  11^ 
So  that  if  an  act  be  done  by  an  under  offiotr, 
unless  it  is  done  by  the  command  or  directiOBp 
or  with  the  consent  of  the  princi|Md,  the  prindh 
pal  is  not  criminally  punishable  tor  it.  In  this 
case  the  fact  was  done  by  Barnes ;  and  it  ■# 
where  appears  in  the  S|)ecial  Verdict,  tbalth* 
prisoner  at  tlie  bar  tver  commanded,  or  dired^ 
ed,  or  consented  to  this  duress  of  imprisoomtali 
which  was  the  cause  of  Arne's  death.  1.  Nt 
commaud  or  direction  is  found.  And  8.  It  is 
not  found  that  Uuggint  knew  of  it.    Thil 


377] 


Sot  the  Murder  ofEchoard  Ame. 


A.  D.  1729. 


137S 


vhich  made  the  durets  in  this  case  wai,  1. 

fiuvci's  carrying'  and  puttinff,  and  oontining 

Ana  inthiaraom  by  force  and  aj^inst  his  con- 

hbL    S.  The  aituation  and  condition  of  this 

1MB.    Now  it  ia  not  found  that  H  uffgina  knew 

if  Iheif  ae? eral  circuinstanceti,  which  made 

lb  duiesa.     1.  It  is  not  found  that  he  knew 

Hj  tkio);  of  Barnes's  carryin^^  Arne  thither. 

I.  liirthat  he  was  there  without  his  consent, 

«  eilhaut  proper  support.    3.  As  to  the  room, 

ila  Aood  by  the  verdict,    1.  That  the  room 

aahailt  of  bricks  and  mortar.    2.  That  the 

wikwtrevaide  humida,    3.  That  the  room 

■HBtnate  on  the  common  sower  of  the  prison, 

■rf  Mir  the  place  where  the  fihh  of  the  prison 

nd  e»creroent  of  the  prisoners  were  nsually 

W,  ratiome  quorum  the  room  was  very  un- 

ehaitasme,  and  the  iifo  of  any  man  l^ept  there 

vas  ia  unreal  daiif|rer.    But  all  that  is  found 

viib  reaped  to  the  prisoner's  knowledge  is, 

dat  for  fifkeen  days  before  Arne's  death  he 

ibat  the  room  vras  then  lately  built,  re- 

';  that  the  walls  were  made  of  brick  and 

r,  and  were  then  damp.    But  it  is  not 

Bor  does  it  appear,  that  he  knew  they 

vera  dangcrouB  to  a  man's  Iifo,  or  that  there 

aaa  a  want  of  necessary  support.    Nor  is  it 

kmk  that   be   directed   or   consented   that 

inadMold  be  kept  or  continued  there.    The 

"    thiD^  relied  upon  is,   that  the   verdict 

that  once  the  prisoner  at  the  bar  was 

at    the    room,  and   saw  Arne   '  sub 

iaprisonamenti  prosdicti,  etse  avertit,' 

fa.  which,  aa  was  objected,  made   him  an 

ukt  and  abettor.    But  in  answer  to  this,  1. 

Uif  present  alone,  unless  he  knew  all  the 

oicmnances,  and  directed  that  Arne  should 

pswisas,  or  at  least  consented  that  he  should, 

caaaoi  make  him  an  aider  or  abetter  in  the 

aarder.    Kelyn^e  113.    A  man  may  be  pre- 

seal,  and   be  entirely  innocent,     lie  may  be 

cnually  present.      H,  The  verdict  is,    *  vidit 

Mb  duritie   iinprisonamcnti    prwilicti.'       lie 

BJI^t   see  him,  and   see  him  while  he   was 

*iiibdaritie  imprisonamenti  prteJicli,' that  is, 

vbite  be   waa  in   lact  under  the  duress  by 

baraea ;  but  it  does  by  no  means  follow  from 

tbcDce,  tliat  he  knew  that  the  man  was  under 

this  durtas,  and  it  is  not  found  that  he  did  know 

it    It  was  objected,  that  if  husaw  the  man 

under  this  darcss  be  must  know  it,  and  it  was 

Im  duty  to  deliver  him.     But  we  cannot  take 

tkiopiby  inference  in  this  manner.    The  vidtt 

does  not  imply  a  knowledfre  of  the  several  t'uiis 

Ikai  made  tlie  duress.    If  the  nature  of  this 

dawM  be  considered,  it  is  impossible  that  it 

ihaald  be  discovered  by  one  sight  of  the  man. 

llOMMHStsoi  several  in||^re(HenUi  and  circum- 

»,  that  are  not  necessary  to  be  discovered 

sight:  for  thoujjh  he  saw  Arne  in  the 

y«t  by  the  view  be  could  not  tell  that  he 

Mre  without  his  consent,  and  by  force,  or 

he  wanted  necessary   relief.     It  in  not 

that  the  man  made  any  complaint  to 

hsiier  that  anv  application  was  made  to  him 

«4e  naa's  bebalt.     If  be  was  there  with  his 

it  vooU  lake  offtha  darass.    His  see- 


ing is  bat  e? idenoe  of  his  knowled^  of  these 
thingfs  at  best,  and  very  poor  evidence  loo.  And 
therefore  the  jury,  if  the  fact  would  have  home 
it,  should  have  found  that  Hngfrina  knew  thiit 
Arne  was  there  without  his  consent ;  and  that 
he  consented  to  and  directed  his  continuance 
there.  Which  not  being  done,  we  cannot  in- 
tend these  thingrs,  nor  infer  them.  For  in  spe- 
cial  verdicts  in  criminal  case^  the  Court  mtist , 
never  intend  nor  infer  facts,  but  judge  upon  the . 
facts  found,  and  not  on  the  evidence  of  the 
facts.  Kelyufre  78.  Whether  a  man  is  aiding 
and  assisting  in  murder  or  no  is  matter  of  fact, 
and  ought  to  be  expressly  found  by  the  jury. ; 
Kelynge  111,  Rex  vers.  Plummer.  It  does 
not  appear  by  the  special  verdict  there  that 
Glover,  or  the  person  unknown,  who  shot  off 
the  gun,  did  discharge  it  against  any.  of  tbe 
king's  officers,  but  it  might  be  for  aught  that 
appears  for  another  purpose :  though  npon  the 
particular  circumstances  in  the  special  verdict 
there  are  things  found  Svhich  were  a  sufficient 
evidence,  that  the  gun  was  discharged  agaimt 
the  king's  officers,  and  ao  it  might  be  reason- 
ably intende<l,  considering  they  were  all  armed, 
and  in  prosecution  of  an  unlawful  act  in  the 
night,  which  they  designed  to  justify  and 
maintain  by  force;  especially  when  the  gun 
waa  shot  off  upon  the  watch-word  given  ;  and 
as  the  king's  officers  were  endeavouring  to 
seize  the  wool ;  the  jury  thereupon  might  well 
have  found  that  the  tusee  was  discharged 
against  the  king's  officers.*  But  since  (they 
had  not  found  it,  the  Court  were  confined  to 
u  hat  they  had  found  positively ;  and  were  not 
to  judge  the  law  upon  evidence  of  a  foot,  but 
upon  the  fact  when  it  is  found.  See  Kelynge, 
11». 

This  case  was  so  well  argued  on  both  aides^ 
that  some  objections  on  the  part  of  the  crown 
must  be  taken  notice  of,  thou^^h  they  are  al- 
ready in  a  great  measure  anticipated.     As, 

1.  That  llus|[gins,  as  warden,  though  be 
had  made  a  deputy,  had  still  the  care  of  ine  pri- 
soners ;  and  it  was  incumbent  on  him  to  see 
that  there  was  no  illegal  duress :  and  to  ex- 
plain what  the  law  means  by  duress,  Brit.  cap. 
11,  fol.  18,  was  cited.  If  a  prisoner  is  brought 
nearer  to  death  and  farther  fruin  life  *  per  dure 
*  gard  del  keeper ;'  andStaunf  P.  C.  lib.  1,  cap. 
35,  if  he  keeps  him  more  strictly  than  of  right 
he  ought,  it  is  duress.  And  the  duress  need  not  be 
by  the  hand  of  theij^aoler ;  for  if  it  is  done  with 

*  1  take  it  thai  the  point  on  which  the  case 
turned  was  this,  it  did  not  appear  from  any 
of  the  facts  found,  that  the  gun  was  discharged 
in  prosecution  of  the  purpose  for  which  the 
party  was  assf^iubled.  But  had  it  been  posi- 
tively found,  that  it  was  discharged  against  the 
officer  or  his  assistant,  the  Court,  u|>on  this  find- 
ing, might,  without  encroaching  on  the  pro- 
vince of  the  jury,  have  presumed  that  it  was 
discharged  in  prosecution  of  their  original  pur- 
pose. In  cases  so  circumstanced,  Rc$  ipiui  lo- 
quitur. Foster's  Iteports,  p.  352.  Former 
£dition. 


379]  5  GEORGE  11. 

his  privity,  it  will  affect  him.  Bot  that  is  a 
mistake ;  for  when  an  officer  has  power  to 
make  a  deputy,  and  has  appointed  a  deputy, 
he  has  discharged  himself  of  the  whole  care  : 
the  deputy  has  the  whole  power,  and  it  is  in- 
cumbent upon  the  deputy  till  the  principal  re- 
sumes his  office.  Indeed,  when  the  principal 
comes  to  execute  his  office  himself,  the  power 
of  the  deputy  ceases ;  but  a  bare  accidental 
comings  to  the  place  will  not  determine  the  de- 
putation, unless  he  comes  with  an  intent  to  re- 
sume his  office.  The  case  of  a  disseisee  comiugp 
to  dine  with  a  disseisor,  or  to  see  his  pictures, 
nkay  be  very  properly  compared  to  this. 

3.  It  was  objected,  that  this  murder  was 
done  with  his  privity  ;  it  is  found  that  he  saw 
Ame  under  this  duress,  et  se  aver  tit.  He  ought 
to  have  taken  notice  of  it,  and  removed  him,  as 
it  was  his  duty  to  take  care  of  his  prisoner's 
life.  Vidit  sub  duritie  implies  that  be  knew  it ; 
and  therefore  he  was  privy  to  the  duress  of 
which  Ame  died. 

But  his  consent  to  this  duress  is  not  found ; 
it  entirely  depends  on  his  seeing  the  man,  which 
does  not  import  his  consent,  for  want  of  his 
knowledge  of  the  particular  facts. 

Sd  Objection.  When  he  was  present,  the 
power  of  his  deputy  ceased ;  and  then  he 
should  have  eased  the  man  of  this  duress ;  and 
his  suffering  him  to  continue  afterwards  under 
the  same  duress  infers  that  be  knowinglj[  suf- 
fered him  to  continue  till  his  death ;  and  his  not 
reforming  this  abuse  implies  his  consent  to  it. 
But  these  inferences  are  by  much  too  strong ; 
and  the  not  reforming  an  abuse  does  by  no  means 
infer  a  consent  to  all  the  consequences  of  it. 

4th  Objection.  A  person  absent  may  be 
principal  in  murder,  as  m  the  case  of  poisoning. 
An  infant  was  laid  in  a  hog-stye,  and  a  sow  eat 
it;  and  held  murder.  Palm.  547,  648.  The 
same  opinion  in  the  case  of  a  sick  man  laid  in 
the  cold.  So  in  the  case  of  laying  an  infant 
under  leaves  in  an  orchard,  and  a  kite  struck  if, 
Poph.  13.  Ow.  98.  Hale  P.  C.  53.  There  the 
person  who  did  the  act  occasioned  the  death  ; 
but  in  this  case  no  act  was  done  by  the  prisoner 
at  the  bar.  There  are  indeed  cases  of  murder 
where  no  act  ^^as  done  by  the  persons  guilty, 
as  the  letting  loose  a  wild  oeast,  which  the  party 
knows  to  be  mischievous,  and  he  kills  a  man. 
3  £dw.  3.  Conine  311.  Staunf.  17.  Crompt. 
S4  b.  the  owner  of  the  beast  is  guilty  of  mur- 
der. In  answer  to  those  cases,  there  is  a  dif- 
ference between  beasts  that  are  Jcra  Jiatura,  as 
lions  and  tysfers,  which  a  man  must  always 
keep  up  at  his  peril,  and  beasts  that  are  man^ 
iueta  nuturay  and  break  through  the  tameness 
of  their  nature,  such  as  oxen  and  horses.  Jn 
the  latter  case  an  action  lies,  if  the  o\>ner  has 
had  notice  of  the  quality  of  the  beast ;  in  tlic 
former  case  an  action  lies  without  such  notice. 
As  to  the  point  of  felony,  if  the  owner  have  no- 
tice of  the  mischievous  quality  of  the  ox,  Src. 
and  he  uses  all  proper  diligence  to  keep  him 
up,  and  he  happens  to  break  loose  and  kills  a 
man,  it  would  be  very  hard  to  make  the  owner 
guilty  of  fdony  \  butif  throagh  negligence  tht 


Trial  of  John  Huggim^ 


[SSO 


beast  goes  abroad,  afVer  warning  mr  notioe  of 
this  condition,  it  is  the  opinion  of  Hale  (H.  P, 
G.  vol.  1,  431,)  that  it  is  manslaughter  in  the 
owner.  And  if  he  did  purposely  let  htm  loose 
and  wanderabroad,  with  a  design  to  do  mischief; 
nay,  though  it  were  but  with  a  design  to  frigjbt 
people  and  make  sp<»rt,  and  he  kills  a  UMUiyitii 
murder  in  the  owner. 

5th  Objection.  It  is  fonnd  that  Barnes  abet 
the  door  in  the  presence  of  Huggins ;  ani 
therefore  the  continuing  of  Ame  un£r  tbatOMH 
fineraent  will  hffect  Huggins.  But  there  is  no 
consent  found  to  his  cunfiiiement.  What  is 
found  is,  at  most,  but  evidence  of  a  oonssnt ; 
and  even  not  that,  it  is  only  vidit  ei  se  0veriit, 

6th  Objection.  Jt  is  not  necessanr  for  thejnry 
to  Gnd  the  con.sent  in  express  words,  and  if  facts 
are  foiud  that  amount  to  a  consent,  the  Conit 
will  judge  it  a  consent.  As  in  the  case  of  ma- 
lice, the  Court  will  judge  it  upon  the  fadi 
found  ;  and  malice  is  an  act  of  the  mlndaawdl 
as  consent  To  this  it  is  answered,  that  malice 
is  matter  of  law,  and  proper  for  the  Court  Is 
judge,  but  the  consent  of  one  man  to  the  mali- 
cious acts. of  another,  is  matter  of  fact  wbkh 
ought  to  be  found  by  the  jury.  And  here  il 
no  consent  fonnd,  nor  that  Huggins  aided  er 
abetted  Barnes ;  nor  is  there  any  poeitive  fad 
found,  that  must  necessarily  be  conitrned  u 
aiding  and  abetting. 

There  is  another  matter  which  the  kiag^ 
counsel  insisted  upon,  that  if  the  Court  were  cf 
opinion  that  they  could  not  ^ive  judgement  npea 
the  facts  found  m  this  verdict,  that  the  ptissoir 
was  guilty  of  murder ;  that  yet  the  verdicts 


so  uncertain,  as  that  they  could  not  give  indy- 
ment  of  acquittal :  and  therefore,  that  a  Veurt 
Facias  de  novo  ought  to  go.  And  this  brousfat 
it  under  the  consideration  of  the  judges,  whe- 
ther a  Venire  Facias  de  novo  ought  to  be  grant* 
ed  in  this  case.  And  to  speak  to  that  poiitv 
the  counsel  on  both  sides  were  heard  liefnie  iB 
the  judges  on  Wednesday  the  24th  instant. 

It  was  said  by  the  counsel  for  the  king,  thai 
they  spoke  to  tnis  point  without  prejudice.  For 
they  insisted,  that  as  to  the  verdict  itself  tfwre 
were  sufficient  facts  fonnd  affecting  theprisonefi 
to  induce  the  judges  to  be  of  opinion  that  thej 
amounted  to  murder.  But  for  argument's  sake^ 
in  case  the  judges  should  he  of  opinion,  that 
thoy  were  too  uncertain  to  found  a  resolution 
upon,  that  the  prisoner  was  guilty  of  murder, 
then  they  argued  that  a  Venire  l^icias  de  novo 
ought  to  go,  though  it  was  in  a  capital  case. 

1.  In  a  civil  r^se,  if  a  verdict  is  found  so  nn* 
certainly  and  ambiguously  as  that  no  judg- 
ment can  be  given,  a  Venire  Facias  de  novo 
must  issue.  Co.  Lit.  S27.  8  Roll.  Abr.  69S« 
Venn.  vers.  Howell.     Cro.  Car.  323. 

It  was  observed  that  the  book  of  Co.  Lit.  MT, 
speaks  of  verdicts  in  general,  and  does  not  saj 
in  what  cases :  but  as  to  civil  cases  there  is  no 
doubt. 

2.  In  criminal  cases  writs  of  Venire  Fi- 
cias  de  novo  have  been  granted.  Co.  Inter.  599$ 
b.  Uil.  4.  Car.  1.  B.  R.  rot.  92.  Rex  v.  Fisher. 

8.   In  capital  cesei  a  Venire  Faciu  dte  nete 


3S1] 


^  the  Mi&dtr  of  Edward  Arne. 


A.  D.  1729. 


[dSS 


■lilt  CO.    1. '  Id  caies  of  mis-trial.  6  Co.  14.  a. 

Anio&l's  case,  the  point  ag^ed.    ^.  For  mU- 

Whaviour  of  the  jury  in  g^iviug  in  their  verdict. 

Ril.  8  Hen.  7.  rot.  S.  piacit.  re^«  Rex  vers. 

Wayoer.    Ap-eed.  3.  As  to  grantiD«|^  a  Venire 

Fieas  de  doto,  afier  a  special  ferdict  found, 

ihiy  were  so  candid  as  to  ovrn,  that  though 

thaic  was  search  made  with  the  greatest  dili- 

gMep,yet  they  could  not  find  one  mstance,  nor 

■  Hans  an  opinion  of  a  judffe,  except  what 

wad  by  lord  chief-justice  Holt,  in  the  Case 

flf if  Kinff  vers.  Keite,  Comberb.  408.*    Holt 

mpt  '*  I  snoald  not  be  much  af^ainst  a  Venire 

dr  Mfo."    (Coaiyns  17.)    And  this  was  re- 

~  B«d  by  some  others  that  heard  that  opi- 

The  jurv  had  found  in  that  case  that 

Miner  had  killed  the  man ;  but  it  did  not 

eslMily  appear  whether  the  fact  was  murder 

sr  Muisiaii^ter.    Mr.  Attorney  General  in- 

Hled,  that  if  there  was  soch  an  uncertainty,  as 

ittt  no  indigent  could  be  |firen  in  a  capital 

cat ;  tte  same  reason  held  m  such  case  as  in 

Ml  and  other  criminal  cases ;  though  there  is 

M  precedent  of  it  as  yet ;   for  *  uhi  eadcm  est 

"niw,  est  eadem  lex.*    And  therefore  sup[>os- 

■|(lbr  in  th'is  it  was  argued  upon  a  supposi- 

lin)that  the.  verdict  was  too  uncertain  to  gi\e 

jaifBeBt  against  the  prisoner,  they  insisted 

tea  Venire  Facias  de  novo  ought  to  go. 

Bit  the  judges  came  to  no  resolution,  that  a 
VoiK  Facias  de  novo  could  not  issue  af\cr  a 
ipNial  verdict  in  any  capital  case ;  it  being  un- 
MBoniy  for  them  to  determine  that  question  : 
flv  aa  cvcrv  special  verdict  depends  upou  the 
pBliular  finding  of  the  verdict,  so  the  nreseut 
~  B  relates  only  to  the  present  verdict  be- 
as  found.  And  as  tu  that  we  tvcre  all  of 
I,  that  this  verdict  was  not  so  uncertain 
u  ifcst  judgment  could  not  be  given  u)>oii  it. 
Piribe  facts  found  arc  all  positively  fuund ; 
batthoae  facts  in  the  nature  of  tlieiu  joined  to- 
|Clber,  are  not  sufficient  to  make  the  prisoner 
gttihjof  munler.  And  if  so,  then  the  prisoner 
mit  be  acquitted  ;  for  it  is  not  that  the  verdict 
if  naeertain,  but  it  is  not  full  enough  to  convict 
kin.  Perhaps  the  jury  uiight  have  found  other 
tos  which  they  have  not,  but  the  Cotirt  can 
jad^  only  upon  what  is  fouml.    (Kel^ng,  7U, 

*  8.C.  d  Mod.  987.   SVinn,  QOQ. 


AnaiK 


79.)  We  all  agreefl  in  the  case  of  Green  and 
Bedell,  on  a  special  verdict,  that  the  verdict  was 
not  full  enough  as  to  them,  for  us  to  jud^e  it 
treason  in  them ;  because  the  verdict  only  found 
that  they  were  present,  and  found  no  particular 
act  of  force  committed  by  them  ;  and  did  not 
find  that  thej  were  aiding  and  assisting  to  the 
rest.  And  it  is  possible  they  might  be  there 
only  out  of  curiosity  to  see ;  and  whether  they 
were  aiding  and  assisting  is  matter  of  fact, 
which  ought  to  be  expressly  found  by  the  jury, 
and  not  left  to  the  Court  upon  any  colouraMe 
implication  ;  and  accordingly  those  two  persona 
were  discharged.  And  yet  as  to  Green,  he  was 
ibund  to  be  among  the  persons  assembled,  &c. 
casting  up  his  cap,  and  nallooing  with  a  staff  in 
his  hand  ;  and  that  whilst  he  was  among  them 
he  was  knocked  down  by  a  pari  v  of  the  king's 
soldiers  that  came  to  supprcHs  them ;  and  waa 
then  taken.  And  as  to  Bedell,  it  was  found 
that  he  was  there,  and  being  pursued  by  one  of 
the  king's  soldiers,  called  out  to  the  rest  of 
the  company  to  face  about,  and  not  to  leavn 
them.* 

Upon  the  whole,  there  is  no  authority  against 
the  Court's  giving  judgment  of  acquittal,  upon 
a  verdict  that  is  not  sufficient  to  convict ;  and 
therefore  this  venlict  not  finding  facts  sufficient 
to  make  the  prisoner  guilty  of  murder,  he 
niust  be  adjudged  Not  Guilty.  And  he  was 
discharged. 

*  Strange,  in  his  Reports,  vol.  8,  p.  888,  af- 
ter mentioning  this  case  of  Messenger,  Bedell, 
and  Green,t  in  the  opinion  delivered  by  the  chief- 
justice,  adds  to  it,  (from  Kelyng,  p.  60) ««  On  a 
s|>ecial  verdict  it  was  found,  that  Thompson 
and  his  wife  were  fighting,  and  Dawes  endea- 
vouring to  part  ihcm  was  killed  by  Thompson  ; 
and  it  nut  being  found,  that  Thompson  knew 
Dawes  intended  only  to  part  them,  it  was  held 
manslangliter,  witiiout  sending  it  hack  to  the 
jury  to  be  certified  of  his  knowlc<lgc.  llicse 
arc  cuM.s  direcrtiv  in  point  as  to  this  head  ;  and 
I  must  observe  that  Flummer's  case  was  after 
the  case  of  KHt,  wherein  Holt,  chief- justice, 
had  had  this  point  under  his  consideration.*' 
For.. 'It r  EdiCion, 


t  Sea  it  iu  this  Colltfciioii,  vol.  0,  p.  37 f. 


383J  3  GEORGE  11.  Trial  of  Thomas  Bambridge,  [384 

480.  The  Trial  of  Thomas  Bambiudge,  esq.  late  Warden  of  the 
Fleet,  for  the  Murder  of  Mr.  Robert  Castell,  before  the  Righl 
Hon.  Sir  Robert  Bay  lis,  knt.  Lord  Mayor  of  the  City  oi 
London,  the  Hon.  Mr.  Justice  Page,  the  Hon.  Mr«  Baron 
Carter,  and  Mr.  Serjeant  Raby,  Deputy-Recojder;  with  othei 
of  his  Majesty's  Justices  of  the  Peace  for  the  City  of  London 
and  County  of  Middlesex,  at  the  Sessions-House,  in  the  Old- 
Bailey,  May  22:  SGeokgeH.  a.  d.  1729.* 

T -.j^..   7Lt^>.of\  i9on  indicted  by  the  name  of  Thomts  Btmbridge, 

Tuesday,  May  20, 1729.  ^^  ^^^^f  j„  ^1^^ indictment  rmitatitmiUanK) 

Proclamation  was  made  for  all  persons  con-        Bamhridge.    I  desire  the  indictment  majr  to 

ceraed  to  attend.  ^^^  «"  La*»n»  m  »*  >*•         , 

Mr.  Just.  Fuge.  That  yon  shall  bare  doae. 

Clerk  ofjfrraignt.  YoU  good  men  tliat  are  ^^  Holland.  May  it  please  yoilr  lordship, 
empannelled  to  enquire,  &c.  answer  to  your  ^„j  crentleraen  of  the  jury,!  am  of  ooui. 
names,  and  save  your  fines.  ^1  ^J,  ^h^  ,,.,         This,  gentlemen,  is  an  ia- 

^  ^  •  ^^/iT'  ?'u"^?  ?f  ™^*'^®'J?''**i"»!  *-'y  *»ictment  agaii^t  Thomas  Bambrid|^,  esq.  Isle 
hand      (VV  Uich  he  did.)     Thou  stondcst  uh    ^^^j^„  ^^  ^^|^^  ^^^^  p^i^^^  ^-^^  j,, »  ^,^3^  ^ 

dicleiI,Acc.  ,,.        rr.,  n  Mr.  Robert  Castell;   and  the  indictment  idi 

U  of  Arr.  How  sayest  thou  Thomas  Bam-  ^^j,    r^^^^  Thomas  Bambridge.  upon  the  I4lli 

bridge,  art  thou  Guilty  of  the  felony  aiid  murder  ^f  November,  had  the  care  and  custody  of  ito 

whereoj  thou  standest  indicteil,  or  Not  Guilty  ?  prisoners  in  the  said  prison,  but  being  k  mao  oi 

Bambndge.  Not  Guiky.  a  cruel  temper,  did  upon  the  14th  of  No? emtor 

CL  of  Arr.  How  wdt  thou  he  tried  ?  ,^^       ^  ^^^^^  ^he  said  Robert  Castell.  asrf 

Bmil^ridgc.   By  God  and  my  country.  ^    »  y^^^  ^  j^i^j^^^.^  Corbcii's,  a  spunm- 

U.  if  Arr.   God  send  thee  a  good  deliver-  ^^^^^^  ^„j,  ^^  ^^^^  ti„,g  ^^^  jl,ig  impriooSSt. 

^^^»  one  Joseph  White  was  sick  of  the  small  pti, 

Thursday,  May  22,  1729.  and  Mr.  Castell  never  had  them  ;   that  Mr 

n     1       .•  1    r    •  r        .'  Castell  several  times  desired  he  might  noc  b( 

Proc  amation  was  made  for  information.  ^^         ^.^^  jj,^^  h^  ^^  ^f^^i^,  -^  ^e  sfould  catcb 

C/.  oj  Arr.  ThouUie  prisoner  at  the  bar,  these  j    j^  ^^^j^,  ^^  ,,4,  j^^^|,,  ^hat  from  the  ltith<^ 

men  that  thou  shalt  hear  called,  and  persoi.allv  N^,,einber  to  the  12th  of  December  following 

appear,  are  to  pass  between  our  ««vere,jrn  lord  Bambridge  forced  him  to  continue  there ;  aS 

thekiiigand  thee,  upon  the  tria  of  thy  li  eand  ^,,^^  Castell  (after  his  request  made  to  Ba«< 

death,  therefore  il  thou  will  challenge  them,  j,^;^,  ^^^^  j,^  J^^^^^^j  jy„;|,  ^1,^^    ,^^  ^„j  „^ 

or  any  ot  them,  thy  .me  is  to  speak  as  ih<  y  ^.^^^^^  j^^„    j^^„  ^^  Bambridge.  that  the  per 

come  to  the  book  to  be  swoni,  before  they  are  ^^„  ^,^^  ^-^^  J^.  ^^e  small  pox)  fell  sick  of  tli 

■wurn.                                             '  small  pox,  and  languished  under  it  in  the  sam 

Then  the  pannel  was  called  over,  and  Mr.  house  until  December  12,  and  then  died:  there 

Bambiidge  challenged  twenty.  j;,re  the  indictment  concludes,  that  the  sak 

ivkr.  Just.  Page.    You  have  challenged  the  Thnmas  Bauibriilge  did  feloniously  and  mali 

full  number  allowed  by  law,  without  auy  rea-  cionsly  murder  the  saiil  Robert  Ca8t«rll,againi 

son  assigued,  now  take  care.  the  peace  of  our  sovereign  lord  the  king,  hi 

.  crov\n  and  digniiy.     To  this  indictment  the de 

*'^^^*  feiiduut  pleaded  Not  Guilty  ;    but  if  the  fact  i 

George  Baker,                Oliver  Slowcock,  proved,  1  don't  doubt  but  you  will  tind  hia 

John  Goodinch,               John  Neincs,  Guilty. 

lloberl  Hampshire,          Thomas  hayseed,  Serj.  C/ushire.    BFy  lord,  and  yon  gentleiM 

Richard  Mason,               ^illiam  MilU,  of  the  jury,  Thomas  l3ainbridge  stands  indicto 

AV  ilham  Bernard,             Robert  tverett,  ,.„^  ibe  in.irdtr  of  Mr.  Robert  Castell,  a  prisoM 

Itoger  Penny,                  Moses  Freeman.  j,,^„  j^  ,,j,  custofly.      Gentlemen,  prtMocr 

CI.  or  Arr.    Hold  up  thy  hand.   (Which  he  must  be  treated  with  humanity  and  tenifenieM 

did.)     You,  gentlemen  of  the  jury,  look  upon  unless  unruly,  and  then  the  gaoler  has  an  M 

the  prisoner,  hearken  to  his  charge,  he  stands  tliority  to  restrain  tbom  ;  but  i hose  that  bebw 

. w ell,  he  has  no  Kuch  authority  over.    Tbii fin 

*  8ee  the  articLet  immediately  preceding  son  came  to  the  Fleet  the  28th  of  JaDe,tawi 

mU  feUowiBg.  be  shewn  by  tha  books  of  Uie  wardeoi  end  *"^ 


365} 


Jitr  the  Murder  of  Robert  Citstdl. 


A.  D.  I72D. 


[S8G 


bridge  had  been  a  deputy  warden  some  time  be- 
fcre.    ]  wish  he  baa  not  learned  to  treat  peo- 

ewHh  severity.     On  the  SOth  of  September 
eaae  to  be  warden  in  ri^bt  of  himself,  and 
Hr.Caslell  had  performed  every  thing  that  wai 
■BBHHry  ;    for  the  liberty  of  Ihe  rules  had 
ipna  Mcurity,  an*!  to  continue  that  liberty  of 
ihandfli,  found  additional  security,  security  to 
Uiflidactiony  approfed  of  by  the  clerk  of  tlic 
Mfiries,  yet  on  the  14lh  of  ^ovembei',  he  was 
faolfaito  Corbett's ; .  and  I  must  snbmit  it  to 
maj  lord,  if  it  is  not  contrary  to  law,  as  be 
midm  the  rules,  at  one  Mr.  Underwoocrsjto 
tfiybim  to  a  spunging^^house,  booses  where 
Ih^  make  a  pro[iefty  of  all  prisoners.     It  is 
ie  datv,  geiitlemen,  of  a  gaoler,  that  has  pri- 
mmin  hia  custody,  when  he  thinks  they  can- 
B0t  be  continned  safely  in  the  rules,  to  put  them 
■••  priMo,  and  not  into  spunking- houses, 
vberc  large  reckonings  are  rnn  up  upon  them. 
Ihsir  method  iv,  gentlemen,  lo  make  tlie  secu- 
rity oneasy ,  and  then  to  tell  the  prisoners  that 
iny  shall  be  carried  into  sponging- houses,  till 
ibcy  ean  work  them  up  to  a  temper  to  pay  such 
MM  of  money  Hiat  they  want  to  get  from  the 
■happy  prisoneis.     Gentlemen,  Mr.  CastftU 
vugifen  to  understand,  that  a  man  was  ill  of 
iiHMfl  pbx  iu  the  same  boose,  and  Mr.  Cas- 
tdhai  oever  had  thom,  and  saki,  *'  He  should 
dbif  he  had,  let  me  not.  be  carried  into  this 
This  did  not  take  effect,  Bombrklge 
opoa  his  renewing  his  security,  and 
he  was  carried  there,  Savage  went  from 
>M  BMnbridge,  and  told  him  that  Mr.  Cas- 
Hsw  had  the  small  pox,  and  that  one  White 
I  ill  of  them,  and  begged  that  he  might  be 
M  hsck  into  his  lo&ings,  or  into  the  gaol. 
Om  would  have  thon^t  Bambridge  should 
fcart  had  some  censi£ration  of  him,  but  he 
M  ao  aaawer  to  his  satisfaction  ;  he  continued 
i  very  melanclioly  till  the  4lh  of  I>eceui- 
nd  then  the  dibteuper  took  him  ;  he  sick- 
wkh  the  same,  the  danger  increased,  and 
he  died  on  the  12th,  so  that  it  was  apparenilv 
Iba  occasion  of  his  death.     It  was  Barobridgc^s 
tey,  when  be  was  informed  the  distemper  was 
ia  the  house,  to  have  removed  him.     This  is 
the  slate  •f  the  evidence,  and  as  we  shall  be 
iMe  10  prove  the  facts,  I  doubt  not  but  you  will 
fiad  the  defendant  Guilty. 

Attormey  Gaural,  My  lord,  and  you  gen- 
deaien  of  the  jury,  Thomas  Bambridsfc  stands 
is^ieted  for  Ute  life  of  an  unhappy  man,  who 


submit  it  whether,  being  mixed  with  actual 
force,  it  is  not  murder.  This  is  a  particular 
case  of  this  prisoner,  for  he  h&d  given  security 
for  the  enioymentof  the  indulgence  of  the  h- 
berty  of  the  rules,  during  the  time  he  was  in 
those  lodgings ;  but  for  what  reason  does  not 
appear,  that  Bambridge  ordered  Corbett  to  take 
bim  out,  and  not  to  bring  him  into  prison,  but 
carry  him  into  Corbett's  bouse,  that  will  appear 
to  be  an  illegal  act  of  imprisonment ;  ror  by 
the  statute  32nd  Charles  2,  it  is  provided,  no 
gaoler,  or  other  oflScer,  having  prisoners  in  his 
custody,  shall  carry  them  to  any  public  vic- 
tualling-house ;  therefore  Bambndge  ordering 
Mr.  Castell  to  be  carried  to  a  victualling-house, 
and  not  into  the  prison,  is  an  illegal  act,  and  the 
consequence  of  that,  I  apprehend  to  be  an  ille- 
gal confinement:  at  the  time  when  carried 
there.  White  being  sick  of  the  small  pox,  it  will 
appear  to  you,  gentlemen,  that  Bambridge  was 
acquainted  that  the  small  pox  was  in  the  hovse, 
(it  was  a  contagious  distemper)  and  that  Mr, 
Castell  was  afraid  of  catching  it.  Frequent 
messages  were  sent  to  desire  he  might  be  re» 
moved^,  and  it  will  appear  that  Mr.  Castdl  did 
personally  apply  to  Bambridge  himself  at  Cor- 
bett's ;  after  this,  the  sman  pox  being  men- 
tioned to  be  in  the  honse  when  Bambridge  wat 
in  company  with  Mr.  Castell,  he  said  he  never 
had  had  them,  and  if  he  catched  the  contagion, 
it  would  kill  him,  and  desired  to  be  removed  ; 
but  Bambridge  refused  to  let  him  go,  and 
continned  the  unlawful  duress  upon  Castell; 
he  did  catch  the  distemper,  and  of  that  distem- 
per, so  taken  into  Corbctt's,  under  this  duress, 
died.  If  this  matter  is  proved,  it  is  a  point  of 
law,  if  it  is  not  murder ;  as  to  the  fact,  it  roust 
appear  by  evidence,  and  if  my  brief  be  true, 
it  will  be  fully  matle  out  to  you.  If  the  gaoler 
does  so  treat  a  prisoner  to  put  him  in  baxard 
of  his  life,  and  by  such  duress  he  dies,  I  sub- 
mit it  whether  the  gaolei*  is  not  guilty  ot' 
murder. 

Sol.   Gen,    We  v^ill  call  the  witnesses  to 
prove  the  fuels. 

Richard  Longborne  sworn,  Who  produced  • 
copy  of  Bambridge's  Patent. 

SoL  Gen.  Where  bad  you  it  from  f 

Longborne.  From  Ihe  Rolls. 

SoL  Gen.  Is  it  a  true  copy  ? 

Longborne.  It  is  a  true  copy. 

Sol.  Gen.   Deliver  it  to  tlie  clerk  to  be  read. 


rs  VI  ith  a  sufficient  authority,  for  the  safe 
ca^ftdy  of  their  p:  isoners,  and  for  the  securing 
Ihsir  pro|iertics,  so  tho  law  has  taken  care  that 
ibev  ihall  not  put  any  prisoner  into  hard  duress, 
iMif  the  man  dies,  the  life  of  the  prisoner  lies 
liihe gaoler,  and  whether  the  person  dies  be- 
^|io  confined,  or  u  hctlier  it  was  tlie  distemper 
iHMioiied  by  means  and  by  reason  of  his  itie- 

S Caress,  I  submit  it  to  yuur  lordship's  direc- 
I,  to  be  murder;    for  where  aotuni  force 
be  committed,  and  the  offender  does  an 
hwlul  act,  by  which  death  ensues,  I  must 
VOL.  XVII. 


U  under  his  custody.     As  the  law  has  armed  ;  [which  he  accordingly  did,  and  it  appeared  to  be 
— '         •  '  —  •    '      -.  -  ^.^  X.  -  ..        ...  I  jj^i^  jijg  g^^jjj  ^jj.  September,  in  the  second 

year  of  his  present  majesty.] 

Thomas  Cotton  sworn. 


SoL  Gen.  Mr.  Cotton,  what  officer  are  you 
belonfring  to  the  Fleet  prison  i* 

Cottii.  I  am  Clerk  of  the  Pap«»rs. 

SoL  Gen.  Produce  tlie  commitment  books 
of  the  said  office,  and  see  when  Mr.  Castell  was 
committefl  prisoner. 

Cotton,  lie  was  committed  the  15th  of  July 
1723,  u^ion  mesne  process. 

2C 


387] 


S  GEORGE  11. 


Trial  of  Thonuu  Bambridge, 


Sol.  Gtn.  When  wag  be  charged  in  exe- 
•utioo  i 

Cotton.  The  9th  orNot ember  foHowmg,  for 
180/.  at  the  luH  of  Williain  WariDg. 

Bambridge.  I  do  not  bear  Mr.  Cotton,  tod 
therefore  detire  be  majr  raiae  bia  Toioe  rUpoo 
which  the  Coart  admitted  Mr.  Bamhridg«  to 
come  to  the  inner  bar  ;1  I  mnat  obaerte,  my 
lord,  the  wrilwaa  brought m  1786, avd entered 
in  1728. 

Richard  CorbettBwrom, 

Sol,  Gen.  Mr.  Corbett,  what  home  do  yon 
keep? — Ccrheit.  Apnblio-hooae. 

Sol,  Gen.  How  long  have  yon  lired there? 

Corbett.  Eleven  yeara. 

Sol,  Gen,  Did  you  know  Mr.  Castdl  waa  in 
your  houtet^'-Corbett.  Yea. 

Sol.  Gen.  Who  brought  Mr.  Caitdl'to  your 
hotiae? 

Corbett.  Myaelf,  hia  secority  teat  for  me  to 
the  Rainbow  coffBO-bonae.  - 

Sol.  Gen,  Where  waa  ha  before  he  waa  car- 
ried to  your  hooaeP 

Corbett.  At  his  own  lodgings. 
.    Sol.  Gen.  Where  waa  that? 
■    Corbett.   At  Mr.  Underwood's  in  themlea 
of  the  Fleet 
•     SoL  Gen.  Now  go  on. 

Corbett.  My  lora,  the  aecnrity  sent  for  me 
to  the  Rainbow  coffee-house  to  take  up  Mr. 
fGa»tell;  but  having  some  respect  for  Mr. 
Caatdl^  I  sent  to  him  to  let  him  Know  that  his 
■security  ioleaded  to  surrender  him,  and  after- 
wards at  fire  or  aix  o'clock  in  the  evening,  Ihe 
aecurity  sent  for  roe  again  to  the  King'a-arma 
tavern  (where  Mr.  Castell  was}  to  surrender 
him,  and  I  told  tliem  I  woula  not  take  Mr. 
Castell  into  custody  without  i  was  paid:  and 
they  gave  me  half  a  guinea,  and  then  asked 
me,  why  1  did  not  lock  him  up?  Said  I,  he  is 
my  prisoner  now,  not  yours,  and  I  left  him 
tliere,  and  went  to  the  judge's  chambers; 
whilst  I  was  gone,  a  servant  was  sent  to  my 
iiottse  to  have  a  fire  made  and  a  bed  got  ready 
for  Mr.  Caslell. 

Sol,  Gen.  How  came  he  to  go  to  your  house? 

"Corbett,  It  was  at  his  ovrn  request 

Sol,  Gen.    How  Ions  did  he  continue  there  ? 

Corbett.  Till  he  die<^  which  was  en  the  13th 
of  December  foUowing. 

Sol.  Gen.  Was  one  White  there  f 

Corbett,  Yes. 
'  Sol.  Gen.  How  long? 

Corbett.  A  considerable  time.  Whito  had 
been  well  about  14  daya  bdbre  Mr.  Castell 
came. 

Sol.  Gen,  Was  Bambridge  there  ? 

Corbett,  He  was  there  several  times. 

Sol.  Gen.  Did  Mr.  Castell  ever  desire  you 
to  gu  to  Mr.  Bambridge  ? 

Corbett.  He  did  desire  me  to  go  to  Bam- 
bridge, and  said  he  was  afraid,  he  had  never 
had  the  small- p«a,  for  if  he  had,  it  was  when 
be  waa  very  young ;  and  I  went  to  Bambridge 
totoUhim  thatMr.Caitell  desired  to  go  to -his 
bdgii^ 


ML  Gen.  When  waa  this  ? 

Corbett.  Nine  or  ten  daya  after  the  i 
had  aurrendered  him. 

Sol.  Gem.  What  did  Mr.  Caaldl  tell 
aay  to  Mr.  Bambridge  ? 

Corbeit.  He  told  me  to  tell  Mr.  Baa 
he'  waa  afraid  of  the  ^saaall-|»ox,  and  tc 
him  to  let  him  go  to  his  lodffinga ;  and 
accordingly  to  Sir.  Bambridge,  at  the 
anD8»  on  Xindgate-hill,  and  did  aolicit 
let  Mr.  CaatoU  go  to  hia  lodcinga,  aiMi 
bridge  made  anawer  to  nae,  that  he  oo* 
let  a  man  go,  that  waa  charged  in  three 
tiona,  without  aecnrity. 

Sol.  Gen.  What  was  the  reason  y 
Baoibridge  that  Mr.  Castell  never! 
small-pox,  and  deaired  to  go  to  hia  lod 
Lndgate-bUI? 

Corbett.  I  told  Bambridge  .that  one 
had  the  small-pox. 

Sol.  Gen.  What  room  waa  it  Mr. 
died  in? 

Corbett.  I  have  kept  a  dnb  in  th 
>  where  Mr.  Caatell  died. ' 

Att,  Gen.  When  did  yon  first  acqni 
Bpmbridge  with  BIr.  Castell's  being  i 
house? 

Corbett.  The  15thof  November,  them 

Att.  Gen.  What  said  you  to  Bambri 

Corbett.  1  told  him  Mr.  Castell's  i 
had  surrendered  him  ;  and  Bambridge 
Where  ia  he?  I  said,  At  my  house;  to 
Bambridge  answered,  That  was  well. 

Bambridge.  Be  pleased  to  ask,  my 
Corbett  had  any  directions  from  me  to  b 
Castell  into  custody. 

Mr.  Jnst.  Page.  Cerbett,  answer  thi 
tion. — Corbett.  I  had  not. 

Bambridge.  When  was  I  admitted  i 
o&cef^Corbett.  On  the  15th  of  Decei 

Bambridge.  I  desire  Mr.  Corbett  to  bi 
if  he  was  not  in  Court  when  1  qualified 
for  the  phce,  and  desire  he  may  give 
count  oi  ii.'-'Corbett.    I  was  in  Court. 

Mr.  Jnst  Page.  I  cannot  admit  him 
an  account  of  what  was  done  in  Court, 
must  appear  by  the  records  thereof. 

Bambridge.  My  lord,  I  desire  Air. 
may  acqnauit  you  what  part  of  the  hoi 
Castell  lay  in,  and  what  part  White. 

Corbett.  White  lay  in  the  old  house 
garret,  and  Mr.  Castell  in  a  house  new! 
m,  on  the  first  floor. 

Mr.  Just  Page.  Had  Mr.  Castell  ant 
any  communication  together  ? 

Corbett.  I  never  suffened  White  t 
down  for  eight  weeks. 

Mr.  Just.  Page,  How  high  was  thi 
where  he  lay  ? — Corbett,  Three  stories. 

Mr.  Baron  Carter,  How  long  was  it 
White  went  out  of  his  chamb^  alter  Mr. 
was  there  ? 

Corbett.  Not  till  six  weeks  after  Mr. 
waa  dead. 

John  Savage  sworn. 
Sol.  Omu  Mr.  Savage,  do  yoa  kw 


[lljEDj  /r  lie  Miafd^  tflMeH  CatteU. 


A.D.  1729. 


[300 


_^  be V  ary  liBB  K  priMDw  in  the  FlMt  f 
F  JhvtliwiliBjpwitbbiio. 
f  U  on-  Do  yMi  kMw  uy  thiag  or  liia 

J  was  Mvtnl  linn  !■  oonpaii^ 
.  luiJ  he  iMMMd  apprefacBBVe  of  bu 

fi^ljfjt.  DidyMff*  to  kim  to  Corbelt'l 7 

bmc    I  went  to  Ur.  Culell  Ibe  Avf  «fter 

Lhwarrinl  iheK.udba  complaincil  Ibat 

B  h**f'*i^  lie  thoold  Dotffet  dty  ruta*  to  go 

MKt,  (boDgfa  it  MM  lerai  time,  lo  Inuaact 

At  Gn.    Had  bv  the  uull-pox  at  that 

htf—Sutagt.  No. 
U  Gtn.   HowaooDtlid  j'oagotoMr.Cu- 

Saigt.  I  trent  to  him  igaJD  in  a  daj  or 
iMMiKJ  be  eiLprcsdcd  a  gifX  concern  for  ftar 
iiht  imid\[>(ii,  tmd  aaid  if  becaugbt  tbal 
iMnptr,  it  urnulil  be  fwy  Taial  lo  him ;  and  1 
tniD  Ur.  B«mtiridg«,  and  told  bimoril,  and 
ftiMse  said  be  iroidd  not  let  him  go  to  hia 

liL  6(>i.  Were  f  00  witb  Bambridge  at  aoj 

ioBge.    I  »u  it  (be  coffee  honae  irilb  bim, 

U.G<a.  Whaireqaaatdidyoamaketbca? 

tstp.  1  don't  rameoiber  any. 

iLlita.  Utiw  many  tinwe  did  yon  g[oto 
liitriilgeP 

ttMg^  Four  timec  I  went  to  bim,  and  tbe 
WMlticoe  I  meiitioacd  Hr.  Caatell'e  fear  of 
knw  the  small  -  niix. 

U  Cen.  Did  TM  BM  Hr.  CMtdl  after  he 
WdK  mill- pox  ^ 

iM^e.  1  did  oot  aae  him,  in  regard  to  iome 
riaj  own  family  irbo  had  nothadtbem. 

JU.  Gen.  Mr.  Cwlril  waa  carried  to  Mr. 
Catnt'a  ibe  very  da;/  be  trai  aarrmdered, 
nt  what  wua  il  lie  denreil  at  that  time  I 

Mtgt.  He  said  it  «ai  a  great  miftirtUDe 
Mlihave  ihe  benefit  of  day  rulea  to  nt^o- 
Wle  his  biraiufsa  uith  hii  friecda. 

Alt.  Gen.  Whai  did  you  first  go  lo  Mr. 
CwMI? 

Saage.  The  next  dajr  aficr  he  was  carried 
tee,  and  it  nas  meDboned  that  Hr.  Caatell 
nleurul  of  hariog  Uie  tmall-jHix. 

All.  Ge«.  Wan  not  that  tbe  Brtt  day  that 
h  via  carried  there  F 

SiBage.  I  am  not  aare  it  wai  tbe  fir«t  day. 

tU.Crn.   How  did  yoa  bear  it  f 

ItR^c.    r  hud  it  from  Mr.  Caiiell  the  next 
kf  after,  or  the  day  after  that. 
.Alt.  Gtn.     When   yoa  went   fint  to  Mr. 
tMteidga  from    Mr.  Caatell,   what  did  you 

tnagi.  I  did  dcMre  that  be  might  hare  the 

1    IMI  of  the  day  rales,  and  Mr.  Bambridge 

'     Nil  be  COuM  Dot,  being  charged  in  execution 

'     kfta  amount  of  OOOt. 

'       itt.  Om.  Wbendidyougo  toSambridije? 

fasuc    I  belicTe  1   went  in  a  day  or  two 

4>t  Mr.  CaateU  was  carried   in,   and    then 

^tiauij  Ur,  CaiteU'a  fcara  of  baring  tlie 


^t.  Cat.  Did  yM  a^  any  thing  of  th* 
amall-poz  being  in  tbe  bvueP 

Smvaft,  1  knew  nothing  of  them. 

Alt.  Gen.   Hoir  cune  yoo  to  talk  of  tha 
tmall '  poa  to  Bambridse  ? 

Savage.  I  heard  it  from  BIr.  CaMell,  that  tb* 
amalt-pox  w«a  there. 

Att.  Qtu.    What  waa  the   rcMon  of  Hr. 
Caatdl'a  fear,  and  roeaaige  to  Bambridge  F 

Savage.  Hr.  Caatell  told  me  the  amall-pw 
iraa  there  at  Corbett'a. 

Alt.  Gen.  What  did  you  tell  Bambridge? 

Smage.  1  told  Bambrid^  that  Mr.  Caatell 
waa  fearful  of  haring  the  imal)-pox,  and  that 
be  deaiied  to  be  carried  to  hii  own  lodging!. 
Mary  Cerbttt  iwora. 


Sen.  C/mhire.  When  ww  Ur.  CaatcU 
braiigbt  to  your  faooie  ? 

Ura.  Corbctt.  The  lilhorNorembcr,  atta« 
o'clock  at  night,  and  a  drawer  came  freoi  iba 
toretn,  aiid  oroaght  a  menMire  to  bare  a  fira 
made,  and  ■  bed  prepared  for  Hr.  Caatell. 

aaii.  Chethire.  Where  waa  the  mewiga 
brougnt  from  ? 

Vin.  On-btll.  Tbe  meaaage  waa  ftov  tho 
King'a.anna  larem. 

Snj.  ClieMrt.  Did  Mr.  Caitell  comeF 

Ura.  Corbcri.  Yea. 

Seij.  Cheaire.  Waa  While  tbereP 

Hra.  Corbell.  Yea. 

acij.  Cheihire.  How  loi^  bad  While  bad  tb« 
■mall- pox  f 

Mra.  Corbett.  I  hellers  he  had  had  th« 
nnnll-pox  ten  day  a. 

Seij.  Chethire.  Waa  there  any  mark  of  the 
amall-pox  remaining  i 

Hra.  Corbtlt.  He  kepi  tbe  pcan  on. 

Serj.  Cheihirt.  How  lung  wai  he  aickr 

Hra.  Carbttt.  Ten  days- 

Serj.  Chtihirt.  Did  he  ait  up  ? 

Mrs.  Corbtlt.  He  got  up  erery  Jay. 

Serj.  Chethire.  Pray,  if  they  are  a  good 
iorr,  do  they  not  tarn  in  niae  day*  ? 

Mm.  C<»-lelt.  Yes. 

Serj.  Cbakirt.  8u  that  the  day  after  the 
imall-pox  had  turned,  Mr.  Caatell  came  into 
your  house :  how  lon((  had  Mr.  Cairtcli  been 
m  your  house  bcfnre  he  had  tlit  imall-pox? 

Mrs.  Corbctt.  Mr.  Costell  bad  n>it  the  small- 
pox tilt  about  eight  days  after  he  came  to  my 
house:  I  waa  by  chance  iipcaking  of  the 
imall-jiox,  and  saying  a  persun  in  the  bouse 
had  tliem,  and  Mr.  Caatrll  said  he  waa  very 
sorry  for  it,  because  Hf>  had  never  had  them. 

Serj.  C'lahire.  Did  he  tiien  desireany  thing 
of  you  or  your  hunbaad,  as  to  apcakiog  to  Hr. 
Bam  brill  ee  ? 

Mrs.  Corbctt.  Mr.  Bambridge  was  in  the 
room  at  Ihesame  lime. 

Serj.  CknTtire.  What  did  Mr.  CnHellsoy  ? 

Mrs-  Corbett.  He  derived  thnl  he  might  go 
home  to  hia  lodt^ings  with  a  ki^e|ier,  and  Bam- 
bridge said  in  aiiKwer,  he  ueTer  knew  any  ibing 
of  that  kind  done 


y 


S9I] 


3  GEORGE  IL 


ofThmas 


[Stt 


Serj.  Ckmkire.  Did  voa  gi?c  way  imtaBQi? 

Mm.  Corbelt.  1  told  him  that  il  happciMd 
when  Mr.  Cod  way,  a  Mailer  io  Chancery,  was 
eMDinitUd  to  tha  Fleet  prisoo,  aod  there  was 
DO  convenieocy  in  the  prison,  nor  at  my  house, 
and  then  Mr.  Gybbon  sent  a  keeper  with  him 
to  his  lodfi^inpr* 

8cij.  Chahire,  What  did  Bambridge  say 
lhen?-*MrH.  Corbet i.  He  said  no  more. 

8eij.  CheMkire.  During  the  time  Mr.  Castell 
was  at  your  house,  were  tliere  any  securities 
gifeoP 

Mrs.  Carbett.  Yea,  I  believe  there  were,  for 
Mr.  Castell  said  his  securities  were  oome,  aod 
staid  only  lor  Codnor's  coming  with  bonds, 
and  Codnor  told  me  there  was  security  given. 

Seij.  Cheshire.  Do  you  know  nothing  but 
what  Codnor  said? 

Mrs.  On-bett.  I  saw  two  men  there,  wliose 
Munes  1  do  not  know,  in  order  to  give  security . 

Seri.  Cheshire,  Do  you  know  that  they  gave 
•eounty  P 

Mrs.  Corbeti.  I  saw  Codnor,  the  deputy 
clerk  of  tite  papers,  go  up  stairs  with  some 
papers,  which  Mr.  Ciistell  said  was  his  bonds. 

eerj.  Cheshire,  Did  you  hear  Bambridge 
say,  or  on  u,  that  Codnor  had  taken  security? 

Mrs.  Corbett,  No. 

Seri.  Cheshire.  How  loug  was  thia  after 
Castell  came  to  your  house  f 

Mrs.  Corbeit,  About  ten  days. 

Serj.  Cheshire,  Do  you  remember  the  time 
liow  long  afltr  lie  sickened  and  died  ? 

Mrs.  Cot  bett.  He  sickened  on  the  4th  day  of 
December^  and  died  on  the  12th. 

Serj.  Cheshire.  What  did  he  die  of  P 

Mrs.  Corbelt.  Of  the  small- pox. 

Ait.  Gen.  What  was  the  request  of  Mr. 
Castell,  when  he  had  the  conversation  with 
Mr.  Uamhridgc  st  yuur  house  ? 

Mn.  Corbett,  His  request  to  Mr  Bambridge 
was,  to  be  moved  to  his  own  lodgings  with  a 
keeper. 

Att,  Gen,  Did  he  ogree  or  refuse  ? 

Mrs.  Corbett.  His  answer  was,  he  never 
knew  any  thing  of  that  kind  done. 

Att,  Gen.  When  was  Mr.  Castell  first 
brought  into  your  house  ? 

Mrs.  Corbett.  On  the  14th  of  November, 
about  ten  o'clock  at  ni^ht. 

Mr.  Lee.  Were  you  in  company  at  the  ta- 
vern?— Mrs.  Cor6r//.  No. 

Mr.  Lee.  How  loner  aft<^  vour  husband  was 
gone  there,  did  you  receive  tibc  message  about 
Mr.  Casteli's  coming  P 
*Mrs.  Corbett.  An  hour  and  an  half. 

Mr.  Lee,  Whobruu;:iit  him  to  your  house  P 

Mrs.  Corbett,  He  came  in  custmly,  but  I 
did  not  see  him. 

Mr.  Lee.  How  long  was  it  after  that  Mr. 
Bambridge  en  me  to  your  house  ? 

Mrs.  Corbett.  In  about  a  week, 

Mr.  Lee.  Did  you  hear  Bambridge  say  any 
thing  when  he  was  at  that  time  at  your  house  P 

Mrs.  Corbett.  He  did  not  say  any  thing 
lomc. 

Mr.  Lee.  Are  you  sure  of  it  P 


Mrs.  Corbett.  Yes. 

Mr.  Lee.  White  lay  ill  of  the  smaH-po^ 
tfaflo,  was  it  in  the  same  stair- case  P 

Mrs.  Corbett.  They  went  up  the  nmestaki- 
case,  but  Mr.  Castell  lay  in  the  new 
ooe  pair  of  stairs,  and  White  in  the  oU 
three  pair  of  stairs. 

Mr.  Lee.  How  long  was  it  after  Mr.  Cmd 
had  been  at  your  house,  that  yea  mmliawd 
White's  having  the  small-poiP 

Airs.  Corbett.  About  a  week  after  he  hat 
been  there,  I  said  to  Mr.  Castell  (Mr.  Ba«« 
bridge  being  by)  that  there  was  one  in  tlw 
house  had  the  small- pox ;  to  which  Mr.  Cas- 
tell replied,  I  am  sorry  to  hear  it,  for  I  nevsr 
had  them. 

Mr.  Lee.  How  long  had  White  bean  B 
before  you  happened  to  speak  of  hia  iDneH  Is 
CastellP 

Mrs.  Corbett.  To  the  best  of  nay  icmeaa* 
brance  eight  days. 

Bambriihte  (shewing  a  paper  to  Nra.  Ciir> 
bett)  Mrs.  Corbett,  pray  look  on  that  pspcr. 

Mrs.  Corbett.  I  have,  and  remember  lbs 
coroner's  coming  to  my  house,  but  did  Ml 
know  who  he  was. 

Mr.  Just.  Page.  If  you  intend  to  prodaoe  ay 
evidence  in  respect  to  the  inquest,  she  is  Ml 
a  proper  person  ;  for  that  you  must 
the  coroner  himself. 

Bambridge,  My  lord,  1  shall  aobmit, 
desire  Mrs.  Corbett  may  repeat  what  she 
in  relation  to  Mr.  Conway. 

Mr.  Just.  Page.   Mrs.  Corbett^  pray 
that. 

Mrs.  Corbett.  My  lord,  Mr.  Conway  was 
at  a  friend's  house  on  Ludgate-hill,  aad  llie 
reason  was,  the  gaol  was  very  full,  and  there 
was  no  room  at  my  house,  and  Mr.  Oybbse 
sent  a  keeper  with  him  to  his  lodging,  but  that 
ill  two  nights  and  two  days,  when  there  was 
room,  he  came  there. 

Mr.  Just.  Page.  Do  you  know  of  your  own 
knowteilge,  uhal  house  he  was  at  ? 

Mrs.  Corbett,  No,  I  do  not,  but  that  he  waa 
kept  in  the  rules  of  the  prison,  with  a  keeper, 
till  he  was  brought  to  my  house. 

Bambridge,  My  lord,  1  desire  she  may  ae* 
quaint  you  what  sort  of  intimacy  there  waa 
between  Mr.  Castell  and  mvself  P 

Mrs.  Corbttt.  Mr.  Bambridge  used  lo  be  at 
a  club  at  my  house,  where  some  persons  met, 
and  among  them  Mr.  Castell,  and  1  always 
thought  him  and  Mr.  Bambridge  to  be  friendy^ 
together. 

Bambridge.  When  Mr.  Castell  spoke  abevt 
enquiring  after  new  securities,  what  answer  did- 
I  inakeP 

Mrs.  Corbett.  Tliai  you  would  take  the  •■- 
curity  as  it  came. 

Bambridge.  When  I  was  speaking  to  a  ami* 
tieman,  v»he  told  me  Mr.  Castell  waa  aitt  ef 
the  small- pox ;  what  did  I  sov  P 

Mrs.  Corbett.  You  said,  iU^|L  you  wers  WT 
sorry  to  hear  it,  and  that  Mr.  Castell  should  triw 
with  you,  and  himself  too,  about  the  i 


Jw  ike  Murder  of  Robert  Casteli. 


dge.  When  Mr.  Cattell  applied  about 
wbitdHl  I  aajT  f 

wbeii.  You  laid  it  should  be  done. 
ige.  W«8  it  not  esteemed  a  faFour,  or 
■Miip?— Mrs.  Cm'bett.   It  was. 
dg€,  Vftre  you  by  when  BIr.  CatteU 
g9  to  kis  lodgingfa  oa  Lndgate-hiH? 
isrAcfl.  I  was. 

dj^e.   What  waa  the  reason  of  Mr. 
leairiog'  to  go  ? 
irbett.  I  beliefe  be  was  afraid  of  the 

Richard  Corhett  again. 

It  Page.   Mr.  Corbett,  yoo  said  that 

a  reeovered  of  the  small- pox  fourteen 

«  Bfr.  Caalcli  was  brought  to  your 

«  yoa  certain  of  that  ? 

.  I  hetfd  so,  my  lord,  I  nerer  went 

him,  and  the  nurse  is  here,  and  oan 

or  kirdahip  better. 

t.  Fngi*  You  may  go,  you  know  no- 

1 

w 

Hannah  Stretch  sworn. 

s.  Mrs.  Stretch,  were  you  sent  Ibr  to 

H  when  he  was  ill  ? 

rsfcA.  Yes. 

i.   When  did  jTOo  leare  White  ? 

reteh.   Some  time  in  November  last. 

I.  Were  yen  nurse  to  Mr.  Gastell? 

rtick,  1  was. 

u   Do  you  know  how  Mr.  Casteli 

All- pox  f 

f€Uh.  I  do  not. 

I.   How  long    did   you  stay    with 

rttch.    Full  three  weeks,  and  in  that 

te  had  not  been  x)ut  of  bis  room.     I 

I  White  00  the  Tboniilay,  and  was 

Mr.  Casteli  on  tlie  Tuesday  follow - 

n.    What  condition  was  White    in 
left  him  ? 

r€tch.    When  I  left  him  he  was  out 
iger,  he  had  taken  three  doses  of 

Thomai  Dawson  sworn. 

«.   Mr.  Dawson,  do  you  remember 
U's  being  brought  into  Corbett's  ? 
.   I  never  saw  Mr.  Casteli  till  afler 
id, 

John  Ifoel  sworn. 

I.  Mr.  Noel,  did  you  know  Mr.  Cas- 

was  a  prisoner  at  Mr.  Corbett's  when 

iiem. 

k    Waa  one  White  ill  of  the  small- 


A.  D.  1729* 

Jamei  Codnor  sworn. 


[99* 


Mr.  White,  but  was  in- 
bad  the  small- pox  above  stairs ;  I 
BtlMbMse. 
u  P»j^  know  how  long  White  bad 


9e  was  never  snflbred* to  comenbwn 


SoL  Gen*  Mr.  Codnor,  were  you  coneemed 
in  the  prison  of  tlie  Fleet  as  a  clerk  P 

Codnor.  I  did  act  there  aa  deputy  clerk  of 
the  |iapers,  by  the  approbation  of  Mr.  Bam- 
bridge. 

SoL  Gen.  Did  yon  know  of  any  securities 
given  by  Mr.  Caatell? 

Codnor.  Some  time  in  November  last,  in 
Michaelnms  term,  I  received  orders  from  Mr. 
Bambridge  to  attend  Mr.  Casteli  as  often  as  him 
security  should  coum  to  him  to  complete  bis 
bonds,  who  had  then  three  securities,  and  1  re* 
ceived  thvee  Habeas  Corpus  very  soon  one  after 
the  other,  and  Mr.  Casteli  could  not  get  the 
bonds  signed  so  soon  till  exsoution  come  against 
him,  and  then  the  security  was  objected  to,  be- 
cause a  greater  charge  came  against  him. 

Seij.  Cheshire.  What  were  those  bonds  that 
had  been  given  P 

Mr.  Just.  Peg€f  and  Mr.  Bar.  Carter.  Wt 
cannot  admit  you  to  ask  any  questions  as  to 
the  bonds,  unless  you  had  applied  to  Mr.  Bam- 
bridge ibr  them,  and  he  had  refused  to  deli- 
ver them. 

Then  the  Priaoner  was  directed  to  proceed  in 
his  Defence. 


Bambridge,  1  niive  a  great  many  witni 
to  prove  my  repfard  for  Mr.  Casteli,  if  ocoaaion  ^ 
but  shall  submit  the  rest  to  the  evidence  given 
for  the  crown. 

Mr.  Just.  Page.    You  may  go  on  if  yon 
think  tit. 

Bambridge.  No,  my  lord,  I  will  aubmit  the 
whole. 

Mr.  Just.  Page.  Gentlemen  of  the  jury,  Mr. 
Bambridge  stands  indicted  for  the  murder  of 
one  Mr.  Casteli.  If  this  has  not  been  proved, 
gentlemen,  ^ou  are  not  to  find  the  man  guilty. 
That  the  evidence  for  the  crown  is  not  sufficient 
to  find  him  guilty,  for  so  far  from  being  guilty, 
Mr.  Casteli  desired  to  come  there,  and  the  war* 
den,  if  he  is  apprehensive  that  a  man  will  run 
away,  then  it  is  the  duty  of  a  warden  to  carry 
hhn  to  a  place  of  safe  custody.  It  is  said,  in- 
deed, that  when  Mr.  Bambridge  came  to  Cor- 
bett's in  about  eight  days  after  Mr.  Casteli  was 
carried  there,  Mr.  Bambridge  waa  by,  and  Mr. 
Casteli  expresseil  his  fear  of  having  the  small* 
pox,  and  oesired  to  be  removed  to  nis  lodging, 
but  then  he  never  asked  to  go  into  the  custouy 
of  tlie  gaol.  Mrs.  Corbett  indeed  said,  thai 
one  of  the  masters  in  Chancery,  Mr.  Conwaj, 
was  allowed  to  be  at  his  lodging  two  daya  be- 
fore he  was  carried  to  the  gaol,  but  the  reason 
was,  there  was  no  room  in  the  |^l.  Gentle- 
men, the  gaoler  must  keep  bis  prisoners  as  well 
as  he  can,  for  they  must  not  be  put  like  hogs 
together.  Gentlemen,  here  was  execution 
upon  execution,  which  came  to  the  sum  of 
900/.  therefore  it  was  requisite  to  have  him  in 
a  place  of  safety.  Another  witness  sara,  thai 
the  deputy  clerk  of  the  papers  waa  ordered  by 
Mr.  Bamoridge  at  aU  times  to  stteakl  Bfr.  Cas* 


395] 


3  GEORGE  11. 


Trial  of  Tliomas  Bambridge* 


tell  about  his  secarities,  and  so  far  from  the 
prisoner'8  bavinj^  a  loaUdious  intent,  that  there 
was  no  quarrel,  no  ill  nature,  no  difference,  and 
they  met  frequently  at  Corbett's  at  a  club,  and 
there  was  no  quarrel,  hut  always  a  friendship 
between  them.  And  when  Bambridf^e  heard 
that  he  had  the  small-  |)0x,  he  declared  that  he 
was  sorry  that  Mr.  Castell  had  tliem,  and  that 
he  had  trifled  with  himself  and  him  about  the 
flecurities.  Jt  must  a|ipear,  gentlemen,  to  you, 
that  Mr.  Castell  was  murdensd  maliciously,  to 
find  the  prisoner  guilty ;  if  it  appears  other- 
wise, you  must  acquit  him. 

Ci  ofArr.  How  say  you,  is  Thomas  Bam- 
bridge  ff  uilty  of  the  murder  whereof  he  stands 
indicted*  or  not  KUtlty  ? 

Toremmi  if  the  Jury,    Not  Guilty. 


U|>oo  this  acquittal,  Mary,  tlie  widow  of  Mr. 
Robert  Castell,  brooirbt  an  appM^  aranst  the 
said  Thomas  Bambridge  and  Kichard  Corbett, 
ibr  the  murder  of  her  husband.  We  shall  here 
give  the  Trial  od  the  Appeal,  which  though  it  is 
not  in  the  order  of  time,  yet  as  it  relates  to  the 
eaine  fact,  is  proper  to  fuuow  tlie  Trial  of  Barn- 
bridge  fur  the  murder. 

What  follows  tint,  ii  a  short  account  of  the 
Proceedings  previous  to  the  IVial  on  the  Ap- 
peal, taken  from  Strange's  Reports,  voL  2, 
p.  854. 

HiUary  Term,  3  Geo.  3. 
Castell,  Vld,  tcr^  Babibiudob,  et  Cobbett. 

<*  The  defendant  Bambridffe,  having  been 
prosecuted  on  the  Report  of  the  Committee  of 
the  House  of  Commons,  for  the  murder  of  the 
plaintiif 's  husband,  who  was  a  prisoner  in  the 
Fleet,  uoder  tbe  custody  of  Bambridge  the 
warden,  and  having  on  tbe  trial  been  honourably 
acquitted,  upon  the  prosecutor's  own  evidence, 
was  followea  with  an  appeal,  to  which  Corbett, 
who  on  the  cross  exammation  appeared  to  be  a 
material  witness  for  Bambridge,  was  now  also 
made  an  appellee ;  and  the  writ  of  appeal  run- 
ning <  quia  Maria  Castell  vidua  fecit  nos  secur' 
*  de  clamore  suo  prosequendo  per  Thorn'  Wag- 
<  staife  et  Poston  Stracey,'  contrary  to  the 
usual  form,  which  is,  ti  the  appellant  fecerit 
not  (i.  e.  the  kiog)  $ccur*y  application  was  made 
to  the  lord  chancellor  King,  to  supersede  this 
writ,  upon  affidavit  that  the  appellees  were  both 
in  custody  upon  it,  but  that  no  security  had 
been  given,  and  tbe  writ  reciting  it  as  an  act 
done  before  tbe  emanation  of  it,  the  sheriff  had 
not  taken  any,  as  he  would  have  done  if  it  had 
been  put  by  way  of  condition,  ti/cccrit.  And 
it  was  argued  by  me  (hat  tbe  statute  of  West- 
minster  2,  c.  1'^,  giving  the  appellee  a  remedy 
against  the  appellant,  her  pledges,  and  abettors, 
it  was  not  a  matter  of  form,  but  security  should 
be  entered  into  by  persons  of  abijitv ;  to  which 
it  was  answered  by  Mr.  Attorney  Uencral,  that 
it  was  sufficient  it  there  were  pledges  at  any 
time  before  judgment.  Sii^  T.  Jones,  154.  9 
Coke,  Dr.  HoMey 's  Case.    Croke  Jac.  413. 


"  To  this  it  was  replied,  that  at  tliat  r 
appellee  would  never  have  any  remedy  i 
the  pledge ;  for  if  he  was  oonvided,  be 
be  entitled  to  none,  and  if  he  was  eoqoiti 
appellant  would  never  pray  judsfUMiil, 
would  be  an  artifice  to  elude  the  law. 

**  Notwithstanding  ail  which  tbe  dn 

would  do  nothing  in  it,  but  ndd,  if  t] 

fecerit  [so  in  Sd*ange]  vo$  was  wroi 

might  have  advantage  of  it,  and  so  ref 

make  any  order. 

"  Upon  the  first  day  of  Miohaelma 
last  the  writ  being  returned,  and  the  a| 
both  brought  by  Habeas  Corpus  and 
over  to  the  King's-bench,  it  was  there 
to  have  the  pro<^edingset  aside,  upon  tk 
affidavit  of  there  being  no  pledges;  i 
Court  here  were  of  opinion  it  was  a  tci 
objection,  and  a  foundation  to  supersi 
writ ;  but  then  they  said,  it  was  not  i 
power,  who  were  to  take  the  writ  as  thei 
It,  and  not  to  hear  affidavits,  lo  contrsS 
sugp^estion  of  the  svrit;  and  therefi 
bavmg  security,  being  recited  as  an  ac 
they  must  take  it  so,  and  could  not  relie^ 

*'  Upon  this  the  appeal  wasarraigned, 
forth  that  the  appellant'j  husband  was 
soner  in  the  Fle^  under  the  custody  o 
bridge  the  warden,  who  made  an  assai 
him,  and  contrary  to  his  will  carried  bin 
boose  of  Corbett,  a  victualling-houae  wit 
Fleet,  and  there  imprisoned  him,  whi 
White  then  lay  ill  of  tbe  small -pox,  whi 
tell  had  never  had ;  that  the  appelli 
notice  of  this,  and  were  desired  to  su£ 
to  remove  to  another  place  in  the  prison 
they  refused,  and  afterwards  Castell  f 
the  distemper,  and  died  in  Corbett's 
whereby  tne  Court  concludes,  the  aj 
were  guilty  of  murder. 

"  Without  staying  foracopv  of  the  c 
tion,  the  appellees  instanter  pfead  Not 
and  their  plea  was  rehearsed  in  Fsem 
issue  joinea. 

"Then  it  was  moved,  that  the  a| 
might  be  bailed  ;  and,  upon  debate,  th 
were  of  opinion  to  bail  Bambridge,  f 
Corbett ;  and  the  reason  they  gave  w 
Bambridge  had  been  ac(^uitted,  which 
strong  presumption  of  innocence ;  n 
judge  before  whom  he  was  tried,  had  i 
tbathe  was  very  well  satisfied  with  the 
and  they  said  they  would  bail  him  in  a 
after  an  acquittal ;  and  that  was  the 
they  denied  to  bail  in  Slaughterford'i 
liecause  Holt,  C.  J.  had  sent  out  the  jur 
to  consider  whether  they  would  stand  i 
verdict  of  acquittal ;  and  when  they 
upon  it,  he  himself  ordered  the  appea 

**  But  as  to  Corbett,  there  was  no  fou 
to  bail,  for  they  denied  that  it  was  of  co 
bail  in  an  appeal ;  so  liambridge  was  bf 
two  |)ertion8,  corpus  pro  corpore^  who  j 
in  1,000/.  each.  And  it  was  agQBed,  tbi 
appeal  by  writ,  on  the  civil  sioie,  two  bi 
are  required;  but  bad  it  come  on  the 
side  by  Certiorari,  there  must  have  been 


Aa/T.  Bamhriilge  and  R. 
"^Tlm  [(  wai  nl(i*rd  lo  fix  ■  lime  Tor  tlie 
I  knl,tl«k|if«MnMii.fl«>rh-;)i>l«k««hi>n  DOlicc; 
'  il  kvinfr  b}'  Orieinel,  (here  was  a  necemrty 
•MM  lAccn  days  Mwcpti  the  Tatr.  nofl  Ihe 
■MCT  111*  Ihttrinffni.  ami  tliey  could  DM 
htant  tm  IkP  Frrtir' ,  liti-aiine  bctni:  in  I^m- 
'  KB  cnulil  lir  ltd  lri.ll  nt  bur,  (ihe  citis^nh 
K  bi  U:  bninniit  uiit  ot'  the  city)  nnil  ns 

■  IrJed  al  Nisi  f  cius,  tliece  tnuEl  lia  a 

b  Ihr  latl«r  rnil  of  Ihe  Urm  il  nan 

Il  Ibe  ajipdleei  might  be  discharged, 

-"  nance,  fet  that  no  Veiiirt- 

ttiil  in  Ri)p«ali,  which  nre 

vyery  ilelay  is  &  iliBCDiili- 

i  Cra.  Jac.  28S,  Vtl*.  901,  were 

n  ooDiiiiterBtiiin  Ihe  Court  held, 

jecnaary  (o  lake  out  the  writ 

■  It  mntwaljle  tb*  aooDPSt  it  mi<i;ht  be, 
^ear  Tale  the  day  the  hMK  it 

1  tbe  appellant  louk  unt  s  Ve- 


Corhctl. 


A.  D.  r; 


niie.  Telle  83J  (klober,  nod  retomablc  the 
35th  of  Ncifemlwr,  nhidi  the  Coarl  looked 
upon  as  kn  affecled  delny,  ninl  ilifrel'nre  ndmit- 
Inl  Ihe  uther  appellee,  Carbeii,  lo  Iwil.  fhejr 
tnid  it  appeared  lie  nilglit  have  been  tried  (lie 
sittlne  "Iter  the  term,  and  Ihen  upon  his  ac- 
quittiii,  be  must  bace  been  inHanttr  disChargM 
by  the  jiidife  of  Nisi  Prim,  aeufiidin.'^  lo  the 
stBlule  14  I).  6,  r.  1. 

■■  bfiih  being  thus  nut  upon  bail,  appeaml 
on  ihe  nereral  coutiniiance  days,  acooi^iDg  lu 
their  re.co^izBDce,  anil  the  appellant  alio  ep. 
peared;  and  in  Ihe  beginnintrof  this  term  the 
n|>[iellec«  moved  for  a  rule  Oii  Hr.  I'anner,  tbe 
nfiremho  keeps  the  reconlsBiilicllidBailev, 
to  attend  tlit  tiial  with  tbe  recorj  of  Itani- 
bridge's  acqiiitul ;  he  not  beiii^  allowed  a  cop* 
of  it.  But  the  Coitrt  cefnsed  to  make  any  rule, 
aud  Mid,  if  il  wac  bronght  it  could  be  do  cti- 


Tie  Trial  of  Thomas  Bameridce,  esq.  and  Ricuabu  .Cob- 
MTT,  at  Guildliall,  Loudon,  on  an  Appeal  for  the  Murder 
Mr.  Robert  Castell,   before  the  Right  Hon.  the  Lord  Chi^ 
Jucttcc  Raymond:  4  Geokge  II.  a.  d.  1730. 

May  it  pleue your lordihip, 

ttleror'D  ol'  the  jury,  I  nm  of  couti- 

nk  ■ppeltaols.    This  \s  va  appeal  of 

^Mn^l  by  Mnry  Caslell,  aj^iiin  the 

■H  Thomat  Baiiilirid^  and   Hichard 

W9fl  tbe   death  of  her  latu  husboiid. 

tioD  set*  farth,  that  upon  the  14th 

^B^.  \m  (he  fid  year  of  his  present  ma- 

ftfH  TfanniaM  Bambrid^  was  warden 

MM  of  ibe  Fleet,  aud  having  the  cus- 

IM  pnwaeni,  did  make  an  Bssanll,  and 

IiimI  anns,  and  malice  Bforethou);ht, 

ao4  oniTey  him  to  a  vidualNng- 

f-dltdefeddaiil  C'-orbrlt'a  mnusion- 

~  I  Jirtain  him  theru  till  the  13(h  of 

pinM  bit  will,  anil  without  his 

(bal  ime  Joseph  \\  hilc  was  then 

t  mill-pox.  ^iid  that  Koirert  Castell 


I  request 


:i^icll  h«d  never  had 
>vas  afraid  of  his 
I  ;  not»ilh§tandinff 
iwoned  and  detained 
jTnlierlo  Ihe  ISthof 
remain  all  that 


r4ing;  ami  following  arliclea ; 

I.  Ul,p.  lltK>,  and  Mr.  Home's  Speech 

■  Tnal  br  a  lilwl,  a.  d.  1T7T,  in  this  Col- 

«.    Hee,  iw,  Ko'l't  ineaa  of  Ihe  Crown, 

I  S.f  ni  aud   ilarriniilon'*  ObiervBtioiM 


licne  in  the  said  liouie :  and  further  sell 
that  on  the  4lh  nf  December  he  began  to  groir 
aick,  aud  languished  to  the  I'Jili  of  the  ssma 
December,  and  on  Ihe  12th  died  ;  go  that  the 
defendants,  with  malice  aforelh ought,  killed 
Hobert  Castell  aforesaid,  the  hnabaud  of  Iha 
Eftid  Mary  Castell.  To  thU  declaralion  ihc 
dclendants  have  pleaded  Not  Guilty,  but  if  w« 
prote  the  facts  yon  nill  find  Ibeoi  Guilty. 

Mr.  Reena  [afterwards  lord  chief  jnilice  of 
the  Common  Pleas.]  May  il  please  vour 
lordship,  and  you  gentlemen  of  the  jury,  I  am 
of  counsel  liir  llie  widow.  This  it  an  appeal  of 
marder,  brought  by  liiT  against  the  l»»  ile- 
fendants,  Thomas  llambridge  and  Richard 
Ciirbett.  Bambridge,  gentlemen,  is  laid  lo  be 
warden  of  the  Fleet,  and  Corbelt  a  person  that 
kepi  a  spungiiig-house,  where  prisoner?  were 
somelimea  kept.  It  was  fnr  his  advantage  to 
have  prisnnei-s  brought  to  his  bouse,  in  order  lo 
gel  money  of  them.  Mr,  Castell,  gentlemen, 
was  so  unfortunate  lo  become  a  prisoner  iinrter 
the  conimul  of  Bambridge,  and  Bambridge 
was  head  warden.  Hecame  in  aprisoner  be- 
fore Bambridge  was  warden,  in  June  ITSU,  anil 
at  Ihat  lirac  Mr.  Huggins  was  warden ;  and 
after  belni;  a  little  time  in  prison,  aecuriiy  was 
given  to  Mr.  Hoggins  for  Mr.  Cattell's  having 
tlieliberiy  of  the  rules.  Tbe  lirsl  action  was 
at  the  suit  of  one  Waring,  for  l^Ql.  though 
Ihere  wss  only  BG/.  due,  and  so  tworn  ;  anolher 
came  was  fur  ISf.  at  Ihe  suit  of  nnnthrr  plniu- 
liflT,  so  lhat  the  whole  charge  agnintt  him  then 
was  mt.  due  lo  Waring,  and  Ibl.  due  lo  the 
atiiarplaiiliffj  iDd»l««iirily  was  given 


•of 


899j 


4  GEORGE  IL  Trial  of  T.  Bambridge  and  R.  Corbetf,         H 


bh  oomifH^  in ;  there  was  a  iioad  eDtsre<l  isto 
by  two  tuffieirQt  p^rsoni  in  the  penal  sani  of 
aool.  oaiy .  Aiier-.  further  char^M  caoM  is^mMUl 
bin  hi  the  lime  of  Bambrid^.  We  ahaJI  ahew 
you  the  time  Mrbeo  Jiambri'lge  became  warden, 
which  was  on  the  30iii  of  Sepiembcr,  1718,  in 
the  3d  year  of  hie  present  majesty,  then  it  was 
be  way  appointed  warden  in  hii  own  ri^bt, 
tboagh  some  time  before  be  came  in  his  own 
ri^ht ;  on  tlie  30th  of  September,  he  was  sworn 
iu,  tiMti§^h  on  the  98th  be  was  warden,  and 
acted  in  his  own  ri^ht.  Gentienen,  a  little 
Hhite  afier  Bambridtire  came  to  be  warden,  a 
snm  of  money  126/.  Castell  received;  after 
this  money  was  paid  to  Castell,  Baaibridge 
knowin|^  of  it,  cootrlred  how  to  get  some  of 
this  money,  and  Corbett  was  to  go  sbaics.  It 
was  thi#  view  of  iretting  something  from  Cas- 
tell, that  waa  the  cause  of  the  demand  for  far- 
ther security ;  and  it  was  girca :  bat  some 
other  charges  coming  io,  he  gave  a  bond  fur 
800/.  there  was  one  of  SCO/,  given  heiore,  and 
now  it  came  to  he  800,'.  then  there  was  a  third 
security  demanded,  aad  given  for  1,000/.  so 
that  then  the  three  Uud?  as  security  to  the 
wafdep,  were  300/.  800/.  and  1,000/.  these  to- 
gether made  np  the  sum  of  2,000/.  for  security 
to  be  a  true  prisoner  to  the  warden,  and  at  that 
time  there  was  oot  400/.  doe.  One  wonid  have 
thought  that  when  the  warden  had  2,000/.  se- 
ruriiy  for  400/.  thi^  would  hare  been  snffi- 
cieot ;  but  that  was  not  the  business  intended, 
there  was  aomethiog  farther  to  be  done ;  far 
notwithstanding  this  ample  securitVi  Castell 
was  to  he  taken  up,  as  they  pretended,  till  he 
^avc  farther  security  to  the  wainlen,  the  defen- 
dant liambridgc.  Gcnllenien,  the  time  of  his 
Lt'ing  taken  up  was  the  14th  of  November ;  the 
2Hih  of  September  Uambridge  became  warden, 
Mr.  Cast^-il  had  then  the  liberty  of  the  rules, 
and  lodged  at  one  Mr.  Underwood's  in  the  said 
liberty.  Curbelt  he  took  him  up  (it  becomes 
them  to  shew  by  u  hat  authority,)  and  was  for 
carrying  him  away  ;  Castell  ez|M>stulated  with 
Corbett,  and  aske«l  him  by  wliose  authority 
he  did  it.'  Corijett said  he  did  it  by  the  di- 
reclion  of  tlic  wanlen.  Gentlemen,  when 
be  was  taken  up,  he  waa  carried  away  from 
bis  lodging,  contrary  to  his  will,  to  the  King's* 
arms  tavern,  aud  from  thence  in  the  even- 
ing to  Corbett's  house  ,  what  authority  he  had, 
becomes  them  to  shew  you.    We  say  that 

iirisoners  are  not  to  be  confined  in  spungiiig- 
louses  without  the  consent  of  those  prisoners  j 
tbe  proper  place  of  confinement  is  tbe|ifaol ;  ji 
there  was  reason  for  confining  him,  he  ought 
to  be  put  into  the  walls  of  the  prbon,  then  he 
would  have  been  in  a  legal  confinement ;  but 
during  the  time  be  was  at  Corbett*s,  he  was 
under  an  improper  and  illegal  confinement. 
The  very  day,  gentlemen,  he  was  taken  up,  he 
employed  a  friuid  of  his  own  to  go  to  the  de- 
lendant  Barabridge,  who  went  at  that  time  be 
was  to  be  carried  to  Corbett's,  and  tohl  him  it 
was  not  proper  to  carry  bim  there,  for  that 
ftbera  was  a  prisoner  then  sick,  one  Joseph 
Whites  this  Whitt  hH«aiih«d  of  tbenMll- 


pox  in  Corbeu's  hoa«.  Cmdi,  gentlen 
never  had  tliem,  and  was  under  tb*  grei 
terror  tliat  ever  any  man  oaold  be,  for  fei 
caichiog  them.  He  scat  to  tbe  defeni 
Bambridge,  that  he  might  not  be  caniei 
Corbett's  house,  and  if  lie  did  re^aire  for 
security,  he  desired  to  have  n  keeper  sent  i 
him  to  his  Ifid^iogs,  which  be  wonki  beat 
expence  of,  or  oiberwife  into  tbe  walla  oi 
prison.  Castell.  gentleman,  did  not  only  i 
that  night,  but  the  neat  morning  to  Bnrobrid 
house  or  kdguiifB,  and  did  dnire  him  tn  i 
aider  tbe  ciicumsianoes,  that  be  ncTcr  bad 
the  snuJi-pox,  and  that  be  waa  under 
greatert  terror  of  eatcbiag  tbcB,  and 
While  was  «ick  of  theaa,  and  tbnt  he  mi 
not  be  carried  there,  but  tbai  he  migbl 
cairied  into  the  prison,  or  put  in  some  o 
place  wl^ere  ihe  small- pox  was  not ;  but  I 
these  ft  quests  were  absolutely  refnaed,  and 
keens  bim  in  Corbett's  bouse,  rather  tbu 
let  him  go  into  the  gaol,  or  some  other  p 
where  tiie  distemper  wus  not :  then  he  apji 
at  Corbett's  house  to  Bambridge  himself, 
desired  he  might  not  be  kept  any  longei 
Corbett's,  bot  that  he  might  go  into  tbe  gi 
but  that  not  being  complied  with,  there  v 
frequent  applications  to  Bambrid|^  for  bis 
OMval  from  Corbett's,  but  nothing  oomf 
viith;  and,  if  my  instructions  are  true, 
reason  why  Bamlwidgc  dki  insist  that  he  sb< 
continue  at  C'Orbett's,  and  not  go  to  the  gac 
anj  otber  place,  was,  unless^  he  gave  fii 
bridge  a  sum  of  money :  this  not  being  c 
plied  with,  there  waa  fresh  security  civet 
fourth  bond  for  1,000/.  more.  After  this 
done,  Castell 's  friends  compUmented  bin 
his  having  his  liberty  again  ;  but  though 
gave  tliis  security,  yet  more  difficulties  an 
they  will  have  a  fifth  bond.  Mr.  Castell 
delayed  in  this  manner  for  some  time,  ai 
fifth  bond  was  given  in  tbe  penalty  of  2,0 
witli  lour  persons  security.  Five  bonds,  ^ 
tlemen,  were  entered  into  far  Casteirs  beii 
true  prisoner  t«»  the  warden. 

L.  C.  J.  Raymond.    What  were  the 
bonds? 

Air.  Reeves,  One  was  for  1,000/.  the  oi 
for  2,000/.    Gentlemen,  thi^  last   bond 
given  in  the  beginning  of  December  ;  be 
kept  in  custody  till  the  time  of  giving  tbe  1 
bond,  which  was  the  beginning  of  Deoenil 
and  notwithbtaniiing  the  fifth  bond  was  gii 
he  was  kept  in  custody  three  days  after 
last  he  had  some  apprehension  ot  having 
liberty,  and  upon  tlie  4th  of  December  tl 
was  an  order  sent  to  his  lodging,  aa  he 
belore,  to  get  tiiem  ready ;  but  he  was  dit 
pointed,  having  thought  he  had  done  ei 
thing  that  was  reasonable,  hut  it  happened 
fortunately,   that  on   the  4th   of  Dccea 
liaving  been  oontined  in  this  house  under 
terror  of  that  distemper,  he  fell  ill,  and  on 
12th  of  December  died  of  that  distem|)er. 
say,  ^ntlenien,  that  his  death  was  oocnno 
by  biB  luihiwful  imprisonment,  and  that 
hardship  be  sufierm  was  tbe  oecaawa  nf 

4 


■I«q 


#11 4M  AfpnAfiff  MutdtT* 


ArD.  17M. 


[401 


If  ^MihiB  W  of  tpinioa  on  the  dr- 

Mi|  UmI  tfab  Mpreheiisimi  of  bin 

laJTli  g^noaay  from  him,  it  will  be 

k  fWra  ii  oae  witDCM  that  heard  the 

kttvceo  CaiMdl  mkI  Btmbridge 

«  CMi^  idl  the  witiMH  will  tdl  yoo,  that 

rtriita  with  Bambridge,  that 

of  bit  hie,  and  that  he  sboold 

^^  BBper  and  die,  and  desired  then 

Mnridllotbe  fAiaooor  any  other  place, 

iitfili  be  ii  tbt  place  where  W  life  was  in 

Mi  tefcr;  and  his  answer  was,  that 

«MUiaailcr  go  into  the  prison,  nor  to 

•iM|hii^widMNit8iich  a  swnof  money ;  it 

yi liict  Mcority  as  before.    If  we  proTo 

IMliieiBS,  we  prove  the  declaration, 

Mmmm,%mk  the  defendants  g«ilty. 

^jfci*  fiAerwards  Lwd  Chief  JostMof 

■ijv^fiiacbl.    May  it  please  your  lord- 

'liaijiwgsBnanieD  of  tne  jnry,  I  am  of 

Mr  tbe  tppellant.    This  poor  woman 

tioM  staid,  in  hopes  to  see  that 

^  vmIiI  bare  appeared  in  a  true  and 

pj^|it  a  filmier  tnal,  had  against  one  of 

fc^w— It  ia  wbieh  the  other  nrisoner  who 

■Viffn  bsn,  was  eKaroinea  as  witnesr. 

ViJPpynt  waited  with  great  satisfaollon, 

gMMiftbst  the  troth  of  tbe  ibct  would 

■NffMi  at  that  tifal,  and  did  not  eom« 

pMJgjjpsil,  nor  would  she  if  she  oould 

tftMtm  mAdntAmk  on  the  fbrmer  trial. 


•oy  prisoiicr  is  tried  anih  ac 

_  the  party  appellant  has  a  right  to 

»  "^  ^<*  examination  into  tbe  fact. 

wMofHtrry  has  preserred  that  right, 

.  f^H^^aJUi^  he  was  before  acquitted ;  and, 

vi  Jfinbioo,  the  aflkir  now  stands  as  open 

I    sii  iNuiig  bad  been  done.    This  being  tbe 

I    iHb  til  antler,  gentlemen,  for  your  consi- 

dnliii  will  bs,  bow  far,  by  tbe  witnesses,  we 

fliaMilintisfv  yoa  in  respeot  to  your  ap- 

pksiiw  of  lAe  manner  of  her  nusbaml's 

Ms^gffo  bis  death.    It  bas  been  opened  to 

jH^fJMitlenien,  that  Mr.  Castell  was  a  pri- 

■■ria  tbe  PteeC,  and  that  the  defendant 

ImMge  was  acting  warden  in  June  1728 ; 

Ii  drfcodant,  Cerbett,  was  by  his  office  a 

taf,  and  as  such  was  under  the  direction 

■is  wardeo.    When  prisoners  are  out  upon 

llialf,  the  tipstaff  is  the  proper  oflker  for 

ttif  than  into  the  Fleet,  and  that  to  be  onder 

iivanlcB's  direction,  and  CJorbett  was  sueh  a 

ipriiC  This  Castell  bemg  committed  in  June 

mB,  (be  was  a  gentleman  that'  lived  iv  good 

l|Me)  did  procure  security  in  July,  and  a 

Mi  wne  given  in  tbe  penalty  of  900^  and 

■Mhar  80&  and  a  thinl  1,0001.    Gentlemen, 

ivaaont  of  gaol  upon  this  security,  and  tbe 

mitm  was  satisfied  as  to  Im  being  abroad; 

hien  the  14th  of  November  be  was  taken  np. 

h  the  Srd  of  October  before  this,  gentlemen, 

hmiiiiid  a  siNn  of  tS6/. ;  on  the  SSnd  of 

^Mnr»  nflcsfdinor  to  my  instructions,  this 

jjtatn.  Ih0  hBowkdgeef  the  defendant  Bam- 

fOUXYII. 


bridge !  then  came  these  demands  of  neth  se^ 
cority ;  it  was  very  likely  the  means  to  insi4 
npon  hMiving  money  in  hand  or  fresh  security  ; 
notwithstanding  this,  open  the  14th  of  No« 
vember,  Corbett  came  to  his  lodging  in  whidi 
be  then  was,  a  piece  within  tbe  rules,  and  took 
Mm  from  thence,  and  carried  him  to  the 
KingVarms  tavern ;  there  he  was  continued 
till  uie  evening :  that  during  his  continttanoe 
there,  he  sent  fbr  a  person  who  will  appear 
here  as  witness,  who  went  to  the  defendant 
Bambridge  at  the  desire  of  Castell,  and  he  de« 
sired  him  to  aeqnaiOt  Bambridge,  that  bOf 
Ibnnd  there  was  an  intention  of  carrying  him 
to  CofbetfO,  and  that  the  small -pox  was  there^ 
and  he  never  had  them,  and  was  afraid  of 
catehingr  them,  and  begged  of  Bambridge  that 
be  wookl  not  let  him  oe  carried  there :  tlie 
witness  accordingly  went  to  Bambridge,  and 
told  him  of  tbe  request  of  Castell,  but  MatH 
be  came  back  Mr.  Castell  was  carried  to  the 
house  of  Corbett,  and  when  he  fbond  Idtf 
sDere*'     * 

My.  Fazaherky,  He  fbund  him  at  tbe  tatefh:' 
wheli  he  came  back. 

Mr.  Lee.  The  difference,  gentlemen,  is  tbiS| 
that  this  person  at  the  request  of  Castell  went' 
to  Bambndp^,  and  upon  his  return  (the  fact  Is 
that  he  found  CorbeU  and  Castell  at  tbeffim^ 
arms  tavern)  said,  that  upon  his  application 
fo  Ikimbridge  he  could  get  no  answer,  no  dir 
reetions  that  Castell  should  not  be  carried  there. 
Castell,  his  fear  continued  u|ion  him,  and  thd^ 
same  witaess  went  next  day  to  Dambridge,  aiDd 
petitioned  for  the  same  thing,  but  cnuld  get  no 
satisfaction  from  Bambridge.     We  have  ac- 
counts of  several  other  applications,  but  with- 
out answer  to  tbe  purpose,  aud  particularly 
otie  firom  Castell  himself.    When  Bahdirid^e 
came  to  Corbetf  s  house,  it  was  that  Cattelf 
complained  to  him  himself  of  the  hardship  of 
being  confined  there,  and  desired  Bambridge 
to  let  him  go  to  bis  lodgings  with  a  keeper,  or 
into  the  walls  of  the  jc^ol,  which  he  cliose 
much  rather,  from  the  ^r  he  had  of  catching 
the  small- pox:    the    answer   then  given  by 
Bambridge  to  Castell  was,  that  be  should  nei-^ 
ther  go  into  tbe  gaol  (though  there  was  room 
enoogb),  or  go  to  that  other  place.    Gentle- 
men,   it    roust  lie  under  the   fear  and   ^ 
prehension  Castell  had  of  catching  thestMrll- 
poz,  that  he  made  this  request.     How  a  maft 
could    appear  with    ao  much  inhunumity   I 
can't  conceive,  for  Bambridge  himself  satd, 
npon  a  time  when  be  was  at  the  tavern  wiih 
Castell,  that  he  never  saw  a  man  so  miicb 
shocked   at   the  small- pox;   notwithstanding 
which,  when  Castell  complained  to  him,  abd 
desired  to  be  removed  from  Corbett's,  tliis  war 
Bambridge's  answer   to  him   then,  That  be 
should  not  go  into  the  prison  or  any  where 
else,  unless  be  had  a  sum  of  money  fur  gntupf. 

Gentlemen,  the  whole  of  his  charge  at  this 
time  was  under  400/.     He  was  committed  in 
June   1798  ;    on  the  first  of  December   se- 
curity was  found  for  no  less  than  5,300/.  tli» 
first  bond  was  for  900/.  the  neiLlOOQiAVk^^ 

5{D 


40S3 


4  GEORGB  II.  Trial  ^  T.  Bambridge  and  R.  Corbett, 


1,000/.  a  fovrtli  1,000(.  and  the.  fifth  f  ,000/. 
Notwithfltaadiog  these  boode  were  given  on 
the  1st  day  of  December,  this  men  wee  still 
eontinued  a  iiriauner,  and  I  must  submit  it  to 
yonr  loidsbip,  wjieiber  he  was  not  ooutinued 
m  such  a  maooer  as  to  make  it  duress.  By 
the  statute  of  88  of  Cha.  2,  no  man  is  to  m 
carried  to  a  spungiug- house  without  his  own 
request.  He  was  kept,  gentlemen,  in  this 
place  even  alter  the  fifth  bond  was  given  three 
days,  and  on  the  4tb,  which  was  the  4tb  of 
Decvniber,  he  took  the  distemper.  This  gen- 
tieuian  was  so  much  affected  with  the  hardship 
of  his  case,  that  he  often  complaiued  of  this 
usage,  and  of  Bambridge  in  particular ;  and  in 
bis  last  words,  when  he  lay  upon  his  death- 
1>ed,  when  it  can  hardly  be  imagined,  that  aoy 
thing  could  eome  from  a  man  but  truth,  then 
his  constant  declarations  were,  that  his  death 
was  owing  to  Bambridge. 

This,  gentlemen,  is  the  nature  of  the  case, 
mnd  we  will  beg  leave  to  call  our  witnesses,  and 
if  tliey  come  up  to  proof,  it  must  be  thought 
the  widow  has  done  very  right ;  aud  though 
Corbett,  when  he  appeared  as  a  witness,  did  not 
give  satislaction,  (I  would  not  say  it,  if  it  was 
not  in  my  brief)  yet  probably  the  witnesses  now 
called  will  give  you  satisfaction  why  Corbett 
4id  not  give  satislaction. 

Robert  Heading  sworn,  who  produced  a  copy 
of  the  patent  creating  Thomas  Bambridge  war- 
den of  the  FleeL 

Mr.  Heevei.  Did  yon  examine  that  ? 
Reading,    Yes. 

Mr.  Reevet.  Is  it  a  true  copy  ? 
Reading,  Yes. 

[Then  the  Clerk  read  so  modi  of  the  copy 
of  tbe  patent  as  to  prove  Mr.  Bambridge  war- 
den of  the  Fleet] 

John  Noel  (deputy  to  the  clerk  of  the  papers) 
iras  sworn,  and  produced  the  commitment- 
books  of  the  Fleet  prison. 

Mr.  Reeves.  Do  you  know  that  Bambridge 
-acted  as  warden  of  the  Fleet  prison  i* 

NoeL    I  always  apprehcncM  he  did  act. 

Mr.  Fazakerletf.  Do  you  know  of  the  com- 
mitment of  Mr.  Casteli  ? 

NoeL  Yes,  it  is  in  that  book  (which  he  had 
before  produced.) 

[Then  tbe  Clerk  tamed  to,  and  read  the  en- 
try in  the  book.] 

CUrk.  Decimo  octavo  die  Junii,  1728. 

HoeL    There  are  several  other  entries. 

CUrkf  (reading  again.)  180/.  sworn  to  be 
fifi/. 

X.  C.  J.  The  writ  was  made  for  180/.  pe- 
nalty.   Read  on. 

CUrk.  William  Thomas. 

L.  C.  J,  It  is  necessary  for  me  to  take  no- 
tice of  all  the  commitments. 

Mr.  Strange,  To  see  the  sums  before  the 
|4lh  of  November. 

Mr.  Fittak^l^,  Jicit  ia  8M 


Mr.  KettUby,  It  is  sworn  to  86/.  i 
wanis,  lor  thai  is  sufiicient  to  bokl  to  ha 

L.  C.  J.  How  much  is  that  on  tin 
July  f-^Cicrk.  The  9ili  of  July  is  20/. 

Mr.  Strange.    How  much  tliat  debt 
appear. 

L.  C.  J.  Don*t  go  on  so  fast 

Clerk.    Die 812/. 

Colvert. 

L.  C.J,  That  is  another. 

Clerk,  Another  SO/,  the  ISth  of  i 
Waring  180/. 

Mr.  FuMakerley.  That  is  the  same. 

S«irj.  DarneiL  The  first  appears  U 
bond. 

Clerk.  There  is  180/.  principal ;  3/.  1< 

Mr.  Fazakerley.  Thai  is  the  same. 

CUrk.    Sdrd  of  November, exec 

the  suit  of  Thomas f-  19/. 

Mr.  Strange.  He  is  charged  in  e: 
likewise  on  Colvert's. 

Mr.  Reeves.  That  is  after  being  take 

Mr.  Fazakerleu,  Do  you  know  ( 
house? — Noel.  Yes. 

Mr.  FaMakerUy.  What  kind  of  a  hoo 
Were  the  prisoners  kept  there  by  Bam 
order  P 

Noel,  I  was  there  prisoner  from  the 
October  for  two  months,  and  never  i 
thing  exacting,  but  very  humane. 

Mr.  Fazakerley,  Is  it  note  public  vici 
house? 

Noel,    They  have  victuals  and  drinli 

Serj.  Darnell,  This  is  very  mate 
will  ask  you  a  question  or  twu ;  you 
CorbeU's  two  months  ?^Noel.  Yes. 

8erj.  Darnell.  I  ask  you  whether  yi 
any  exaction  or  oppression  ? 

IfoeL  1  never  found  any  to  any  b 
they  visited  Mr.  Casteli  with  a  deal  ol 
and  humanity.' 

Serj.  Darnell,  When  were  you  carrie 

Noel.  The  23rd  of  October,  17S8. 

L.  C,  J.  How  lon«^  did  you  remain  t 

Noel.  I  stayed  there  till  tbe  19th 
cember. 

jL.  C.  J.  Was  this  one  of  the  houses 
ways  remained  to  the  warden  as  pai 
gaol? 

Noel.  My  lord,  I  have  heard  so. 

L,  C.  J.  Were  you  at  Corhett's  hoiif 
time  Mr.  Casteli  was  there? — Acie/    ^ 

L.  C.  J.  Do  you  know  the  time  of 
ing  his  illness? 

NoeL  He  was  taken  ill  on  the  4th  of 
her,  and  died  on  the  18lb. 

L.  C,  J,  Do  you  remember  Joseith 

Noel.  Yes. 

X.  C.  J,    Were  they  in  the  same  hoi 

Noel.  No,  my  lord  ;  White  lay  u 
pair  of  stairs  in  one  house,  and  Mr.  Cm 
pair  of  stairs  in  the  other. 

L.  C.  J,  I  ask  you  if  White  was  ere 
ed  to  come  down  stairs  ? 

Noel,     I  have  heard  express  ovde 
White  should  never  come  down,  and 
go  up  to  bim,  for  fear  any  body  ibonld  > 


I  Appeal Jbr  Murdtr. 


LC  J.    I  B 


ii.  Rcr'tfilii'i;  la  tlie  b»M  of 
— 1,  wbathcr  he  ever  came  nut  of 

^JbtJ.     I  believe  lie 

n;  and  Uien  lie  came  to  sjieak 
^CJ.   Was  Cutall  ilipre  then  ? 
No,  my  lord  ;  I  believe  he 

VU  him  tfain  my  rootii. 

lb,  Sirvage.    I  ilexire  lie  may  describe  the 
ataitta  ol'Oirbett'B  bouse. 
lU.  There  are  ttrn  bouie«  laiJ  inin  one. 
Jfc&rang«.  Where  did  While  lief 
Ail.    While  lay  iliree  pair  of  flairs  in  one 
ymm,  aad  Sir.  Caalell  uae  pair  of  atira  in  the 

lb.  Stnnft.  When  did  Mr.  CaiLell  firat 
oat  M  Catbvil'f  T 

Kmt.  Caviell  firal  came  iaio  Corbelt'a  the 
itik  af  Nc'eoiber. 

Mr.  Fvakffley.  My  lord,  iriliey  n^k  ques- 
woa  IS  a  particular  point,  I  bapu  tliey  willuut 
ffiwiiw  liMi  ID  diBervTil  I'acla. 

IrCJ.  I  caaoot  interrupt  Ihem  ;  you  «ill 
hatt  an  oiiponunitv  to  rpplv :  they  are  entitled 
»il.    Khmrdidt^asielllier 

XmJ.  Mr,  Caairll  lay  in  one  hoase,  up  one 
(■raTMaiia.  aod  Wliiie  in  (be  other,  up  lliree 

LC.J.  WbendidBIr.CaitellcoiiietoCar. 

te'.r 

JU.  HiflitbdayorNixember. 

lU.SimK*-  How  hiijwBi  While  <reUbe< 
tm  CaMrll  came  there  ? 

SmL  He  aeter  bail  been  ilowa,  but  1  btlieie 
UMifhlb< 

Vtt-Hlra 
tIAeiiaia 

Hl.Hraige.  What  naa  llie  reaaon  of  liis 
Ofkept  there  f  There  mitl'x  be  other  people 
UMlad  ODI  bad  ihrm.  Did  you  eier  see 
fi'.it  r-jiii«  iiuivD  Jnrin^  that  time  ? 

:iiie  came  duirn  iHOOr  tliree great 

..  Wh'iiookcareof  Mr.Caalell? 
I'l'il  anil  Ilia  ipouse. 
III.  ,v'T  jner.     During  t lie  lime  he  was  ill, 
MlwnNiplamf 

Htl.  fie  Deter  complained  for  any  thine, 
km  *aul   be  Mat  very  uneasy  at  bariug  the 

Mi.Slrvige.  Wlin  took  care  ofhlm? 

IhtL  Alltlicfanidy  took  rare  of  him. 

Hr  Siramft.  Did  you  ever  aee  Bambridge 
mnmavit  iritb  Hr.'CDXell  at  Corbelt'a? 

Nttl.  I  nrtrr  aaw  Mr.  Bamhridfie  in  com- 
!•»  wich  Mr,  Caaiell,  but  Mr.  Corheit  I  bare. 

iii  Sr^^gt.  Waa  there  a  club  there? 

Mr.  StrvHse.     I>iil  yon  lee  Itamhridife  and 
bMIIMtinhcratlliaielubr— Jtr<v/.  No. 
Hr.  ilraoge.  Wbfre  did  Cantelj  lie  T 

Jf"!  t.'iiBirll  lay  id  a  n>uiii  by  bimaelf;  he 
■  a  nwiBi  fliird  up  on  pnr|in>e. 

ttf,  Kcfl/cAy.  Do  you  knon  w)i»lher  nheli 
«  i'ai—tl'a  wife  wa*  wax  to,  aha  did  con*  In 


A.  D.  17S0. 

Not!.  I  lia*e  beard  Corbett  aay,  that  his  tvl* 
dow  was  srni  to,  but  dul  nut  come. 

L.  C.  J.  Thnt  i*  on  evidence. 

Mr.  KtUlebx/.  Do  you  anjipne  you  abould 
have  &een  her  if  Hhe  had  coiiK? 

Noel.   I  should  have  even  the  woniun. 

Hr.  KettUba.  Wliat  aori  of  a  rvom  was  Mr. 
Casietl  in  i 

Noel.  A  tery  coorenient  room,  very  near  h 
bi|r  aa  this  Court. 

Seij.  Eyrt.  How  came  Mr.  CiKtell  firat  to 
be  brouirhi  to  Corheii's  i 

Norl.  'I'he  body  of  Caatell  waa  aurrendeteil, 
his  seciirinr  tohl  me  an. 

L.C.J.    Thalia  not  evidence. 

Mr.  Lee.  Were  vou  Irequnilly  with  While  f 

JVwV.  No-,  only  thai  lime. 

Mr.  Ue  W»a  Mr.  Caalell  ukra  ill  belbre or 
ai)er  that  lime  ? 

Noil.  I  cannot  tell  vhether  be  was  sick  be- 
fore or  atler. 

Mr.  Lre.  Did  you  use  Id  be  with  Mr.  Cat- 
letl  ? — Noel.   Sfiinetimea. 

Mr.  Lee.  Were  you  with  Caatell  Ihe  aama 
day  yuutaw  White.' 

Noel.  I  cannot  recoJIei-l  wbetber  I  aaw  Caa- 
tell the  same  ilny  or  not. 

'■'  "  "■  le  or  two  stair. caaeaf 

I  huuses  laid  into  one, 
bui  one  ftsir-CBfie. 

Mr.  Lrt.  Waa  nut  ibepaMageDearCDitell'a 

Null.  The  passage  comes  by  the  head  of  the 

Mr.  Lie.  MiiM  not  all  those  that  go  lo  the 
ueoexiarv-housecohy  Cnateh'sruomf 

NmI.  'Yes. 

Captain  Sinclair  awnrn. 

Mr.  Fatakertey.  Do  yon  know  C<irbetl'a 
house? 

Sinclair.  Upon  the  Uth of  Decemlier,  1727— 

Mr.  t'uzukrrtty.  Sir,  do  you  boon  thin  liuiiic 
of  Corhetl'a? 

StncUur     Ye*. 

Mr.  taiaktrtey.  V/ete  you  there  in  Hep- 
tember,  Oclufaer,  November,  Or  December, 
I7'i8  ? 

Sinclair.  I  vas  not  brought  in  then,  t  nsi 
6(W  -tWDilaya  at  Corlieit's  house. 

air.  Fataktrliif.  How  werejou  used  then.* 

Sinclair.  I  must  sobinil  it  in  tlie  Court,  whe- 
ther, as  I  have  a  ptoaBeuliiin  aKaiiisi  Bam- 
bridi{e,  what  1  may  say  mav  notprquilite  my- 
sell;  iihetlivr  anything  i  aay  now  iiiiiy  not 
be  prcJuilitJal  lo  me. 

1.  C.  J.  Il  IB  imiHWiihle  for  ne  in  tell  yoii. 
If  ynu  aay  any  thiiiK  that  they  can  make  um 
at,  without  doubl  they  will. 

Bambrid^e.  1  deairr.  my  lord,  the  people 
may   be  hrpi  from  ihewiiueases  behind. 

Z.  C.  J.  If  you  hear  any  b<Kly  protnpt  lb* 
witneaara,  thej  aliall  be  removed. 

Mr.  Fifmer.  Wedexitetokouw  whataortoT* 
house  Ciir  bell's  is. 

Sinclair.  I  whs  carried  lo  Mr.  CurbtU'a 
bouaaeMtrary  wmy  iodinBtiOBa;  wbcD  1  wai 


// 


•*  ^'      •  •       *  0ti*     *r,     |)%«r »    1^1      \t0ff^    ' 


^i% 


'«        i'a  'av         Vit^ 


;ii-  bit 


'  •/;  '- 


I 


vfaidi  Mr.  Bmm  m 
^mr^  to  loMv  if  be  nigfat  |h^ 
>ritf»  uf#!t7  ;  thtn  Rrent  came 
•w  ««ii«lb#4MHi,  awl  I  psd  the  I 

Mr.  A/rM^c.  IWfcieeertlicv 
thfti  M  mnrn  m  UuabrMgie  kneir  tta 
fmMwM  mm  HMwy,  tlicn  heuiiwiJ 

Kirn  rr«'Rh  «#-c0ritj.    If  be  did  Boi  booir 
m  be4  mewfjr,  tbei  wiriMneiit  wHI  ■•#  I 
Hcnr  fTM  Um  eatedrsimP 
CV/^I.  To  itobm  CMcU,  or 


be  ha 

t 


OB  an  Appeal Jiir  Murdef. 

Whom  was  Ihe  note  piy- 

iif>jshli:t(>Mr.  Rotten  Cas- 

takrrley.  And  Itiii  ivm  altowefl  in  ac- 
iHo^ouhy  W'«oil»ar<l?— Cof/fff.  Vet. 
Ik.  Stnuigr.    You  <loa*t  know  Itial  it  came 
MCMrii'a  hands? 

OiUtt.  No,  any  porter  might  go  and  reccir* 


A.  D.  1730. 


[4ld 


Ife  tee.  To  whom  was  the  aots  ddirered  1 
OHmI.  To  Mr.  Casiell. 
1. 1'.  J.     I  went  away  with  it  at  first  u  i: 
U«(l  kaJ  mrriteii  it. 
Ur.  Iff     Hrrat  waK  the  man  that  wenr  ui 

Xt.  JJKniB^f.  Prove  aomelhliig  or  other. 
Hmtridge.    Ky  Ion),  I  oeyer  bad  one  stiil- 


■t.  ftrtaJbrriry.  Were  von  present  when  Mr. 
MM  drew  a  bin  npnn  Woodward,  payable  to 
lU.CmMlT—Bitnt   Yes. 

Nr.  Fuiaktrtry.  Do  you  know  of  any  hnij 
tkl  wrw  10  Hamhridge,  and  wl)at  was  said  ? 

Brrmt.  Sir,  I  was  jealous  of  Mr.  Casiell's 
MWi—tmceg,  and  I  naked  Mr.  Rainbridgr  if 
>>•  wn  any  judtpnent  or  execiilion  a^inst 
Ib-Cnu-ttr'  And  Bambridge  lild  in«  he  was 
iaMD  meMte  pTOcess. 

Hi.  F-ialerlfy.  Did  yon  SI  any  time  tell 
Us  <br  Mcaainn  nf  Dsking  that  question  ? 

Imrf.  It  is  very  poMilile  I  inii;ht  give  him 
^■tmu.  Witt  I  cannot  lie  positive. 

Mr.  Fatvim  Uy.  I  desire  you  will  recotlect ; 
l<  ■■  frry  naiiiral  for  you  to  speak  to  Baiu- 
yt^  M  ynn  mentinn  any  Ihinj;  of  that 
■Mj? — Brtnt.    I  caoaottav. 

sakcrtet/.   Did  Bambrikt){e  speak  to 


9n»t.  I  CDiinot  remember  that  he  did. 
Mn  tauiktrlni.  Did  you  give  him  any  rca- 
^brovkin^  the  t|netiiDn? 
friU.  It  u  possible  I  might  tell  him  same 

Mr.  Fttaktrlftf.  I  desire  you'll  acquaint  my 
ImI,  wbubv*  Bamhriilge  appeared  to  be  assist- 
^F<*  Hr.  Oaitcll  in  that  affair,  arhaveyou 
MM  M  brileva  him  so  f 

Btaaf.  1  csniwtray,  imlesstosatiBiy  me,  I 
iAi4  Mr.  Castell  srvenil  qcestionn,  and  Cas- 
■i  «id.  ir  I  <*t>uld  oak  Uambridp!  he  would 
>iiry.»e.  ^ 

Rr.  I/r,  When  yoo  went  op  to  Bambrldcre, 
•to  JtMt  wttlt  lo  eofiulre  after  CDstell's  clr- 
f^Jsai  IS,  wtaW  didynu  say  tn  Bambridfrc? 

knar.  I  kaveantweradthaliiuesiion.rcaD- 
nkc  positivB,  to  be  particular  I  csiinol. 

■r.  trr.  Wbm  was  Mr.  Cuiell  then  ? 

Bm/.  I  4o  Mieve  Mr.  Caitell  wu  with 
iBvllieir  roipnityi 

Ur.  fyc.    vir'hettt  was  Bambrid^,  wni  he 

■    '        l.-rromp«ny.' 

•  iinvhe  was  not,  \  don'tretnen)- 
'I  iln  olderconipany. 

'-  ..  J    VV  M  briB-tk*mne'ivoDi  ? 


Brent.  I  don'l  believe  he  was. 

L.  C.  J.  Did  you  go  oiii  of  that  room  in 
anoiher  rwrni  to  Bombriilgpc  f 

Bml.  I  don't  liclieve  either  Mr.  Colletl 
Preston  went  out  ul'  ilie  rootu,  but  I 


aeir. 


my- 


Mr.  Strange.  Did  you  not  go  up  slain  ? 

Brent  1  can't  say  whellirr  it  was  in  the 
samestiir-case,  or  not;  I  did  ask  Bnmbridgc^ 
and  he  did  aaliify  me. 

Mr.  Straagf.  Did  you  ask  Bambriilge  if  it 
WBSRBfelo  pay  Mr.  Caitell  any  money  ? 

.Brent,  f  can't  be  certain,  it  was  the  whole  I 
■aid,  prolmbly  I  might  tell  him  I  wns  negori*- 

Mr.  Faiakerlty,  It  will  follow  most  Dahi* 
rally,  thai  the  further  bond*  were  demanded  on 
pnrpose  to  exiorl  money.  Now  we  shall  shew, 
that  security  was  given  Irom  time  lo  lime,  and 
in  order  lo  that  we  had  given  notice  lo  Barn- 
bridge  to  produce  the  bonds. 

Mr.  Strnnge.  Vou  know  the  other  day  in  tho 
Court  of  Chancel^  it  was  oter- ruled. 

Mr.  Reevci.  lierearebondsgiven  as  nsecu- 
rily  lo  a  private  person ;  we  demand  Ihe  bonds, 
andllie  prooflfea  aponlheu)  loslicw  Ihey  bmfe 
delivered  them  over. 

BIr.  Lee.  We  ought  to  be  let  into  parole- 
evidence,  to  shew  that  we  g;tive  notice  to  pro- 
duce  I  hem. 

Serj.  Darnell.  I  think  you  are  loo  early. 
Mr.  fi<nf/un sworn. 

Mr.  Lte.  Did  vou  give  Bambrid^  my  do- 


10  deli 


T  Ihe  1 


Yes,  fhaveacnpy  of  ilinmy  hand. 

Mr.  Lte.    What  did  Bambridgesay  toyonP 

Bendon,  Bamliridge  told  me  he  bod  but  ontf 
in  bis  custody. 

Mr.  5lriin£e.  Wer.:  not  the  words,  thrit  b« 
had  only  one  executed? — Bendun.   No. 

Mr.  Strange.  Tetl  us  the  very  words. 

Bendon.  tVlien  1  ^ave  Bamliridge  that  my 
paper  (which  he  had  tlien  delivered  to  the  oonn- 
bbI>— 

L.  C.  J.  That  paper — ii  most  be  produced. 

Mr.  Lee.  Wedesire  to  produce  Ibispaper. 

Bendon.  Bambridgesaid,  lopreventRny  dis- 
putes in  Court,  I  huve  hut  one  bond, 

Mr.  Strange.   Who  was  by  F 

Bendon.  several. 

Mr.  Strange.  Did  you  know  any  of  them  f 

Bendon.  There  waj  one  BeatnifF,  tbal  war 
oneorhisseeuriij'. 

Mr.  Strange.  Hbw  many  were  there  in  aH  .* 

B^mdbn.  Fiveorsiv. 

The>  Ihe  Paper  was  given  into  the  hotMU  of 
Ihe  Clerk. 

L.  C.  J.   Read. 

Clerk.  "  I  do  hereby  give  notice,  (n  prwTiics 
nn  llietrtarof  this  cause,  sereral  bonds  eniereil 
into  by  the  appellant's  husband,  or  his  several' 
securities,  taken  by  you  as  wanleu  of  lh<<  PfMt, 
or  by  the  Cteili Df'  ihe  Seeuriiien,  and  |ianJen'>' 
larly  two  boni)>^,  dated  aboot  Novemter  or  De- 
cember, tiaa." 


411J 


i  GEORGE  IL         Trial  of  T.  Bamhridge  and  R.  Corhett, 


Mr.  Lte.  Now  we  will  caH  Peter  Ellun. 
Somebody  acted  in  the  room  of  HopkiDs^  who 
wai  Clerk  of  the  Securities,  and  took  a  hood 
wherein  Peter  Ellam  was  one  of  the  securities. 

Mr.  Feter  EUmn  sworn. 

'  Mr.  Beetes,  Do  you  know  what  secarity 
was  given  by  Mr.  Castell  to  the  warden  of  the 
Fleet?— £^.  I  do. 

Mr.  Reeves.  Were  yon  one? — Ellam.  Yes. 

Mr.  Reeves.  Give  an  accoant  of  the  several 
securities  you  knew  given,  the  tiroes  when,  and 
the  sums. 

Ellam,  Security  was  given  five  times,  one  in 
July. 

Mr.  Reeves.  When  was  the  first  ? 
.  Ella-H.  In  July,  1728. 

Mr.  FaMakerley.  How  much  was  the  sum  f 

Ellam.  I  think  100/. 

Mr.  Fasakerletf.  How  much  was  the  pe- 
nalty of  the  bond  ?^Ellam.  I  think  it  was  tOOL 

Air.  Reeves.  Whom  was  that  given  to  ? 

Ellam.  It  was  ffiven  to  Hopkins. 

Mr.  Reeves.  Who  was  warJen  ? 

Ellam.  Mr.  Huggins. 

Mr.  Reeves,  Who  was  depots-warden  ? 

Ellam.  1  do  not  know,  I  believe  Bambridge. 

Blr.  Reeves.  Was  there  any  other  security  be- 
sides yoursell'P  Whom  wasthebond  given  by  ? 

Ellam.  By  Mr.  Chambers  and  mvbelf. 

Mr.  Ruves.  Pray,  mind  what  1  ask  you. 
The  next  bond  was  ^iven,  how  soon  ? 

Ellam.  1  bdieve  m  about  four  or  five  days. 

Mr.  Reeva.  How  much  was  that  for? 

Ellam.  Eiijht  hundred  pounds. 

Mr.  Reeves.  Who  were  put  iu  that? 

Ellam.  Mr.  Curll,  Mr.  Chambers,  and  my- 
self. 

Mr.  Reeves.  Tliere  was  a  third  bond,  do  you 
know  any  thing  of  thai  ?  Who  was  that  given 
by? 

Ellam.  It  was  given  by  Curll,  myself,  and  I 
believe  Mr.  Bell. 

Mr.  Reeves.  Pray  recollect  yourself,  do  not 
be  under  any  mistake. 

Ellam.  Mr.  Curli  and  myself  I  am  positive 
of. 

Mr.  Faxakerley.  Can  you  be  positive  of  a 
third  bond  ?  were  there  three  ? 

Ellam,  I  believe  there  were,  and  I  signed 
with  him. 

Mr.  Foxakcrley.  How  much  was  the  third 
for  ? — Ellam.  The  third  was  for  1,000/. 

Mr.  FaxakerUy.  The  third,  when  was  that? 

Ellam.  I  can't  remember  the  particular  time. 

Mr.  FaxakerUy.  How  lung  before  Mr.  Cas- 
tell died  P — Ellam.  Agreat  wiiile. 

Mr.  Faxakerley,  Was  it  before  or  afler  mak- 
ing the  4th  bond  that  he  was  taken  ill  ? 

Ellam,  I  believe  it  was  after. 

Mr.  Fazakerley.  How  kHig  after  ? 

Ellam.  1  believe  about  the  beginning  of  the 
term. 

fHx.FoxQkerley.  Then  that  mnst  be  in  Oo« 
lober.— Was  there  an V  more?— £//aiii.  Yea. 

Mr.  FoMokerUy,  How  much  was  that  for  ? 

Mm.  1  think  tha  fourth  WMftrVOOO(i 


Mr.  FaxakerUy.  Don*t  you  know  i 
for  1,000/.  f—Ellam.  1  Mieve  it  wa: 

Mr.  Fazakerley.    Who  entered 
bond  ? 

Ellam.  There  was  Mr.  Curll,  Mr. 
myself. 

Mr.  Faxakerley.  When  was  that  g 

Ellam.  ThsLl  was  given  the  latt 
November. 

Mr.  Faxakerley,  You  say  that  was  f 

Ellam.  Yes. 

Mr.  Faxakerley.    You  seemed  to  i 
thing  of  a  fifth  bond  being  given,  how 
that  for  T-^EUam.   Two  thousand  po 

Mr.  FaxakerUy.  How  do  you  kno 

Ellam.  1  was  present  at  reading 
took  it  to  be  2,000/. 

Mr.  FaxakerUy.  When  was  that  g 

Ellam.  On  the  first  of  December. 

Mr.  Faxakerley.  Do  you  believe  i 
5tb  or  1st  of  December  ? 

Ellam.  I  believe  it  was  on  a  Mondi 

Mr.  Faxakerley.  Who  were  bouud 

EUam.  There  was  Mr.  Curll,  m, 
and  myself. 

Mr.  Faxakerley.  What  is  your 
name? — Ellam.  John  Ellam. 

Mr.  Faxakerley.  What  was  the  rei 
these  bonds  being  given  so  quick  ?  1 
the  last  bond  given  ? 

Ellam.  One  was  given  between  the 
25th  of  November,  on  a  Saturday  n 
Mr.  Castell  was  going  to  bis  lodgiog 
two  or  three  days  we  went  to  see  him, 
not  find  him,  and  they  said  he  was  at 
and  we  went  to  him  there. 

X.  C.  J.  When  was  this  ?    Name  i 

Ellam.  It  was  about  the  latter  en 
vember,  between  the  26tli  and  the  las 

L,  C.  J.  Go  on. 

Ellam.  I  said,  Mr.  Castell,  what  < 
here  ?  Yon  love  a  gaol  better  than  1 
do  you  do  here ;  what  is  the  reason  c 
Castell  said,  I  do  not  know,  it  is  wl 
bridge  pleases.  I  said,  Mr.  Castell,  si 
luck  is  worse  than  any  body's. 

Air.  Strange.  Was  Bambridge  by  ? 

Ellam.  No. 

Mr.  Strange.  Then  you  may  1 
tongue. 

Mr  FaxakerUy.  What  were  the  bo 
for?— E//am.  His  liberty. 

Mr.  Faxakerley.  Had  he  his  libei 
the  last  bond  was  given  ? — EUam.  N 

Mr.  FaxakerUy.  I  smk  you  ulietbi 
his  liberty  upon  the  last  lK>nd'8  being 

Ellam,  No,  he  never  was  out  after. 

Mr.  FaxakerUy.  Do  you  know  whi 
took  his  sickness  ? 

Ellam.  He  first  took  his  sickness  c 
day  morning,  the  1st  of  December. 

Mr.  Faxakerley,  Were  you  a  credi 
Castell  7-^ Ellam.  He  owed  me  near  ! 

Mr.  FaxakerUy.  Then  >ou  were  hi 
and  creditor  at  ihe  same  time  ? 

EUam.  I  knew  him  to  be  as  indi 
man  u  any  om  livkigv  •ad  that  thai 


RRQ  on  an  Appeal  for  Murder. 

piUMiljp  of  eetttog  an;  ihin;;  in  a  gaol,  ea 
tt«i<l>i  El  (railwIlFr  to  run  ilie  liaeard, 

^aj.Dmrnrll.  Uiil  you  npver  apply  lohaTO 
taib'tinl  u|i?— f^'fam.  No. 


ibf|.  Uornc/J    Uoyoiikoowot'lhedesigDof 
(iiiMBrit)'  la  put  liim  inio  prison  f 
lOmi.    Nm  (hat  1  knovr  of,  il  waa  never 

fay  rtatndl.  Did  Barabridge  nerer  entreal 
jWM  BMilniae  aeruritj  for  liim  7 

Utm.  All  ibat  I  konw  relating'  to  Ibat  mat- 
l*i>itlia)  Chanitiera  williilrew  Ins  ««curily. 

k^.  tUmtlt  What  did  Banilirid^  do  !□ 
"      '         a  hate  liim  stand  as  one  of  tiis  sc- 

u  Vhimbers  withdrev  hie  aeeiirily. 
' '        1  don'i  took  upon  timt  to  be  a 

Lex  You  must  anawer  the  question. 

£Uai.  Mr.  Cliapptll  naa  coming  to  me  to 
kO  Dw  that  Mr.  Cbambers  would  dcli'er  him 
%i  ttr  tkal  if  he  neot  out  of  The  rales,  bis 
(••■■I  ail f  iced  him  that  the  aecui'ity  was  liable, 
wd  I  xni  along  with  Chambers  to  mm  bridge, 
■drbaaibcrs  Idd  Bainbtidg^  Ihat  he  wnuld 
toiBnily  iin  luugeri  upon  litis  Mr.  Cattell 
••■•rj'uiiea«y,  and  Cbamben  upon  coo'tr 
Aa^bb-  d^urniined  not  in  give  Dp  hii  secnrily. 

9a^  Danttli.  I  atk  yoii  whelher  Mr,  Bnm- 
kn^diJ  iMi  desire  Mr.  Bell  to 


Kiln.  :tlr,  Barabrld^  talked  very  dfilly  al 

Sm.  boTnell.  I  aik  jon  whether  Mr. 
humUge  appeared  tu  liaie  a   kindness  fur 

JOm.  Bambridcre  told  Mr.  Castell,  that  if 
til  ■naity  drIiTcrcil  bim  up,  he  must  go  lu 

k^ItanaWl.  What  did  yon  do  when  Cham. 
tmmM  be  vould  no)  be  aecurity  ? 

UUn.  n'bvn  Chamb<.-niulauie  be  would 
Ml*  MVOTHy  any  lon^r,  it  Inv  upon  myarlf, 
Mi  I  wrni  down  to  ibr  lateru  tbtn,  and  told 
ttm  i  vaa  rMotrrd  to  aland. 

Hrj.  OunMJf.  I  ask  yna  whether  Mr.  Bnro- 
Wii|«  i«ruiadr4  you  tu  »tatid,  or  said  tbat  be 
JMl4  lie  pal  inm  llie  gifd  i' 

Una.  It  did  appear  (u  me  that  Bambcidge 
n*  n*a  to  biffi. 

toi-ltanull.  Wbcnwaitbi*? 

£Uni.  Tliia  wai  bcturc  tbe  lib  or  Sih  bonds 

%i'SiKi»gt.    Tbtn  WDf  aOer  llie  bonds  for 
■W.aBll.UOO^     Tfil  us  whether  Mr.  Caslell 
|_*t  aw  4e*>rv  iliai  a  bei!  miirbl  be  ^\  there  f 
I  did  not  kimw  of  hi*  ^.ming  there. 
I'niydld  not  «ou  dciire  Cor- 
memwAyf—^llam.   No:>  , 
•.  Werayoubyat  anyottiertime? 


^Ikm.  I  believe  i 
Serj.  £>"•<-  Vou 
•  to  the  day  of  the 


tnff 


sinNutember. 
jou  oanuoi  be  poiilif* 
dayof  IbeiDOutb. 

I.  I  tell  you  fairly,  tliat  by  the  nlma- 
nackil  was  on  Honday;  if  Mr.  Caslell  died 
ibal  day  ae'Dniuht,  it  was  Muudav  Ne'nliiitbl 
befi^re  that.  J         -« 

8erj.  Eyre.  How  long  after  yon  executed 
tbe  bond,  hon  many  days  was  it  before  be  died  ? 

Etlam.  It  must  be  Weduetdoy  or  Thuraday. 

8erj.  Eyre.  You  say  Alonduy  tbe  Ituud  waa 
executed? 

EUam.  Yea,  it  must  be  tiic  first  Slonday,  iT 
he  died  on  the  I3ib, 

Scij.  -Eyre.  Whom  were  the  bnoJagirpnlie. 
foreP  Or  to  whooiP  Was  Mr.  Bainbridge 
present  ? 

EUum,  1  never  saw  Bambrid^e  present 
when  ibpy  were  given. 

Scrj.  Eyre.  Do  yuu  know  whether  you  were 
excepted  to, or  remained  there  till  belter  Kcurily 
waspven? — Ellam.  I  don't  know. 

Scij.  Eyre.     Wbowaslhere? 

EUam.    Codnor  was  there,  who  acted   m 

Seij.  Eyre,  Were  you  all  preient  wbeo  Hie 
fourth  bond  wns  given  J 

Eiiam.  To  the  best  of  my  remembrance,  we 
were  all  present   when  the  fourth   bond  waa 

Serj.  Eyre.  What  say, you  is  io  Ibe  Cnb  ? 

Etlani.  As  to  ihe  filth,  I  believe  that  «U  Itie 
persons  were  not  then  preuunt. 

Serj.  Eyre.  You  can't  tell  ibat  either  ofyotl 
was  excepted  to  ? 

FMam.  I  know  no  other  tbac  as  Bambridge 
told  me. 

Air.  Wytm.  You  said  you  were  uu< 

lanibeis  said  be  would  not  siaud ; 
you  do  theu  ? 

Etlam.  I  did  nolhing  tlicii,  but  went  boma, 
nnd  next  morninir  rntoived  to  stand. 

Mr.   tTynit.      Did  you  Say  auy  thing  U>  Mr. 

CorbeltorBambvidftef 

FMam.  Nu  ;  when  I  went  to  Mr.  Bwn- 
briilae's  ronio,  I  iveul  with  a  design  lo  surren- 
der bim;  and  wh?u  I  came  out,  seeing  Mr, 
Caslell  in  so  great  an  agouy,  I  reaolicil  llien 

Mr,  ITynti.    What  did  Mr,  Bambridgesayf 

EUam.  He  said,  he  hvlirved  rbnl  Mr.  Custell 
always  bebated  bimstlf  wlthiD  boundx,  and  be- 
lieved thai  we  had  no  reason  tu  CDiii|i1:iin  ;  aud 
belicveil  he  would  not  timki!  an  e>c;ipe. 

Mr.  Wi/nn.  Did  be  encuiirageyou  toHit- 
rendrr  hiiuf 

EUum.  All  that  hr  Eoid  at  this  iinqe  seemed 
to  eiicoiiraire  us  to  Stand  «"  lecurily. 

Mr.  Wynn.  Wlien  Cbnmlicrs  would  net 
tiaud,  did  yuu  lake  any  couMtr-seounly  I'ruiu 

yjh"i.  There  W3sa  note  flrawn.  but  I  nevu 
bad  It ;  Mr.  Curl)  bad  the  custody  of  It. 
Mr.  Il'vnn.  tVliui  uan  ibe  Bmountf 


♦15] 


4  GEORGE  II.         Trial  tfT.  Bambridge  and  JR.  Cariett 


Ellam,  No. 

Mr.lfyin.  How  long  before? 

EUatn.  I  can't  telftbe  date;  I  htve  it  by 
Die. 

Mr.  Tf^fi.  Had  von  not  that  biU  of  aale 
before  you  executed  that  first  lecurily  ? 

Etlam.  No. 

Mr.  Wynn.  Was  it  between  the  fint  and  se- 
cond?— eUum.  No. 

Mr.  Wynn.  The  second  and  third  ? 

Ellam.  Very  likdy  it  might 

Mr.  Wynn,  What  month  do  you  belieTe  it 
was  in  ? — Ellam,  NuFember. 

Mr.  Strange.  Do  yon  say  the  bill  of  sale  was 
in  November? 

Eiiam.    I  can't  say  particularly. 

Mr.  Strange.  Miebt  it  not  be  before  No- 
yember  ? — Ellam.  1  don't  beliere  it  was. 

Mr.  Strange.  Can  you  take  upon  yon  to  say 
whether  before  or  not? — Ellam.  I  cannot 

Mr.  Strange.  1  desire  you  to  see,  whether 
that  is  your  name ;  look  only  on  the  name. 

Ellam,  I  take  it  to  be  my  name. 

A(r.  £f e.  Give  it  to  the  officer. 

Mr.  Strange.  Then  you  are  not  able  to  say 
exactly  the  day  when  Bambridge  ga^e  you 
encouragement  not  to  deliver  him  up ;  Was  it 
before  the  fourth  bond  was  given  ? 

Eliam.  Yes. 

Mr.  Strange.  There  was  Curll ;  wu  he  a 
m^  of  substance? 

Ellam.  Yes ;  he  hu  been  a  housekeeper 
these  forty  years. 

Mr.  Strange.  Is  his  reputation  to  be  a  man 
of  circumstance? — Ellam,  Yes. 

Mr.  Strange.  There  were  Bell  and  others  ? 

Ellam.  Yes. 

Mr.  Strange.  Were  they  men  of  good  cir- 
comstaoces? — Ellam,  Yes. 

Mr.  Strange.  There  was  your  brother  ? 

Ellam.  Yes. 

Mr.  Strange,  Were  they  houseekepets  ? 

Ellam.  Yes. 

Mr.  Strange.  Were  they  able  to  answer  the 
a^ms  they  stood  bound  for? 

Ellam,  The  world  thinks  so. 

Mr.  Strange.  What  will  you  say  you  are 
worth  over  and  above  your  debts  ? 

Ellam.  1,000/. 

Mr.  Strange.    When  your  debts  are  paid  ? 

Ellam.  Tiie  hist  time  my  books  were  cast 
ap,  I  was  worth  1,000/. 

Mr.  Strange.  Did  yon  say  you  were  not 
worth  SOO/.  when  in  company  with  Bam- 
bridge?—£/^.  No. 

Mr.  Lee.  It  is  a  question  enough  to  put  any 
man  out  of  countenance. 

L.  C.  J.  No  man  should  be  obliged  to  dis< 
cpfer  his  own  affiurs. 

John  Ellam  awora. 

Mr.  Lect  Yon  were  security  for  Mr.  Castell 
to  Mr.  Bamliridge,  warden  ot  the  Fleet? 
J.  Ellam.  Yea. 
Mr.  Lee.  When  was  it? 
J«  Ellam.  In  November  last 
Mr.  £sf.  Who  was  security  with  yoo? 


J.  Ellam.  My  brother  Peter  Ell 

Curll. 

Mr.  Lee.  What  was  the  penalty 

J.  Ellam,  Two  thousand  poundi 

Mr.  Strange.  He  only  says  whi 
said. 

L.  C.  J.    He  said  it  of  his  ovm 

Mr.  Lee.  When  was  the  bond  e 

X  Ellam.  I  lielieve  in  Novembi 

Mr.  Lee.  You  can't  tell  positive 

J.  Ellam.  No. 

Mr.  Lee.  Might  it  not  be  tl 
of  December  ? 

X  EUam.  I  can't  exactly  tell. 

Mr.  Lee.  Whom  was  the  bond  < 

J.  Ellam,  Myself  and  two  other 
first,  and  the  other  two  at  Gravest 

Mr.  Lee,  Were  yuu  with  Bami 
him  about  it?— J.  Ellam.  Yen. 

Mr.  Lee.  How  came  you  to  lie  I 

J.  Ellam,  Mr.  Caslel]  «eiit  to  ur 
I  would  be  security  in  the  room  ol 
hers  ;  I  said  it  was  a  thing  1  did 
but  for  him  I  would :  this  was  in 
Mr.  Castell  said.  Yon  will  be  seci 
Yes.  And  be  said,  I  don't  kiM»w  h 
bridge  will  accept  of  it;  1  begy« 
night  I  told  liim  I  would:  1 
bridge  would  not  then  accept  of  i 
Shortea  was  there  at  night,  and  M 
sired  he  would  go  to  Mr.  Bawbrii 
the  bonds  to  be  executed  for  him. 

Mr.  Lee,  When  was  Mr.  Castf 

J,  Ellam.  Mr.  Castell  was  ver 
vember  and  December. 

L.  C.  J.  Where  was  this  ? 

J.  Ellam.  At  Corbeti's. 

Mr.  Lee.  Did  you  go  to  Bambr 

J.  EUam.   Yes. 

Mr.  Lee.  What  did  you  say  ? 

J,  Ellam.  I  asked  him,  tihcthc 
my  security  sufficient  in  the  r 
Chambers  ?  And  Mr.  Bambridge  i 
accept  of  it. 

Mr.  Lee.  Did  you  execute  bef< 
tber? 

J.  EUam.  I  believe  1  did  befor 
and  Mr.  Bell  executed,  1  lielieve, 

Mr.  Lee.  What  was  the  sum  ? 

J.  Ellam.  Two  thousand  pound 

Mr.  Lee.  Was  it  two  thousan 
you  know  ?  Was  it  in  Latin  or  Ei 

J.  EUam.    The  aUoniey  read 
Castell  tuld  me  so. 

Mr.  Lee.  Was  there  any  persoi 
beftbreyou  si^ed ? 

J.  Ellam.  There  was  only  Mi 
brocher,  and  myself. 

Mr.  Lu.  1  ask  yon  whether  tl 
more  hesides  you,  your  brother,  au 

J.  EUam,  No. 

3Ir.  Lee.  How  many  names  vi 
the  bond  ? 

J.  Ellam.  None  but  mine,  my 
Curll. 

Mr.  Lee.  How  many  obligoi 
know  what  I  mean  by  obligors? 


o«  an  Appeal/or  Murder, 


A.  D.  17S0. 


.J.  V«. 

bZiM.   TImii  I  ;iik  yoK.  Hoiriutliy  per- 
«  Umtd  tT«r«  tn^idai  lliMe  P 

Tlicre  was  mine,  my  brother' 

LC.J.    TlnlttfisMbfrore. 

Mr.  hrt.  Vi  lien  you  nere  seal  to  Hr.  Bam- 
ktlfibMr.  Cutril  *Miiiedtery  ini|i>tienl  to 
kwt  Oie  liondf  executed  ;  did  he  coro[i|iiiD  of 
Ml aOnordiaar* usage? — J.Ellam.  Yes. 
'nr.lct.  What  did  he  complain  or? 
t  ZUatH.  I  aibed  hijDi  wbnt  made  him  un- 
nvtr  He  taid,  tliey  tvuuld  iioltelhiiD  out. 
T\m  I  asked  tiiin,  wbkt  was  the  rea«nnP 
Urnuk  BDaner,  I  iiup|iake  Ihey  want  move 
MRCTorme. 

Hr.t^t.  Tliey  I  Name  them.  Caa  you 
Ma*  any  badv  i 

J.  EUam.  I  asked  him  again.  Have  you 
fwen  any  oiutiey  ?  He  said,  Yes,  I  liaie.  I 
■■d.  Pt^y  bow  mucb  hate  you  givtii.p  lie 
•MdeaiMon,  About  ten  pounds. 

5(1]   liarnctl.  Whit  hcauiil  is  noteTideiux, 

Mr.  f.iuisi:its-  What  hesaid  upon  bis  death 

a*  sWi  euniioe  him  next  lo. 

LCJ.  TltatisaceonliDgtolbenalurooFthe 
^Hn;   whstiidedereditBBnaUuallacliis. 

1^.  Faiaktrla/.  Bad  yoit  any  diuiourie 
ittUr.  Cwwil,  wfaen  be  lay  on  his  deioli- 
W,nbit  *aj>lbcoccanoDof  bis  death  F 

LC.J.  [tifieakio^ to  tbe- witness.]  Doq'i 
hibaluirry,  lake  tioie, apeak  out. 

i.  Zilim.  He  asked  me,  what  I  thought  the 


was  »«ry 
bii  eilre- 


Vc  FuoicWey.  When  be  lay  ii 


1'c 


.  C.  J.  W'aa  he  near  his  death  ? 

Rr.  Fmtaktrlty.  Dtil  he  say  any  thing  what 
*Mlba  occaaion  of  hi*  death,  when  in  eilre* 
mm} 

I,  tUitm.  He  nid  upon  his  dying  bed,  that 
Mc,  BaMlrvidgv,  in  not  leltitig  bim  go,  was  the 
■^   ■      gfhM  death. 

„.J  - 

Ik.FatsktrUy.  How  long  after  the  small' 
rVoHMinit?— J.£/Aun.  AdayorKro. 
tb.  PaaMkcrley.  HowlongdidbeliteoAcr 
*  ■"         ibout 


8^^  OartulL    Had  he  an  apprelienaion  of 
iflif  Uoralbe  diitcmpar  camoooi? 

J:  £Uaa.   He  «aid,  it  they  did  not  lel,him  out 
kanid «K  (no  loU,  tbr ll  would  be  liis  death. 
~  Q.  Darwtlt.  Thia  was  before  the  distemper 
|MtJ— 7.  rJUn.   Yea. 
I.  Dti-arll.  OidfaekDowofthisifislempier 
I  r  Was  be  apprehcttsiTe  of  this  dis- 


*  Hm    Uacli's   ]lawhins's   Pleas   uf   the 
Omt,  b«ik  2.  Diup.  V,.  §  S€  ;  and  llie  Cise 
.  i  Itcuna  aiul  TrnDler,  vol.  Ifi,  p.  1. 
JUL.    SVM. 


J.  Ellam.  Re  said,  if  it 


llamof         I 


J  village  of 
■ny. 

I  be  bouse 
there?— J.  Ellam.  Ye*. 

L.C.J.  When  was  this? 

Mr.  FiiiakerUii.  Tlie  bonds  will  shew ;  ranst 
not  they  produce  them  ? 

X.  C.  J.  They  must  produce  them,  or  gi»e 
some  reason  why  they  don't. 

Mr,  Siraagt.  The  two  first  were  giveu  in 
BIr.  Hiiggins'slime,  I  don'lkooiv  any  thini;  of 
the  other  three.  Baiuhndge  was  sworn  the 
16lh  of  Nocember,  so  that  three  were  giren  in 
Air.  Huggina's  time,  and  twooutyin  his. — I 
am  afraid  it  is  a  ciril  action. 

Mr.  Xrr.  The  action  is  in  a  criminal  cniiie. 

L.C.J.  What  do  you  think  this  is?  The 
niixt  action  is  UD  part  of  the  appeal  i  iliseer- 
lainly  a  criminal  cause. 

Mr.  Btcres.  Wo  p»e  It  up,  if  we  don'tgiie 
Nulficieat  eridence  after. 

L.  C.  J.    Can  you  go  no  fVirther  lo  fix  it  on 

Mr.  KcwH.  WecanproTelliatCuitnnr  acted 
OS  Clerk  of  the  Securities,  In  bclialf  of  Bopkin*. 

L.  C.  J.  What  was  Hopkins  F 

Mr.  Beeves.  RopkiDswasClerkofthe  Papers, 
ond  not  being  well,  em|)loyed  one'  Cudtiur, 
M'ho  proves  that  Peter  Ellam  entered  ialo  se- 
veral Iwnds. 

L.  C.  J.  You  say  he  was  rot  sworn  in  UI1 
the  13ib  of  Novemoer,  the  patent  bears  data 
the  30th  of  October;  let  Johu  Ellam  be  called 


PgBl 


I,  be 


a  did  you  think  i 


Mr.  Rervei.  If  your  lordship  pleases,  we 
will  call  Pvter  Ellam,  Ipr  he  executed  all  the 

Mr.  Pe/o-£i/flm  called. 

Mr.  Reevet.  Wlieu  you  executetl  these 
bonds,  who  was  present,  and  assisted  in  belialf 
ef  the  warden  P 

Ellam.  Hopkins  was  to  the  (wo  first,  Codoor 
lo  the  three  last. 

Mr.  Reeves.  Whom  did  Codnoractfor? 

Elian.  1  always  understood  he  acted  for 
Hopkiiia. 

Mr.  Rrtvtt. 

EHum.     1  thouchi  Hopkins. 

Mr.  Jleevei.  What  was  the  reason  lie  wo* 
not  there  F 

Eilam.  It  was  reported  he  was  sick. 

Mr.  Rtnn.  Who  was  thebonddelivered  to' 

Ellam.  ToCodnnr. 

L.  C.  J.  Who  was  allowed  to  he  the  master  f 

Ellam.  Unm bridge. 

Mr.  Fataktrley.  Was  it  so  in  the  three  last? 

Ellam.  I  think  so. 

Mr.  F-itaktrlf',.  Was  Codnur  there  when 
the  last  bond  was  given  ? 

Ellam.     Yes. 

Serj.  Darnell.  What  bonds  do  ynuapeak  to* 

Ellam.  The  third  and  tourlb,  and  1  think 
the  last. 

SerJ.  Dornell.  How  many  were  bound  >n 
the  last? 

!lE 


419] 


4  GEOHGE  IL  Trial  of  T.  Bambridge  and  R.  CarheH^ 


EUam.  MjhM,  Mr.  Gorll,  John  ElUm,  and 
Mr.  Bdl. 

Hen.Damell.  What isbeeomeoTUie bonds? 

Ellam.  I  don't  know. 

8«>ri.  DarntlL  Shoald  jroo  know  it  if  yoo 
ibonlil  ice  it  aeaiD  ? 

Ellam,  1  bdie?e  I  should. 

L.  C.  J.  Had  yoa  any  discoorse  with  Mr. 
Bambridge  about  the  third  and  fourth  bonds  ? 

Ellam.  No,  not  with  him  about  any  of  these 
bonds. 

Hf.ToMakerley,  When  Chambers  dedined 
•tandiofl[  as  a  security,  how  many  bonds  were 
giFen  after  ? 

Ellam,  1  think  it  was  before  the  third  was 
given  up. 

Then  Peter  Ellam  withdrew,  but  was  called 
back ;  and  standing  up  again  was  further  ex- 
amined. 

Mr.  FuxakerUy.  Recollect  the  time  you  had 
the  discourse  with  Mr.  Bambridge;  How 
many  bonds  did  you  give  after  the  time  you 
had  the  discourse  with  Mr.  Bambridge  P 

Ellom,  I  think  it  was  three ;  when  he  came 
to  the  third  bond  I  ga?e  aecarity,  Mr.  Cham- 
bers having  given  up. 

X  C.  J.  It  don't  appear  whom  thebonds  were 
accepted  by,  or  whom  delivered  to. 

Mr.  Harbin  sworn. 

Mr.  Filmer.  Who  acted  as  Clerk  of  the  8e- 
«nrities  to  the  Warden  of  the  Fleet  whoi  Hop- 
4^nswasill? 

Harbin,  f  don't  know  of  my  own  knowledgey 
koi  as  Hopkins  told  me. 

Mr.  Edwards  sworn. 

Mr.  Reeves:  Do  you  know  Hopkins  f 

Edwards,  Yes. 

>^.  Reeves.  What  was  his  office? 

Edwards.  Clerk  of  the  Inquiries,  as  I  believe. 

Mr.  Reeves.  Who  was  Clerk  of  the  Se- 
4;iirities  f^^Edwards.  Hopkins,  I  bdieve. 

Mr.  Reeves.  Do  you  know  Codnor  ? 

Edwards,^  Yes. 

Mr.  Reeva.  Do  yoa  know  that  he  acted  for 
Hopkins? 

Edwards.  I  was  not  privy  to  such  things. 

Daniel  Hopkins  sworn. 

Mr.  Reeves.  I  think  you  were  employed  by 
Mr.  Bambridge  to  take  securities  for  the  li- 
berty of  the  rules  ? — Hopkins.  Yea, 

Mr.  RMvet.  In  Itovembcr  and  December 
1798,  did  yoa  employ  any  one  else  ? 

Hopkins.  InNovemberl  was  taken  ill,  about 
the  30th  ;  and  in  my  illness  Codnor^  who  acted 
In  the  office,  I  believe  officiated  in  my  office. 

Mr.  Reeves.  Who  did  he  deliver  them  to  ?  To 
you? — Hopkim.  No. 

Mr.  ReeveM.  Who  then  ? 

Hopkins.  I  believe  to  Mr.  Bambridge. 

Mr.  Reeves,  Did  he  account  for  any  bonds  to 

Hopkins.  No ;  but  be  save  me  a  roemo- 
fandum,  that  bonds  were  tma  Ibr  Mr.  Ltnd- 
BanandMr.  CiitdL 


Mr.  Reeves.  Do  yon  believe  Mi 
appomted  him  ? 

Hopkins.  Yes ;  nobody  else  cou 

Mr.  Reeves.  You  believe  he  accc 
Bambridge? — Hopkins.  Yes. 

Mr.  Strange.  You  are  Clerk  of  tl 

Hopkins.  Yes. 

Mr.  Strange.  Don't  you  go  to 
the  securities  ? 

H<^kins.  Yes ;  and  I  have  take 

Mr.  Strange.  Don't  the  Clerk  o 
take  bonds  ? — Hopkins.  Not  in  ro' 

Mr,  Strange.  Is  it  not  the  ( 
Papers  business  ?—lf(ig9^<.  No. 

Mr.  Strange.  What  is  yonr  busi 

Hopkins.  Our  business  is,  to  ini 
circumstances  of  the  sureties  bef 
them. 

Serj.  Eyre.  Is  it  not  usual  to  t 
bene  esse  f-^Hopkins.  Yes. 

Seij.  Eyre.  Suppose  you  enqui 
persons'  cireumstances,  if  vou  fi 
sufficient  do  yon  take  them  r— flbj 

8aj.  DameU.  If  any  body  gel 
and  escapes,  who  takes  them  up  ? 

Hofhns.  The  tipstaff. 

8er|.  Domell.  If  the  security 
any  longer,  but  will  surrender  tb 
tipstaff  carries  them  to  prison  ? 

Hopkins.  Yes,  if  they  desire  it ; 
own  bouses,  if  they  desire  it. 

8eq.  Darnell.  Was  it  asaal  to  ti 
without  the  securt^  W'^^  abug 
iorreDder  him  ? — Hopkins.  Somcl 

Sen.  Darnell,  Could  he  do  it  i 
Mr.  Castell  ? 

Hopkins.  I  don't  know  he  could 

Ser|.  Darnell,  i  desire  he  may  i 
whfllher  he  had  any  directions  froi 
bridge  to  enquire  afler  this  Mr. 
Castell? 

Hopkins.  There  was  a  bond 
month  of  July  fbr  200/.  |»enaltY, 
of  800/.  and  I  enquired  afler  the 
the  direction  of  Mr.  Bambridge,  a 
bridge  excepted  to  the  security 
fbr  Uiat  bond,  and  Mr.  Castell  wai 
get  other. 

Sen.  Darnell.  Did  you  report  i 
tieni?'^ Hopkins.  Yes. 

Serj.  Darnell.  Was  Bambridg( 

Hopkins.  Yes,  in  July. 

Mr.  Strange.  I  ask  you  whet 
observed  any  avertreness  to  these  ] 
to  the  first  bond  ? — Hopkins.  Nev< 

Mr.  Strange.  Had  you  any  d 
the  third  bond  ? 

Hopkins.  I  had  directions  to 

one  Lilly* 

Mr.  Strange.  Did  you  enqu 
Cux\\?—'Hopkiju.  Not  then. 

Mr.  Strange.  Afler  the  two  to 
quire  afler  the  security  ? — Hopki 

Mr.  Strange.    Did  you  ever 
Curll?--Hupibiw.  Yes. 

Mr.  Strange.  Did  you  report  h 

Hopkint,  Yes. 


on  an  Appeal/or  Murder. 


A.  D.  173a 


F.  Straue.    Hnr  many  Imnds  wu  lie  ia  f 
'  lint.  He  wu  io  the  Iwo  tirat,  onil  the 

_r.  Str«i>^f.  Hare  you  IliCHclHO  bii(i>l(? 
Ibptiu.    No,   I  deliiered  them  in  to  the 
■tb  M  Ike  cotnmillceof  (be  Houieot'  Com- 
MBt,  and  hatt  nil  had  lli«m  aiiMe. 
Ht.  Slraa^t.  Ho  you  know  Mr.  Cnrbctt'R  i 
tbpiini.   Vn. 

Ht.  Sirauge.  Do  ;ou  know  wliat  priaoiien 
|«|*»re? — Hopkini.  Yw. 
Mb.Slran^c.   Wbalis  (he  price  urn  dinner  F 
AyJhm.  One  shilling,  and  I  think  it  werlh  it. 
Hr.  Strmitgt.  n'bile  Mr.  Coiiell  was  there, 


Ij)  Oiilyuiterei 
of  any  ifi  u&aze  ? 
-"        *■       there  a 


fbiB  w 

ftipliKi,    ?>«  ^    there  are  some  persona 
haj  iMeTTD|»t  ma  in  gi'ing  my  evidence,  ud 
«y  I  defcna  to  be  hangetT 

Sat).  Dmmtll.  Do  you  know  the  faouae  where 
fflMl»wu7— JfouAini.  Ym. 

alhrmU.  boyouknowthebousenhrre 
wtMf—Hopkim.  No. 

Mr.  i'ataUrlcg.  The  witness  iwore  that 
Ihmhi  »i1|i.i  md  he  had  one  hood. 

L.  C.  J.  BeitdoQ  did  say  so,  for  he  had  ap- 
|U  to  BaiDbcidge,  and  Barobridge  Mid,  to 
fMIMI  ili*]niles,  lie  bad  hut  ODe. 

9my  DiirntU.  Two  were  deiiiered  to  Mr. 
SmilaB.  lbs  other  Iwo  before  the  committee  i 
ftij  chaired  Mr.  Bambridge  iritli  hiving 
Wm^  aad  Bambiidge  said,  to  preieul  diaputes, 
tm»  m  hot  one.     II'  Hopkins  could  nut  act, 

...     .    _.  i,  that  Bambridge 

tmi  la  faa*c.  There  was  an  act  made  last 
iMM  of  uriiament,  under  the  seTereat 
mdtj.  that  Hambridge  should  delirer  up  all 
Wlaiklaiul  papers.  If  he  ehoold  prudoce 
fc  Hfclr  bottd.  aiid  il  appears  that  be  did  not 
MlV  np  all  bonds,  be  would  be  liable  to  the 

L  C.  J.  You  are  only  to  deliver  the  bondii  in 
■Itau;  you  must  coosider,  here  are  three 
ta^UllM  byCodoorj  if  one  of  these  bunds 
CMMtB  yMsr  possession,  thai  don't  imply  the 
■>hcii>(iay'(iur  hands  i  aito  the  single  bond, 
iliiMba  left  lio  the  jury,  lor  if  Codnor  is  ibe 
Unw  be  put  id  the  office,  and  has  delivered 
to«c  band,  won't  it  lie  implied  that  ha  has 
fetwhar? 

Hag.  Darmelt.  There  has  been  an  anplicalioD 
"         '    r  enart  for  Ibu  hooks  of  the  office 
(he  opinion  of  the  Court  (hat  the 
eM  be  deliiered  up. 
'.  That  excuse  will  pot  do  her* ; 
taken  from  you  we  cam 


I  do  cwifess  they  a 


itde. 


y  say  the  bonds  were  ifiven 

, ii{  you  must  produce  ttie  bonds, 

«  iTthal  i»  bur  or  not. 
^aj.  DtrmtU.  >V«  arc  desirous  to  Uy  all 
k*)«waca«;  tttOK  bands  ncri  only  tak» 


de  itnt  ttie,  only  till  the  security  was  enquired 
atter,  according  to  Ibe  method  of  the  thing  ; 
these  sre  nut  ihsolule,  and  tlial  was  the  reasoD 
wby  these  people  were  em)uired  a<\er. 

L  C.J.  Thenthei|uesunni»,  Whuherlhey 
should  not  go  on? 

Mr,  Underwood  swora. 

Mr.  Hmp«.  Whcredo  youlive? 

Underwood.  Upon  Liidgsle-hill. 

Air.  Rates.  In  tbe  rules  of  the  FleetF 

Vadtnaood.  Yrs. 

DIr.  Recvei.  Dtd  Mr.  Castell  lodge  at  ytnir 
house  r — Uadtmood.  Vps. 

Mr.  Reewi.  When  did  lie  lire  there  ? 

Uadii^'ood.  Last  July  was  twelve  muntlK. 

Mt.Retvri.  llowloiigJidhecotitinuetherer 

Uideraood.  I  believe  till  the  middle  of  No- 
Mr.  Rena.  Do  yoo  know  wbal  happened 
to  him  then  ? 

Vndentond.  Cnrbett  Came  to  my  house  tbnl 
morning  to  fetch  him  away,  but  be  ivas  not  at 
home  ;  atid  when  he  came  in,  I  told  Mr.  Cas- 
tell  he  had  been  there ;  and  Mr.  C'lsiell  desired 
me,  if  be  carae  again,  not  to  tell  him  be  wai  at 
home,  and  he  went  to  h>ck  himself  up ;  then 
Corbeit  came  up. 

Mr.  Hemes.  Did  be  express  any  oonoeni  ? 

Vndcrxood.  Yet;  he  spoke  to  me,  and  said, 
IfCorbett  came  as^in  he  would  lock  himself  ujh 

Mr.  Strange.  Did  you  hear  any  thing  of  bia 
security  being  uneasy  f — Underwood.  No. 

Hr.  Strange.  Did  you  never  bear  Mr.  Ca9- 
tell  say  the  security  was  uneasy  .' 

Undermood,  No. 

Mt.Strangc.  Did Corbeltusefaim  uncivilly  F 

Underwood.  No. 

Mr.  Siruagt.  What  did  Corbettsay  ? 

Underaiood.  He  spoke  lu  me,  and  aaked 
where  he  was,  and  iben  went  up. 


Then  Daniet  Hopkin 
Mr.  Hftret.  Were  yot 
house? — Hopkini.  Yes. 


JfopfclJW,    V( 


as  again  called. 
I  Mr.  Underwood's 


You  heard  the  discourse  that 


I  was  in  Williams's  room  on 
.  I  lived  up  two  pair  of  stairs, 
end  Mr.  Caatell  three  pair  of  stairs ;  Williams, 
Castdl,  and  I  were  standing  together,  Corbrtt 
came  down  stairs ;  there  was  Mr.  Castell  with 
ns;  he  said,  Mr.  Castell,  ymi  must  go  with 
me,  your  security  has  Burrendeted  you  ;  Mr. 
Caatell  desired  he  might  not  go;  Cotbetl  SHiil 
he  must,  be  had  the  wiuileii's  union,  and  most 
obey  them. 

Mr.  RttTCt.  Who  was  warden  ? 

Hopkins,  Mr.  Dnmbridg*. 

Mr.  Rtnei.  Did  not  Castell  desire  him  to 
let  him  slay  i* 

Hopkini.  Yea;  CorbeU  said,  be  wished  he 
could ;  aud  said  several  other  civil  cxprcsiiiins. 

Mr,  Strange.  Do  you  know  tliu  lime  when 
Hr,  Barobridge  was  sworn? 

Bopkim.  1  Lclitvn  it  waa  lb*  lU)i  of  No- 
veoiber. 


^  I.  Bam6ridge  and  R.  Corbeit,         \ 


>«w 


Sazoge  fwnrn. 


.bi'i 


I 

HopJ 


!•: 


Mr. 
Mr.  r» 

berty  ^' 

Mr.  i 
1728,  <i! 

Hopk 
the  20tli 
In  the  ofl. 

Mr.  Ji« 


••    <-      I 


I 


••k« 


into   If  r 


mm 


,«n»      ^      M%^     •     iSIIIUW 


2  vn«2a 


CO 

Mir  ir  & 


I*     V9 


lit  V9Q. 


*.   ■«*' 


^^  aot  jeiurs  he 

3^     .,    •?«  icard 

Ves. 

jaKT*^:  did 

7    .,.v'tfa:iiiy 


^•*.  iMreto 


you 


?— 7i 


Mr  Jit 

Hopkin 

Mr.iit't 


>, 


you: 

Hopkins. 
randum,  th.. 
nan  aod  Mi 


Mr.  I«^.  Did  joa  at  any  time  see  Mr. 
'iiil  afl^r  he  was  in  custody  with  Corhett  i 
Sizage.  Frequeotly. 
Ht.  Lee.  When  did  you  first  see  him  ? 
St:T€i^e,  The  day  he  was  taken  in  cust 
Kr.  Lee,  Where  did  you  first  see  liim  i 
&2vage,  I  can't  say  whether  at  his  ow  u 
nigs,  or  at  the  Kiiif^'s-Arms  taFeru. 

>lr.  Lee,  Did  Mr.  Castell  make  any  re 
:o  you  ? 

Savage.     Mr,  Castell  desired  I  would 
Mr.  Bambridirr,  ior  that  he  understood  hi 
coing  to  close  confinement,  and  that  he  a 
bended  the  ^mall  pox  was  there ;  and  said 
it  was  Tery  fatal  to  his  family,  and  if  he  ca: 
it;  4ie  should  die ;   and  said,  it  would  be  i 
10  him  in  his  affairs. 
Mr.  Lee.  When  was  this? 
Savage.  This  was  the  first  day  he  was  t 
ill  custody,  buforo  he  went  to  Corbett's.     i 
Mr.  Banibridgc  this,  and  told  him  the  a| 
hension  Mr.  Cnstell  was  under  of  catch in| 
small  pox,  and  desired  he  might  be  indul^ 
fro  to  his  own  lod|(insf,  and  that  be  would 
the  expence  of  havinur  a  kee|)er  there.    Ac( 
iog'ly  I  went  to  Mr.  Bambrid^,  but  he 
rae  no  express  answer. 

Mr.  Lee.  Did  yon  acquaint  Mr.  fiambi 
with  what  Mr.  Castell  said  f — Savage.  Ye 
Mr.  Lee.  What  did  he  do  alWr  P 
Savage.  I  went  upon  the  same  messag 
Bambridge,  three,  four,  or  five  times,  I  be 
four  or  five,  and  never  had  any  answer  til 
last  time ;  then  Mr.  Bamhridi^e  said,  he 
char^-ed  with  a  pretty  (leal  of  money,  am 
must  take  care  of  his  office. 

Mr.  Lee.  Did  you  mention  any  things  ol 
small  pox  to  TJanihridjre  ? ^Savage.  Yw. 
Mr.  Iscr.   Did  he  say  any  thinj^  as  to  thi 
Savage.  No. 

Mr.  Fazaktrh  y.  Do  you  remember  any 
versation  at  the  Kinj^'s-Arms  tavern  ? 
Savage.  Vcs,  tliat  was  some  time  af\er. 
Mr.  ±\i2af:criri/.  How  long  ? 
Sai'uge.  A  little  before  he  was  taken  ill  ol 
small  pox. 

I^lr.  Fuznkerhy,  How  longf  before  ? 
Savage.  About  a  week  or  tour  days.  I 
in  company  ivith  some  other  ^eiitlVmrn, 
Bambnd(»%  rame  in,  ninl  saiil  he  had  l)<  i  n  ' 
Mr.  Castell,  and  that  nn  unUicky  accident 
happened;  and  thnt  >irs.  Corheti  had  n 
tioneil  the  dans^or  th*-  man  %\a«  in  that  w. 
of  the  i^m.ili  pox,  :  nd  Ijambridt^e  told  us, 
Mr.  CasU'l!  v»  ruicd  to  be  much  aiieiii>tl,  a 
gave  hiui  \ast  uneasine<:s. 

L.  C.  J.     Was  this  before  Mr.  (;astell 
taken  ill  ? 

Savage.  I  was  at  snppc^r  in  the  K'np^'i?-.^ 
tavern,  in  a  room  behind  the  luir  ;  then  Ij 
bridi^re  came  in  and  told  us,  tliai  he  liaci  bet' 
Corbett*s  house,  anil  l?u' licli\  wifv  hud  ut 
tonately  mentioniMl  tin*  pirsoirs  haviii«»> 
small  pox  ;  antl  that  >Ir.  Castell  seemo( 
turn  pale ;  and  it  (jravo  Inni  pain  ig  be« 
Castell  IK)  much  thockwU. 


OH  an  Appeal  far  Murder. 


^Itt.&at*.  Wulhittlieftr«rilayofhiibe- 

iHidDHMMijr 

MM.  Vm,  1  Uk«  it  to  be  M. 
■Littvna.  YoDHT  you  weatlhe  next  day 
t|Mr — Savagt.  I  belie*e  It  was. 
Ik.  Ream.    Did  you  ga  by  order  of  Mr. 


Wb«( did  Mr.  Caslelldeaire  you 
mmf  lb*  Dfxt  day  to  Mr.  Bnmbridge  ! 

Smuc.  The  »«ry  tam*  thing. 

Ifr.  JUnv*.  Waa  lltrre  anj  itiitig  mentioned 
Mtatks  place  Mr.  Cutell  desired  to  be  eu- 

ntiur 

tuaft.     It  «u  lo  hb  own  lodirmi;. 

Mr.  lUrzn.     \Vk  there  my  other  place 

Mr.  fUtvtt.  Wereibere  any  eniteavoiirs used 
if  MlwhiiJgc  to  tube  liim  oul  of  thai  ]i1uce  ? 

imwr.  N«,  I  do  notkooir  it, 

Mr.  JUmt.  IIbw  many  linHM  did  you  ^? 

4nwr.  Too,  titree,  or  lour  timea. 

Mr.  KfllUty.  I  tbink  he  mid,  it  woiilil  h«  an 
fcWH  ■ii.ncf ,  aod  that  he  curd  not  lo  gu  to 
ttaMi'.  r— Suuflgtf.  Yes. 

Mr.  Strange.  I  ask  you,  whether  you  snid  il 
•Mlbcftni  day,  or  nul,  before  he  trenttn Cor- 
i«f»t—&n>agt.  No. 

Mr.  Sirmec.  Did  you  see  him  there  f 

&»<-  Vr.. 

Ib.^ranjc.  How  wu  his  uaag«7 

Inair.   I  dkl  not  beartirm  cotnptairi. 
■r.  Sininge.  Did  you  ^  wi<h  any  other  rt- 
n^  (tuB  that  h«  migbt  go  back  to  Wn  Indg- 
it^^vagr.  That  was  the  reifnest  by  me. 

M.  tUera.  Wbai  was  the  answer  the  InsI 
tMJW  wmi  to  Bamlnidge;  wbelber  he  did 
■H  nj  h>  was  in  execution  f 

fay.  f  nnnnt  take  upon  me  to  say. 

LC.J.  I  think  what  you  said,  was,  that  it 
WkHMgrnified  hy  Corbelt.tbat  Mr.  Cattell 
Mi  la  ht  locked  up  ibere,  and  il  bad  been  irg- 
aM  U  biai  tlial  iho  ainatl  oox  was  ibere  ? 

b=«(.   Ye>. 

LC.J.  What  place  waa  Hat.' 

Imtfa.  I  can't  he  R«taia  whether  at  the 
liw^'AniM.  or  his  lo'l^inss. 

l(.  Ijtr.  IM  yon  kno'v  the  ilay  he  Tell  ill  ? 


.  le 


Mr.  Xrr 


't  tell. 
Wa«  he  well  before  fae  went  ii 

Whro  he  wrnt  Inlo  Corbell's,  t 
be  well  tlren  T 


A.D.  1730.  [4« 

Mr.  tit.  How  iTiiny  limes  did  you  go  t 

Sirncf.  Four  or  five  times. 

BIr.  Xee.  Uow  lao|;  berureBainhridn-eume 
io  into  the  Rin^c-Arnis  tavern,  berore  ihaidia- 
course  hagijiened  ? 

Sarage.   I  believe  the  same  day. 

Bamindgt'  I  detire  a  qiiesliuu  may  be  aabed 
the  witness,  wbelher  lie  cams  in  relalion  to 
some  suits  or  Mr.  Caslell  ? 

Mr.  Lee.  We  irosi  oppose  (hat. 

L.  C.  J.  It  is  between  parly  and  parly,  hia 
couusel  must  aek  r|ues  lions. 

Savage.  I  did  umlentund  there  waas  ne^v* 
datioD  uarried  un  by  Oamlirldge  lor  Mr.  Cas- 
lell, between  him  and  ihe  printer ;  and  Mr. 
Bambridge  did  tell  me,  that  be  had  made  ao 
end  of  it  for  40/.  or  SOl.  bat  1  know  aotbing 

ItTr.  Strange.  Did  ttnt  you  come  about  om 
CotII? — Savage.  I  know  uoUiiog  of  it. 

Mr.  Strange.  Did  you  come  lo  Bambridg* 
an  to  Mr.  CuHI'ii  being' securiiy  f 

Savage.  1  believe  I  did,  awl  aaid  he  Itat  a 
proper  man  for  security,  being  a  man  of  aub- 

5Aorluawoni. 

Mr.  Lee.  Did  you  go  to  Mr.  CasleJI  when  at 

Corlwlt'B  ? 

Shorlh.  1  went  to  Mr.  Caslell  at  Corbelt'a, 
the  morning  sricr  he  was  in  custody. 

Mr.  Let.  What  passed  ? 

ShorlU.  Mr.  Caslell  said,  he  had  beet)  very 
ill  used  by  his  creditors,  and  beliered  they  had 
been  in  combinatiuD,  aud  had  comliined  wiib 
Ur.  Bam  bridge. 

Mr  Strange.  Were  yon  freqacnlly  willi  Ht. 
Castell  while  he  was  at  Corbeti'a  house  t 

SAortit.  Yes. 

ilr.  Strange.  Ouringihe  time  you  were  there, 
what  manner  was  be  used  in? 

S/iortu.  Mr.  Bambridge  behaied  louarda 
him  very  gentlemanlike,  so  did  Mr.  Coibelt- 

Mr.  ^Iron^e.  Did  you  ever  hcarbiiacon)- 
plaiu  ? — Shorta.  No. 

Hir.  Strange.  When  did  you  tail  see  dim  f 

Shorlis.  A  day  ortwo  before  he  died. 

Mr.  Strange.  Did  be  complain  of  Mr.  Cor- 
belt's  ill  usage  iheii  ? 

Shorlis.  I  believe  he  had  every  thing  he 
warned  IV»m  Corbrlt's. 

Mr.  IFynn.  Did  be  complain  of  any  haidahif 
in  being  t^arried  to  Mr.  Corbelt'a  bouse  t 

ShortU.  Yes. 

Mr.  R-yan.    Who  did  he  complaiii  « 
CTadiIors,or  Mr.  Bambridge? 

L.  C.  J.  That  is  not  evidence. 


sin  o^ii^^ 
e  <TOm  Mr. 


JoAn  Surrigt  sworn. 
Mr,  Lee.    Did  you  go  at  any  ti 
CnUtH  to  Mr,  BarobrriTge? 

Surrige.    I  went  two  or  threr  lime*. 

Mr.  Lft.  When  did  VDti  see  him  ? 

Sumgt.    I  wcDl  in  Iiie  month  of  November. 

Mr.  Lte.  WballimeP 

Surrige.  Aliout  foorteen  days  utbtlii 


4f71 


4  GEORGE  11.  Trial  qf  T.  Bambridge  and  R.  Corhett,         [4S$ 


Mr.  Lee.  That  wai  about  the  middle  of  No- 
Tember ;  it  was  before  he  was  taken  ill.— Did 
you  see  him  atCorbett'sP— iSttrr^e.  Yes. 

Mr.  Lee,  When  you  went  to  Mr.  Bambridge, 
what  did  you  f^o  with  ? 

Surrige,   Two  lelteni. 

Mr.  Lee.  Did  you  go  by  word  of  mouth  ? 

Surrige,  No. 

Mr.  Lee.  Had  you  any  answer  to  these  let- 
ters ?  Did  youdeliTor  them  to  Mr.  Bambridge  ? 
Did  he  pre  any  answer? 

Surrtge.  Ue  said,  he  would  wait  upon  Mr. 
Castell. 

Mr.  JReeve$.  Had  you  any  discourse,  con- 
eeming  his  confinement,  with  Mr.  Bambridge? 

Surrige,  No» 

Thomas  Goodman  sworn. 

Mr.  Beeves.  Were  you  at  any  time  at  Mr. 
Corbett's,  when  Mr.  Eiambridge  and  Mr.  Cas- 
tell were  together? 

Goodman.  I  was  confined  a  prisoner  there. 

Mr.  Reeves.  Did  you  remember  any  con? er- 
sation  between  them  two? 

Goodman.  1  was  a  prisoner  there,  and  Mr* 
Bambridge  came  into  Corbett's,  and  sent  for 
Mr.  Castell  down  stairs ;  and  Castell  said  to 
Mr.  Bambridge,  he  had  sent  to  him  two  or 
three  times,  and  never  could  hare  the  happi- 
ness to  see  him ;  Bambridge  said  he  was  ?ery 
sorry  for  that ;  and  Mr.  Castell  desuwl  of  Mr. 
Bambridge  either  to  go  into  the  house,  or  the 
rales,  for  the  distemper  raged  there. 

BIr.  Reeves.  What  de  yoo  mean  by  the 
house?  To  go  into  the  gaol?  Tell  the  dis- 
course that  happened ;  what  did  Mr.  Castell 
aay? 

Goodman.  Mr.  Castell  said,  tlie  distemper 
raged  in  the  house,  and  the  distemper  would  be 
the  death  of  him ;  and  Bambridge  made  an- 
swer, that  be  should  neither  go  into  the  house, 
nor  into  the  rules,  unless  he  gare  him  snch  a 
sum  of  money. 

Mr.  Reeves.  Where  were  you  when  you 
heard  this  discourse  ? 

Goodman.  I  was  at  the  bar,  askipg  for  some 
bread  and  cheese. 

Mr.  Lee.  When  Mr.  Bambridge  said  he 
should  not  j;o  into  the  house,  or  into  the  rules, 
what  dicWMr.  Castell  sav  ' 

Goodfnan.  That  he  had  giren  security  se- 
Teral  times,  and  fresh  bail,  and  that  he  would 
not  giro  any  more. 

3Ir.  Reeres.  Did  Mr.  Bambridge  deny  that  ? 

Goodman,  No,  I  did  not  hear  it. 

Mr.  Reeves.  Where  did  Bambridge  order 
him  to  be  put? 

Goodman,  He  then  ordered  Corbett  to  put 
him  into  the  tap-room,  and  then  he  went  up. 

Mr.  Reeves.  How  long  did  he  stay  there  ? 

Goodman-  About  four  minutes. 

L.  C.  J.  What  time  of  the  year  was  this? 

Goodman.  About  the  monto  of  November. 

Mr.  Reeves,  Did  Castell  complain  of  any  ill- 
ness? 

Goodman.  The  next  momiiig  he  came  down, 
and  nid  to  Mr.  Corbett  he  wai  my  illy  and  de« 


sired  a  fire  to  be  made  in  his  room,  and  I  be- 
lieve he  never  came  down  aeain. 

Mr.  Reeves.  How  often  did  Mr.  Castell  re- 
peat this  to  Mr.  Bambridge  ? 

Goodman.  He  desired  two  or  throe  times  to 
CO  into  the  ^ol,  or  to  the  other  place ;  ui 
Bambridge  said  he  should  not  go  to  eitkr, 
without  a  sum  of  money. 

Mr.  Reeves.  What  sum  was  it  ? 

Goodman.  I  did  not  hear  the  sum^ 

Mr.  Reeves.  Where  was  this  ? 

Goodman.  At  the  bar ;  I  was  standing  al 
the  bar  asking  for  bread  and  cheese. 

Serj.  Darnell.  How  long  were  you  there? 

Goodman.  Four  or  five  minutes. 

Seri.  DamelL  How  long  were  yon  a  prisoner? 

Goodman,  Four  or  five  months. 

Serj.  DamelL  Dkl  you  see  them  together? 

Goodman.  No,  it  was  imposaible  for  ine  to 
see  them,  the  door  was  shut. 

Serj.  Darnell.  Did  you  never  give  any  teslip 
mony  before  ? — Goodman.  No. 

Serj.  Darnell.  When  were  yon  discbaifcdf 

Goodman.  By  the  act  of  parliament. 

Mr*  KeUlebjf.  How  came  it  yon  wen  asC 
examined  before  ? 

Goodman,  1  don't  know. 

Mr.  KeUleby.  Did  yon  make  any  dedaratkn 
of  this  matter  to  any  body  ? 

Goodiman.  I  gave  this  account  to  icfcnl, 
particularly  to  Mr.  Houghton. 

Mr.KeUleby.  Did  you  hear  of  this  trial  F 

Goodman,  I  heard  something  of  it. 

Mr.  Keitlelnf.  Are  you  subpcsnaed  ? 

Goodman,  1  am  not  subpoenaed. 

Mr.  Kettleby.  Where  have  yon  been  saM 
you  was  dischaiged. 

Goodman.  In  my  business. 

Mr.  Kettleby.  What  business  ? 

Goodman.  A  printer. 

Bambridge,  My  lord,  there  is  a  person,  Mr. 
Botwright,  stands  behind  the  evidence  to 
prompt  them,  I  desire  he  may  be  removed  from 
that  place. 

L,  C,  J,  Let  him  go  to  the  other  aide. 


Sutton  sworn. 


Mr.  Lee.  Did  you  know  Mr.  Castell  f 

Mrs.  Sutton,  Yes. 

Mr.  Lee,  Did  you  know  he  had  the  small* 
pox? 

Mrs.  Sutton.  Yes;  Mr.  Coriiett  sent  for 
me,  and  desired  me  to  look  after  one  White,  but 
I  could  not,  and  Mr.  Castell  was  standing  tberCf 
and  said  he  was  afraid  of  the  small -pox,  and 
said  that  he  was  afraid  that  I  had, them,  eli- 
serving  something  like  a  pimple  upon  my  faosk 

Mr.  Lee.  Was  there  any  thing  upon  yoor 
faqe? 

Mrs.  Sutton.  No,  nothing  but  what  is  now. 

Mr.  Reeves.  Was  that  after  be  was  in  custody 
at  Corbett 's  ? 

Mrs.  Sutton.    He  was  not  a  prisoner  tl 
there. 

Mr.  Reeves,  Were  you  in  the  -lionaa  wl 
Mr.  Cabell  was  ill  ? 

UttuSuitom.  I  Ml  up  the  nfgbt  ha  diaL 


■  I     'umt 


m^4  ■   fc  Tim 


on  an  Appeal  Jut  Murder. 


IbiHtna.   Can  ynu  tell  litp.  day  of  tbe 
Hfc!— M«,5iiJi(m.  I  caDooi  tell. 

t,  Bttrr*.  Do  you  kiiott  the  innnlli  ? 

-L  SittUi.    1    ciu't    U-ll,   it   was  before 


Ur.  Faiakfrlry.    niiat  ilistemperilid  h«  die 
•r*— Mn.  .Soffun.  TLe  8ina1I-|>ox. 
—  ItVeitbriKik  (worn. 

Itt,  FutaJitrley.  Whudoyou  know  of  Mr. 
CiMdr*  Uat  of  bating  tbe  amiJI-pox  ? 

FatktwA.  I  bare  bteo  Mr.  Cuslcll'a  neigb- 
Wwiuty  yean, sod  unea  beard  tiim  ssyi 
Mbc  It**  rcry  roucli  afraid  of  the  Biiiim-[>uX' 

■  Kilbury  Bworo. 

Ht. Ptiakrrleg.  Do youkDowtbatBboulIbc 

kik  *t  tiofvmber,  anu  so  tor  >  inoolb,  from 

lfctllu»etill  Deceoiber  lul,  tbere  were  cui|i(y 

MHiiDlbanriwio? 

iAurj.  \e»,   there   was,  one  of  tbe  most 

Nr.  Faiakerle^,  Where  wu  jl  ? 
Kilfarj.  Up  uoe  pur  of  •lain,  No.  IG,  n*int- 
MeL 
Hr.  F*x»ierley.  Visa  there  any  other  room  T 
KiAwy.    Yes,  one  where  iLey  kept  the 

Mr.  Faiaktrley.  tVcre  Ibere  other  boutcs 
•kM  Oiere  HFre  rooms  as  convenient  ? 

JU«rt.  I  don't  know  of  any. 

L  C.  /.  What  lime  were  the  rornns  empty  f 

CAuj.  From  the  tatter  end  of  October,  till 
tl  «li  w  Mb  of  December. 

B,wfA  sworn. 

1*.  Fuokerhy.  You  hear  the  question, 
iMtr  tram  tbe  middle  of  November  till  tbe 
la>p«n«f  December,  any  rooms  conrenient 
wwanplj? 

tttlk.  There  were  the  aaine  two  nwmi  as 


ftimm 


ikrrleg.  How  longwerelhey empty 


Mr.  Fasaktrlry.  Do^ou  know  any  thing  of 
■  Wnc  that  there  was  room  ia? 
Baolk.  t  d«a't  know  any  thing  of  that. 

CUa. 

Xr.  Fatekrrley.    Do  yon  know  that  about 
"--"■"iof  Nofffluber,  uae,  and      -" 
ir,  ibere  was  aoy 

s  Corbelt's,  to  put  pri- 


Mr.  Strange.     Wera  not  tbe  u 
work  f — Cleaver.  No. 

Mr.  Ftuoktrky.   We  aball  call  w 


SerJ.  Darnell.  I  am  couniel  for  the  defro- 
danla.  Tbe  gentlemen  on  the  oiberiidc*ay, 
that  this  is  an  appeaJ  that  is  brought,  witb'a 
good  dealof  commeudatiou  of  Ihe  widutv  ;  Ihat 
she  was  fullotring  the  murder  of  her  husband  ; 
and  that  ihe  traced  it  with  a  full  coiiriuliOD, 
that  Ibough  one  liad  been  acquitted  fur  it,  vel 
ulie  should  now  convict  ttuih,  lliAelbre  aba 
waited  for  thn  opporluoity  of  laying  it  before 
theCoart. 

I  shall  not  take  notice  what  passed  upon  Ibit 
occasion,  but  observe  to  you,  gentleoieo,  what 
is  alleged  in  the  appeal :  tbe  apjieul  baa  charg- 
ed, that  these  tivu  dcfendouta  ilid  nitb  force 
and  arms  make  au  assauh,  and  did  feloniouslr 
take  and  imprison  Robert  t.  astell,  without  bis 
consent  and  against  bis  will,  in  the  house  of 
Richard  Corbetl ;  that  there  they  did  imprison 
him;  and  that  in  that  house  there  wasooe  Jo- 
■eph  White  then  ill  of  tbe  smull-pox, a  distemper 
the  said  Caslell  was  ^atly  afraid  of;  and  b< 
believed  he  should  die  if  he  had  ibem. 

That  being  there  conGned,  be  caught  the 
small-pox  and  died. 

1  cannot  but  say,  it  is  something  new,  and 
an  uucommon  accusation  of  murder ;  hut  so  lar 
I'll  go,  that  if  people  do  wickedly,  tbey  should 
answer  for  it 

There  is  first  a  great  deal  to  be  considered. 
Ag  Id  tbe  first  point,  nbether  he  was  legally 
taken  and  imprisoned.''  I  tbiak  there  is  noeti. 
deuce  as  to  that  but  Hopkins.  He  told  you  he 
was  present,  and  saw  Corbett  come  to  Under- 
wooo's,  and  told  him  hia  bail  hail  surrendered 
bim.Bnd  luld  him  be  must  carry  him  away  lit 
prison,  and  told  him  he  was  sorry  for  it. 

This  is  tbe  aniaivfully  and  felanioualy  car- 
rying him  there. 

He  lolJ  you  be  bad  tbe  wanlen's  authority  ; 
as  he  was  his  agent  and  tipstafT,  he  was  pul  lo 
lake  him  ;  be  must  take  him,  and  did  it  bv  tlie 
aulbority  of  the  warden,  as  he  was  his  uScer; 
lliia  was  the  general  authority :  this  is  the  tin- 
gle evidence  of  the  first  taking  the  man.  t 
submit  it  to  your  lordship's  direction,  that  there 
is  no^iing  unlawful  in  this. 

The  next  is,  Ihat  be  was  carried  lo  Uie  hotiat 
where  Whitewossickof  thetniall-pox.  What 
is  the  evidence  as  lo  that!'  Every  b«dy  that 
jeaksBsluthat,  said,  tbe  small -jiox  wit  ovit 
ten  days ;  if  it  was  over  ten  days,  when  is  be 
kaid  lo  be  sick?  Wlien  islhesmall-poi  toendi* 
What  is  tlie  consequence  of  hia  coming  there  r 
Tbathe  dreaded  tbe  distemper,  caught  it  ami 
died.  That  tbe  catching  it  was  from  tbe  14ili 
of  Norember,  till  tbe  4th  of  December,  which 
waaoear  three  weeks;  this  comes  out  to  W  a 
■sooth  afler  the  man  had  the  amall-|>ox.  Jl 
was  lawful  when  he  was  cavried  ibctc. 


iSl] 


4  GEORGE  IL  Trial  of  T.  Bambridge  and  R.  Corbdt,        [«ai 


As  it  if  UDKMMiible  to  suppose  the  time  of 
catching  the  tinsll-pox,  an;  not  yon  to  judge  ? 
It  is  so  general  a  distennper,  there  is  haraij  one 
in  a  hnndrifd  in  this  town,  that  has  not  caught 
it.  Is  it  because  he  had  the  sinaH-poz  there, 
that  they  had  a  felonious  intent  f  Weretbare 
all  these  circumstances  to  make  it  appear?  This 
is  the  circumstance  that  must  be  lell  to  ^ou, 
Iha  general  credit  that  Mr.  Bamhridge  reoeif  ed 
from  ahnost  all  the  witnesses,  that  he  treated 
him  civUiy,  and  that  ereo  Mr.  Bambridge  did 
busioess  for  hiss,  till  it  come  to  Goodman,  and 
Goodman  gives  an  odd  account  to  you,  if  you 
caa  believe  iL  He  says,  he  stood  at  the  bar 
(which  in  a  public-house  is  very  noisy) ;  and 
says,  that  he  heard  a  talk  through  the  door 
which  was  shut,  and  he  took  it  to  oe  Mr.  Cas- 
teli's  voice ;  and  he  said  he  desired  to  have  the 
liberty  of  the  rules,  for  the  distemper  raged  in 
the  house. 

For  a  man  to  hear  this  at  the  bar,  when  the 
door  was  shut,  and  that  this  should  be  a  secret 
so  long,  is  very  extraordinary. 

I  must  observe  to  you,  gentlemen,  that  Good- 
man was  a  priKoner ;  andif  this  evidenee  had 
lieen  thought  material,  the  vigihmce  and  in- 
dnstry  used  to  find  him  out  (and  very  com- 
memMble  it  was),  it  was  impossible  to  think  it 
should  be  undiscovered,  where  so  vigihmt  an 
•nouiry  was  made. 

This  is  the  only  thing  that  shews  any  ini- 
quity in  Bambridge.  If  ere  is  a  man  that  wants 
to  so  into  the  liberty  of  the  rules ;  is  a  gasler 
toKthim?  IfaGBolerdesiresDumey,  I  doaot 
know  that  it  is  illegal ;  it  was  alWr  bis  bonds 
were  given  up ;  it  would  have  turned  upon  his 
own  bead  if  he  had  gone  away ;  he  mubt  have 
been  answerable. 

lie  obaig«s  him  with  So  monstrous  an  im- 
probability (it  is  impossible  to  think  he  said  it), 
that  we  must  submit  it,  whether  any  credit  can 
be  given  to  sucli  evidence. 

1  chuse  to  mention  "Nil,  Bambridge ;  but  1  &m 
more  particularly  concerned  for  Mr.  Corbett. 

They  have  called  several  witoesses,  and  thev 
say  Mr.  Corbett  used  him  very  well.  And  th» 
is  alleged  to  be  evidence,  that  where  witnesses 
are  wanting,  the  man's  declaration  upon  his 
death -bed  is  evidence ;  because  that  it  may  iw 
done  without  the  privity  of  any  one  else ;  and 
that  a  man  at  that  time  would  'have  regard  to 
himself  in  what  he  said.  What  was  this  de- 
claration ?  If  I  die,  I  lay  my  death  to  Bam- 
bridge ;  but  he  is  not  certain  that  the  man  did 
Jay  3ie  misfortuue  of  being  brought  into  prison 
to  Bambridge ;  but  if  he  did  die  by  catching  it 
from  White,  or  being  confiueil  in  a  close  air, 
if  I  die  the  prison  is  Uie  occasion  of  my  death, 
and  eoBsequently  the  keeper.  Is  there  any 
oottsaqucoce  can  be  drawn,  tliat  there  was  a 
fslonioQs  intent?  There  is  nothing  at  all  from 
Corbett. 

But  as  tliej  have  taken  op  a  good  deal  of 
tiMe  in  shewing  that  it  was  a  cnme  carrying 
him  toCorbaU'Sy  thoivh  I  apprehend  it  is  not 
■atflrialy  wa shall iaa£B it nuui  thatit  was  no 
crimatMl, 


I  mnst  take  notice  as  to  this,  that  at  wts  in* 
sin uated  from  circumstanoes.  They  have  cn« 
deavoored  to  shew  Mr.  Castell  received  \%bL 
and  alleged,  that  this  money  was  to  be  got 
from  him;  this  money  iras  the  means  of  his 
being  used  ill.  When  they  came  to  prove  this, 
they  only  sliewed  that  a  note  was  drawn  upon 
Woodward.  If  he  hail  any  money,  might  bs 
not  have  paid  it  to  his  creilitors  ? 

The  next  tiling  I  shall  take  notice  of  is.  asfti 
the  bonds.  Probably  the  bonds  that  had  ben 
giren  to  Mr.  Huggins  were  delivered  to  Mr. 
Bambridge.  Mr.  Bambridge  said  he  bad  bat 
one ;  and  if  it  was  token  in  the  manner  even 
said  by  their  witoesses,  it  did  not  appear  in  any 
manner  oppressive;  for  Chambm  said  he 
would  surrender  him. 

When  Peter  Ellam  was  examined,  he  WH 
asked,  whether  Bambridge  said,  that  he  wooM 
not  have  them  surreuder  him  ?  He  made  an* 
swer,  that  he  said  something  to  that  efieet| 
and  it  was  said,  that  these  bonds  were  given  dk 
bene  use ;  therefore  the  warden  was  to  have  a 
reasonable  time  to  enquire  into  the  securities; 
so  it  may  be  likewise  taken  by  the  prcnm* 
stance,  that  he  desired  to  have  a  keeper  vitli 
him,  and  he  would  pay  for  it.  What  hsffsr^ 
does  the  ^oler  run,  if  two  or  three  perspos 
come  to  him  to  ask  the  liberties  of  the  rolc% 
and  he  gives  it  them,  and  the  men  escape?  Is 
not  he  to  answer  for  them  ?  If  that  waa  tlw 
case,  a  keeper,  which  is  thought  to  be  a  bene- 
flcial  office,  would  be  soon  ruined  by  adi  s( 
good-nature. 

As  to  the  case,  it  stands  thus:  Mr.CasliB 
was  first  commilUed  the  18th  of  June,  UM^ 
and  it'  is  customary  to  bring  prisoners  first  IS 
tills  bouse.  Hopkins  says,  it  is  common  fiir 
prisoners  to  desire  to  be  there,  for  they  huf 
better  convenience  to  transact  what  buamcss  M 
to  be  done,  than  to  trouble  their  friends  to  gi 
into  the  gaol.  Honkins  says,  that  it  was  cnsla* 
mary ;  and  from  this  house  he  did  give  secuiity 
and  went  to  his  lodgings,  aud  continued  thsrp 
till  his  security  would  not  stand. 

When  this  man  was  brought  in,  hehappansA 
to  be  an  intimato  acquaintance  with  one  M^ 
Vaoderbauk,  who  s^ioke  himself,  and  got  sfr* 
veral  others  to  speak  to  Mr.  Baqfibiuga  in 
his  behalf.    He  will  give  you  an  account  sf 
the  very  creditors  coming  to  surrender  bte| 
and  it  is  nothing  but  a  man's  eredilon  oft 
come ;  and  these  people  will  shew  with  whsl 
fiivonr  Mr.  Bambrulge  treated  him,  and  thri 
he  desired  Mr.  Bamhridge  to  assist  him  in  Mb 
afibirs. 

Gentlemen,  he  was  removal  from  CorfaslMl 
to  his  khlgings,  and  continued  there  till  his 
curity  surrendered  him;  and  we  shall. al 
you,  that  Mr.  Oastell  sent  to  Mr.  Corboltib*  j 
that  this  room  might  he  made  convenient  aor ' 
fit  for  him ;  which  sUikps  out  the  first  part  of  iki  \ 
appeal ;  and  if  we  prove  he  desired  to  be  tiienk 
that  strikes  out  the  whole ;  thereiiBce  there  iHl 
be  an  end  of  the  w hole.  The  nam  is  caniedtt| 
the  house,  but  the  communication  bitwil 
them  was  op  two  pair  of  stairs :  fiirtba  wi 


h 


4:tsj 


on  (in  Appeal Jor  Murder, 


A.  D.  1730. 


r*34 


En  •>;,  Wliftc  Uy  np  three  pair  of  nlaii 
•oe  lioiiM,  uiil  Cutcll  lay  up  one  pair  uf  i 
ID  asvlhcr.  Was  lliere  sDy  mure  ilauger  Ijing 
bni  lluui  IB  llie  next  Luiur?  TI>e  wiioesan 
■Ji  White  never  canie  down,  and  uoboily  in- 
■Mrd  Uiat  CaitctI  wciil  an ;  tie  niusl  hare  hem 
•  iHitman  if  lie  tliil.  Wbea  we  alietT  vou  thai 
Wcamc  ibervil  LUown  dexir«,  anu  liad  the 
W  •H>1  ImlillDH  Hi  hi*  o*n  desire,  we  inuGl  sa  j 

Ova  i\ta  dittf  niper  waa   llie  riailation  ol'  God, 

ml  onr  to  liiin  a>  to  oilier  |>eople. 
Ktiiiall  call  a  ^ood  mony  of'ilie  people  who 

^N  bis   »e<.'urily.  lu  prote,  thai  aa  eniin 

flf}  avru  eni|iiired  arier,  (bey  were  admitted 

rnntWirn,  afler  the  last  bond  was  ptf 

b  Willi   lia*e  gone  alioul  bin  bniiriesH  if  he 

*mM  i  anil  I  bat  buud  was^iveo  tfr  &fne< 

mJ  ikTrvlife  in  the  power  ot'llie  warileii  to  let 

Ibra  ill  ai  uDl.     ne  will  coll  our  ivjlnessei, 

ii'liSm  wubowlonK  tThite  had  been  well  be- 

<  irllcametliere;  that  he  had  taken 

I  liyiiici  hut  I'or  I'rarof  any  acci- 

^  ilipre  ivere  oiher  priwaerB  in  Iht: 

<M.I  not  let  bim  come  (tnwn.    Tim, 

pvilrmni.  wc  (ball  be  ilile  la  prove  by  lefernl 

«M^aci  1    wliii'b  il'  we  do,  you  will  lind  (1i 

fJMcra  NdI  (iuiliy. 

Sa^  Eirrr.  HIv  \otA,  and  ymx  geolkmen  of 
•tivry.1  am  orcouiiid  ol  l)>e  same  aide.  T 
M  art  fa  over  thn  wbulo  ca«e  ;  hul  only  oh- 
•r*l  bi  jou,  thai  the  gentlemen  on  the  uther 
Mc  avTv  c<wiM:ioi»  Ihal  they  liu'l  no  poiiilivs 
IbcTvfiiTC  ibey  have  arlt'ully  gone  ahout 


\  BIT  tfaat  Mr.  Cutell  hod  135/.  jiniJ 

■*i4  uavioif  (hia  mouey,  Air.  Baitibridge 

",  and  a)o»equcnlly  waa  niakiii^  use 

lOr*  lo  extort  the  mnoey  froiD  him. 

«  fiu-  ahnri,  In  that  lli^y  called 

m  miy  prnted  that  a  note  wits  A 

r.  Wood  Iran),  payable  to  bim  or  bearer; 

'4  Mt  appear  that  Banibridge  bad  aoy 

I. 

>  M  aamher  eTidence,  one  Goodman, 

'id  ibu   Sir.  Ilimbridgt!  had  a  riew  to 

(  of    the   money )    one    wonid    have 

~  tl  lie  ehnold  (la 

*  exceedingly 
!rCD«tell  gives  is,  that 
m  gtTCD.acd  he  would  fjive  nu  more. 
r,  (mtlcBien.  when  this  happened; 
'er,  wh«u  all  the  aecurilies  had  been 


,  that  tliii  witness 

ir  «o  well.     lie  wa«Bl 
and  the  diii>rihul ; 
n  iiiatrncted  Id  soy,  that  il 
I  tu   ht-ar  wliat  any  penou  cays 
1  Imt,  tlut  alanda  on  the  ouUide  uf 


How  then  stands  this?  If  these  bond* 
wereexFCUied  on  ibe  end,  this  niau  fell  tick 
on  (he  3d,  and  (his  uue  bund  was  only 

deliver^  OT«r  (o  the  principal,  as  a  bond  de 
Une  etse. 

What  I  should  apprehend  wes  necfasarv  for 
them  to  pnxluce,  were  ihe  facts  in  ihe  declani- 
lioD,  that  be  was  tiireihly  la  ken  away  out  of  hi* 
lodgings,  and  carried  to  Corbetl's  house :  they 
admit  them  ta  prisoners ;  and  so  far  from 
force,  that  aomeof  ihesareties,  on  the  I4(b  of 
Kovember,  said,  (hat  they  would  ktand  nv 
longer,  and  desired  Mr.  Caslell  lo  belakco  care 
of. 

Thry  Bay  it  was  rery  wrong*  (o  carry  hiia  la 
■  spunging-house;  ■  riciualliag-houHe  It  is, 
but  il  don't  appear  lobe  a  spuny ing-hunse  ; 
erery  genlleman  is  uied  accurding  to  bis  cir- 
cumstances ;  they  pay  one  shilling  lor  their 
dinner,  which  is  rery  reasonable,  and  Hoiibins 
said  well  deserves  it.  We  say  it  is  exceedingly 
lawful  (0  put  prisoners  there;  it  is  lawful 
an'l  as  lawful  as  his  own  lodgings,  and  any 
place  in  ibe  libeily  of  the  rnles  is  lawful.  Tins 
It  not  all ;  he  went  tirst  to  the  tavern,  ani)  bit 
sertaot  bespoke  a  room,  end  had  Ibe  very  room 
he  bespoke  ;  and  we  apprehend,  Corbett  had  a 
lawful  authority  lo  carry  bim  there. 

There  is  another  fact  they  b>vea11e^e<!,  I 
must  beg  leave  to  take  notice  of;  that  WkiM 
was  sick  at  tills  very  lime,  and  in  this  very 

h  01196. 

These  two  charges  are  neccsury  to  be 
proved  ;  but  how  have  they  proved  ihem  ?  It 
B|i^ears  (bat  (besc  were  two  distinct  buuaes, 
two  distinci  stair-cases;  aud,  iu  my  judgment, 
1  apprehend,  appear  to  be  two  houses,  udI  one. 

As  lo  White's  beine  sick  althat  llnie,  ilap- 

Eesrs  he  Wat  not  sicC,  and  we  ifaall  shew  be 
ad  laken  ihree  purges, 
Il  is  not  only  oecessaiT  for  them  In  prove 
that  this  man  was  sick  al  the  time  Custetl  came 
there,  and  that  he  was  unlawfully  carried  there, 
but  11  is  necessary  lu  prove  that  this  sickness 
was  infectious;  but  Castell,  on  Ihe  contrary, 
did  nol  come  there  till  he  was  well. 

Doet  it  not  appear  that  While  lay  np 
three  pair  of  stairs,  and  was  enjiHiii'il  nol  to 
come  out  of  bis  room,  'nd  that  he  con  tinned 
there,  as  Noel  «ald,  all  tue  time?  Where  was 
Castell?  In  one  pair  uf  stairs  in  Ihe  new 
home.  How  can  you  inagine  any  Infedion  to 
come  from  the  garret  down  lo  Mr.  Ctikli.'!!  in 
the  onepair  of  stairs  room  P  Therefore,  It  was 
impossible  lo  Imagine  that  distemper  wuk  so 

Here  is  a  man  visitnl  with  ibe  small-pox, 
and  says,  "Pray  let  me  not  co  to  gaol,  but 
lei  me  go  lo  my  uwa  lodging*;"  the  bail  sur- 
render him,  beuauie  he  was  nol  sole  al  ihe 
place  where  he  lodged ;  therefore,  it  wai  very 
ridiculous  for  him  lo  ask  to  gu  (o  his  lu<tgiDg, 
which  was  uiireuwi liable, 

As  to  the  pi 


«liii 


'1  think  lliey  were  his  friends  iu  liurl ;  for 
lhei«mea,  who  l>«lbrewereiltinklng  al  Ibe  bar 
of  this  house,  designed  il  alioukl  be  au. 
.    4F 


435] 


4  6E0RG£  IL         JTrial  of  T.  Bambridge  and  R.  Curhclt,  [436 


I  must  beg^  leaFe  to  make  one  observation  : 
•oppose  there  were  some  of  the  prisoners  had 
tbesinall-pox,  and  aprisooer  comes  to  the  gaoler, 
and  says,  Here  istne  smatl-pox  in  a  garret,  I 
desire  to 'go  into  the  liberty ;  1  don't  see  how  it 
can  be  granted,  for  it  is  impossible  for  that  or 
any  other  gaoler,  if  a  oontagiovs  distemper 
comes  into  it,  and  the  well  prisoners  desire  to 
go  out,  he  should  five  tbem  the  liberty :  if 
criminals  should  be  let  out,  it  is  Tery  plain,  in 
that  case,  the  gaoler  must  answer  for  them ; 
80  I  apprehend  it  would  be  in  civil  cases: 
therefore  1  must  conclude  with  saving,  that 
my  clients  have  done  nothing  at  all  but  what 
is  humane  and  right. 

Mr.  Kettlehy.  My  lord,  I  am  counsel  of  the 
same  side ;  and  we  will  call  our  witnesses. 

—  CAop/^  sworn. 

Mr.  Kettlehy,  Were  yon  present  on  the  14th 
Af  November,  or  at  any  other  time,  when  Mr. 
Castell's  security  came  to  BIr.  Bambridge? 

Chappel.  Mr.  Chambers  came  and  said,  he 
was  determined  to  stand  security  for  Mr.  Cas* 
tell  no  longer  ;  and  Peter  Ellam  and  Curl!  the 
same. 

Mr.  Kcttlchy.  What  did  they  say  to  Ram- 
bridge? 

ChappeL  That  they  g^e  him  power  to  take 
him  up. 

Mr.  Keltkhy.  Where  was  this  ? 

ChappeL  At  Bell  Savage  yard. 

Mr.  Kettlehy.  What  dicf  Bambridge  say  in 
answer  ? 

Chappel,  He  believed  lliey  were  secure,  and 
eouid  not  imagine  the  renson  of  their  withdraw- 
injr  their  serurity. 

Mr.  Kettlehy,  What  did  they  say  to  that  ? 

Chappel,  Chambers  seemed  willing,  but 
Curll  would  not. 

Mr.  Kcttlebi/,  What  resolulidn  was  taken 
upon  that? 

Chappel,  lie  persuaded  Ellam  to  consent, 
and  iiotliing  more  was  done  then ;  and  we  left 
Ca<«tcll  and  Bambridge  together. 

Mr.  Kettlcby,  What  time  was  this  ? 

ChappeL  1  don't  know  the  day. 

Mr.  KctlU'bif.  W  liut  month  was  it  in  ? 

ChappeL  In  November. 

Mr.  Kcttlebi/.  The  beginning,  middle,  or 
latter  end  ? 

ChappeL  I  cannot  tell ;  by  a  line  sent  to 
Mr.  ",  the  attorney,  it  will  appear. 

Mr.  Kettlehy,  How  long  before  he  was  car- 
ried to  Corbett's  house? 

Chappel*  Three  weeks  or  a  month. 

Mr.  kettlehy.  Do  you  know  anv  discourse 
tliat  happenecl  between  them  a  little  before  he 
went  to  Corbett's  house  ? 

Chappel.  Mr.  Chambers  came  to  Mr.  Bam- 
bridge, aod  told  him,  he  would  be  security  no 
longer. 

Vir  Kettlehy.  How  near  the  time  he  was 
carried'  to  Corbdt's  ? 

ChmpfeL  The  next  noming. 

Mr.  Ketlleby.  Give  an  account  wbil  passed 
the.  day  belure  he  went  te  Corbeit'i. 


ChappeL  Chambers  was  twice  with  Mr. 
Bambiidgc ;  and  the  first  time  Mr.  Bambridge 
desired  Air.  Cast  ell  might  not  be  surrendered; 
Mr.  Chambers  waited  two  or  three  days,  and 
then  came  to  Mr.  Bambridge  again,  to  let  him 
know  he  would  surrender  liim,  and  said  be 
would  be  his  security  no  longer;  and  Mr. 
Bambridge  said,  if  he  would  deliver  him  np,bs 
must  go  to  the  tipstaff's;  then  Chamben 
went  to  one  Corbett,  and  Corbett  said,  he  miMt 
have  a  fee ;  then  Chambers  gave  him  bis  fee; 
and  Chambers  said,  he  was  at  the  King's  Anu. 
About  an  hour  after  I  saw  Corbett,  Chamben 
and  Castell  togetlier. 

Mr.  Kettlehy.  What  did  you  see  done  f 

ChappeL  That  is  all  1  know. 

Mr.  kettlehy.  Did  not  you  gu  to  the  Kuig*k 
Arms  tavern  ? — ChappeL  No. 

Mr.  Kettlehy.  Did  you  hear  the  security  say, 
they  would  complain  to  the  judges  about  h? 

ChappeL  Mr.  ^-^  an  attorney,  was  tlicfe. 

BIr.  kettlehy.  What  did  the  altomey  isy  ? 

Chappel.  I  don't  know. 

Mr.  Kettlehy.  Did  they  direct  him  to  take 
him  up  ?    Whom  did  Chambers  speak  to? 

ChappeL  To  Mr.  Bambridge. 

Mr.  kettkhy.  To  do  what? 

Chappel,  Tu  take  Mr.  Castell  in  cnstody, 
fur  he  would  be  security  no  longer ;  anddcBi^ 
ed  that  he  would  take  him  in  custody. 

Mr.  Strange.  What  did  Mr.  Bambridge  tell 
him  was  necessary  to  be  done  ? 

Chappel.  Bambridjre  said  he  miistempkja 
tipKiatl'. 

Mr.  Strange.  What  did  Mr.  Chambers  do  is 
Corbett? 

Chqppel.  He  sent  to  Corbett  to  the  coflec- 
house,  and  Corbett  said,  he  must  have  a  fee. 

Mr.  Strange.  When  w«is  this  ? 

ChappeL  Over  ni^rht. 

Mr.  Strange,    Did  Chambers  threaten  him  ? 

ChappeL  No. 

Mr,  Strange.  What  did  he  say  ? 

ChappeL  He  said  something  about  giving  a 
fee  and  Corbett  went  to  the  Kiu<;'s  Arms,  and 
said,  he  could  not  find  him. 

Mr.  ReeTCt  First  of  all  Ellam  seemed  un- 
easy, but  afWrwanls  was  not ;  Did  Peter  £llaia 
concern  himself  a  tier  wards? 

ChappeL  Yes,  he  sent  a  letter  to  Mr.  SootL 

Mr.  llcevct.  I  ask  you,  whether  Ellam  did 
not  consent  to  rontiuuo  before  he  was  takife 
up? — ChappeL  Yrs. 

Mr.  Reevci.  Did  Curll,  before  Mr.  CasitU 
was  taken  up  ? 

Chappel.    I  don't  know  of  that. 

Mr.  Reeret,  You  don't  know  of  any  othcnF 

ChappeL  No. 

Mr.  Lee.  How  come  you  to  be  so  innch  oo» 
cemed? 

Chappel,  I  was  to  secure  Ellam  and  myaalft 
I  was  so  much  conreriied,  that  he  and  1  Will 
bound  for  tliree-fbuiihs  ul'  1,000/. 

Mr.  Lee.  Who  went  with  you  to  Bambri%i 
the  first  time  ? 

ChajfpeL  I  went  along  the  first  tioM  li 
Bambridge  with  Peter  Ellam  aud  CiilL 


437} 


tm  an  Afipealfor  Murder. 


A.  D.  1730. 


[438 


Mr.  Lu.    1\*iih  what  intent  did  you  go  ? 

OiMpptL  1  went  uiili  Peter  Ellam  and  Curll 
■n  intent  to  iSeliTer  Rlr.  Castell  up,  for  I 
hid  given  security  to  Ellam  to  indeiumfy  liim 
a  half  part. 

Ifr.  Lte.  To  indeiDDify  liim !  Did  Ellam  de- 
daelbeo? 

Cktpnei,  Re  aeemed  inclinable  to  continue. 

Mr.  Lee,  Were  you  present  w  hen  Bambridge 
Mihi  Diiist  cro  to  the  tipsuff's? 
Gkne/.  Yes. 
Ir.  Lee.    Was  he  acquainted  with  Corbett? 

Ckmei.  1  don*i  know. 

Nr.  Lee,  Was  there  any  body  mentioned  at 
ibeliBe  when  you  were  with  Bambridge  ? 

CImppeL    1  can*t  charge  my  memory  with 

Sir.  Lee,  At  this  time  wlien  you  talked 
ahaot  Um  tipsUff,  was  Ellam  and  Curll  there  ? 

Omppel  No. 

Mr.  tiumkerley.  Pray  what  bond  was  that 
ynm  talked  of,  that  you  were  security  in  ? 

CUppeL  1  don't  hear. 

Mr.  Patmkerley.  Was  there  any  talk  then 
villi  Bambridge  how  much  the  bond  was  for  f 

Omfi,  No. 

Mr.  Ftaakeriey.  What  was  the  bond  for? 

Ckmel.  I  think  1,000/. 

lb,Sirange,  You  say,  upon  Bambridge's 
irinssition,  that  Ellam  was  mduced  to  stand  f 

CieneL  Yes. 

Ur.ainnge,  Was  Curll  the  same? 

Gkmel.  Yes. 

Mr.Sirange.  When  was  that? 

CSbne/.  That  was  the  first  time. 

Ih.Sirange.  When  uasthe  last  lime? 

L  C  J.     i  don't  find  that  you  tixed  these 


C  ft  ambers  sworn. 


Mr.  Strange.    You    were  security  for  Air. 
QmA\?^Ckambers.  Yes. 

Mr,  Sirmnge,  Give  an  account  what  you  did 

kichtiontoibai?  j 

Ckamken.    I  begged  of  Mr.  Chappel,  he  ', 

kitiag  business  every  day  in  town,  to  apply  to 

Mr.  Bambridge,  lo  let  him  know  that  1  w(»uld 

htNcnriiy  no  longer ;  but  having  long  had  an 

■lioMcy  with  Mr.  Bambridge,  Bambridge  de- 

■sdne  Id  continue  sifcurity  eiffht  days  longer ; 

■d  tald  me,  that  White  at  the  King's  Arms 

Iwm  bad  given  a  note.    I  said  I  was  deter- 

lo  deliver  him  up.    Mr.  Bambridge 

I  was  Terv  safe,  and  desired  I  would  con- 

i;  be  had  been  the  instrument  of  my  being 

'   %  and  he  would  not  deceive  me ;  if  he 

_  Ti  Ibere  was  any  danger,  he  would  advise 

M  by  letter.     I  came  to  Mr.  Castell  from  time 

li  line ;  be  told  me,  he  liad  other  securities 

ntijt  and  it  would  be  no  inconvenience  to 

!■•    1  raine  to  tell  him  two  or  three  times  I 

mM  not  stand,  and  found  he  had  nobody 

Wfif  ;  and  then  went  lo  Mr.  Bambridge,  and 

him  at  the  lodge  about  seven  or  eight 

at  night,  and  toM  him  I  was  come  de- 

lo   deliver  Mr.  Castell  up;    upon 

If  jott  will  deUrcr  him  op.  yeu 


must.  I  asked  him  which  way  to  proceed  ? 
He  said,  I  must  get  a  tipstaff.  1  asked  him, 
where  there  was  a  tipstaff  P  He  said,  there 
was  oneCorbett.  1  asked  him,  what  I  must 
give  him?  He  said  six-and«eiglit-nence.  I 
went  accordingly  to  Corbett,  and  told  him  Mr. 
Castell  was  at  the  King's  Arms  tavern,  and  I 
would  give  him  half  a  guinea  to  secure  him. 
Mr.  Cm-bett  went  to  the  King's  Arms,  came 
back,  and  said  he  could  not  find  him ;  then  I 
said,  I  would  be  in  town ;  and  1  lay  at  the 
Bell-Savage  inn ;  then  1  came  the  next  morn- 
ing, and  sent  to  Corbett's,  who  came  in  his 
gown  and  slippers;  and  Corbett  said^  ho 
wished  he  had  not  s^t  notice  of  our  intentkm ; 
and  said  he  would  go  to  his  lodgings;  and 
said,  he  believed  there  he  should  find  him : 
then  Corbett  came,  and  said  he  was  at  his 
house;  and  1  gave  Corbett  half  a  guinea; 
and  I  went  to  Mr.  Castell  at  Corbett's,  and  he 
saki,  he  ihanked  me  for  my  civility  ;  and  said, 
he  believed  it  was  not  an  act  of  my  own ;  and 
I  said  it  was.  As  you  are  going  abroad,  do 
not  think  1  use  you  ill.  He  said.  No,  1  don't 
believe  it  was  your  own  act  I  said,  I)on't  de- 
ceive yourself,  it  is. 

Mr.  Strange,  Did  Mr.  Bambridge  persoado 
you  at  first  to  be  security  ? — UamSers.  Yes. 

Mr.  Strange.  Mr.  Castell  made  no  manner 
of  objection  to  his  being  at  Corbett's,  but 
thanked  you  ^^-^Chamben,  Yes. 

Mr.  Strange.  About  what  time  was  this  P 

Chambcrt.  About  the  middle  of  November. 

Mr.  Stranee.  ^Vas  this  afler  be  was  sur- 
rendered?— Chambers.  Yes. 

Mr.  Strange.  Did  he  cuniplain  of  being  at 
Corbett's  house  then  ? — Chambers   No. 

Mr.  Strange.  Were  you  at  the  King's  Arms 
the  day  he  was  taken  ? — Chambers.  No. 

Mr.  Strange.  Were  yuu  with  Mr.  Bam- 
bridge ? 

Chambers,  I  sent  up  to  him,  and  that  I  was 
come  by  the  securities'  appointment ;  and  he 
sent  word  again,  he  had  nothing  to  do  with 
him,  till  the  security  had  surrendered  him. 

Air.  Strange,  Did  Mr.  Bambridge  at  any 
time  expostulate  with  you,  why  you  surren- 
dered him  ? 

Chambers.  I  told  Mr.  Bambridge,  I  heard 
he  had  an  invitation  to  go  abroad  with  lord 
Londonderry. 

Mr.  Strange.  What  did  Mr.  Bambridge  say, 
to  lead  you  to  that  answer,  to  say  that  Mr. 
Castell  was  going  abroad  ? 

Chambers.  No,  I  did  not  say  he  was  going 
abroad. 

Mr.  Strange.  Upon  the  whole,  you  say  that 
Air.  Bambridge  persuaded  you  to  stand  ? 

Chambers.  Yes. 

Mr.  Strange,  Did  be  persuade  you  to  stand  P 

Chambers.  Yes. 

Batnbridge,  Mv  lord,  I  desire  the  wit- 
ness may  be  asked,  whether  he  did  not  say 
that  Mr.  Castell  was  going  abroad. 

L.  C.  J,  Mr.  Bambridge,  let  your  counsel 
ask  the  question. 

Mr.  Strange,  What  did  you  say  P 


439] 


4  G£0  RGB  11.  Trial  tif  T.  Bamhrid^t  and  ILCorbiii, 


t44» 


Chavtbtrt,  1  Mid  1  h«anl  a  rurtioar ;  I  tru 
inrormed  lie  wu  i[<iiii^  atinud. 

Hr.  Strange.  1  dtifire  lie  may  be  uked,  if 
be  wu  not  b>\d  thU  he  wu  going  tbromd  with 
loTil  UinJoDilcrry. 

L.  C-  J.  Had  any  hodj  udd  you  be  vu 
gmiiK  alirood  nilh  lord  Lvodouderry  ? 

CAmniert.  No,  I  did  DOtMrnndCT  him  upon 
that  mncuuDt. 

Ur.  Strange.    What  wm  the  re«l 
jour  fuimdering  him  f 

Chai/iberi.  I  wai  infornied  that  he  had  made 
two  morLgagea  ol'  bia  aatala,  oiie  to  wj 
in-law. 

Hr.  Strange.  You  aaid  yoa  were  informeil 
be  wsa  eointf  abroad  ? — CHambert.  Ye*. 

Hr.  Strange.  Did  any  body,  an  enemy  to 
Um,  penuade  yau  tu  aurrendsr  hi  ~  ' 

Chambtrt.  No, 

Hr.  Strange.  Did  not  yon  know  of  that 
Bortgoge  UyDuraoB-iiHaw  before  then  F 

C/iamberi.  'No. 

Joteph  Faint  aworu. 

Seij.  Darnell.  Give  an  account  of  whalyon 
know  of  ihe  itirrendering  Mr,  Cailell. 

ViiiTu.  Mr.  Chaoiliera  came  iereral  Lmei 
to  my  cufTee-house,  and  aiked  when  1  uw 
Mr.  Corbett  ?  The  &tU  lime,  I  taid  I  bad  mit 
Men  hi m  in  two  or  three  dayi;  and  then  he 
camp  again,  and  the  third  lime  Corbett  cante 
by,  and  my  aerTant  wid,  There  is  Mr.  Corbett ; 
and  he  asked  Air.  Curbetl,  whether  he  knew 
where  Mr.  Caalell  was?  Corbett  (aid  Xo.  Then 
Chambfn  desired  him  lofind  him. 

Serj.  Darnell.  What  did  Mr.  ChamberB  ny 
to  Mr.  CorbeltP  Re|)«al  it  again. 

Vaiat.  He  said,  When  did  yoj  aee  Mr. 
Caslpll?    Ml'.  Cnibi'tt  laid,    ~ 


Corbel  t  asked. 


:  irilh  him, 
.is  your  butinessi'  Charo- 
will  be  lecurity  no  lunger, 
and  will  surrender  him,  for  I  hear  he  it  gnrng 
abroad  with  the  Inrd  Londonderrv.  Then 
Corbett  went  awar  to  look  for  Mr.  Csiteli,  but 
I  know  no  more  of  it,  but  heard  he  iraa  carried 
to  Corbett'i. 

Seij.  Darnell.  Did  DOl  Air.  Chainben 
Ibreaien  Cortieit  J 

Fain*.  lie  said  I  mnit  lose  the  debt,  and 
if  you  ilo  not  see  and  gKt  him,  I  will  move 
the  Court  againsl  you,  and  make  you  pay 
the  debt,  for  I  will  aLand  security  no  longer. 

Serj.  Darnell.  Do  you  know  any  thing  of 
Mr.  Castell's  sending  to  Corbetl'ii? 

Faint.  No. 

Thomai  Woodgtr  awom. 

Serj.  Darnell.  iDo  yon  know  any  thinr  of 
Mr.  Castell's  going  to  CortieU'a  bouse,  when 
it  wxs,  and  ot  wlioae  desire? 

Woodyer.  Thcnightbexeutfromthe King's 
Arms  latem,  I  wis  li rawer  there.  Mr.  Cahletl 
orderr^  me  ti>  go  or  aend  to  Hr.  CurtieU'a 
b«iM>,  in  onler  hi*  mom  to  he  got  reaily. 

a^.  Darnell.  Was  that  the  night  be  waa 
atTiei  uCortMl^r— Wmlycr.  Vm. 


Serj.  Darnell.    It  is  said  Corbett  leak  Urn 
againat  hn  will  ? — Wooiyer.  Ican'tsaj. 

8erj.  Darnell.     ^Vhen    yna   reoHied    that 
mesaage,  was  Corbett  there  ? 

Wtndyer.  1  can't  be  poiitlre. 

Srij.  DarnelL  Did  ynu  go  ? 

Woadyer.  I  sent  one  down. 

Beij.  iJaraef^  By  whose  directiOMr 

Woodyer.  By  Mr.  CaMdl's. 

Seij.  DarwilL  What  time  f 

Woodier.  About  eight  or  nine  o'dodr. 

Serj.  Darnrll.  What  day  J 

Wooiyer.  I  don't  know. 

Serj.  Dameli.  What  month  F 

Wnodyer.  1  believe  Norember. 

Serj.  £gr€.  Waa  it  the  laat  time  ? 

Woodyer,  1  believe  it  was ;  I  never  law  Hr. 
Cailell  alter, 

8e^.  Eyre.  How  long  did  Hr.  CaataU  My 
at  your  bousr  ? 

Woodfer.    Mr.  Caatell  waa  there  three  at 
four  houm. 

Serj.  Eyre.  When  did  Corbett  eonetaldn 
him  up  Y 

Woodyer.  That  same  night,  1  belien. 

Serj.  El/re.  Diil  Corbett  bring  him  la  jvat 
house  r — Woodyer.  No. 

Mr.  .Strange.    Who  was  in  company  vbm 
he  came  in  F — Woodyer.  I  don't  know. 

Hr.  Slrna^r.  UidCorbciteomein  with  him  F 

Wootlyr.  No. 

Mr.  Strange.     Did  Corbett    go  wilb  bin 
awav? — Woodyer.  Vea. 

Air.  Slrange.  Did  Mr.  Castell  shew  any  Mr 
willingnfHs  to  g»  ? — Woodyer.  I  did  not  bar. 

Mr.  Strange.    What  time  of  the  night  did 
he  first  come  P 

Woodyer,    Some  time   in  the  divk  of  the 
evening. 

Mr.  Faiakcrlry.  He  wtu  taken  in  the  mam> 
ing  at  Underwooil's. 

Mr.  Xee.    Were  yon  in  Ihe  houaa  when  Mr. 
Castell  firet  came  from  Hr.  Underwood'a  t 

L.  C.  J.  I  don't  lake  the  time  he  was  lake* 
from  Underwood's  lo  be  in  the  mnming. 

Mr.  Faiakerley.    Kn  yiHi  sura  it   was  the 
IMhofNoTOmber  F^iriWyer.  No. 

Mr.  Ffiiakerlry.  What  was  it  he  KidF   Te 
get  bia  room  ready  ? — Woodyer.  Yea. 

Mr.  Strange,  there wereaheetatobeakH' 

jtcodyer.  Ves,  there  were. 

Jukn  Down*  sworn. 

Mr.  Strange.    In  November  the  IStfa,  wm* 
you  a  servant  to  Mr.  Corbett  t — DemiUt  Yaa. 

Hr.  Slrange.    Do  you  remember  My  ia«> 
sage  itiat  was  sent  t 

Dawn*.  Yes,  that  a  bed  should  be  got  ready 
for  Mr.  Casiell. 

Mr.  Strange.  Had  he  been  at  any  iMuse  be- 
fore upon  Ihe  surrender  of  his  beilF 

DoKnt.  No. 

Mr.  Strange.  Where  did  be  lodge  before  t 

Damnt.  At  Hr.  Unlerwood's. 
Ur.  Stramge.   Waa  there  a  bed  pnperad  a^ 
cordinglyF — Dowm.  Yes. 
Mr.Strai^s.  Deyeuknowtbadnybeoiarf 


m  an  Apptaljiir  Mufder. 


A.  D.  1730. 


m 


V«uwjr  jroimerein  ihe  liouic 
— '  -  CBinc  •loug  with  him  ? 


lb.  W^mm.  Ymi  alleudeil  him  nhilil  he  wm 
Ihu*!— l>n«<M.  YC9. 
Hi.  ITyaK.  AH  thv  timp  F— Ddvhi.  Yes. 
■lII^iiii.  What  coudilioiiol'lieallh  wuhe 

JW>t.   He  wmsK  weakly  genlleinan. 
Hr.   njnii.    Wn  there  uiy  etlraurdiiiary 
(Bvtofcra  or  himf 
Dmm.    Vhs  be  waa  put  in  liie  room  one 

■i.  Vymn.  Wai  there  a  club  kept  there  P 
fl—ai.  Vc9,BD<IHr.  BaD)britlfeaDdca|itain 


1  he  WM  brought 


-  with  Iiim  ? 


Itr.  »>>■.   After  the 
■  r-^Xtarti.  No.belure, 
Mr.  tlyan.    How  tuug  before .' 
D^Mt.   There  was  a  club  in  it  two  orlhree 

iTlTy'Hi.  DidyonrraaslerusetarUilhint? 

Pww.  AlallteKure-lini'a. 

Ibn.  fnv.  Waa  Mr. 

iwM.  Y«^ 

Sn].  Rfrt.  Wbal  roam  nnx  that,  that  the 
hi  was  bmuKbi  out  ol,  thai  he  lay  in  ? 

Omwi.  lilaa'lkunw. 

lij,  £yrt.  After  you  received  the  message 
I IM  o'clock  at  mght,   was    there  a    bed 

lltm-    I  can't  tell. 

. SoUeworth  sworo. 

dn-fjir*.  \Vh>i  are  your 

SiMrmD'fA.  I  am  chanilietlain  at  Mr.  Cor- 
Wttv 

fcj.  £y>e.  How  ollen  was  Mr.  Ctslell 
Inwla  lo  jTour  bouse  ? 

tUhkiBurtA.  lie  was  lirouglit  but  ODce 
tUalWMtlicrr. 

Bb].  fyre,  Wat  he  brai^ht  in  by  (ioleDCe, 
■haawa  taunenlf 

with  Mr.Curbetl; 

anycare  taken  of  him 

HaUctm>rlk.  lie  Wanted  for  nntbio^  while 
tins  tbvrv,  for  he  had  every  Ihln^  he  asked 


IMaMa. 


WaMapesny  »i«leoc«. 
«blM«B«lhe>«F 


hriar  tMi  days  Iwfni 
|tw,  be  kept  bis  ni 


IT  iMi  days  Iwfnre  be  M\  sick  aud  lam- 
c  kept  bisntom  aliog«ilwr,  aoi]  very 

Hr.  Utrmrnpe.  Tb«  )i«i)  that  was  nrvfuired  for 
KvtaituMMllylaiJIaf 

Bal^ivar/A.  It  wb>  a  bed  thai  had  been  laid 
^1  Mr.  HspkiM  had  laid  U|icm  ihal  bed. 

th.  KrtlUty.  If  a  loan  wa*  *|>eshinK  »l  (he 
^c9Md4  yau  bear  what  wa*  said  in  Ihe  ioner 


N«,  UMpt  ha  tpaka  fery  loud. 


Mr.  KellUbtf.  Was  this  one  home  whera 
Mr.  Caslell  luy,  or  two  houtesf 

Haldawotth.  There  were  two  hooae*. 

Mr.  Keltirby.  Was  (here  any  onramumcs- 
liun  or  duor  opened,  or  how  did  one  lie  up  three 
jiair  ofalajrain  uiie  huuse,  and  one  |ialrul  tiairs 
in  Ihe  other  i* 

Holdtivarth.  One  pair  or  atairs  tamed  iipon 
(he  It'li  hand,  to  go  to  Mr,  Caslell's  room,  and 
ibe  other  lumed  upon  Ihe  ri^hl. 

Mr.  KetlUby.  IVhat  conduion  of  health  waa 
White  in  wi.en  Mr.  Castetl  came  in  ? 

Uo(dciaorth.  He  had  the  amslUpux. 

Mr.  KellUbi/.   How  loug  had  be  bad  them  F 

Hoidemorth.   He  was  blind. 

Mr.  Kcltkbu.  How  long  was  it  hefore  Whits 
recorered  ?  Mow  long  was  it  be  kept  ii[i  aHer 
he  recovered  F — Holdetaarlh.    Abont  a  month. 

Mr.  Keliltby.  Hud  While  taken  any  purging 
phvsic  ? — Hoideasorlk.  I  believe  doI. 

Serj.  £yre.  Waa  lliere  any  ineaaage  sent  to 
Mr,  (Jasleii's  wife  to  come? 

Boldencorlh.  I  can'taay  ;  nobody  ererfiame. 

Serj.  Eyrt.  Who  provided  necessarieaf 

Holdarm-th.  Mra.  Corbeti. 

Sf  ij.  JEyre.  lie  wanted  uoihing  T 

Holdttaorth.   No. 

Mr.  Rtcva.  Did  you  not  ffo  to  Jonaibaii 
li«landp 

Haldesictrlh.  I  was  along  witli  him  when 
tbe  eentleman  died. 

Mr.  Betva.  Did  not  yaa  take  awaj  k  bed 
from  under  White? 

Hotdt!u:orth.  Yea,  and  I  carried  it  into  Mr. 
Csatell'H  room  ;  bul  the  bedstead  being  loo 
little,  I  carried  it  up  another  jwir  ol'stairs,  into  a 

Hr.  Rteoa.  How  came  voh  to  put  While 
oait  of  his  bed  F  Wbal  did  you  put  under 
White? 

HoUicsaorth.  1  pul  at  gnnd  a  bed  as  thai. 

Mr.  Rtcvci    Did  not  White  keep  hisbedF 

Holdcsworl/,.   Yes. 

Mr.  iaiakeTley.   Did  not  While  continue  in 

HoldeiBorih.    He  wai  removed  into  another 

Mr.  Fit:ahrrUy.  Where  was  that  F 

Koldessartk.  In  Ihe  next  garret. 

Mr.  Faiukrilry.  What  was  ihe  meaning  of 
turning;  White  uniofnne bed  inio another  F 

Hatdaicorth.  It  was  for  tlieeonvvnienceof  ■ 
are. 

Mr.  Fa:<ikcrlcy.  Did  While  make  any  com* 
plalnl  ihii  you  had  taken  away  his  bed? 

Htiideitnirlh.    I  beliete  he  would  duI  have 


had 


lakeij 


Fiaakerlff .  Let  me  a^k  ynu  about  the 
Riair-case.  Was  there  oo  rOMiinnnlcaliuB  lo 
go  fruin  Mr.  Ca^tell's  room  up  lhal  stair  case 
loWbile'a? 

HuUeworik.  Yri,  when  you  go  up  oooiber 
part  of  ihe  aluir^cuse. 

L.  V.  J.  You  say  that  there  are  (wo  bonsei, 
aud  Ibut  ibtre  is  but  (ir>e  sttair-caix  ? 

Kr,  Faiakerley.  When  Ihe  tnu  tnww*  were 
laid  into  on*,  Ihe  Oisl  pair  ol'  stair*  actved  iNlli 


I43J 


4  GEORGE  II. 


koiises.    Di«i  not  Mr.  CastelUay  up  one  pair 
ofbtairK? — Uoldcsuorth,  Yes. 

Mr.  Faxaktrktf.  Can  you  pfo  down  stairs, 
iviLlioatgoinp:  liy  l\lr.  CastelPs  luoin? 

HoUkstcorlh.  No. 

L.C.J.  I  tlious^lit  llie  houses  were  laid  into  1 
one,  tillyou  romu  to  tlif?  top  ?  | 

Mr.  Aiahrlcy.  Is  not  ouc  of  the  stair-cssos 
stopped  up!* — Holdestt^orth.  Yes. 

Mr.  Fasukerlcy,  Uow  long  was  ibis  Uefore 
Mr.  Castell  came' in  ? 

Holdetworth,  Five  or  six  da}  s. 

Thomas  Norton  sworn. 

Mr.  Strange.  Do  you  remember  any  tnes- 
lage  brought  from  the  Kiiig*s-Arms  tavern  f 

Norton.  Yes»  it  was  to  have  a  fire  laid  in  the 
best  room  in  the  house,  and  the  best  bed  to  ho 
Blade. 

Mr.  Strange.  Whom  did  it  come  from  ? 

Norton.  From  the  King's- Arms,  from  Mr. 
Castell. 

Mr.  Strai(g€,  Was  tliat  the  best  room  in  the 
bouso  that  he  was  in  ? — Norton.  Yes. 

Mr.  Strange.  Do  you  remember  bis  coming 
in? — Norton,  Yes. 

Mr.  Strange.  Did  he  come  in  of  his  own  ac- 
cord f—Aorton.  Yes. 

Mr.  Strange.  Did  yon  observe  any  violence 
used  to  him  ^Aorloa.  No. 

Mr.  Stranee.  Had  he  all  the  assistance  ne- 
cetsary,  wbiw  there,  and  while  ill  P 

Norton.  He  had. 

Mr.  Strange.  Who  provided  itP 

Norton.  Mrs.  Corbett. 

Mr.  Strange,  You  know  the  situation  of  the 
t>ar? — Norton.  Yes. 

Mr.  Strange.  Supposing  then  a  person  conies 
down  to  the  bar  to  ask  for  any  thing,  and  nny 
body  was  in  the  room  liehinil  tne  bar,  in  can*:  the 
door  was  shut ;  could  you  hear  what  was  said 
in  discourse  P 

Norton.     I  think  you  could  not. 

BIr.  Strange.  Do'you  know  one  Cooilman  ? 

Norton.  Yes,  very  well. 

Mr.  Strange.  Did  you  ever  hear  him  give 
any  such  account  till  of  late  P 

Norton.  Mcver  in  my  life. 

Mr.  Strange,  flow  lung  have  you  been 
there  P — Norton.  Two  years. 

Blr.  Strange,  How  kmg  has  Goodman  been 
there  P — Norton.  Six  months. 

BIr.  Fuzakcrlcy.  Is  not  tliat  partition  a  very 
thin  one  P 

Norton.    Yes,  it  is  wainscot. 

BIr.  Fajakerle^,  Did  you  ever  hearken  to 
hear  what  was  said  in  that  roouiP 

Norton.    No. 

Blr.  FazakerUy.  I  supiiose  you  are  a  drawer 
there  ? — Norton.  I  aui  a  servant. 

Blr.  Fazakerlcif.    What  are  you  ? 

Norton.  I  keep  the  key  of  the  door ;  I  must 
hoar  if  any  one  can ;  I  stand  near  the  door. 

Mr.  Faxakerlcy.  Is  that  matle  np  to  the  ciel- 
inffP— JVbr/nn.  Ves. 

Mr.  Filmer.  Docs  the  bar  go  op  to  the  to|i  P 

Norton.  Yes. 


Trial  itfT.  Bambridge  and  A.  Corbett, 

—  Gardiner 


[444 


sworn. 

BIr.  Kettlchv.  Did  you  attend  BIr.  Castell  in 
hisilhiotsP — (iardincr.  No. 

Mr.  Kettiehif.  Can  you  give  an  account  what 
cuiiHiiion  he  was  in  ? 

Gardiner.  No,  he  was  not  sick  wlien  I  mm 
him. 

BIr.  KrUleby.  Were  not  you  with  him  wbn 
he  was  sick  ? — Gardiner.  No. 

BIr.  Ketikhy.  Did  you  go  with  him,  when 
he  was  charged  in  execution  P 

Gardiner.  Yes,  1  asked  him  how  he  had 
bePii  used ;  he  saiti,  with  great  civil Ky. 

BIr.  Kettleby.  What  house  was  he  m  P 

Gardiner.  At  the  Royal  Oak. 

BIr.  Kettlehy.  Did  you  aak  him  in  what 
house  he  was  placed  P 

Gardiner.  He  said  he  was  placed  at  Mr. 
Corbett's  house,  at  his  own  request. 

Mr.  KetlUbu.  How  did  he  say  he  was  ONdP 

Gardiner.  With  great  civility. 

BIr.  Kettleby.  How  long  before  he  died  P 

Gardiner.  I  don't  know. 

Mr.  Kettleby.  Was  it  a  year  P 

Gardiner.  I  believe  it  was  about  fbnfteei 
days. 

BIr.  Kettleby.  Were  not  you  charged  in  exe- 
cution at  the  same  time  P — Gardiner.  Yes. 

Mr.  Kettleby.  When  wereyou  charged P 

Gardiner.  The  last  day  oflhe  term. 

BIr.  Fazakeriey.  How  came  you  to  atk  him 
such  a  question  ? 

Gardiner.  1  went  from  Corbett's  with  bivia 
and  came  back  to  Corbett's  again. 

BIr.  Fazakeriey.  Uow  many  times  were  ysa 
in  company  wiih  him  aAer  P 

Gardiner.  I  never  was  in  company  wiih  him 
but  at  that  time. 

BIr.  Filmer.  Do  you  know  when  he  bad  the 
small  pox? 

Gardiner.  1  hoard  he  had  the  small  pox,  and 
died  in  a  fortnight. 

Anne  6/tfA*e  sworn. 

BIr.  Wynn.  You  were  in  the  house  when  Mr. 
Castell  lay  ill  ?— Mis.  Blake.  Yes. 

BIr.  iryn».  Was  he  provided  with  all  neces- 
saries ? 

Blrs.  Blake.  Yes,  I  was  present  at  making  of 
liartshorn- drink,  before  he  nad  the  small  pox. 

BIr.  Wynn.  Was  he  attended  with  an  apo- 
thecary ? 

Mrs.  Blake.  I  did  not  see,  I  was  sick  before* 
hand. 

BIr.  Wynn.  Pray  did  you  know  the  care  that 
was  taken  to  i>reveut  the  disease  fnmi  the  other 
prisoners  P-^Mrs.  Blake.  1  saw  no  disease  after. 

BIr.  Wynn.  Was  the  room  furuished  with 
goiMl  furniture  ?—BIrs.£/a/ic.   Yes. 

BIr.  Strange.  What  was  the  matter  with 
himP 

Blrs.  Blake.  He  had  a  flux  upon  bin  whet 
he  came  iu.  i 

Mr.  Filmer.  Had  you  ever  the  small  pox  P 

Blrs.  Blake.  No. 

M  r.  Filmer.  W  hen  he  had  tbe  small  poX| ' 
not  3'oo  removed  ? 


45  J  •«  «"  Appeal _fiT  Mvrder. 

Hn.  Blaie.  Altfr  Im  died,  I  Iml  leave  la  go 
nL 

Mr,  Slnage.  Was  nnt  (hB  houM  90  rommo- 
Ihss,  iIuU  *•  you  i"y  up  '*''*'  I'"'' "'  ■'*<'^  y" 
^M'titynuraeirKile?— Mn.  Blake.  Yts, 

Mr.  &rsiif  e.  You  did  not  catch  tliem  F 

Hn.  Biake.  Ho. 

}U.Stramct.    Did  White 
Ib.CMirll  died  ? 
l^Btcke.  Iirukeptrri)m1Vbite,bM>n3e 

IWMtbMlttiein. 


~  Mmt  iworn. 

iDtlemlMr-Castell 


SnJbwJ 


.  Inwhstn 


•rdidyonUlce 


^v.  1  wns  ordered  10  tttend  Mr.  Caalcll, 
■iMCordiDii^y  I  went  to  him,  ud  found  him 
kkd,  in  «  fery  «iiiTeni«ii  warm  roimi :  rhc 
Mdl  pox  wu  not  llien  nuno  out,  but  ■[>- 
Mid  in  two  davH  tfter ;  he  iiMmpd  alarmed 
rite  CMcmpcr.'but  did  iint  My  he  wai  under 
anncn  concern  or  alarm  trum  the  cooRne- 

IbL  IfavfcMt.  Who  WM 10  attend  him  ? 

Jfav.  Tbera trai  a  nuTM.  He  did  nolteem 
■  ■Ht'an  tlitng;  there  waa  a  good  fire  kefit; 
laJMiil  bv  so  to  do,  and  be  had  efci^  ihiiig: 
mi  UiB  in  ffood  order. 

^.Hmhiju.    Did  be  make  any  complaint 


Ifar.  3iQ,  he  dctb  nid  aov  thiu?  to  tne,  I 
<Mn  uKer  atranger,  Hr.  Waller  wot  the  apo- 
tmatj  employed. 

.  5jni(A  amirEi. 

Kr.  Slramp.  Al  the  time  Mr.  <;9itell  waa 
■.forfaett  came  to  Hr.  llambrid[;c  «l  par 
hvctSmilh.  Yea. 

Mr.  Strange.  Trll  wliat  pawed. 

SaiiA.  I  think  it  wai  the  Snd  or  3rd  of  De~ 
iMber,  Coibett  came  to  Mr.  BamhTid|;e,  ami 
BMbidgewuin  thepaHoer;  I  iva«  Mttiat^ 
tea;  we  were  rtot  roie  from  table,  and  Mr. 
CwtaUwas  tcllincr  Hr.  lianibrid^  of  iheaHalrM 
tf Ae priwm,  audtaid,  Poor  Mr.  Caitell  in  nut 
ad ;  aad  Itambridge  aikol  what  waa  the  mit- 
Ivvithhis?  He  laid,  he  had  caught  coUl 
hibridge  aaid  he  woa  icry  sorry  fur  it,  ami 
li^  Oif  e  my  icTTice  (0  your  wife,  and  dcairt' 
IvMtabecareof  him. 

Uf.Slratige.  What  iliilHr.Bambn'lgeBikF 

imilk.  Mr.  Bambrldge  asked  what  was  tht 
■nar,  and  Corbcttaaid  he  had  cauglit  culil. 
iMriyng  of  the  affoin  of  tlio  prison  reijuirinL; 
Ac  Atcction  of  Mr.  Bnmbridgp,  the  next  day 
fMeacameaKuin,and  BambridKe asked  lii[i> 
tav  Mr.  Cailell  di'l  ?    Mr.Corbeit  aaidhe  bail 

Cm  mbM  pov,  and  said  the  gentlemen  in  Ibi! 
«e»«  rery  uneaiy  al  hi*  Iwine  in  Ibe  mid- 
)h«f  dwtMuic,  end'he  wni  tbinkiuKtn  hue 
liitww»ed  a  room  higher;  and  Mr.  Bam- 
WkcMW),  he  would  nit  \iair  hiio  reimife>1 
I^IT  ia  tlM  h»MC,  la  ma  iba  ri»k  el'  hii  life  ; 


A.D.  1730.  H\6 

_ thep-nilemen  were  uneaiy,  he  woold 

haii:  tbem  removed  into  the  prison. 
Af.ir/in  awom. 

r>Ii'.  SlTaiigr.  1  ask  yim  if  yon  were  not  of 
iliu  cU.il  Willi  Mr.  Castell,  in  Corbelt'a  honicf 

M..rlin.  Yes. 
.    ,       I       Mr.  j/ranfc.  Were  vou  preuntatthechib 
down  before     „|^  |^,  jj,,,^  j,^  Casiefl  was  bmught  IbereF 

Marlin.  I  think  I  was  there  tuat  night  be 
wna  cliarged  in  execuliuu. 

Mr.  t^traHpf,  1  nsk  yon  whether  3Ir>  Car- 
belt  and  ('aatull  wire  thi-ic  in  a  fiicndly  man- 
ner, nhni  t(^'lb>;r?—.U(irt(ii.  Yea. 

tilr.  Si  range.  Sothej  ivere  together  F 

UvrliH.  Yrt. 

Mr.  Siranpe.  Was  itlr.  Ilamhridgo  IhrreF 

Murlin.  Sir.  Bnmbrid^cdiilnwt  cvincto  tba 
dull  alt  thai  icrin. 

IMr  Strim£f.  There  '\s  one  ibinff  I  must  lak* 
noiicc  of,  that  the  paper  Ellain  owned  Ida  hand 
iu.  may  \m  read. 

S.'rj.  HaKkint.  Were  ynu  nith  Mr.  Caslell 
all  i)ie  time  ol  his  late  illnrss? 

ilfurlM.  I  viaileil  him  cuoataally. 

:S<-rj.  UawkiM.  Vi\M  did  be  aay  H  to  Ilia 

Mardn.  I  never  hcanl  any  complaint. 
^^l:rj.  Haiekua.  Haw  often  did  you  gn  I0  Me 
him? 
Martin.  Every  lUy  at  CoibeU's. 
Serj. /iusftiHt.  Did  joiieTerbearbimcOM- 
pluiii  111'  Uandiririge  ? 

JllurJin.    It  UBS  liie  lecnnd  day  after  tb» 

small-pox  came  om,   I  weni  into  the  room  Iv 

'    II ;    1  could  not  see  him,  being  in  bed,  but 

liDrw  my  voice,  and  he  would  have  bad  mv 

ink  snmetliiiig.     1  wb«  immediately  called 

L  ut  the  room,  and  Mr.  Caitell  would  not 

II'  liad  me|;onc;    I  lutd  him  I  miial,  but 

iiiil  rttum  aoon  ;  and  when  i  went  down,  I 

,v  JiU.  Uambrid(f«  there,  aiiJ  I  luld  him  Mr. 

^'iislL-ilhadthesniallpoi:;  and  Air.  Llambridga 

iaid  he  was  very  sorry  for  it,  tint  he  had  trifled 

ivilh  liim  and  himult'  too  :    Wliisn   1  went  up 

i^in  to  Mr.  Caateli,  and  lolil  him  that  I  had 

iuld  Mr.  Uambridge  that  he  was  very  ill  of  iha 

>mtill  ]>0X,  and  Ibal  Mr.   Bnmliridge  aaid  he 

'*—  it;  (I  would  not  ueolion 

Mid,  t'ui  Gull's  sake  don't 

„„„„„ _  , .  taii'l  Iwar  to  hcnruf  il. 

St'ij.  UavluHt.  As  IU  the  ti-mper  of  Mr. 
Lnsitll,  nas  he  reserved  P 

Murtin.  He  w  us  very  free  in  conversation, 
l)iit  []iit  free  in  lelling  ul  iiis  circiiniilanc'eii. 

Ml.  Sirangt.  I  desire  the  paper  Etlam  own- 
cil  Iiis  baud  to  may  he  reud.  [Which  waa  ac- 
coi'dinely  produced  and  tend,  and  appeared  Iu 
he  a  bill  of  sate,  dated  the  2Sd  ol'  Oclobcr, 
17^8,]  .       _ 

Mr.  Strange.  The  wiluess  when  I  came  to 
aA  lor  the  hill  of  -lale,  did  not  rciuember  whe* 
it  IV ,i!i  executed. 

L.  C.  J.  But  what  use  U  it  of? 


(^tJftlr.CuU-llsa 


M« 


Did 


449}  Off  an  Appeal  for  Murdtr 

Cedmtr,    There,  was  not    an   enqairj  re- 
ported. 

Mr.  n^n.    Was  that  iDdorsement  made  at 
the  time  ? — Codnor.  It  is  my  band-wriUu^. 
Mr.  JVtfnn.  What  was  wrote  there? 
Codmtr.  De  bene  esse. 
Hr.  Wynn.   Was  it  done  at  that  time? 
Csdnar.  I  vo^^hx  go  into  the  office. 
Vr.  Wvnn.    Was  it  usual  to  let  parties  exe^ 
CM  hoDfIs  before  enquiry  was  made  ? 

dAkT.  Yes ;  it  was  the  daily  practice. 

Xr.  Reeves,  You  say  it  was  the  usual  prac- 
lictlo  take  bonds  de  bene  esse^  and  you  say  the 
Mher  bonds  were  cancelled  ? 

Coduor,  1  beliefe  so. 

Mr.  Reeves,    Did  yon  see  them  cancelled  ? 

Codnar.  I  did  not. 

Mr.  Reeves.  I  ask  you  then,  whether  it  was 
wnl  for  you  to  canoe!  a  bond  that  was  good 
VAn  another  was  executed  ? 

Codnor.  1  would  not  have  taken  upon  me 
tka  to  bare  done  it. 

Mr.  Reeves,  Do  you  know  it  was  done? 

Codnor,  1  can't  say  I  do ;  it  was  usual  to 
like  new  bonds  de  bene  esse  :  when  bonds  given 
kdbre  were  cancelleil,  and  the  persons  had  been 
auind  afVer,  and  not  found  sutficient. 

mr.  Reeves.  What  were  ^our  orders  ? 

Cedwor.  My  orders  were  to  take  the  securi- 
tiBfron  time  to  time  as  they  came. 

Xr.  Reeves.  8o  you  took  them  de  bene  esse  f 

Codeor.  Yes. 

Hr.  Fuakerley.  You  say  you  hare  got  a 
Wbod  to  take  bonds  de  bene  este  :  did  not  you 
^  I  bond  de  bene  non  £<ie,  which  he  was  in 
oeniion  for  ? — Codnor,  Yes. 

Xr.  Fojsakerlti/.  What,  do  you  take  double 
tiaw?— Corf/ior.  Yes. 

Mr.Fazakerle^.  Did  you  say  how  much  he 
*■  is  execution  for  ? — Codnor.  No. 

Xr.  Fazakeriey.   Do  you  know  how  much  ? 

Corfnor.  Yes. 

Hr.  Faxakerletf.  Was  there  any  tliiug  more  P 

Corfffor.  No. 

Xr.  Faxaktrlejf.  Then  that  was  500/.  ? 

Corfiior.  Yes. 

LCJ.  iSo  your  constant  practice  is,  that 
l^wcurities  are  first  bound,  and  then  you  en- 
^  after  them? — Codnor.  Yos. 

L  C.  /.    You  say  you  took  these  bonds  by 


A.  D.  1730.  [450 

claration,  and  take  security  for  the  subsequent 
charge  in  execution. 

Mr.  Fazakerley,  When  was  the  last  security 
given  ? — Codnor,  About  a  week  after  the  first. 

Mr.  Ffizakcrley.  Observe ;  if  an  action  it 
brought  for  200/.  and  you  take  security,  and  a 
week  atler  that  judgment  is  had,  do  you  take 
other  security,  and  double  the  sum  ? 

Codnor.  Not  wiiliout  a  Habeas  Corpus  is 
brought. 

Mr.  Fasakerlej/.  So  you  don't  increase  the 
penalty,  unless  you  distrust  the  value  of  the  bail  F 

Codnor.  No. 

^\t.  Fazakerley,  Because  T  observe  a  great 
many  judgments  arc  given  before  the  security 
is  increased. 

L.  C.  J.  The  last  bond  was  executed  the 
1st  of  December,  and  he  was  taken  ill  the  Sd. 

Mr.  Strange.  My  lord,  wc  shall  call  no  more 
evidence,  but  submit  it  here. 

Mr.  Reeves,  My  lord,  I  must  beg  leave  te 
take  notice  of  the  objections  they  have  made. 
The  first  is,  that  he  went  voluntarily  to  Cor- 
bett's ;  that  it  was  his  own  desire.  In  answer 
to  that,  if  our  witnesses  are  to  l»e  credited,  we 
have  proved  the  whole  appeal.  We  have  proved, 
he  was  taken  forcibly  ;  I  humbly  apprehend 
that  was  sufficiently  proved;  for  if  Corbett 
took  him  without  his  consent,  it  was  forcibly; 
and  it  was  unlawful ;  it  will  warrant  the  de- 
claration of  appeal. 

The  next  tact  is,  that  he  was  carried  to  the 
house  of  Richard  Corbett,  where  one  Joseph 
White  was  then  ill  of  the  small  pox.  The  ou- 
jection  did  arise,  that  it  was  laid  Co  be  the  honse 
or  Uichard  Corbett,  which  was  one  house,  and 
here  are  t%ro  ;  one  ^h'ere  Joseph  White  lay 
sick,  and  they  say,  he  was  carried  to  tlie  other. 
As  to  t!iat,it  appeared  by  the  evidence,  that  be- 
fore this  tact  happened,  they  were  made  into 
one  house;  and  notwithstanding  they  were 
made  into  two  dwelling-houses  before  Castell 
was  put  there,  our  witnesses  say,  they  went  up 
staii-s  into  one  and  the  same  house ;  and  that 
IVIr.  Ciistt^ll  was  carried  to  the  house  of  the  said 
Hichard  Corbett,  where  Joseph  >Vhite  was  ill 
of  the  small -pox. 

The  other  objection  is,  that  Joseph  White 
was  well  ol  the  small-pox  ten  days  hofore  Mr. 
Castell  was  brought  there.    My  lord,  we  ap- 


^Bambridgc's  directions? — Cofinor.  Yes.        prebend  that  thai  is  contradicted  by  their  own 
LC.J.    What  did  you  do  with  the  first  I  evidence;    that  the  man  was  well,  and  looked 
^?  upon  to  be  recovered  ;   for  1  must  lieg  le.ive  to 


Cndnor.  I  can't  charge  my  memory. 

h.  C.  J.  Are  you  sure  you  took  but  two  ? 

Codmor,  Yes. 

Hr.  Sirange.  It  was  very  probable  that  thcf^c 
Pttple  might  demand  1,000/.  bond  ;  the  other 
hnl,  irhen  given,  was  for  2,000/.  What  was 
tbeictson  of  your  taking  a  larger  security  ? 

CodtUfT,  I  rei*eived  three  Habeas  Corpus's, 
Hicfa  was  the  reason  of  taking  so  large  a  secu- 
*9  (ipeaking  lo  Mr.  SStrauge.)  ^Vo  always 
Mt  ncurity,  though  charged  by  the  same 
jhaiiir,  for 'two  sums. 

LC.J.  lathatusuid? — Codnor.  Yes. 

L  C.J.  So  thai  you  take  security  for  the  de- 

YOU  XVII. 


ipon 

observe,  that  upon  the  evidence  of  iloldesworth, 
it  appeared  that  White  was  blind  at  that  time 
when  Castell  came  in  ;  and  he  remained  there 
a  considerable  time  after  Castell  was  brou:;ht  in. 

As  to  the  points  of  law  insisted  on  by  the 
gentlemen  on  the  other  side,  1  must  submit  it 
to  your  lordship,  whether  this  proof  is  not  suf- 
ficient to  support  the  appeal ;  that  he  was  car- 
ried against  his  consent  to  an  unlawful  con- 
finement, and  at  a  spun^ing-houMe. 

Mr.  Strange.  The  poini  of  law  is,  Whether 
Ue  wi\s  unluwfiiily  taken  ?  And  though  bo  was 
unlawfully  coti fined,  yet  it  doiH  make  an  un- 
lawful taking. 

2  0 


lMr«riuiBr  BaUHb  hoilies may 
intMOM  npom. 

Vr.  f  ua&ricy.  We  desire  Id  ctOl  Ni 
Abel  ilanilmg  up  agnin. 

Hr.  fuoftcrlgr.    Wliat  bus  bcco  the  u^n 
giren  for.ioot  ud  judgoii 


liren  lironglit,  and  SMHtn 
given  u)ioa  Hi 


^1]  4G9PIU3BU. 

£.  C.  J.  ThouKli  be  wm  Itwiiilljr  t«kM,  jtt 
Iw  ought  not  to  be  notawfiilly  wnticd.  Ha 
iru  CMTied  into  Corbatt^  on  Iba  liib  of  No- 
nmber,  tad  the  BAb  bJod  «M  ghen  Uw  M  of 
DaMmber  j  which  wu  a  gaiM  while  tf^  he 
VW  taken  ID  awtody. 

Hr.  Amvm.  There  wu  a  tiurd  bcwd  given 
ftr  ijOOOt.  eae  was  in  Jul;.    In.oidrr  to  intln 
theaa  bond*  elearill^fv  ifaMld  be  prodaoed. 
'  Hr.  Sinmge.    Coiuior  awean,  that  he  tooli 
bat  two. 

Ur.  Rteea.  It  wm  iwon  Vy  EUwi  that 
there  wer«  five. 

Se^.VantU.  Theeni&aenMatwuaproper 
fonflbemeat.  A  tgtUF*  hoiue  ii  a  prapw 
conflnemeDt,  and  the  taking  waa  qM  an  uolawr 
fbl  takioK. 

L.  C.  J.  Ii  there  not  a  diftrenee  cf  beiDV 
Cfnied  into  the  ntlca  ?  If  pot  in  the  rvlea, 
It  b  not  a  part  of  thf  pina  ;  if  lOt,  ever^ 
fmaatif  that  escapei  «n4  ^Wi  tba  gaelK  m 
answerable  fur;  sdJ  a  ftwuitt  hsin^  IberCt 
will  iioi'  be  lookat  npoB  to  beapnaaocrai 
large :  erery  pai-l  of  the  mica  ia  a  pert  «l 
ilie  ftitoa.  tliuuifli  DOt  wilhia  lb*  walfa  :  if  il 
it  not  in  (lie  pnson,  theo  iheve  ia  aaea^:  il 
Vat  boih  illegal  ID  caiTj  Wmiwrai  and  enflae 
him  there.  Tliere  ia  aiKillM>  fiOHidentiM; 
they  uy,  capitally  ^oilt;;  I  dro't  Ipww  btt 
tbatbtlie  catebere;  but  then  it  il  Mt  hid  ao 
Id  the  declaraiiMi.  IfapnaqncrdiMbydDTeaa, 
the  gaoler  ia  ipiiliy,  aod  u^talle  guilt;. 

It'  £».  Wi!  IwinUj  apprebnd.  thrt  tte 
«aae  muat  be  conaidered,  that  bedid  with  nelice 
•AKlhoDgbt  murder  the  Mid  Robert  CaatelL 

X.  C.  J.    The  Ian  maltca  it  ao. 

Mr.  Lef.  Thererore  I  appreliend,  from  the 
nature  ut'  the  thing,  and  his  behafiour,  tbV 
it  must  be  taken,  Ibat  ia  this  case  Ibej 
dill  feloniouEly  carry  tbii  man  to  the  booM' 
of  Richard  Corbelt;  but  that  roust  be  de- 
eded b^  (he  evideoce.  Tbey  kacw  the  Iidum' 
to  be  inrn:tFd;     therefore,  whether  the  oii. 

S'nal  taking  him  up  wai  legal  or  illegal,  ik 
e  lhiii|{  lo  be  ~considerrd  ;  if  be  wai  only 
taken  up  lo  be  carried  into  the  gaol,  it  will  bare 
another  con  side  rati  on  ;  but  the  priiuner'i  in- 
tentioD  i«  to  be  judged  by  tlie  jury.  I  don't 
know  whether  I  should  be  proper  in  taking 
notice  of  the  eTideuce  ;  I  ihould  Terj  aburtly 
lake  notice  of  the  evidence  in  thia  trill. 

£.  C.  J.  That  can't  be  done.     • 

Hr.  Taxakerley.  At  to  the  lioglp  matlet  ol 
taking,  that  will  be  theconaequence  of  the  oilier. 

L.  C.  3.  Though  the  act  itself  ia  lawful,  tli<^ 
iiaage  of  the  man  will  make  it  unlawful ;  this 
ba  necestary  case  for  their  coaiideralioa  ;  for 
where  a  man  dies  in  duress,  it  is  morder  in  tbi.' 
fpolcT.    It  il  ihe  nature  of  human  bodies  to  tak<.< 

infectuu) ;   and  if  a  man  ia  put  into  a  place    llie  13th  of  the  eame  Deoember  he 
wberetuch  iafectlaaia,it  will  be  murder  '    '* 
gaoler. 


but  vn«e  Ht.  Gamfcicr'n  liroc,  wlie 
it  ehaiged  with  neme  uroce&g,  we 
(he  hand Ar  (be  am  ;  lot  when  it 
lake  the  bond  in  a  double  peoalty. 

Hr.  fhfdtcrl^.  We  desire  u>  a 
InhDd,  to  aak  hue  a  qiiealion  or  two,  aa  to  i 
deelantiiu  of  Holdaworth. 

Jenetioa  Irtlandsvnra.  \ 

Mr.  FMoierleu.  Ua  you  know  UoldewariW 

Ur.  balnd.  Y«. 

'Hr.  AsaAerZey.  Had  you  any  diacuMl 
with  him  ahnnt  a  bed  being  braii{(ltt  eot  ■ 
Wbittfanomr 

bfbmd.  No,  1  had  no  such  dlsi 


appeal  of  nivrder,  brought  by  ( 
nr  the  death  of  ber  buibnnd.  i  nmn  ■■ 
nntieaefthe  whole  appeal.  Iieciuae  ptwA  «l 
repaired  rftbafcata  as  there  hiJ.  It  daaml 
that  OB  the  14lh  day  of  Nurember,  in  the  ■« 


00  the  Mtb  of  NoveuiWr,  Hieliard  OaiM 
took  her  bndband,  nrroated  liiin,  and  cocrin 
him  to  the  bouse  «(  liiiii,  the  laid  Rioban 
Corbett,  and  kept  him  tbtie  for  the  apace  a 
91  daya,  against  the  will,  and  wilbent  Oi 
consent  of  Uie  said  Robert  CealaU.  Th«l 
Eoea  on,  and  laye,  that  the  aaid  RiehBid  tSm 
hett  did  onlawfally,  vidently,  aad  of  dmIs 
aforethought,  imprison  and  detain  the  M 
Robert  Caatetl  ia  Ida  the  aaid  RiobetdOertall^ 
bouse;  and  ihat.atlhe  lime  oftafahwand  EM 
prisonioff  of  tba  saki  Robert  QasWl,  WU 
was  ill  of  the  smsll-poi  io  Ihe  same  baaaa 
which  distemper  Robert  Castell  netee  had. 

Forther  aeU  forth,  Tbat  while  ber  hMlaa 
was  there,  on  the  leUi  of  Novetabi 
fjuesled  Bambridge  and  Corbett, 
would  not  detain  bim  in  the  boosa ; 
Ifave  notica  that  White  was  sick  of  tl 
ttox,  and  that  Castell  had  not  bad  tJMkt  ;  M 
if  he  got  (hat  distemper,  it  woidd  Be  tho  eoM 
sion  of  his  death:  that  uotwitbttan^Bg  lU 
distemper  was  there,  thev  detained  him  dMM 
and  there  kept  him  till  the  lUh  of  DeaeabM 

Purthcc  seu  forth,  That  on  the  4th  of  Si 
cembcr  he  fell  ill  of  this  dial 


tbefii 


To  condnde,  tbat  these  two  appelleea  i 

Mr.  Slrange.    That  does  aati4>pear  to  be  I  fUoniooaly,  tolunlarilf,  and  of  nMGce  nliial 

*-ne  with  the  priTity  of  cither.  {  Ibengbt,   kill   and   murder  the.  laid  Hehai 


L.  C.  J.  la  the  proof  aguost  Cotbett's  lak- 
*  Thie  word  Menu  io  be  KdaDdaid:. 


Castell. 

!      To  which  the  two  defendaota  bare  pleadi 
,  Not  Otultj.    The  qttesliea  Tor  yov,  gentlem 


4»] 


em  an  Appeal Jbr  Murder. 


A.  D.  17S0. 


[454 


of  Che  jivj,  to  eoiMider  of,  is,  If  the  apfieal  is 
proT^y  and  oot  what  n  opened  by  the  counsel : 
jommnU  regmrd  tlutl  no  further,  tbon  it  is 
proved  by  tbo  evidooco. 

This  oppoftl  it  grounded  upon  this  law ;  that 
li  Ibe  loir  hot  parlicolar  guards  and  privi- 
te  justifying  the  rij^ht  of  eaolers  in  de- 
er jH-iooners  in  safe  custody ;  soon  the 
Dtf,  that  though  they  had  tlie  liberty  of 
priooBOrs  secure  and  safe,  yet  tiiey 
them  humanely,  and  put  them  into 
I  as  do  not  prejudice  their  limbs  and 
.  fir  If  theT  should  be  put  in  such  places 
aiftey*  do,  ana  they  die,  it  lies  at  their  doors ; 
si  li  iBBrder*'!* 

If  0  gooley  brought  bodies  that  were  infec- 

liiis  bio  a  room,  bf  which  a  prisoner  should 

cttAa  ditteoiper;  or  put  a  man  into  irons, 

Wwhiell  he  sboald  die,  it  would  be  the  same 

mtg.    If  a  gaoV«r  will  take  persons  that  have 

M a  dhlfinpii,  and  carry  them  to  a  room 

ariiA- their  consent,  after  notice  was  given 

lEltat  ouch  a  distemper  was  there,  it  is  at 

lb  |lBil.    Gentlemen,  i  must  observe  to  you, 

iMB'tho  pveoent  cose  all  these  circumstances 

tlsooDCvmnt : 

b#  wao  carried  there  aflfainst  his  will ; 

o&lonpe^  #ai  in  tho  house ;  that  he 

IlihtonH^rfgf  of  tho  distemper  being  there, 

IIk  ntttoro  of  it  was  infectious ;  that 

o  woo  made  OB  his  behalf ;  that  not- 

Ite  be  wai  carriea  there,  and  there 

\%  iM  By  thotjftieans  caught  that  dis- 


mwbm  wto  the  occasion  of  his  death ; 
^^  dioiOitipeis  may  arise  fW>m  human 
lllBh«->Tliii  is  tbefeundation  upon  which  tlie 

Tht€M'  vHtness  is  only  to  shew,  that  Mr. 


«*«■ 


> 


word  seems  to  be  redundant. 

f  **  IW  fatw  watches  with  a  jealous  eye 

•itfto  flondoet  of  these  officers"  [Gaolers 

mk  fcnoDO  employed  by  them] ;  **  and  there- 

bnif  ■  priooner  under  their  care  die,  whether 

SdaoHeor  oocident,  tlie  coroner,  upon  notice 
soeb  death  (which  notice  the  gaoler  is 
iMifBd  to  givo  in  dno  time,)  ought  to  resort  to 
Af  gaol,  and  there,  upon  view  of  the  body, 
■At  ia^uiiitiOB  into  the  cause  of  the  death. 
tl^it  it;  wore  owing  to  crUel  and  oppressive 
IMiOD  the  part  of  the  gaoler,  or  any  officer 
tfaio^  or  in  the  language  of  the  law  to  duress 
rf  hipiisOBinont,  it  will  be  murder  in  the 
goiHy  of  such  duress.  For  though  in 
~'  the  principal  may  in  some  instances 
for  the  fault  of  his  deputy,  yet  in 
s  eoch  man  must  answer  for  his 
or  delkaltf.  If  a  gaoler,  knowiog 
a  priooner  infected  with  the  small -pox 
~  in  a  certain  room  in  the  prison,  confined 
prisoner  against  his  will  in  the  same 
i;  iBeoBOcqucnoe  of  which  the  latter,  who 
bt  not  bod  tlio  distemper,  of  which  the 
Mer  had  oolioe,  caught  it  and  died  of  it ; 
aa^  bciof^  dooe  from  -  a  deliberate  malifj^nant 
■Nhe,  would  clearly  be  murder  in  the  gaoler." 
larsPlnoortboCrowni  c.  5,  §  99. 


Bambridge  was  warden  of  the  Fleet ;  and  for 
that  end,  he  produced  a  copy  of  the  letters 
iiatent.  I  shall  take  notice  of  the  time,  which 
IS  the  30th  of  September,  1798 :  it  said,  he 
was  not  admitted  till  afler,  but  there  is  no 
proof  to  be  admitted. 

The  next,  John  Noel,  is  to  prove,  that  bo 
was  committed  the  18th  of  June,  17S8.  I 
need  not  trooble  you  with  ail  the  particular 
sums,  but  that  all  together  they  come  to  527/. 
When  they  have  proved  this,  it  was  necessary 
to  shew  that  he  was  a  prisoner  at  large. 

As  to  Corbett's  house,  he  says,  Tie  was  a 
prisoner  there  two  months,  and  that  he  never 
saw  any  t\\m^  hut  what  was  very  humane ; 
the  hou^e  was  in  the  liberty  of  the  rules,  and 
so  consequently  part  of  the  prison  ;  the  ques- 
tions that  were  asked  by  the  defendant's  coun- 
sel were  to  shew,  that  he  had  a  right  to  tako 
him  up,  because  he  mig^ht  have  went  away 
before ;  that  the  house  belonged  to  the  war- 
den, and  that  the  liehaviourof  Corbett  to  him, 
and  his  usage  while  he  was  there,  were  very 
humane. 

He  told  you  he  was  taken  ill  the  4th  of  De- 
cember, and  died  the  12th  ;  that  as  for  tho 
house,  there  were  two  houses  laid  into  one  ; 
and  White  was  not  properly  in  the  house,  be- 
cause one  was  in  the  first  floor  in  one  house, 
and  the  other  was  up  three  pair  of  stairs  in  tho 
other;  and  that  direction  was  given,  that 
White  was  not  to  come  down;  and  White 
never  came  down  during  the  time  3lr.  Castell 
was  there,  before  he  died. 

That  as  to  Corbett's  wife,  when  Mr.  Castell 
was  ill,  she  did  look  afler  him  as  much  as  if 
he  had  been  her  own  child  ;  and  that  Mr. 
Castell  did  not  complain,  but  did  say,  he  was 
very  sorry  he  had  the  distemper,  and  that  Cor- 
bett and  Castell  had  been  of  a  club  together ; 
that  as  to  the  room,  it  was  a  very  commodious 
place.  As  to  what  evidence  cl.>e  was  given 
oy  him,  I  shall  mention  but  little  of  it  now, 
for  1  am  now  only  summing  up  for  the  ap- 
pellant. 

The  next  evidence  that  was  called  was  cap- 
tain Sinclair ;  he  did  nut  speak  to  the  time  in 
question,  hut  spoke  only  tu  1727  ;  he  was 
going  on,  but  the  counsel  knew  that  was  not 
proper,  so  stopped  him. 

The  next  witness  was  Wilson  ;  he  says, 
that  it  was  a  public  house,  and  that  they  sell 
beer,  ale,  and  wine  ;  and  that  Castell  had  pro- 
vision there,  ai\d  paid  for  it.  1  desire,  if  I  omit 
anV  thing  1  may  be  put  in  mind  of  it. 

The  next  was  captain  Collet ;  they  mado 
use  of  him  for  another  purpose,  to  prove  that 
Mr.  Castell  had  received  125/.  therefore  they 
insisted,  that  Mr.  Bambridge  having  notice 
of  this,  he  might  take  the  occasion  of  insisting 
upon  further  security,  in  order  to  extort  money 
from  him. 

Mr.  Jjee,  There  is  a  juryman  and  the  pri- 
soner talking  all  the  time. 

£.  C.  J.  I  must  have  no  obstnulion  of  jus- 
tice ;  you  must  not  disturb  the  C'lu.i. 

The  first  thing  to  be  doue  vv  ol«\»  ^ivi 


455] 


4  GEORG  E  II.  Trial  of  T.  Bamhridge  and  R.  Corbel^         [456 


Bambridgc  had  knowledge  of  Mr.  Castcirt 
receiviiig  the  money  for  Uiat  end  ;  Collet  and 
Brent  Were  called,  who  proved,  that  a  note 
was  given  to  Castell,  payable  to  him  or  bearer, 
for  the  sum  ;  and  that  it  was  allerivanls  al- 
lowed in  Woodward's  account.  Collet  says, 
he  was  in  the  same  room  with  Custuil,  talkmg 
about  the  judgment,  and  says,  that  it  was  pos- 
sible that  he  might  mention  the  money  that 
was  to  be  paid  by  Castell  to  Bambridge;  that 
is  the  uiuterial  thing.  They  would  inter  on 
the  other  side,  that  it  cannot  he  proved,  uulcss 
it  came  to  the  knowledge  of  Bambrid^e ;  for 
though  Brent  went  up  to  Bambriuge,  he 
cannot  take  upon  him  to  say,  he  mentioned 
any  thing  in  relation  to  that  sum. 

What  is  insisted  on  by  the  appellant's  coun- 
sel, is,  that  several  securities  were  given  upon 
account  of  Mr.  Castell,  and  therefore  security 
was  given  before ;  and  in  order  to  pro?e  that, 
they  called  witnesses  to  shew  he  demanded 
several  bonds,  and  that  notice  was  given  to  Mr. 
Bambridge  to  produce  them.  As  to  that,  the 
answer  that  was  given  was,  that  to  prevent 
disputes  in  court  he  had  but  one  bond.  Then 
they  called  upon  witnesses  to  prove  the  cir- 
cumstances. Mr.  Peter  Ellam,  who  says,  he 
gave  bond  five  times,  the  first  in  July,  1728, 
for  200/.  in  the  second  bond  one  Chambers 
and  Peter  Ellam  were  bound ;  the  third  was 
for  1,000/.  entere<I  into  by  him  and  Curll ;  the 
fourth  was  for  1,000/.  entered  into  by  Curll, 
and  him,  and  Bell,  the  latter  end  of  November, 
in  order  for  Mr.  Castell  to  have  the  liberty  of 
the  rules ;  and  there  was  a  fifth  for  2,000/. 
j^iven :  he  says  it  was  on  a  Monday,  but  that 
IS  a  mistake ;  Peter  Ellam,  and  John,  and 
Curll  were  bound  in  that.  lie  savs,  that  be- 
tween the  36th  and  last  of  Noveuiber,  he  saw 
Mr.  Castell  at  Corbett*s,  and  he  asked  him 
what  was  the  reason  of  his  being  there  ?  And 
he  made  answer,  That  he  did  not  know,  it  was 
what  Bambridge  pleased.  Then  he  tells  you 
how  he  came  to  be  bound ;  that  he  was  a 
creditor  of  Mr.  Castell's  in  the  sum  of  200/. 
that  he  had  a  good  opinion  of  Air.  C^astelfs 
industry,  and  that  he  had  a  bill  of  sale  from 
him,  but  did  not  know  the  date;  then  the  de- 
fendant's counsel  produced  a  paper,  which 
shews  it  was  the  22nd  oi' October,  1728. 

That  is  the  point  controverted,  as  you  will 
see  by  aod  bye.  He  says,  that  there  was  one 
Chambers  liound,  who  did  not  care  to  con- 
tinue any  longer  ;  he  says,  he  himself  was  in- 
rlinallc  to  gnc  it  up,  but  that  Castell  pro- 
bably might  get  over  his  difficulties,  so  he 
uas  resulted  to  continue.  He  was  asked, 
^\'hctlier  liambridge  did  dissuade  them  from 
c^'^ntinuing  securities?  lie  says,  he  did  en- 
c'ounipethem  to  continue,  rather  than  dissuade 
them  trom  it.  Afterwards  the  security  was  to 
be  dciivcTc  d  up,  and  he  was  carried  to  Corbctt^s, 
after  the  4th  or  6tb  bond  was  given  ;  but  he 
can't  take  u|K>n  him  to  sajr  that  Mr.  Bam- 
bridge did  ever  accept  of  it;  then  was  the 
other  security,  in  November^  1728,  givrn  by 
kimself,  Jodu  Ellam,  and  Curll,  the  derk  at- 


tended at  GraTcsend  ;  he  says,  be  did  send  to 
them  (Castell  dicing  uneasy)  to  haye  the  bonds 
executed  :  he  says,  that  he  was  with  Castell 
before  he  died  ;  and  he  says,  be  was  mnch 
concerned  at  having  the  distemper,  and  thai 
be  did  say,  that  Bambridge  was  the  oocasin 
of  his  death,  for  he  applied  to  him  to  let  hisi 
go,  but  he  did  not  let  him  go ;  and  told  hia, 
if  he  did  not  let  him  go  out  soon  he  knew  ba 
should  die.  This  was  not  abofe  two  diys 
before  he  died. 

Then,  gentlemen,  they  goon  upon  the  fonner 
enquiry  about  the  bonds,  to  fix  the  bonds  npoa 
Bambridge,  and  called  Daniel  Hopkins.  He 
says,  he  was  Clerk  of  Inquiries;  but  that  he 
was  taken  very  ill,  and  Codnor  officiated  for 
him.  He  supposes  Bambridge  did,  if  any 
security  was  not  found  sufficient,  scruple  to 
continue  him ;  and  says,  when  security  sur- 
renders a  man,  it  is  the  constant  practice  to 
take  them  up  by  a  tipstaff,  who  brings  them 
in  custody,  and  puts  them  into  a  spunging^ 
house :  as  to  the  house  of  Corbett,  be  knev 
the  bouse,  and  that  there  was  good  nsa^ 
there,  and  that  Mr.  Castell  had  not  any  lU 
usage  there.  Then  they  g[o  to  shew  Mr.  Cis- 
tell  was  carried  there  without  bis  conssnt; 
and  in  order  to  prove  that,  called  Mr.  Under* 
wood,  who  says,  that  last  July  was  twelve 
months  (he  continued  in  custody  till  be  died) 
Corbett  came  one  morning  to  enquire  afler  Mr. 
Castell ;  then  he  was  not  at  bis  room,  and 
Castell  seemed  much  concerned  at  the  hearing 
of  it,  and  said  he  would  go  up  and  lock  bin- 
self  in  ',  that  Corbett  came  at  nine  o'clock  in 
the  morning,  and  took  Castell,  and  he  seemed 
▼ery  much  concerned ;  but  Corbett  did  not  use 
him  ill.  Hopkins  says,  that  Corbett  said  be 
must  go  aliMii;  with  him,  his  security  had  sur- 
rendered him ;  upon  which  Castell  desired  to 
stay  there  ;  and  Corbett  said  to  that,  he  bad 
the  warden's  order  for  it,  and  he  must  obey  it; 
he  wished  he  could  excuse  it. 

Then  they  called  Catharine  Mackartoejr; 
she  says,  she  was  with  Mr.  Castell  and  saw  bua 
the  day  before  he  died ;  and  says,  she  saw 
him  about  three  days  before  that,  aod  he  said, 
if  he  died,  he  would  lay  his  death  to  Mr. 
Bambiidge.  She  says,  that  he  wanted  some 
necessaries,  as  a  tea-pot,  knife  and  fork,  and 
that  Lor  mistress  supplied  him. 

Havage  was  the  next ;  he  says,  he  saw  Mr. 
Castell  a  little  before  he  was  taken  into  ens- 
tody  ;  and  Mr.  Castell  sent  to  him,  to  dcsirt 
him  to  go  to  Mr.  Bambridge,  to  acquaint  hiai 
that  they  had  the  small- pox  in  the  house,  sad 
that  he  was  afraid  of  catching  them,  for  bii 
family  had  suffered  very  much  thereby  ;  so  he 
was  directed  to  deliver  himself  as  tobismei* 
sage ;  and  that  he  had  a  great  inconvenience^ 
to  be  locked  up  on  respect  of  going  out  by  day 
rules :  he  says  he  did  go,  but  the  defendant 
gave  no  answer  till  the  last  time ;  he  says,  bn 
went  two  or  three  times ;  be  don't  know  bit 
he  went  thi-ce  or  four  times,  and  be  deliTCiid 
the  same  meesage  everv  time,  and  be  bad  an 
answer  till  at  last,  and  tneB  be  said  he  wm  \m 


437] 


o»  an  A]^eal/br  Murder. 


A.  D.  17S0. 


[458 


cxecotioB ;  and  af^er  said,  be  was  chaif;ed 
with  {Treat  sums  of  oioney,  and  he  must  take 
care  of  his  office.  He  says,  that  some  time 
lAcr  Castell  was  taken  ill  of  the  small-pox. 
He  says  farther,  gentlemeD,  that  Bambridge 
caae  iclthe  King's -arms  ta?era,  and  said  that 
hrhad  been  at  Corbelt's,  and  that  the  small- 
fnbein^  mentioned  before  Mr.  Castell  to  be 
tkna,  lie  said  that  Castell  was  extremely  af- 
'  '  ith  it,  and  irreatly  concerned.  He  did  go 
e  sort  of  business  to  Mr.  Bambridge. 
was  the  next ;  he  ea?e  you  eridence, 
I  shall  not  repeat,  it  did  not  come  to  the 
!■;  but  be  being  cross-examined,  said  Bam- 
ka^  treated  him  well. 

Thea  Sarrige  was  called ;  who  said,  he 
voa  with  two  letters  from  Castell  to  Bam- 
kri^fei  and  Bambridge  said  he  would  send  an 
■sacr.  This  is  only  introductory,  to  shew 
Ihit  Castell  made  application  to  Bambridge. 

Gaodman  was  the  next ;  he  says,  he  was  at 

Gabctt's,  and   Bambridge  came  there,  and 

OMldl  said  he  had  sent  several  messages  to 

Ua;  and  pursuing  the  discourse,  Castell  de- 

■fd  to  go  into  the  gaol,  or  go  into  the  rules, 

kaase  the  distemper  was  there,  and  he  cer- 

aialy  should  die  if  he  caufht  it.     He  swears, 

lltf  Bambridge  said  he  should  neither  go  into 

At  gaol,  or  into  the  liberty  of  the  rules,  with- 

Maeertain  sum;   (he  could  not  take  upon 

kia  Is  swear  what  it  was)  to  which  Castell 

■ii,  he  bad  given  security  enough,  and  he 

*«M  give  no  more.     Then  he  went  into  the 

k^Tioai,  and  the  next  day  he  was  taken  ill, 

wi  daaired  a  fire  in  his  room.    The  counsel 

«Ae  other  side,  they  did  examine  him  to 

hsv  the  description  of  the  place,  and  asked 

ka  if  be  could  hear  what  was  said;  he  said 

IW  Awr  was  shut,  but  he  took  upon  him  to 
ana  be  did  hear. 

Tbn  Sutton  was  called ;  who  says,  that 
Mr.  Castell  was  very  timorous ;  and  says,  she 
««s  MAt  fur  to  White ;  that  Air.  Castoil  looke,d 
Wrio  the  face,  and  fancied  she  had  the  small- 
|ai;  she  said  she  had  no  more  mark  than  at 
time;  and  she  swears  be  did  die  of  the 

Hljpox. 

Westbrook  was  the  next,  who  spoke  to  the 
purpose,  to  shew  his  apprehension  of  catch- 
neibe  small -pox. 

Tbea  they  go  to  the  other  evidence,  to  shew 
dnt  there  was  no  necessity  of  carrying  him  to 
lUi  place.  There  was  a  room  Kilbury  swears 
VIS  an  empty  room  from  the  latter  end  of  Oc- 
Ukr  till  afaont  the  5th  of  December,  N°  16  ; 
ibae  was  a  lumber-room  besides,  that  might 
bift  been  made  commodious. 

Bosch  be  says  the  same. 

Beaver  was  called  next,  to  give  an  account, 
ibM  there  was  not  only  a  room  in  the  prison 
apty,  but  that  there  were  rooms  empty  m 
Maarspangihg-house.  This  is  the  substance 
4  tha  evidence,  as  near  as  I  can  lay  it  before 
^  The  evidience  given  by  Savage  is  the 
■■I  autcrial ;  and  ilie  eridence  p:ivcn  by 
fadasB  aad  the  other  witnesses,  of  his  fear  of 
Mag  tbt  snall-poz. 


This  being  the  evidence  for  the  appelhmt; 
for  the  del'endants,  they  insisted  upon  some 
points  nf  law,  that  the  party  here  was  not  ille- 
gally taken,  and  say  this  was  laid  so  in  the  de- 
claration. This  was  urged,  because  they  will 
shew  you  in  their  evidence,  that  it  was  proper 
for  the  warden  to  take  him  up  by  a  tipstafi*; 
that  this  was  a  legal  taking,  and  that  it  will  be 
the  consequence  only  of  ■  that  will  be 

taken  notice  of  when  that  part  of  the  case 
comes  to  be  considered ;  that  it  is  laid  to  be  in 
one  bouse,  but  there  are  two :  though  they  are 
different  apartments,  this  must  be  considered 
as  one  house. 

The  next  thing  that  was  laid,  was,  that  White 
was  sick  at  the  same  time  when  Mr.  Castell 
was  brought  in.  Now  say  they,  having  proved 
that,  they  have  proved  the  declaration. 

I  don't  see  that  the  man  can  be  said  to  be  ill 
of  the  distemper  when  he  was  brought  down  ; 
though  the  defendant's  witnesses  say,  that  he 
had  not  taken  all  £is  purges ;  that  evidence 
will  take  off  the  objection  made  by  the  appel- 
lee's counsel. 

Then  they  go  on  further,  and  say,  that  ho 
did  actually  catch  this  distemper ;  and  on  the 
other  hand,  they  say  there  was  little  reason  to 
believe  it,  when  lie  was  kept  so  long  before  he 
came  down.  This  is  true,  it  is  to  be  consider- 
ed in  that  manner.  As  to  the  objection  of  that 
part  of  the  declaration  of  Nr.  Castell  where 
ne  declared  Bambritige  Bas  the  occasion  of  his 
death  ;  1  must  acquaint  you,  where  a  man  is 
wounded,  and  dies  in  a  little  time,  we  have  ad- 
mitted what  he  said  to  be  given  in  evidence. 
These  thinii;s  were  at  the  time  when  he  had  the 
distemper,  a  little  time  befo:e  he  died. 

The  counsel  for  the  defendants  gave  this  an- 
swer, that  if  they  brins^  him  there,  that  his 
declaration  would  not  si(|[nify,  for  if  they  con- 
fine him  there,  they  have  arir^ht ;  it  would  be 
justifiable  in  them  to  do  it. 

AiXer  this  oLscrvutinn,  they  do  say,  that  it 
was  very  incredible  to  hear  what  was  said  in 
the  room  at  the  liar  ;  the  room  was  close  board- 
ed to  the  top,  and  tiie  door  was  locke<l,  and  this 
was  a  long  time  before  it  was  discovered  ;  and 
called  witnesses  lo  prove,  how  incredible  it  was 
to  hear  what  was  said  in  that  room. 

Then  the  defendant's  counsel  come  to  give 
evidence  that  his  security  had  surrendered  him. 
The  witness  they  make  use  of  was  Mr.  Chap- 
pel,  to  sliew  that  Chambers  would  not  continue 
as  security  any  longer :  He  gives  an  account, 
that  Chambers  would  not  stand,  that  Peter 
£l!am  was  of  the  same  mind,  but  afterwards 
did  recede,  and  Bambridge  said  he  thought 
them  very  secure ;  what  could  induce  them  to 
withdraw  their  securities,  don't  appear;  both 
the  £llams  would  stand.  Chambers  told  Bam- 
hridjs^e  himself,  that  he  desired  to  take  him  up ; 
and  Bambridge  said,  if  he  must  be  taken  up, 
you  must  go  to  a  tipstaff,  and  directed  him  to 
Corbctt,  and  Corbett  demanded  his  fee.  That 
he  could  not  find  Castell  at  first,  hut  went  a 
second  time,  and  took  him. 

Ellam  first  refused,  ailerwards  he  was  eoun- 


459] 


4  GEORGE  II.  Trial  of  T.  Bamhridge  and  R.  CorbctL         [46fl 


ter-security  to  Ellam;  that  was  the  reason  he 
called  the  uote  from  Chambers. 

Chambers  desired  Air.  Chappel  to  tell  Bam- 
brid{;ey  that  he  then  came  to  town  in  order  to 
give  him  up ;  and  Banibrid^e  told  him  he  wat* 
very  safe,  and  he  desired  him  to  continue  seen- 
rity  still.  The  use  they  make  of  (his  is,  that 
if  Bamhridge  wanted  uim  in  custody,  he  would 
not  have  persuaded  him  to  continue  security. 
He  says,  thatou  iiambridge's  saying  that,  he 
did  continue  some  time  longer  j  then  he  came 
to  town,  and  was  resolved  he  would  deliver  him 
up  ;  he  told  hiui  again,  if  he  was  revolved,  he 
must  go  to  a  tipstatF,  and  give  6s.  Qd,  for  his 
fee;  that  Chambers  went  that  very  day  to 
Corbett's,  and  had  Cant  ell  taken  up  ;  and  Cns- 
tellsaid  to  Chappel,  that  he  was  set  on;  and 
Chappel  said,  he  was  not ;  and  Castell  said,  he 
did  not  believe  it ;  and  says  that  Mr.  Castell 
did  not  complain  of  any  ill  usage. 

Jotieph  Vains  wa4  the  next ;  he  says  tliat 
Chambers  came  to  his  house  (he  was  not  there 
after  he  spuke  to  Corbett,)  and  asked  him, 
vhether  he  had  seen  Corbett?  He  said,  be  had 
seen  him  that  day :  he  came  there  again,  and 
met  with  Corbett,  and  told  him  he  intended  to 
surrender  Mr.  Castell,  for  tiiat  he  was  informed 
be  was  going  abroad  with  lord  Londonderry. 
He  says,  that  he  charge<1  Corbett  to  look  tor 
Castell ;  and  said,  if  he  did  not  get  him,  he 
would  move  the  Court  against  him,  and  make 
him  pay  the  debt. 

Woodyer,  he  gives  an  account,  that  Mr. 
Castell  was  at  the  King's  Arms,  and  says,  that 
Mr.  Castell  ordered  him  to  get  a  room  ready, 
to  air  the  sheets,  and  get  a  nre ;  and  he  says, 
he  sent  *bc  boy  thereupon,  but  that  he  never 
saw  Mr.  Castell  alW ;  that  Mr.  Corbett  went 
ivith  him  ;  that  he  went  away  easy,  and  did 
not  make  any  complaint. 

The  next  is  Downs ;  he  did  not^  say  that  he 
received  the  message  from  Mr.  Castell  to  get 
the  room  ready,  and  that  the  night  before  he 
lay  St  Underwood's,  that  he  atteudetl  him  there 
tin  he  died ;  and  as  to  necessaries,  he  had 
every  thing  that  was  fit,  and  there  was  a  club 
kept  tliere,  and  Corbett  used  to  be  with  them. 

Then  iloldcsworth  the  chamberlain  was 
called ;  who  says,  that  Mr.  Castell  came  in 
there,  and  wanted  nothing ;  he  seemed  to  com- 
plain of  nothing ;  before  he  came  in  there  the 
bed  was  aired.  They  asked  him,  whether  they 
could  hear  on  the  outside  of  the  bar,  what  was 
said  in  the  room  behind  it?  (to  take  off  the  evi- 
dence of  GkHHlman)  he  says,  in  his  opinion  he 
conld  not  hear,  unless  they  8|)oke  ver^  loud.  As 
to  White,  he  says,  he  hy  up  three  pair  of  stairs, 
and  Castell  up  one  pair  of  stairs ;  that  two 
houses  were  laid  together  obly  at  the  top,  and 
that  one  stair- case  was  stopped  up  five  or  six 
days  before  Castell  came  there. 

That  the  bed  White  lay  on  was  brouglit 
down  into  Mr.  Castell's  room,  but  the  bed- 
wHemi  being  too  little,  it  was  carried  up  again . 

*  So  in  former  editioD,  but  wrongly  as  it 


this  was  five  or  six  days  before  Mr.  Castell 
came  there. 

The  next  witness  is  Norton ;  he  tells  yon, 
that  a  message  was  brought  to  have  a  fire  made 
in  ihe  liest  room,  and  to  have  the  best  bed  jifol 
ready  in  the  best  room.  He  tells  yod,  as  to  ibe 
bar,  that  you  can't  hear  what  is  said  ia  Ifat 
inner- room. 

They  then  called  doctor  Gardiner ;  when  hi 
was  charged  in  execution,  be  says,  he  wai 
with  him  at  that  place;  talking  how  Mr.  Barn- 
bridge  and  Corbett  used  biro,  he  said  he  wai 
useffwith  great  civility.    , 

This  was  the  last  day  of  Michaelmas  term, 
which  was  long  ai\cr  Mr.  Castell  was  carrieil 
there,  for  he  was  carried  there  the  14th  ol 
Norember ;  and  says,  that  he  went  back  agaii 
with  him. 

The  next  was  Blake ;  who  gives  an  aoeooat 
that  she  saw  hartshorn -drink  made;  thatshi 
never  had  the  small -pox,  and  staid  in  the  boast 
the  wliole  time  White  was  there,  bnt  nevei 
went  out. — Mr.  Moor  says,  be  found  him  ia  i 
convenient  room,  and  that  he  wanted  nothinff. 

Mrs.  8mith  was  the  next;  who  said,  tbal 
Corbett  said  to  Bambridge,  that  poorCaslsU 
was  ill  of  the  small- pox,  and  Bambridge  de< 
sired  to  let  him  have  every  thing  that  wasnOi 
cessary  for  him ;  and  Corbett  came  again  thi 
next  day,  and  said  the  gentlemen  wcrenBeasy, 
and  he  said  he  had  thoughts  to  remove  him ; 
and  Bambridge  said,  if  they  are  afraid,  let  then 
go  into  the  gaol. 

The  next  was  captain  Martin  ;  he  telb  yoa 
that  he  never  heard  that  he  particularly  com- 
plained ;  that  the  second  day  after  the  small 
pox  came  out,  he  went  to  Bambridge,  and  wai 
telling  him  bow  Mr.  Castell  was,  and  Bam 
bridge  said  he  was  very  sorry  for  it ;  then  Iv 
went  up  to  Mr.  Castell,  and  told  him  what  Mr 
Bambridge  had  said,  and  Mr.  Castell  dtsirei 
he  would  not  mention  his  name. 

Then  there  was  a  ])aper  produced  to  shev 
what  he  did  by  a  bill  of  sale. 

Then  King  was  called ;  who  ss]^,  that  Mr 
Castell  was  at  Corliett's,  and  that  Biarobrid|[i 
used  him  very  well,  and  Bambridge  paid  ba 
reckoning  on  the  31st  of  November,  which  is 
about  seven  days  after  he  came  into  Corbett^ 
house. — One  Howson,  another  witness,  ssvi^ 
that  Mr.  Castell  owed  him  money,  and  tbat 
Bambridge  was  employed  for  him,  and  tbil 
was  about  ten  days  before  Mr.  Castell  died. 

Then  they  come  to  shew  you  what  bceaaN 
of  the  bonds. — Peter  Ellam  proves  that  tbcrt 
were  five ;  but  then  it  was  not  proved  they  wol 
delivered  to  Bambridge. 

Cod  nor,  he  was  clerk,  and  says,  he  had  r& 
peateil  directions,  from  time  to  time,  to  take  Mr 
Castell's  security  as  soon  as  they  came ;  bt 
says,  there  were  but  two  taken  ;  there  «si 
1,000/.  1,000/.  and  2,000/.  but  he  only  ad- 
mitted of  1,000/.  and  UyOOOl. 

ile  says,  that  the  bonds  were  taken  d€  bim 
essCf  in  their  language,  which  was  only  to  h 
t^en  in  order  for  an  enquiry ;  one  was  talDtaMj 
and  cancdkdi  the  other  was  only  de  toiesM 


I                 Triat  of  Vmiam  Acton.  A.  D.  1199.              {[462 

I  ^JVQliwwiie,  that  all  the  charts  find  them  i^iHy ;   if  they  ^,  yon  will  find 

^'  tlii  was  taken  in  the  penalty  of  them  guilty. 

•VL  4Im>  .k««  ftk^  «k..«««  :-  fi*.*  IV.-  C/tfrA:.   Gentlemen  of  the  jury,  answer  t* 

2^».2ll^  ?.5J  *^^^  your  names.    (Which  they  did.) 

"J  J«(jment  lor  100/.  they  take  honds  ^  ^.^^^   Who^ihall  aay  for  you  P 

TP«re  other  witnesses  say,  that  the  cus-  rL^l     a^  „-.„  .^..l^  ? 

rf^tod  th<t  tBe  wme  man  may  haw  cferit.   Are  the  defendanto.  or  either,  and 

•iioo  for  eoe  mm,  aini  judgment  for  „,,i^^  ^^„  o,j„y  „,  j^^^  ^„.,jy  y"""'  ««« 

r-y«positiTely  that  the  two  last  bond.  ^'"'«»"-   N«>tG»»y- 

r  takea  de  bene  e$te.  Upon  tbia  acquittal,  Sir.  Kettleby  moved  tb« 


"^  But  the  Court  would  not  allow  tbe-iame  ; 

'^    the  Chief- Justice  aaid,*  be  wat  only  to  try  the 
'."* '    iasne,  and  that  the   application  was   proper 


takin&f 
fctttaa    it  does  not  appear  he  had 
^  of  the  small- pox  heing  there  theoj 

iditw  not  sufficient  to  convict  him:  «i^„«    ^  k„  „,u  ^f  ;.«—  •—            j  •  nV 

toBtmbridge,  if  Bamhridi^e  had  notice  »^rf'  ^  "^y/"'  of  coos|Mracy,  and  aU  he 

mmm  k.  J  riT-     |.  r    .     ^^i """  """^'^  could  do  was  to  record  t  le  verdict. 

•W€f  had  this  difiteraper,  that  he  was  «-^«v%. 

f  estchin^  it,  that  he  desired  not  to  go  Upon  3  February  following,  the  appellees  ap* 

if  he  did  carry  him  af^erwanls,  against  peared  in  Court,  and  having^  given  a  rule  upon 

t,MdCastell  did  catch  this  distemper  of  the  poMteUf  which  they  then  produced,  and  no* 

;Md  he  died  of  that  distemper,  then  he  body  appearing  to  say  any  thing  against  them, 

f*  Tbe  appeal  depends  upon  the^e  cir-  they  were  discharged.    Iwange  pro  Appellatis. 

■6W.    I  take  it  in  point  of  law,  they  ■ 

H  ooDcur;  if  they  do  not,  you  will  not  *  Strange's  Reports,  p.  857. 


rbe  Trial  of  William  Acton,  Deputy-Keeper  and  Head 
Turnkey  of  the  Marshalsea  Prison  in  Southwark,  for  the 
Murder  of  Thomas  Bliss,  late  a  Prisoner  in  the  said  Prison ; 
it  the  Assizes  held  at  Kingston-upon  Thames,  for  the  County 
f  Surrey,  before  the  Hon.  Mn  Baron  Carter,  August  1  : 
George  II.  a.  d.   1729.* 


Wednesday,  July  30,  1729. 

lation  was  made  for  all  persons  con- 
ittend. 

Irraigns,  YoU  good  nen  that  are 
ed  to  enquire,  &c.  answer  to  your 
d  save  your  fines. 

William  Acton,  hold  up  your  hand. 
B  did.) 

You  stand  indicted  by  the  name  of 
Lcton,  of  the  parish  of  St.  Georefethe 
ce.  for  the  murder  of  Thomas  Bliss, 

How  say  you,  William  Acton,  are 
f  of  the  murder  whereof  you  stand 
IT  not  guilty  ? — Acion.  Not  Guilty. 
How  wiK  thou  be  tried  ? 

By  God  and  my  country. 

'^—  ■  »      .III    — .— ^ 

iieCases  immediately  preceding  and 


Clerk.  God  send  you  a  good  deliverance. 
On  a  motion,  his  Trial  was  fixed  for  Friday. 

Friday,  August  1,   1729. 
Proclamation  was  made  for  information. 

Clerk.  Tliou  the  prisoner  at  the  bar,  these 
men  that  thou  shalt  hear  called  and  personally 
appear,  are  to  pass  between  our  sovereigfii  lord 
the  king  and  thee,  upon  tbe  trial  of  thy  life  and 
death ;  therefore  it',  tbou  will  cballono;e  them, 
or  any  of  them,  thy  time  to  speak  is  as  they 
come  to  the  book  to  l)e  sworn,  before  they  are 
swin'n. 

Mr.  Strange^  (Counsel  for  the  Prisoner.)  My 
lord,  I  hofie  you  will  indulge  the  prisoner  to 
come  to  the  inner  bar. 

Mr.  Baron  Carter.  He  may  come. 

Mr.  Baron  Carter,  Call  over  the  panuel. 
(Which  was  done.) 

Mr.  Baron  Carter,  There  w^  ^  ^V  xJck^'yax'^ 


463] 


S  GEORGE  II. 


in  that  pannel,  so  you  may  chaUenge  who  you 
will. 
Acton.  NOf  my  lord,  1  shan't  cballeog^  any. 


JURT. 

John  Sigffins, 
Thomas  Bandford, 
Wi Ilium  Brown, 
John  Walter, 
Robert  Patten, 
James  Wellbelo?ed. 


Thomas  Cole, 
Miles  Poole, 
Robert  Parkhurst, 
Vincent  Hollis, 
Charles  fiuckland, 
William  Goswell, 

Clerk,  Hold  up  your  hand.  (Which  hedid.^ 
You  of  the  jury,  look  upon  the  prisoner,  and 
haarken  to  his  cnarge.  He  stands  indicted  by 
the  name  of,  Sec,  (prout  in  the  indictment  mu- 
tatii  mutandis.) 

Acton.  I  desire  the  indictment  may  be  read 
in  Latin.* 

Mr.  Strange,  I  desire  Mr.  Serjeant  Baynes 
may  be  here,  before  it  is  read. 

Mr.  Baron  Carter.  1  have  staid  an  hour  al- 
ready, 1  can*t  stay  any  longer. 

Crier,  make  proclamation  to  keep  silence 
upon  pain  of  imprisonment.  This  is  a  trial  for 
lite  and  death,  and  1  shall  commit  any  one  tliat 
don't  hold  their  peace. 

Mr.  Harding,  William  Acton  stands  indicted 

for  the  murder  of  Thomas  Bliss.    The  indict- 

.  raent  sets  forth.  That  John  Darby  was  keeper 

of  the  King's  Palace-court  at  Westminster,  and 

had  the  custody  of  the  prisoners  there. 

That  William  Acton,  during  the  time  he  was 
servant  of  the  said  John  Darby,  was  employed 
in  and  about  the  care  and  custody  of  the  pri- 
soners there. 

That  the  said  William  Acton,  being  a  person 
of  an  inhuman  and  cruel  disposition,  did  on  the 
Slstof  October,  in  the  13th  year  of  the  late 
king,  cruelly,  barbarously ,  and  feloniously  beat, 
assault,  aud  wound  the  said  Thomas  Bliss,  then 
beiiv  a  prisoner  under  the  custody  of  the  said 
Darby  ;  and  of  malice  aforetliou:*ht  did  carry 
the  said  Bliss  into  the  strong  room,  and  put  on 
irons  and  fetters  of  great  weight  upon  his  legs ; 
and  the  said  Bliss  was  exposed  to  the  damp, 
and  wet,  and  cold  of  tlic  said  room ;  which  is  a 
dangerou!*,  damp,  noisome,  filthy,  and  an  un- 
wholesome place. 

The  indictment  further  sets  forth,  that  he 
put  on  an  iron  instrument,  and  on;^ine  of  tor- 
ture, upon  the  head  of  the  said  Thomas  Bliss, 
called  tlie  scull-cap;  and  also  thumb-screws 
upon  his  thumbs ;  and  that  he  remaine<l  there 
three  hours  under  all  this  torture  and  torment. 

At  the  time  of  the  i  in  prisoning  the  said  Tho- 
mas Bliss  in  the  room  aforesaid,  he  knew  it  to 
be  damp,  noisome,  and  filthy  ;  aud  consequent- 
ly very  unwholesome. 

That  during  the  detention  of  the  said  Thomas 
Bliss  in  the  said  room,  by  duress  of  the  impri- 
sonment, by  being  assaulted,  beat  and  wuundiNl, 
the  said  Thomas  Bliss  became  lanjfuid,  and 
contracted  such  an  indis[>osition,  and  ill  habit 
of  body,  that  he  languished  ;  and,  by  reason  of 
this  duress,  died. 

•  8m  f  oI.  is,  p.  Xi99. 


Trial  of  WilUam  Acton  ^  •[ 

^  The  indictment  condodes,  tiiat  he  did  i 
niously,  voluntarily,  and  of  malice  albretbos 
murder  the  said  Thomas  Bliss. 

Gentlemen,  the  prisoner  has  pleaded 
Guilty ;    and  if  we  prove  him  Guilty,  you 
find  him  so. 

Mr.  Manh,  J  have  the  honour  to  be  « 
sel  for  the  king  against  William  Acton,  the 
soner  at  the  bar.  The  offence  is  murder ; 
nobody  can  be  guilty  of  murder,  but  by  beL 
person  of  a  malicious  and  cruel  nature, 
law  determines  all  diflerences  between  all  i 
jects ;  and  by  the  laws  of  this  land,  the  1 
and  person  of  the  unfortunate  debtor  is  liab 
imprisonment  till  he  pays  the  deU ;  and 
law  takes  care,  that  gaolers  aud  keepers  of 
sons  should  have  a  particular  encouragen 
and  defence  against  the  persons  that  c 
abuses  to  them  in  the  capacity  of  a  gao 
and  on  the  other  hand,  the  law  takes  care, 
they  shall  not  tise  their  prisdners  inbumai 
or  cruelly. 

The  nature  of  all  custody  is  to  enswer 
the  debt  owing,  or  injuries  clone ;  and  the  f 
son  is  to  be  kept  safe  there,  till  justly  deli?e 
in  Court.  Where  a  person  is  condemned  io 
action  where  judgment  is  had  against  h 
then  the  gaoler  is  to  keep  the  prisoner  in  a 
custody,  but  not  to  use  any  inhumane  tn 
ment. 

Thai,  by  the  common  fate  and  inequalitj 
bnman  afrairs,  mankind  cannot  be  alike  in  pc 
of  fortune,  and  it  must  fall  to  the  lot  of  mi 
to  become  insolvent ;  and  it  wonld.be  very  bi 
for  these  of  the  unfortunate,  when  they  arei 
duced  by  the  confinement  and  miseries  ol 
gaol,  to  be  made  more  miserable  by  the  crue 
of  the  gaoler ;  who  ought  to  treat  his  prisuni 
with  lenity  and  humanity.  Bliss  was  put 
gaol,  and  was  there  kept  for  a  suiall  di^bt. 

The  indictment  takes  notice,  that  Darby  h 
the  custody  of  the  gaol ;  and  that  Acton  a 
his  servant,  and  stood  in  his  place ;  and  p< 
formed  the  sauie  as  Darby  ought  to  have  doi 

That  the  prisoner  at  the  bar,  by  a  longtn 
and  series  of  cruel  and  inhuman  usage,  m 
treated  the  deceased  (i  would  not  be  hard  op 
a  man  in  his  circumstances ;)  1  may  say  wt 
the  law  allows,  that  he  being  under  Darby 
servant,  assaulted  Bliss,  who  was  a  prisoner  1 
drbt  under  his  care,  aud  prosecuted  that,  '■ 
putting  him  into  that  place,  where  he  woe 
not  have  put  his  swine,  or  other  beast 

A  place  so  dump,  in  which  were  so  mil 
noxious  humours,  that  any  one  that  was  | 
there  must  be  iu  danger  of  death,  not  onlyfh 
the  noxious  vapours,  but  from  the  want  ut  ad 
(N)vering  at  top ;  and  from  its  being  so  reon 
from  the  sun,  that  it  could  have  ro  influec 
upon  it,  and  must  for  want  of  it  grow  noxw 
even  to  infection. 

To  m:ike  misery  more  miserable^  he  puth 
there  without  bed  or  bedding. 

A  bed  would  have  kept  him  warm,  but 
was  denied  that,  which  is  seldom  denied  ef 
to  criminals  and  GonficUi  norwpuldhetfi 


,'1  jt^ 


Jw  tke  Murder  ff  Thomas  Bliss. 


A.  D.  1729. 


[466 


ccoM  cMnfbrtefentf  ttraw ;  Irathewas 
icd  fi^MD  the  liberty  of  looking:  out  for 
\ng  to  retierehim  from  the  injuries  of  the 

ru  wrenl  timef  rery  htnlly  used ;  he 
bemt  with  a  most  terrible  iDstrument  of 
on,  a  boll's- pizzle,  that  his  clothes  were 
9  be  cut  off  nin  boily. 
s  is  no  punish  insif  the  body  without  the 
ence  or  the  mind.  The  prisoner  sent 
poor  man  out  of  this  terrible  place,  in 
id  ridicule,  to  the  lodge  where  be  bad 
y ;  and  there  had  an  iron  instrument 
pon  his  head,  thumb-screws  on  his 
,  that  the  blood  started  iVom  histhuroh«i. 
another  instrument,  called  a  collar,  put 
is  neck ;  it  was  ?ery  far  from  being 
it  there  made  an  impression  that  the 
lainly  appeared :  he  haf!  a  load  of  heavy 
,  worse  than  any  yoke  of  serritude; 
!9e  instruments  were  (ixed  on  him,  he 
ers  put  upon  his  lejrs,  of  great  weight. 
leo  were  the  fetters  put  on  for  ?  To  add 
Bliclion  of  the  man,  ami  to  shew  the 
of  the  prisoner,  I  have  already  roen- 
that  he  was  a  prisoner  for  debt*:  they 
lot  be  loaded  witli  fetters,  upon  any  pre- 
haterer. 
•di,  by  aD  old  act  of  parliament,*  where- 

of  aeoounts  were  found  indebtcil  to 
iodpal,  and  are  imprisoned,  and  refuse 
mt.  they  may  be  ironed  :  but  this  is  an 
,  dlauaed  lAw,  and  being  in  a  particular 
tedcs  all  others.  Lord  Coke  takes  no- 
t  it  ts  not  lawful,  that  prisoners  for  debt 
NMnmon  law  should  be  put  in  duress, 
indictment  does  not  say,  that  it  was  the 
I  of  his  immediate  death  ;  but  it  would 
!n  better  that  one  of  those  instruments 
an  end  to  his  life,  that  he  had  expired 
icse  cruelties :  his  death  would  ha? e  put 
to  him  and  them  together ;  for  e? ery 
mid  rather  choose  to  die  immediately, 
be  so  punished,  when  death  must  be  the 
ence.  But  though  he  surrired  them, 
ds  remained ;  the  man  soon  died,  and 
W9  that  it  was  the  cause  of  his  death, 
icunent  charges,  that  the  prisoner  killed 
irdered  him.  Jf  we  prore  the  facts, 
.11  justify  that  conclusion ;  and  then 
I  submit  to  your  lordship,  if  it  is  mur- 
fa  gaoler  brings  a  prisoner  to  his  death 
M,  it  is  murder  ;  and  the  law  in  such 
gies  it  to  be  malioe  prepense. 
i  IS  one  thing  I  should  have  taken  no- 

that  in  case  of  the  death  of  any  prison - 
law  requires  the  gaoler  to  have  the  co- 
inquest  to  sit  upon  the  bmly,  to  enouire 
e  of  his  death :  I  don't  find  tliat  was  clone. 

^ard.  May  i(  please  your  lordship,  and 
itlenien  of  tbejury,  1  am  counsel  of  the 
de.  If  a  gaoler,  or  the  servant  of  a 
kills  a  prisoner  by  duress,  I  take  that  to 
ler ;  the  reason  of  the  law  is  plain  :  by 

*  Westm.  2d.  Sec  2  Inst.  381, 
.  XVIL 


thd  constitution  of  this  country,  a  prison  b  only 
for  the  safe  custody  of  the  prisoners  till  ined  or 
dlschari^ :  if  that  is  turned  into  cruelty,  it  is 
contrary  to  the  law ;  and  he  must  answer  for  it. 
If  Bliss  came  to  bis  death  by  Acton,  if  that 
usage  was  the  occasion  of  his  death,  I  must 
conclude,  as  in  the  indictment,  that  he  is  guilty 
of  munler.  To  shew  you,  gentlemen,  that  Ac- 
ton used  him  in  that  barbarous  manner,  we  shall 
shew,  that  the  place  he  kept  him  in  was  unfit 
for  any  human  creature  ;  it  was  not  defended 
from  the  vicdeuce  of  the  rains  and  seasons, 
which  made  it  moist  and  damp,  and  very  un- 
wholesome. He  was  kept  here  without  a  bed  ; 
this  might  be  the  oct^asion  of  his  death  ;  but  if 
he  bad  force  used  upon  him  afterwards,  thero 
can  be  no  reason  to  doubt  it. 

We  shall  shew  y^^u  that  he  had  actual  force 
used  upon  him.  ue  hsd  a  cap  of  iron  fixed  on 
his  head,  and  a  collar  of  iron  on  his  neck,  so  that 
he  could  not  open  his  jaws ;  even  his  sustenance 
was  forced  to  be  pulled  into  little  pieces,  for  it 
was  impossible  before  to  get  it  into  his  mouth, 
which  was  occasioned  by  the  weight  of  his  coU 
lar.  The  man  did  address  himself  to  a  person, 
who  condescended  to  chew  it  fit  for  him  to  get 
it  into  his  mouth. 

Besides  these  irons  he  had  thumb-screws  on 
his  thumbs,  and  the  blood  gushed  out  of  them ; 
besides  this,  he  was  beat  with  a  bulPs  pizzle 
and  a  ro|>e,  and  was  black  oil  over.  Not  con- 
tent with  this,  the  prisoner  at  the  bar  stamped 
upon  his  belly,  till  tlie  swelling  was  so  great, 
that  his  clothes  were  forced  to  be  cut  off  his 
body. 

Further,  to  he  more  barbarous,  be  pot  him 
into  fetters  so  strait,  that  they  made  an  impres- 
sion on  bis  legs,  and  eat  into  the  skin ;  which 
occasioned  a  wound  and  mortification  in  bis 
legs.  This  was  the  usage  of  the  prisoner  to  a 
poor  man  who  was  only  to  be  kept  in  saftf  cus- 
tody by  him.  If  he  did  not  die  immediately, 
but  languished  uf  his  wouniVs,  and  then  died  of 
them ;  that  will  be  as  much  chargeable  upon 
him. 

if  we  call  our  evidence,  and  prove  the  eas^t 
yon  will  find  htm  guilty  :  that  he  feloniously, 
and  of  malice  aforethought,  assaulted  and  mur- 
dered Thomas  Bliss. 

Mr.  Trigg.  A  person  confineil  for  a  very 
small  debt,  to  have  all  those  Engines  of  torture 
up<m  him,  is  contrary  to  law. 

Mr.  Ward.  It  is  set  forth  in  the  indictment, 
that  Darby  was  keeper  of  the  prison ;  therefore 
it  is  proper  to  proceed  to  prove  that  first. 

John  Wilton  sworn. 

Mr.  Marsh,  What  is  your  nanie  ? 

WiUon.  John  Wilson. 

Mr.  JifarsA.  Have  you  been  sworn  ? 

Wilion.  Yes. 

Mr.  ^farlh,    Do  you  know  the  Marshal 
prison  ?  .         i  . 

Wilson,  Yes,  I  have  been  a  prisoner  the 
ever  since  April  1726. 

xMr.  Marsh,  Who  was  the  keeper  ? 

Wilson,  John  Darby. 
Sll 


sea 


re 


•A 


461^ 


8  GEORGE  tL 


Blr.  Murtk.  Do  yoa  know  tbe*pruoMr«t 
tbe  bar.  WiHiam  Acton  f-^Wilttm.  Yes. 

Blr.  Mftrsh.  In  tbeyfiar  1726 ivas  Mr.  ActOB 
coDCiTned,  and  in  what  maoner  ? 

WiUoH.  Headed  as  chief  turnkeyt  Mid  sne- 
ceedifd  one  Borleic^h. 

Mr.  Marth.  What  is  the  nstare  of  tornkeirP 

Wilion.  He  acted  under  Mr.  Darby,  in  tak- 
ing care  of  tbe  prisoners. 

air.  Marik,  Aranaint  my  brd,  and  the  jmy, 
if  yoa  remenober  Thomas  Blits? 

Wilton.  Yes. 

Mr.  Baron  Carter,  1  most  pat  yoa  in  mmd, 
you  have  only  examined  to  the  year  1796. 

Mr.  Marsh,  How  long  did  he  (Acton)  conti- 
nue under  Mr.  Dartiy  ? 

Wilnm.  I  can't  justly  say  how  loog  ;  till 
Mr.  Darby  farmed  out  theffaol. 

Mr.  iJfarM.  How  long  nad  it  been  farmed 
#otr 

Wilton.  I  beliere  it  had  been  fiuraed  out  a 
year,  more  or  less. 

Mr.  Marsh.  When  was  it  fiurmcd  ootP 

Wilson,  I  belief  e  in  May  irS7. 

Mr.  Ward.  You  ny,  yoa  beUtre  it  waa 
ibriiiedootuil7Sr  s  wbolookcaceofthepri- 
Moers  then  ?  Who  in  May  1787 1 

Mr.  Baron  Carter^  You  need  oolgoao  fbr; 
|iJ»  any  part  of  tlw  year  1797.  to  the  death  of 
Bliss.  ^"^^ 

Mr.  Ward.  From  what  do  yon  know  ha 
trastorakeyr  HowtonffwasheaobelbvelTf7f 

WiUon.  He  was  so  the  time  I  waa  comaul* 
lid.    I  was  committed  in  1796. 

Mr.  Ward.  Yoa  belief  e  he  dk!  continoa  as 
<ueh  from  1786  to  1787  f'^Wibom.  Yci. 

Mr.  Ward.  Did  Adoiiaot? 

Wilton.  Acton  dkl  act.  1  seldom  saw  Darby 
(pere. 

Mr.  JUanh.  Gi? e  aa  account  what  condition 
Bliss  was  in. 

Wilton.  When  I  was  committed  a  prisoMr 
hi  1786,  he  was  then  pot  in  theaiek  ward ;  a 
little  before  the  act  passed,  toprefont  frifoiooa 
and  f  ezatious  arrests,  there  was  a  draiii{;ht 
made  of  four  prisoners  oat  of  each  ward,  to  be 
pal  hilo  the  pump-ward,  and  I  and  Bliss  were 
antongthem:  be  then  appeared  to  be  a  sad  ob- 
ject, very  hune,  and  I  took  an  opportunity  to 
aak  him  the  cause  of  it,  and  he  told  me  that  ha 
attempted  to  escape ;  but  being  seen  by  a  wo- 
man, he  was  discovered  ui  the  attempt,  and  fell 
down  and  dialooated  hb  ande;  and  that  one 
fingers  and  Pagv»  took  htm,  and  brought  him 
into  the  gad  again,  who  be  said  had  beat  him. 

Acton,  I  desire,  my  lord,  he  may  be  asked, 
if  he  ever  saw  Bliss  in  irons  ? 

Mr.  Baran  Carter.  Answer  that. 
WiUon,  No,  my  lord. 

Acton,  Please  to  ask  him,  my  lord,  if  Bliss 
aver  fdl  off  the  top  of  the  house. 

Bf  r.  Baron  Carter,  What  say  you  to  that  f 
WiUon.  He  did. 

Mr.  Baron  Carter,  Hesaid  so  before. 
Acton,    Please  to  ask,  my  lord,  if  he  ever 
saw  Bliss  beat,  or  confined  in  the  strong  room. 
WUtan.  I  nef  er  saw  him  beat. 


TfudffffUUam  Acton^  ^  \ 

Aeknu  Please  to  ask,  my  lord,  if  he  aa^ 
behaviour  to  the  prisoners  in  general. 

Mr.  Baron  Carter.  What  say  you  to  tli 

WiUon,    1  have  seen  people  beat,  and 
irons. 

yLv.Ward.  By  whose  directions  f 

WiUon.  1  bdieve  by  Acton's. 

Mr.  Ward.  Have  you  seen  Acton  ^trik 
sooers? 

Wilton,  I  have  seen  him  strike  prii 
with  his  list. 

Mr.  Ward,  Did  you  see  Bliss  with  a 
instrument  on  ? — WiUon,  No. 

Mr.  Baron  Carter,  What  behaviour  di 
ton  use  towards  bis  prisoners  ? 

WiUon.  He  behaved  very  well  to  %om\ 
osed  others  ill. 

Mr.  Strange,    Wiison^s  evidence  is 
say,  bdng  only  the  declaration  of  tbi 
OiAsed. 

Mrs.  Anne  Bliu  sworn. 

Mr.  Marsh     Did  you  know  Thomas  ] 

Mrs.  B/t<f.  Yes. 

'Kx,  Marsh.  Who  was  he? 

Mrs.  Bkss.  My.  husband. 

Mr.  Marsh.  Do  you  remember  the 
when  he  was  put  into  the  strong  room  ? 

Mrs.  Bliu.  He  was  a  prisoner  in  the 
ahalseaTor  a  snuiU  debt. 

Mr.  Marsh,  Did  you  use  to  visit  him  f 

Mrs.  Blits*  I  went  to  him  every  nigfa 
mominff. 

Mr.  Marsh,  Acqttaint  my  lord,  and  tbe 
with  every  step  as  to  tbe  treatment  of 
hosbaod. 

Mrs.  Bliss.  My  husband  went  to  mal 
escape,  and  waa  betrayed. 

Mr.  Ward.  Tell  tlie  time. 

Mrs.  Bliu.  He  and  six  or  seven  othen 
to  break  into  a  baker's,  and  Acton  came  ii 

Mr.  Ward.  NaoM  the  time. 

Mrs.  Bliss.   I  cau't  be  sure  when  it  wa 
one  Muilimns^  when  be  was  put  in,  was 
and  was  collared. 

Mr.  Marsh.  Were  you  by  f 

Mrs.  Bliu.  1  saw  it  next  morning ;  1 
into  the  strong  room,  and  Murlimus  hi 
iron  collar  on,  bat  my  basband  was  onlj 
tered. 

Mr.  Marsh.  I  confine  my  question  o 
your  husband.    What  room  \vas  he  in  T 

Mrs.  Bliu,  Tlie  strong  room. 

Mr.  Marth,  Describe  it. 

Mrs.  Bliu.  It  is  a  room  floored  with  b 
and  there  is  a  hole  big  enuii&rli  to  put  in 
of  beer,  and  I  saw  him  in  there  throu{ 
hole. 

Mr.  Marsh.    How  long  did  he  lie  ther 

Mrs.  Bliu.  He  lay  tiiere  Uiree  weel 
tbe  winter-time. 

Air.  Ward,  You  say,  there  is  a  little 
big  enout^h  to  put  in  a  quart  pot? 

Mrs.  Bliu,  Y  es,  there  is,  just  on  the  t 
the  door. 

Mr.  Baron  Carter,  Stay  a  little,  I  can* 
one  word.  You  say  you  could  not  go  in 
room,  but  looked  through  tbe  hole? 


iSJ  JbirikelfhtTiirnfTkommBIUi. 


A.  D.  1789. 


[47a 


Jfr.  Bum  Cnfer.    Did  y»v  obnrre  the 
■itiQurtheroomf 

Wn,BBu.  The  floor  wii  very  dampr,  and  it 
'  WiMfld  tfaatQifrht,  and  had  rained  in. 

1b.Butm  Carter.  Waa  it  co?eretl  at  top ? 
JtLBlug,  Yea,  bat  the  rain  cameintEroogfa 

lb  JSv/er.    Were  the  inma  beayy  he  had 
•Mlra.  Bliu,  Yea,  they  were. 
Jfc  ITardL  What  tine  of  the  year  waa  itf 
Jk  filifi.    It  wat  much  about  Ghriatmaa 

Mr,  Ward,  How  long  a^^  ? 

fta.Blua.  About  thiee  montha  after  he  wii 
had. 

Mr.  ITorriL    What  time  did  he  flnt  |(et  iet* 
|Hl?--IIra.  Btitt.    I  cauDol  tell  the  mouth. 

Mr.  Wmrd.    Cmi*t  you  bo  certain  aa  tothe 
Im?     . 

Btin.    I  OmkilWMalterChrittmaa^ 


Mt,Ward.  How  long  aiucef 

Jb.  Bliia.  Tt  waa  much  about  thrae  yeara ; 
i  «a  maeb  about  fbur  yean  aince  the  first 
lit  ho  uUempted  to  oKape.  He  went  to 
■It  n  caeape  a  aceond  tlnae,  by  a  rope, 
taltm«rtluoe  montha  aftar  the  firrt  at- 
bMamid  tlMU  Acton  pureued  after  him,  and 

Mir.  VivA    Do  you  know  thia  of  your  own 

When  I  came  the  next  day  to 
,  Nidwb  aaid.  there  ia  the  bitch  hia 
Anton  ordered  noe  to  be  cidied  into 


_  r;  and  aaid.  Damn  you,  madam,  I 
vAbam  yoa  hafare  juatiee  Ladd,  for  bringinip 
Atapa  in  your  huaband :  Damn  yon,  I  will 
Mte  you;  and  he  put  me  into  the  place 
Vint  tbey  put  the  irona  hi,  adjoining  to  the 
h%L  and  kept  me  there  an  hour.  Whilst  I 
«i  mare,  he  aent  for  my  husband  into  the 
Nl^aad  nut  on  the  scull-cap,  collar,  thumb- 
iBios,  ano  fetters. 

Mr.  Ward.  Were  they  all  put  on  at  the  same 
iMf^Mra.  mm.  Yes. 

Mr.  Wmrd.  Who  put  them  on? 

Mil.  Blin.    They  were  put  on  by  Acton's 


Mr,  Ward,  Did  you  see  him  order  it  P 

Mia.  BliMU  1  heard  him  order  it,  1  did  not 
mit 

Mr.  Ward.  Did  you  see  them  ou  your  has* 

Mrs.  Bliis.  I  did.  My  husband  said.  As 
ym  are  a  man,  I  hope  you  will  use  me  as 
neb ;  Acton  aaid.  If  you  will  confess  who 
ksaght  YOU  the  rope ;  and  ordered  him  into  a 
^ihee  celled  the  dungeon  ;  and  when  he  was 
VHt  there,  sent  for  me,  and  said,  I  will  now 
Wfe  you  before  justice  Ladd ;  but  hariug  a 
fimid  there,  who  interceded,  I  was  let  go  out 
tfthe  gaol,  and  came  the  next  morniog,  and 
hmd  my  husband  in  the  dungeon ;  he  spoke 
bme  through  the  hole. 

Mr.  Ward.  Did  yon  see  him  ? 

Mrs.  BUu.    1  did  not  see  him,  but  through 


the  bale.  Ho  said.  This  place,  and  the  cruel 
usage  I  hafo  had,  will  he  the  death  of  me. 
He  waa  best  so,  thst  his  clothes  were  forced  to 
be  cut  off,  and  his  body,  stomach,  and  bdlj^ 
were  Tery  mach  swelled. 

Mr.  Ward.    Did  you  see  him  beatP 

Mrs.  Bliu,    I  saw  the  marks. 

Mr.  Ward.  When  did  you  see  him  to  tho 
Strong  Room? 

Mrs.  B/iff.  About  tiro  hours  after  I  came  in, 
in  the  mornmg ;  Acton  came  down  the  yard  at 
the  aame  tioM.  *. 

Mr.  ITanf.  Had  he  all  these  irons  on  whea 
AeloD  came  down  P 

Mrs.  BiJif.    He  had  them  all  on. 

Mr.  Wardm    When  weie  his  dothea  cut  off? 

Mra.  Bills.  His  clothes  were  cut  off  fVom 
hia  body  after  Nichob  beat  him,  becanae  hm 
waaaweiled. 

Mr.  Ward'.  Tou  told  us  thatyov  saw  jroor 
hosband,  what  had  ho  on  f 

Mrs.  JBlMff.  I  saw  him  with  the  acuU-eap, 
collar,  and  hona  on, 

Mr.  Ward.  By  whoan  order  were  they  put 
onP 

Mra.  BHu.  I  bMni  Acton  ordar  them  to  bo 
put  on. 

Mr.  Ward.  What  waa  he  swelled  with  f 

Mrs.  B/iu.  He  waa  awelled  with  the  blown 
that  Acton  had  gtren  him,  aa  my  hurfmnd  lohl 


Mr.  Fotiar.   How  long  waa  this  helbre  hia 

athP 

Mrs.  B/uff.  Hia  ckMhea  were  forced  to  be  cut 
down ;  and  Acton  told  the  nurse  of  the  aick 
ward  to  toko  a  deal  of  care  of  him. 

Mr.  Foster.  Reoollect  what  year  thia  waa  in  P 

Mrs.  Bills.  It  was  about  two  years  andthreo 
quarters  ago. 

Mr.  Bkkardaon.  When  he  was  in  this  place, 

ithe  Strong  Room)  did  you  see  any  blood  about 
lim^ 

Mrs.  B/iuf.  He  bled  at  the  month,  and  he 
toM  me,  that  it  was  caused  by  having  the  iron 
instrument  on  his  bead :  and  the  blood  flowed 
firora  under  the  naUs  of  his  thumbs. 

Mr.  Harding.  Did  you  make  any  complaint 
of  this  usage? 

Mrs.  B/i'u.    A  friend  of  mine  did. 

Mr.  Harding.  How  long  did  he  continue  in 
the  Strong  Room? 

Mrs.  Biiu.  Above  a  month  at  one  time,  a 
week  at  another,  and  another  time  about  three 
days. 

Mr.  Harding.   How  long  before  be  died  P 

Mrs.  Bliu.  About  seven  or  eight  months  be- 
fore he  died. 

Mr.  Richardson.  Did  yon  see  your  husband 
beat? 

Mrs.  Bliss.  He  wns  black  an  any  thing  with 
the  marks  of  the  butrs-pizzle  Acton  kept.  Ho- 

fers  and  Nichols  knocked  him  down  with  a 
unch  of  keyK,  as  I  was  toid. 
Mr.  Richardson.    From  the  time  you  saw 
him  in  this  condition,  till  he  died,  how  long  waa 
it? 
Mrs.  Bliss.  About  seven  or  eight  vaw^' 


1 


471] 


S  GEORGE  IL 


TMofWUUqmAaon^ 


ttW 


Mr.  Richardion,  When  did  he  dif  ? 
Mrs.  fi/isi.    H  e  died  on  Ladj  -  day. 
Mr.  Rtchardion.    What  condition  of  health 
ifras  he  in  ? 

Mrs.  B/ttf.  He  was  a  pretty  while  in  the 
sick  ward,  and  then  was  remoFed  into  his  own 
ward. 

Mr.  Bichardion,  How  longf  after  this  usage 
was  it  before  he  died  ? 

Mrs.  hlUi.   Se?en  p^  eight  months. 

Mr.  Kichardion.    Was  it  in  summer-time? 
Mrs.  Bliss,   It  was  at  the  beginning  of  sum- 
mer. 

'  Mr.  Baron  Carter,  I  must  be  forced  to  tell 
you,  not  to  ask  the  same  questions  over  and 
oFer  again. 

Mr.  Richardson.  What  was  the  ocoasidn  of 
bis  death? 

Mrs.  Bliss.  1  Terily  believe  the  cruel  usage 
of  Acton  and  Niohow ;  for  be  said  to,  me  a 
little  before  he  died,  I  must  soon  leave  you, 
and  nobody  is  the  death  of  me  but  Aoton  avd 
Nichols. 

Mr.  Baron  Carter.  The  fint  witness,  Wil- 
son, put  it  right,  when  he  came  in  April  17S6, 
to  Lady -day  1727 1  you  must  keep  her  to  that 
time. 

Mr.  Harding.  What  time  did  you  see  him 
in  fetters  ? 

'  Mrs.  Bliss.  Seven  or  eight  months  before  he 
died. 

.  Acton,  My  lord,  please  to  ask  her  if  I  was 
by  when  the  scnll  cap  was  upon  her  husband's 
liead. 

Mr.  Baron  Carter.  What  say  ^ou  to  that  ? 

Mrs.  Bliss.    I  saw  it  on  in  the  Strong  Room. 

Acton.  Please  to  ask,  my  lord,  it  he  was 
not  well  afier  this,  and  went  into  the  country 
to  work. 

Mr.  Baron  Carter.  Answer  that  question  ? 

Mrs.  Bliss.  He  went  to  Enfield  to  work,  but 
was  so  ill  he  could  not  work  ;  he  did  not  do 
three  hours  work  there. 

Acton.  1  desire  she  may  be  asked,  if  he 
bad  not  ^t  a  violent  cold  by  working. 

Mrs.  Bliis.  When  he  came  home  lie  said  he 
was  very  bad,  and  i  got  him  half  a  pint  of  wine, 
and  put  him  to  bed ;  he  continued  very  ill  for 
a  week,  keeping"  his  bed  some  part  of  the  time, 
and  some  part  sat  up ;  and  then  desired  me  to 
get  him  into  ihe  hogpithl,  for  that  he  could  not 
recover  it,  and  Acton  was  the  occasion  of  his 
death  ? 

Acton.  Please  to  a&k,  if  any  body  was  by, 
when  her  husband  told  her  1  was  the  occasion 
of  his  death. 

Mrs.  Bliss.  He  made  the  declaration  as  I 
was  sitting  on  the  side  ot  the  bed. 

Acton.  I  desire  she  may  [>«  asked,  if  he  had 
not  strained  his  ancle  by  a  fall  from  tbe  house, 
when  he  attempted  to  escape. 

Mrs.  Bliss.  V es. 

Acton.  Please  to  ask,  my  lord,  how  long  it 
was  after  her  husband  died,  before  she  com- 
plained to  any  body  that  I  was  the  cause  of  his 
death. 

Blrs.  Bliss,  1  never  complained  to  any  bo;]^'. 


becaoae  1  had  no  money  to,  go  to  fe«v,  nor 
friends^  nor  any  body  else  to  itand  by  qie. 

Acton.  Please  to  ask  who  she  Mged  «itk. 
when  her  husband  died. 

Mr.  Baron  Carter,   Answer  that. 
Mrs.  Bliss.    I  lodged  with  my  aisler. 
Acton,  Please  to  aak  her,  if  she  ever  cM- 
plained  to  her  sister. 

Mr.  Baron  Carter.  Whataay  you  to  that? 

Mrs.  Bliu.   No,  I  did  not. 

Acton.  Please  to  ask,  if  she  complaiiiad'l* 
her  father  or  mother. 

Mrs.  Bliss.  1  had  no  father,  and  mm  to  mf- 
mother,  I  did  not  see  her  in  half  a  year  ;  it  wm 
above  a  quarter  of  a  year  after  my  hiishaB4*i 
death. 

.,  AcUm.  I  desire  she  may  bo  asked  agail^  if 
she  did  not  tell  her  mother. 

Mr.  Baron  Carter.  Did  not  you  tdl  yov 
mother? 

Mrs.  Bliss.   No,  l.had  a  diffierenoe  witb  mj 
mother,  on  account  of  her  marrying  a 
husband. 

Acton.   1-  desire  she  may  be  asked, 
waa  tbe  first  time  of  her  complainings 
it  was  voluntarily,  or  whether  she  was  wfukSm^ 
and  by  whom,  and  whereto. 

Mr.  Baron  Gorier.  You  hear  the  qupjitieoi 

Mrs.  Bliss,  One  Mr.  Newland,  an 
ance  of  my  father^s,  knowing  how  my  hi 
was  used,  sent  for  me. 

Acton.    1  desire  she  may  be  atkad, 
a^  where. 

Mrs.  Bliu.  To  his  own  house. 

Acton.  Please,  my  lord,  to  aak  how  long  i 

Mr.  Baron  Carter:  Answer  that. 

Mrs.  Bliss.  1  believe  half  a  year. 

AcUm.  Please  to  ask  her,  my  lord,  wImb 
31r.  Newland  sent  for  her,  what  he  seni'  ler 
her  for ;  and  whetlier  he  did  not  say  there  weo 
money  for  her. 

Mr.  Baron  Carter.  What  sav  you  to  that? 

Mrs.  Bliu.  Knowing  how  barbaroukly  my 
husband  was  used,  he  said  he  would  have  me 
right  his  death ;  and  ordered  me  to  go  to  a 
gentleman  about  it ;  but  said  nothing  of  money>, 

Acton.  Please  to  ask,  my  lord,  if  she  did 
nut  tell  Hester  Long  she  was  to  have  money 
to  swear  her  husband's  death  to  me. 

Mr.  Baron  Carter.  Did  you  tell  Heater 
Long  so  ? 

Mrs.  Bliss.  No  ;  my  sister  cdme  to  me, and 
said,  Mr.  Newland  desired  tt»  see  me  ;  and  she 
said,  she  believed  there  was  money  for  me. 
Afterwards  I  saw  Newland,  and  he  told  me  to 
go  to  the  gentleman. 

Ac  ton.  1  desire  she  may  be  asked  again^ 
if  she  did  not  tell  Hester  Long,  she  was  to  have 
money  to  swear  her  husband's  death  to  me. 

Mrs.  Bliss.  No. 

Acton.  Pleas^  to  ask  her  A  if  she  did  not 
tell  Hester  Long  she  was  to  hive  50s.  or  3/. 

Mr.  Baron  Carter.  1  must  take  cara  you  do 
not  ask  her  questions  to  injure  herself. 

Susannah  Dodd  sworn. 


I 


Mr.  ^arsh»  P^dyou  sec  BLss  ip. prison? 


47JJ 


Jiir  the  Murder  nf  Thomas  BtUt. 


A.  P.  nm 


[474 


Un.  DmU.  Yes,  a  huodred  times,  and  once 
ioiroofl. 

Mr.  Marth,  What  time  did  you  see  him  in 
iraoi? 

Mn.  Dodd.  He  had  them  on  the  next  day 
ddt  he  was  put  in  the  Strong  Room. 

Mr*  Martk,  What  time  of  the  year  ? 

Mil.  Dodd.  Between  winter  and  mimaier. 

Mr.  JlcrsA.  How  long  before  be  died  ? 

Um^Dodd,  Aquarterofa  year. 

Ilr.  Marth,  Do  yon  know  when  he  died  T 

Hn.  Dodd.  I  was  not  with  him. 

Ir«  Marsh,  When  [qu.  How]  do  yon  know 
kM  f  HaTe  yon  been  told  when  he  died  ? 

lEn.  Dodd.  1  knew  he  was  dead,  beeause 
)m  wife  eanie  tad  aid  he  was  dead. 

Mr.  Baron  Carter.  Was  it  the  first  or  second 
tine  be  made  his  escape  he  was  out  two  or 
Ibmuiemha? 

Adon.  My  ferd,  he  was  not  ont  then  at  all. 

Mr.  BaroB  Carter.   I  will  call  the  woman 


Mrs.  Blui  bmng  called. 

Mr.  Baron  Carter.  Was  your  hosbaod  twice 
i|Ml,oroncef — Mrs.  Bias,  Only  once. 
.  Mr.  JMorsA.  What  gentleman  did  Mr.  New- 
hrissod  you  to  P 

Mr.  Baron  Car<^.  It  is  not  usual  to  ask 
frinus  after  a  wimess  has  been  examined, 
m  snhr  called  again  to  explain  a  Ikct. 

Mr.  llorsA.  It  is  only  to  clear  up  what  she 
hm  >kcady  given  in  evidence. 

MiSb  BiisM,  Mr.  Newland,  an  aoqaaintance 
4mj  ioher'a,  only  sent  for  me. 

Mr.  Marsh.  How  long  since  ? 

Sin.  Bliss.  Three  weeks  last  Sunday. 

Ni.  Baron  Carter,  Who  is  New  land  ? 

Mn.  Biiss.  He  lives  in  Soutliwark. 

Mr. Baron  Carter.   What  is  he? 

Mn.  Bliss,  He  is  a  baker. 

Mrs.  Dodd  standing  up  again. 

Mr.  Ward,  When  did  you  see  him  last  in 
fHir 

Mn.  Dodd,  About  three  months  before  he 
led. 

Mr.  Ward.  When  did  he  die? 

Mn.  Dodd,  1  can't  be  certain  when  he  died. 

Mr.  Ward,  What  condition  did  you  see  him 
it? 

I(n.  Dodd.  I  went  lo  the  strong  room  to 
cary  him  some  victuab,  and  he  UZl  thumb- 
■Cttws  on  his  thumbs,  irons  on  his  legs,  an 
ina  cap  oo  his  head. 

Mr.  Ward.  Had  he  fetters  on  his  legs  ? 

Mrs.  Dodd,  He  had  very  large  fetters  on  his 
^p,  and  irons  cross  his  legs  too.  I  spoke  to 
mm  through  the  hole. 

The  said  Irons  being  produced  and  viewed 
ky  dM  Wiiaeas. 

Mr.  Ward.  Are  those  the  same  you  saw  upon 
■■?— Mra.  Dodd.  They  are. 

tha  Iron  called  Sheers  being  shewn  her  par- 
i 


Mr.  Ward.  Look  on  tbem,  bad  he  any  other 
irons  on  bis  legs  than  those? 

Mrs.  Dodd.  lie  bad  the  slicera  cross  his 
legs,  and  fetters  on  besides.  The  deceased 
asked  me  to  give  him  relief,  and  desired  me  to 
chew  his  victuals,  for  his  mouth  was  sore;  and 
1  pulled  it  to  pieces,  and  fed  him. 

Mr.  Ward.  What  was  the  occasion  of  hia 
mouth  being  sore? 

Mrs.  DiSd,  He  was  confined  two  days  in 
this  condition. 

Mr.  Ward.  How  do  yon  know  it  ? 

Mrs.  Dodd'  By  being  sent  backwards  and 
forwards  of  errands. 

Mr.  Ward.  Did  he  speak  to  you  ? 

Mrs.  Dodd,  Yes,  he.  spoke  to  me  several 
times. 

Mr.  Harding.  Could  he  chew  ? 

Mra,  Dodd,  i  don't  believe  he  could  chew. 

Mr.  Foster.  How  long  waa  he  in  this  coo* 
dition  in  the  Strong  Room  ? 

Mrs.  Dodd.  A  day  or  two. 

Mr.  Ward.  How  long  ago? 

Mrs.  Dodd.  Five  or  six  months  ago. 

Mr.  Ward,  How  long  ago  is  it  since  yon  mw 
him  in  that  condition?  Recollect  yoiUBelf, 
bow  long  ago  it  migbt  be. 

Mrs.  Dodd,  I  can't  tell  exactly. 

Mr.  Ward,  How  long  was  it  after  he  wav 
turned  out,'  before  it  was  reported  he  was  dead  F 

Mrs.  Dodd,  About  half  a  year. 

Mr.  Ward.  How  long  was  it  then,  before  ho 
was  in  that  condition  ? 

Mra.  Dodd,  This  was  about  a  quarter  of  • 
year  before. 

Mr.  Ward.  What  time  of  the  year  was  it  P 

Mrs.  Dodd.  It  was  about  Southwark  fair- 
time. 

Mr.  Ward.  Did  yon  see  him  bleed  at  the 
mouth,  or  any  where  else? 

Mrs.  Dodd.  There  is  a  great  hole  on  the 
side  of  the  door,  and  I  saw  him  screwed^  and 
saw  him  bleeding  at  his  thumb  nails. 

Being  again  shewn  the  Iron  instnmieut called 
the  Sheers. 

Mr.  Ward.  How  was  it  used  ? 

Mrs.  Dodd.  It  goes  between  the  legs. 

Mr.  Harding,  What  sort  of  a  place  b  the 
Strong  Hoom  ? 

Mrs.  Dodd.  It  is  a  lar^  room,  and  strong. 

Mr.  Harding.  Desenbe  the  room.  Is  it 
damp? 

Mrs.  Dodd.  It  is  not  damp ;  it  is  dry  enough* 

Mr.  Harding.  Is  it  covered  at  top? 

Mrs.  Dodd.  It  is  leaded  over  at  top.  I  gave 
him  drink  through  the  hole  by  the  door,  whil« 
he  held  his  head  backward ;  he  couki  not  take 
it  himself,  because  of  his  hands  beiug  confined. 

Acton.  Please  to  ask,  my  lord,  if  he  waa 
well  in  heal  111  when  he  came  to  lodge  at  the 
house  \vliere  she  lived. 

Mrs.  Dodd.  lie  was  only  lame  in  his  legs ; 
he  waa  well  :i8  to  every  thing  else. 

Acton,  Please  to  a«k  her,  if  ahe  did  not 
sec  him  the  day  after  he  came  out  of  the 
Strong  Room. 


475] 


3  GEORGE  11. 


Trial  of  IVdl'uv-i  Acluii, 


C47fi 


Mr.  Baron  Carter,  Did  you  «ee  him  the  day 
after  he  came  out  of  the  Stronjif  Room  ? 

Mrs.  Vodd,  No,  it  wrs  two  days  after. 

Mr.  BaroD  Carter.  Did  you  see  him  when 
bis  clothes  were  cut  off*  ?— Mrs.  Dodd.  No. 

Ruth  Butler  sworn. 

Mr.  Ward,  Did  yoa  see  Blics  in  the  gaol  p 

Mrs.  Butler,  I  was  a  prisoner  in  1795. 

Mr.  Ward,  How  long  did  you  continue  a 
prisoner? 

Mrs.  Butler,  I  continaed  till  I  was  dcarcd 
by  the  late  act,  about  14  days  ago. 

Mr.  Ward,  Did  you  see  Bliss  ? 

Mrs.  Butler.  I  did. 

Mr.  Ward*  How  long  was  be  in  prison, 
while  you  were  there?  Give  an  acconnt  of 
what  you  knew  of  Bliss. 

Mrs.  Butler,  He  was  a  prisoner,  I  cannot 
•ay  how  lone; ;  but  1  saw  hiro  going  over  the 
bouse,  and  he  fell  cvflf;  and  was  taxen  on  the 
other  side,  and  brought  in  again ;  and  was  put 
in  the  Strong  Room  by  Acton,  Thomas  Nichols, 
Rogers  and  Psgc. 

Mr.  Ward.  Did  you  see  ActOD  put  bim 
there? 

Mrs.  Butler.  I  saw  AetXMi  oonoemed  in 
putting  him  there.  He  kept  bim  there  till  the 
other  prisoners  were  locked  up,  and  then 
brought  him  into  the  sick  ward,  tad  Aeton  beat 
bim  with  a  ball's-pizsle  there,  and  stamped 
upon  his  bodj  sereral  times,  be  (Bliss)  lying 
upon  the  ground.  He  had  burt  bis  leg  with 
the  fidi,  and  thought  it  was  broke.  He  con- 
tinued in  the  sick  ward  that  night,  and  the  next 
day  they  carried  him  into  the  lodge,  and  there 
put  irons  on. 

Mr,  Ward.  What  irons? 

Mrs.  Butler,  They  put  on  long  irons,  that 
kept  his  legs  to  a  vast  extent. 

Mr.  Ward.  When  was  this  f 

Mrs.  Butler,  The  next  morning  after  he  fell 
in  going  o?er  the  bouse ;  in  tbelatter  end  of 
Fel^ary,  or  the  beginning  of  March. 

Mr.  Baron  Carter,  You  say  it  was  the  latter 
end  of  February  or  the  beginning  of  March. 
Was  it  the  first  time  of  his  escaping  ? 

Mrs.  Butler.  Yes. 
■  Mr.  Richardson.  Did  you  see  bim  after  he 
went  out  of  gaol  ? 

Mrs.  Butler.  I  never  saw  him  after  he  went 
out  of  gaol. 

Mr.  Ward.  How  long  was  he  out  of  gaol 
before  he  died  ? 

Mrs.  Butler.    I  donU  know. 

Mr.  Ward,  Recollect  the  last  time  you  saw 
bim  in  gaol ;  when  was  it? 

Mrs.  Butler.  I  cannot  say. 

Mr.  Harding.  Did  you  see  him  when  he 
left  the  <raol  ?  How  was  he  ? 

Mrs.  Butler.  He  was  very  bad,  Tery  ill ;  1 
beard  him  often  say  after  this  usage,  iiiat  the 
bruises  and  hurts  Acton  ga?e  hiro  by  stamping 
U|K>n  him,  would  be  the  occasion  ol  bis  death  ? 

Mr.  R*chardion.  Do  yon  believe  that  those 
bruises  and  thai  iU  usagt  ww  Iba  occasioo  of 
bis  death? 


Mrs.  Butler.  1  verily  believe  they  were  the 
occasion  ot  lii'j  death. 

Mr.  l<ichar(him.  Wlint  Nlate  of  health  was 
he  ill  when  he  left  the  ^uttl  ? 

Mrs.  Butler,  in  a  very  ill  state  of  heakh. 

Mr.  Baroir  Carter.  For  my  satisfiustion  ui 
the  jury's,  give  an  account  particularly  wbro 
he  was  beat  with  the  buirs-pizzle. 

Mrs.  Butler.  He  was  first  beat  with  the 
.bull'N-pizzIe ;  then  flung  upon  the  ground,  sod 
stamped  upon. 

Mr.  Baron  Carter.  Whereabouts  did  Ados 
stamp  upon  him? 

Mrs.  Butler.  Betwixt  his  belly  and  bis 
stomach,  and  upon  his  belly. 

Mr.  Baron  Carter.  How  many  times  did 
you  obserre  him  to  stamp  upon  him  (Bliss)  ? 

Mrs.  Butler.  Three  tiroes. 

Mr.  Richardion.  I  will  ask  you  one  questiou, 

Mr.  Baron  Carter.  I  can't  admit  you  to  ask 
any  questions  now ;  1  asked  tbem  for  my  ow% 
not  your  information. 

Matthew  Boom  sworn. 

Mr.  Ward.  Did  you  see  the  deceased  ? 

JBacon.  Yes,  seyeral  times ;  Isawhimwhei 
be  was  sick,  and  when  bis  legs  were  swdlsi. 

Mr.  Ward.  Whatstate  of  health  waabeiof 

Bacon,  He  was  very  sickly  and  rery  lams; 
bis  legs  were  swelled,  and  tie  complained  oi 
the  bruises  that  be  bad  received  from  Acteo. 

Mr.  Ward.  Did  you  see  him  in  the  SCraig 
Room? 

Bacon.  I  was  not  a  prisoner  then;  I  was  a 
prisoner  from  about  the  latter  end  of  April  ti 
Micbadmas  following,  and  then  1  waa  dis- 
chaiged.  He  was  sick  great  part  of  that  time^ 
and  said  he  should  do  well  enough,  if  not  for 
the  bruises ;  and  that  that  rogue,  Acton,  had 
done  that  to  bim  which  he  should  never  re- 
cover. 

Mr.  Harding.  What  state  of  health  wu  bs 
in  when  you  \et\  the  prison  ? 

Bacon.  He  was  sickly. 

Mr.  Richardson,  Do  you  know  the  Strong 
Room? 

Bacon.  Yes ;  it  is  standing  at  the  south- 
oast  part  of  the  gaol ;  and  is  a  terror  to  all 
those  that  behave  themselves  ill ;  and  is  not  fit 
to  put  a  human  creature  in,  to  remain  there. 

Mr.  Ward.  Did  you  see  him  after  you  were 
discharged  ? 

Bacon.  I  was  discharged  about  Michael- 
mas, 1726,  and  went  to  the  fifaol  to  see  bim 
between  Michaelmas  and  Christmas ;  and  lam 
positive  he  was  never  well  while  I  saw  him  in 
gaol. 

Mr.  Ward.  Did  he  complain  of  any  thing? 

Bucon.  He  complained  of  pains  in  bis  sidc^ 
which  he  attributed  lo  Acton. 

Mr.  Harding.  What  sort  of  a  place  is  tha 
Strong  Kooiu  ? 

Bacon.  It  is  a  square,  as  big  as  the  sqnara 
betwt*eii  the  posts  in  the  Court;  and  has  oft 
light  but  through  a  little  hole  on  the  side  of  tht 
door ;  and  it  is  damp. 

Mr.  Harding.  Is  it  unwholesome? 

4 


477] 


fur  the  Murder  of  ThovMt  Bliss. 


A.  D.  1729. 


[478 


BacoH.  It  11  undeniably  to  all  mankind  un* 
vbolesoiiie.     I  bare  seen  people  dead  in  it. 

Mr.  Baron  Carter.  What  ia  the  priaoner'a 
geaeral  character  in  the  gaol  ? 

Btfcm.  A  great  many  gire  him  an  ill  cha- 
ncier, hot  I  neTer  had  any  abuse  irom  him ;  I 
lensr  deaerTed  it. 

Mary  Gillii  sworn. 

Kr.  Ward.  Do  you  know  Bliss  ? 

Mn.  Gillii.  Yes ;  I  was  a  prisoner  nineteen 
■Mhs,  and  remember  Bliss  very  well. 

If.  Ward^  GI?e  an  account  of  what  yon 
hm  m  relation  to  Bliss. 

Mill  Gillii,  The  account  I  can  give  is  this : 
ik  ■■&  was  almost  perished  for  want,  and  with 
a  rape  bad  attempted  to  escape,  beinsf  tied 
man  hia  middle  ;  but  being  discovered,  the 

Xwaa  cut,  and  he  fell  into  the  yvrd  on  tha 
«side^  and  received  damage  in  one  of  his 
kp;  and  though  he  could  not  stand,  Aaton 
M  his  servants  brought  him  into  the  lodge. 

Mr.  Wmrd.  When  was  it? 

Mrs.  Gillii*  In  an  evening ;  about  the  be- 
gissiiig  of  Mardi. 

Mr.  ITar^  Who  were  Acton's  servants  P 
Ihattkem. 

Mis.  Gil/if.  Richard  Pfe^e,Nwholsand  Bo- 
pK  Aoton  was  there  himself;  thev  pulled 
mi  bawled  bim  about,  and  Acton  beat  him  with 
iWr^pinle ;  he  stood  upon  one  leg,  ibr  he 
prii  aat  aet  the  other  to  the  ground,  and  cried 
isiftr  mercy ;  and  they  askS  bim,  who^ve 
kJBlbeioper  He  said  Thomas  Crabb.  Then 
fkij  pal  him  in  a  hole,  a  little  place  under  the 
ilmi,  and  he  lay  there  a  little  while ;  and 
vhabecame  out,  they  ironed  him  on  one  leg. 

Il  Wmrd.  Do  you  believe  this  usage  was 
Ikesmnion  of  his  death  ? 

Mis.  Gillii,  I  believe  in  my  heart  he  died 
ta  want  of  food,  as  well  as  by  being  so  used. 

Mr.  Richardion.  Did  you  see  his  body  ? 

Mis.  Gillii.  i  never  dul. 

Mr.  Harding,  They  wanted  him  to  confess 
who  brought  the  rope  r 

Mrs.  Gi//if.  Yes  ;  they  did  ask  him  who 
traegfatit. 

Mr.  Harding,  What  time  was  it? 

Mit.  Gillii,  It  was  candle-light ;  I  came 
•at  of  one  Carey's  shop. 

Mr.  Ward.  What  state  of  health  was  he  in 
wWa  he  left  the  gaol? 

Mrs.  Gillii.  1  came  out  before  him.  He 
Wis  sick  in  the  sick  ward  when  I  came  out. 

Mr.  Ifonl.  What  irons  had  he  on  r 

Mil.  Gillii.  I  never  saw  bim  but  with  one 


Mr.  Ward.  Did  yon  see  him  beat  ? 

Un.  Gillii.  Yes;  I  did  stand  1^,  and  saw 
^  heat ;  and  ha  Ml  down  through  weakness 
tai  the  hurt. 

Mr.  Harditif.  Did  yao  ever  hear  him  com- 
iMi  of  the  iqinriea  be  received  ? 

Mn.Giilii.  I  never  went  near  bim,  nor 
•Mhhn. 

Kr«  Hta^smg*  How  many  blows  did  you  see 
■incciva?— Mm.  Gi/(iiL  1  cannot  tall. 


Mr.  Harding,  How  long^  were  they  using 
him  in  that  manner  ? 

Mrs.  Gillii,  They  were  half  a  quarter  of  an 
hour  using  him  in  that  manner. 

Mr.  Harding.  Was  Acton  by  ? 

Mrs.  Gillii.  He  was  present  at  the  same 
time  he  was  beat ;  but  lie  was  beat  mostly  by 
Nichols. 

James  Abbot  sworn. 

Mr.  Ward.  Did  you  see  Bliss  ? 

Abbot.  Yes ;  I  saw  him  drubbed,  so  that  aa 
man  was  so  drubbed. 

Mr.  Ward.  By  whomf 

Abbot.  By  Acton's  servants. 

Mr.  Ward.  With  what  > 

Abbot,  With  a  rope  and  a  bull's- pixzle. 

Mr.  Ward,  Was  Acton  by  ? 

Abhit,  I  can't  say  tliat. 

Mr.  Ward,  Who  were  they  that  beat  him  f 

Abbot.  He  was  beat  by  P^ge  and  Nichols. 

Mr.  Ward.  You  say  they  beat  him  with  a 
ball's-pizzle  and  a  rope? — Allot,  Yes. 

Mr.  Ward.  Was  Acton  in  the  prison  tlien  P 

Abbot,  Yes,  he  was. 

Mr,  Ward,  Was  Acton  in  the  yard  f 

Mr.  Richardion.  Did  you  see  Bliss  in  the 
Strong  Room  T-^Abbot.  No. 

Mr.  Baron  Carter,  Will  you  (speaking  to 
the  prisoner)  ask  any  questions  ? 

Actom,  My  lord,  please  to  ask  the  question, 
whether  I  ever  used  the  prisoners  ill  during  tha 
time  he  was  there. 

Abbot,  I  did  see  him  beat  a  great  many  peo* 
pie,  but  can't  say  who. 

Matthew  Brandon  sworn. 

Mr.  Ward.  Did  you  know  Bliss  f 

Brandon,  Bliss  was  a  prisoner  when  I  cama 
in,  in  1726  y  1  went  there  on  the  16th  of  March, 
1726. 

Mr.  Ward.  How  long  did  yon  continue 
there  ? — Brandon,  Six  months. 

Mr.  Ward,  Did  you  see  Bliss  ? 

Brandon.  Yes. 

Mr.  Ward.  What  condition  did  you  see  him 
in  ?~-Brandon.  He  was  a  cripple. 

Mr.  Ward,  From  what  time  do  you  count 
the  year  ? 

Abandon,  From  the  35th  of  March  ;  I  can- 
not be  sure  whether  it  was  1725  or  1726. 

Mr.  Trigg,  What  manner  did  you  see  his 
legs  in? 

Brandon.  I  saw  one  Tery  much  bruised  by 
the  irons  that  were  put  on.  There  was  a  mark 
about  as  big  as  the  top  of  one's  6nger. 

Mr.  Ward.    Was  his  leg  swelM  ? 

Brandon,    It  was  very  much  swelled. 

Mr.  Ward,    Did  you  see  both  bis  legs  P 

Brandon.    I  took  it  to  be  the  left  leg. 

Mr.  Ward.    Was  his  anole  strained  ? 

Brandon.  1  don't  know  any  thing  of  the 
stiaining  of  his  ancle ;  it  vras  much  about  the 
ancle. 

Mr.  Baron  Carter,  If  it  was  his  leg  thst  be 
hurt ;  that's  an  answer. 

Mr.  Ward.  That  remains  upon  thev  to 
prove.    Had  the  slua  baaa  broke  ? 


479] 


S  GEORGE  II. 


Trial  of  Tkonutt  Acton, 


[480 


Brandon.  The  akin  had  been  l>r#ke,  aod  it 
was  swelled  above  aud  below,  awl  there  was 
ihe  mark  of  the  iroiK 

Air.  Harding.    What  sort  of  mark  was  it  ? 

Brandon.    It  was  a  cirooilar  asark. 

Mr.  Harding.  Did  be  watke  any  complaint 
to  you  ? 

Brandon.  I  me  him  part  of  a  mag  of  ale ; 
and  as  he  was  relating  bis  grie?ances  to  me,  he 
told  me  be  desired  me  to  see  Acton  prosecated, 
in  case  be  died. 

Mr.  Hardin^.    What  did  be  tell  you  ? 

Brandon.  He  told  me  be  was  ?ery  barba- 
rously used  by  Acton,  and  be  was  the  occasion 
of  his  death. 

Mr,  Harding.  How  long  was  it  before  you 
left  him  in  gaol,  that  he  made  this  declaration  ? 
What  time  of  the  year  were  vou  discharged  ? 

Brandon.    I  went  out  in  August. 

Acton.  My  lord,  please  to  ask,  bow  long  it 
was  after  filiss's  death  before  be  made  com- 
plaint. 

Mr.  Baron  Carter.    What  my  you  to  that? 

Brandon.  I  made  no  complaint  of  this  but 
since  I  have  been  at  home ;  I  have  been  beyond 
the  seas. 

Acton.  Please  to  ask,  bow  long  it  was  be- 
fore be  went  out  of  England,  after  he  was  dis- 
ckirged. 

Mr.  Baron  Carter.    Answer  that. 

Brandon.  J  was  discharged  in  August,  and 
went  abroad  in  about  two  months  time ;  and  it 
is  three  months  since  1  came  home  sgain. 

Mr.  Ward,  Did  you  ever  see  any  irons  upon 
Bliss? — Brandon.    No. 

Mr.  Ward.    Did  you  ever  see  him  beat  ? 

Brandon.    No. 

Mary  Kenwood  sworn. 

Mr.  Baron  Carter,  1  beg  yon  would  let  us 
know  the  time  better ;  I  should  be  glad  tu  be 
satisfied  as  to  that. 

Mr.  Ward.  Give  an  account  of  what  you 
know  of  Bliss. 

Mrs.  Kenwood.  I  never  was  a  prisoner,  but 
carried  him  victuals. 

Mr.  Baron  Carter.  You  knew  Bliss ;  Did 
you  see  him  in  irons  ? 

Mrs.  Kenwood.  Yes,  mv  lord,  once.  After 
bis  fetters  were  taken  off,  i  saw  bis  legs  where 
the  irons  had  been  on ;  and  the  irons  had  eat 
Tery  deep  into  both  his  legs. 

Mr.  Baren  Corf er.  Did  you  see  the  irons  on? 

Mn.  Kenwood.  I  saw  tbe  irons  on  in  the 
yard,  but  that  was  before. 

Mr.  Baron  Carter.  Was  the  soreness  of  his 
lesrs  oocaskmed  by  the  irons? 

Airs.  Kenwood.    Yes. 

Mr.  Baron  Carter.  Upon  what  occasion  did 
you  go  to  him? 

m%.  Kenwood^  I  went  to  carry  him  vic- 
tuab  and  ototlMa.  When  1  saw  him  in  the 
sick  ward,  tbe  small  of  bis  legs  were  swdM 
at  big  as  the  calf. 

Mr.  Word.    When  wan  this  r 

tiOM. 


Mr.  Ward.     Qo  on. 

Mrs.  Kenwood.  I'he  akin  Was  broke,  and 
his  legs  were  sure  and  raw  in  tbe  placca  where 
the  marks  of  the  irons  were. 

Mr.  Kichard^on.    What  did  you  carry  bim  ? 

Mrs.  Kenmood.  I  carried  him  a  pair  of  sisdc- 
inffSf  but  he  could  not  put  them  on. 

Mr.  Ward.    Had  he  no  stockings  on  ? 

Mrs.  Kenwood.  When  I  went  to  him,  hs 
had  no  stockings,  no  shirt,  only  a  blanket 

Mr.  Ward.    Whst  sixe  wei«  thn  stdckngs? 

^n.  Kenwood.  Thev  were  my  huslMuul's 
stockings,  but  of  a  smallsiae. 

Mr.  Ward.  If  his  legs  had  not  been  iWldl- 
ed,  might  he  have  got  them  on? 

Mrs.  Kenwood.    I  believe  be  might. 

Mr.  Ward.  Did  be  make  any  compfaunl  l9 
you? 

Mrs.  Kenwood.  He  said,  he  was  aftaid  lis 
should  never  be  his  own  man  again,  by  tbe  Ql 
usage  be  had  received  in  the  ffaol. 

Mr.  Ward.    Did  he  say  who  used  him  illf 

Mrs.  Kenwood.    No ;  I  did  not  ask  him. 

Peter  Purchace  sworn. 

Mr.  Ward.  Did  you  know  Bliss  whn  ia 
prison  ? 

Purchace.  Yes;  he  was  a  prisoner  some 
time  before  I  was  a  prisoner,  in  tbe  year  1789 1 
and  he  related  to  me  the  usage  be  bad  hsd. 

Mr.  Ward.    When  were  you  a  prisoner  f 

Purchace.  I  became  a  prisoner  tbe  Ml 
of  March  1736.  I  was  discharged  same  tiM 
before  he  was. 

Mr.  Ward.  When  bad  jroa  the  disoooll 
with  him? 

Purchace.    In  May  or  June. 

Mr.  Ward.  How  long  did  he  oonliBae  is 
gaol? 

Purchace.  He  was  there  10  months  duriof 
the  time  I  was  there ;  be  told  me  he  was  nsi* 
ed,  and 

Mr.  Baron  Carter.  You  must  not  speak  1» 
hear-say.  What  he  tok)  you  don't  sigaify* 
Did  you  see  his  legs? 

Purchace.  1  did ;  and  the  marks  of  tbe  ironi 
were  upon  them.  His  legs  were  swelled  veiT 
much  both  of  them  ;  and  one  continued  swelt 
ed  until  he  went  out  of  the  gaol. 

Mr.  Ward.  What  was  the  occasion  of  tkc^ 
being  swelled? 

Purchace.  It  was  occasioned  by  wearklf 
the  irons. 

Mr.  Ward.    Were  they  raw  ? 

Purchace.  They  were  not  raw ;  but  I  iur 
the  aarks  of  the  irons  upon  them. 

Mr.  Ward.    Did  you  see  his  thumbs? 

Purchace.  I  did ;  and  he  told  me,  thai  he 
had  been  thumb-screwed. 

Mr.  Ward.  Did  you  see  any  marks  vftk 
them? 

Purchace.  I  saw  his  thumbs  very  Usok,  aai 
much  bruised  shout  the  joints ;  and  be  told  m0$ 
he  had  worn  the  scull -cap. 

Mr.  Ward.  Did  he  complain  of  any 

Pwxkaee.    He  cemphuned  of  his  lideb 

Mr.  Wmd.    WbsB  did  be  go  oat? 


481] 


Jixt  ike  Murder  of  Thomat  Slits. 


A.D.  1739. 


t48» 


Fmnkaee.  I  cmnnot  tell  the  exaet  time ;  I 
wnt  out  a  little  before  him. 

Eimond  Comrnins  sworn. 

Mr.  Ward.  Did  you  know  Bliss  f 

CamminM.  Yet. 

Mr.  Ward.  Did  jou  see  Acton  do  any  thinff 

Cmmufu.  No;  bat  he  told  me,  he  be- 
icfiibe  had  got- his  death  by  Acton. 

Mr.  Ward.   Did  yon  see  any  irons  on  him  ? 

CamminM.  I  saw  them  ;  they  were  very  re- 
wkaUe;  he  declared  to  me  that  Acton  put 
Ahiob,  and  beat  and  abused  him. 

Mr.  Ward.  Did  you  see  his  leiifs  ? 

Cmamiat.  1  did ;  and  his  leg;s  were  like  a 
kMie's  fetlock  cut  with  a  clog. 

Mr.  Ward.  What  time  P 

C— iiM.  I  cannot  say. 

Mr.  Ward.  How  long  before  his  death  ? 

GoBMMs.  A  considerable  time;  when  he 
ikd  I  was  abroad  in  India ;  I  was  there  two 
jMi  and  three  months.  I  was  by  when  Acton 
pst  BUn  and  some  others  in  the  Strong  Uoom ; 
mi  1  beard  him  say  to  Dliss,  t  thonght  I  bad 
joa  enough  already ,  but  1  will  give  you 


Mr.  Ward.  What  kiud  of  a  place  is  the 
ftsagRoom? 

Cmmuu.  I  ha? e  been  twice  in  that  prison ; 
iiaiiry  damn,  and  if  it  rains  never  so  little,  it 
MBBB  Mroogii. 

Mr.  Ward.  Had  be  any  bed  ? 

CoMUfu.  No ;  there  is  no  bed  allowed  to  be 
Miiss  in. 

Xr  Ward,  Is  there  any  place  to  let  in  the 
lirtr  light  :^ 

Cmhuiu.  There  is  a  small  bole,  about  twelve 
■cki,  on  the  sidi>  of  the  door. 

Mr.  Ward.  Was  it  proper  to  put  a  human 
CMMsrein? 

Cmmins.  No;  1  have  seen  hogs  lie  in  a 
kllwjplace:  the  common  sewer  runs  uuder- 
■tth  It,  and  the  drain  from  the  vault. 

Mr.  l¥ard.    Is  it  unwholesome  ? 

Commitu.  It  is  very  unwholesome. 

Edward  Murfey  sworn. 
Hr.  Richardnm.    Did  you  know   the   de- 

ytarfey.    I  did ;   he  was  in  prison  when  I 


Mr.  Richardson,  What  condition  was  he  in  P 
M  vou  see  him  ? 

iur/^.  Yes ;  I  heard  him  say  that  he 
U  so  much  beating  in  the  lodge,  tiiat  be  could 
in«  lacovcrit. 

Mr.  Riekard$on.  Did  yon  see  any  irons  upon 

Uairjty.  I  taw  him  in  the  Strong  R<  om 
*ilb  haadcuffii  on  his  hands,  auU  large  fetters 
%ImI«. 

Ik.  SkkardMoa.  Did  yon  see  his  legs? 
%letaditioa  were  they  m  ? 

iksr^.  I  taw  them ;  they  were  black  and 
j^s  aad  Ibty  wert  raw  in  a  circle,  and  the 

VOL  XVII. 


Mr.  Rkhardton* .  Did  be  complain  of  any- 
bruises? 

Murfey.  He  complained  of  his  side< 

Acton.  Did  he  never  talk  of  falling  off  the 
house,  and  that  he  was  hnrt.thereby  ? 

Murfey.  I  never  heard  him. 

EitU  Roberts  sworn. 

Mr.  Ward,  Did  you  know  Bliss  ? 

Roberts.  1  saw  liim  in  prison,  and  taw  tfaa 
fetters  upon  both  his  legs. 

Mr.  Ward.  Did  you  see  him  alWr  he  went 
out? — Roberts.  I  can't  say. 

Mr.  Ward.  Did  he  make  any  complaint  tp 
you? 

Roberts.  lie  told  me,  that  hit  legs  were 
very  bad,  and  desired  me  to  go  to  Mr;  Daiby 
about  it ;  which  I  did,  but  was  afraid  to  speak 
in  the  prison,  seeing  people  used  so  ill ;  and  I 
spoke  to  him  at  tbe  door,  and  Darby  said — 

Mr.  Baron  Carter.  What  Darby  said  it  no 
evidence. 

Mr.  Ward.  Upon  what  account  did  yoa  go 
to  him? 

Roberts.  I  went  to  Darby  to  desire  the  fet- 
ters mi^lit  be  taken  off;  or  otherwise,  tliat 
those  mij>ht  be  taken  off,  and  bigger  pnt  on ; 
for  his  legs  were  swelled  so  much,  that  they 
hid  the  irons ;  the  iron  hung  almost  out  of 
sight  on  one  side. 

Mr.  Ward.  Did  he  shew  yon  any  other 
marks:* — Roberts.  No. 

Mr.  Ward.  Did  you  see  him  in  the  Strong 
Room? 

Roberts,  I  did  see  him  in  the  Strong  Room  ; 
and  I  saw  several  more  there  lying  upon  tha 
ground,  coming  to  Kee  him  after  work. 

Mr.  If  are/.    What  sort  of  a  place  is  it  ? 

Roberts.  Tliere  is  only  one  place  to  look  in 
at,  a  hole  on  the  side  of  the  door.  It  it  very 
dismal  to  look  into. 

Mr.  Ward.  Was  it  dry  ? 

Roberts.  I  can't  say.  At  the  same  time  Blist 
was  tliere,  I  saw  another  man  with  an  iroD 
about  his  nrck  in  the  same  room. 

Mr.  Baron  Carter.  Would  you  (speaking  to 
the  prisoner)  have  me  ask  any  questions  ? 

Acton.  No,  my  lord. 

Mr.  Richardwn.  It  was  insinnated,  that  the 
man  went  to  work.  We  shall  produce  the  per- 
son where  he  went  to  work,  to  shew  he  was  not 
able. 

Wm.  CowUy^  master  carpenter,  sworn. 

Mr.  JlfarsA.  Did  you  know  Bliss? 

Cowley.  1  remember  hid  coming  out  of  gaol; 
and  hiier  he  came  out  of  gaol,  he  came  to  work 
with  me. 

Mr.  Manh.  What  trade  are  you  ? 

Cowley.    A  mriienter. 

Mr.  Jilar$h.  Gire  an  account  what  state  of 
health  Bliss  was  in  when  he  came  to  work  for 
you  ? 

Coi^'ley.  I  hail  a  job  of  work  at  Houthgate, 
and  came  to  town  generally  (»n  a  Natunlay 
night ;  and  he  came  the  day  after,  and  said  he 
was  coming  to  work  for  me ;  1  said  he  wat  too 

:2l 


[ 


f8S]  S  GEORGE  IL 

weftk,  and  be  btd  btCter  bt  ported  rod  blooded 
before  be  went  down.  I  leh  him  in  town,  and 
wben  I  oame  asain  fraoi  tbe  ooantry  be  eame 
ta  roe ;  I  asked  bim.  How  be  did  then  f  He 
aaid,  Pretty  hearty.  I  and  tbe  rest  of  tbe  men 
went  down ;  and  oo  Monday  be  came  down 
afler  ns  to  Southgate.    1  aaked  him*  How  be 

Sot  down,  and  if  he  came  to  work  ?  He  laid,  I 
on't  doubt  but  I  shall,  in  i^raoe  of  God.  I  |^t 
him  aone  mutton,  and  mnde  broth  of  it  $  and 
he  endeaTOured  to  work,  bat  was  rery  Kttle  able, 
and  did  nocbin|f  that  day.  lYie  next  day  he 
came  to  work,  and  plained  three  boards ;  ami 
then  said,  lie  conld  not  work  any  lonprcr.  I 
asked  him,  What  be  would  ha?e  ?  Oire  me, 
aaya  be,  a  dram  of  Ckmeva,  or  brandy,  one  of 
wbieb  tber  got ;  and  laid  him  down,  and  threw 
their  dotnes  ofer  him.  I  asked  him,  If  he 
conld  eat  any  thing  f  He  said.  He  beTieved  he 
could  eat  some  bacon ;  but  when  h  came,  he 
oenld  not  tuneb  a  bit.  I  said,  Ctat  yea  eat  any 
thing  else?  He  said,  No,  nothing.  1  then 
apoke  to  the  woman  of  the  house  la  get  bim 
augar-sops,  which  she  did ;  but  it  did  him  no 
ircNMl ;  be  grew  worse  and  worse.  I  asked  hhn, 
If  I  should  send  to  the  apothecary  ?  He  said. 
No :  be  attempted  to  come  np,  but  ooaM  not. 
On  Saturday  ni^ht  I  came  to  London ;  I  asked 
bim.  If  I  should  leare  any  thing  P*  He  saki.  No ; 
but  desired  his  sister  might  be  sent  fbr ;  and  I 
think  I  seat  for  her,  and  my  son,  Thomas,  sent 
for  tbe  apothecary.  And  wben  I  came  back  on 
tbe  Ronday,  he  was  worse,  and  the  people 
were  uneasy  with  me  for  bringing  a  sick  man ; 
SD^  I  got  tlie  man  that  carried  my  timber,  to 
bria^  him  to  London ;  and  he  was  piit  into  the 
hospital ;  and  on  the  2Mh  or  SGtli  of  March  he 
died. 

Mr.  Marsh.  Were  yon  with  him  in  (he  hos- 
pital ? 

Coiolry.  Hearing  be  was  abused,  I  went  to 
see  him.  He  had  hoTes  in  his  legs  when  he 
came  down  to  me ;  and  his  words  were,  Mas- 
ter, that  roffue,  Acton,  and  those  other  rogues, 
are  tbe  death  of  me  ;  this  was  about  a  month 
before  he  died. 

Mr.  Marth.  How  lonsr  was  he  with  you  in 
the  country  ? — Cowhy,  Abont  nine  days. 

Mr.  Marth.    Did  he  complain  of  any  thing  ? 

Cowley,  About  a  mnntli  before  he  died,  ne 
complained  for  a  week  totiether. 

Mr.  Baron  Carter,  Did  tbe  deceased  com- 
plain Of  bis  side  ? 

Cowley,  He  told  me,  that  they  took  and  held 
him  by  the  legs,  and  his  head  knocked  on  tbe 
ground  ;  and  kept  him  chained  in  irons. 

Mr.  Baron  Carter,  Did  he  complain  of  his 
aide  f  ^ 

Cowley,  He  complained  of  inward  bruises. 
William  Ctfw^,  junior,  sworn. 

Mr.  Marsh,  Acquaint  my  lord  with  what  yon 
know  of  Bliss. 

W.  Cowley,  Afler  he  came  oat  of  prison  he 
canse  to  see  for  me  at  my  lodgings. 

Mr.  Monk,  DnXtm  aH  yoo  luww  in  yow 


^  WilUgm  Aa&n^ 


m 


W,  Cowley.  Wben  BfiN  mime  to  aw  ft*  me, 
I  met  him  in  Croo4ed-lane,  and  askdi  him, 
How  be  did  ?  He  said,  As  well  as  can  be  ex* 
pected ;  for  the  bruises  I  bare  receired  from 
those  rogues,  I  shall  aever  recof  er. 

Mr.  Baron  Carter.  Did  yoo  see  Ma  lega? 

W,  Cowley.  Yes,  and  they  were  bkck^  Mie, 
and  yellow,  about  the  calf.  W  hen  he  eama  Is 
SottUigate,  I  asked  him  then  how  be  did ;  bt 
said,  As  weft  as  can  be  expected ;  for  1  hata 
got  those  broisea  I  shall  nerer  reooter. 

Mr.  Marsh,  Tell  how  he  was  at  Sovtbgatef 

W.  Cowley.  After  he  bad  don#  work,  he  WM 
up  to  bed,  aad  said,  I  hM  I  shall  d§  iMff| 
and  puttin{»  his  hand  to  hia  broaat,  saidP  be  #as 
rery  sore.  After  he  begsn  l»  work,  he  fUMed . 
We  had  a  fire  Dsade,  and  laid  him  doH^i,  aid 
asked  him  if  he  courd  eat ;  be  aaid  if  w<e  amdd 
get  him  some  bacon ;  bnt  when  h  lima  ha 
could  not  tooch  it.  Then  wt  got  him  mm% 
bread  and  ale,  and  be  co«ld  mm  jMt  ItikM  it 
down,  and  brought  it  np  again,  and  eiOm|daiMd 
of  pains.  He  was  afterwarda  btood^d,  ind  tbt 
bkiod  was  of  ad  manner  of  eotomns,  aad  migliy 
watery. 

Mr.  JIfarsA.  DU  yo«  see  any  marim  kl  ii 
his  legs  ? 

W,  Cowley.  He  saki  those  roguea  hid  glim 
him  bruises  he  should  nerer  recorer. 

Mr.  Marsh,  Did  be  name  any  body  f 

W.  Cowley,  Yea^  he  named  Acton,  sBsd  i 
little  fellow  be  had  shewn  to  ma  when  at  thi 
gaol. 

Mr.  Baron  Carter,  When  he  waa  gahf 
away,  what  did  he  complain  of? 

W,  Cowley.  He  said,  I  shall  never  o¥cmmt 
the  blows  received  by  these  Tillaioa ;  and  I 
most  hiy  my  death  to  Aeton  and  theae  mgms. 

Samuel  Parker  aworn. 

Mr.  Marsh,  Did  you  know  Thomaa  Blhi? 

Parker,  1  knew  ThoMaaBlias  when  hecsae 
oat  of  gaol ;  I  saw  him  come  down  to  SaaA- 
gate  to  work,  hot  he  was  titter  fa  go  mM.  Hi 
worked  with  me,  and  lay  dowD  oo  the  bmeh 
seven  or  eight  times. 

Mr.  Marsh,  Did  be  complain  f 

Parker,  He  complained  of  his  stomach  sad 
legs,  and  said  that  bis  stomach  waa  beat  la  & 
great  degree,  and  that  Acton  bad  put  aa  iiaii 
on  his  legs,  whidi  extended  them  a  jpaii^  sid 
put  on  an  iron  on  his  head,  thumb-screwa  ii 
his  thumbs,  so  that  the  bkwd  gnabad  ottt  iltba 
end  of  his  thumbs. 

Mr.  Marsh.  Did  you  see  bis  legs? 

Parker,  Yes;  they  were  swelled  io,  ifli 
he  was  forced  to  uear  old  idipiiere-;  amftbif 
looked  of  many  ookrars ;  and  thera  waaa^bom 
in  one  of  them  big  enough  to  put  jMf 
thumb  in. 

Mr.  Marsh.  What  condition  waa  he  ro  ? 

Parker.  In  a  very  weak  condition,  not  fltiP 
work. 

Mr.  Marsh,  How  long  did  he  woili 7 
Parker.    About  a  quarter  of  an  ban%iBi 
tlieo  aaid,  Master,  I  oau't  work  aay  mac«;  tt 
then  laid  down,  and  they  made  a  fire  ibr  hil 


M^  ._ 


for  tht  Murder  of  Tkomai  Bliu. 
Mr,  Hank.    Htd  lia  any  apprebeDuafi  of 

Perktr.  Me  wA,  lliai  the  bruise*  and  the 
Umib  h«  bail  rrr^Tcit  were  ihe  acc«iioii  of  liJs 
4Mti,  UMl  he  klioulil  never  recnvi.T  tliem,  arii 
hprd  TOme  ^•■ix\  person  or  oUier  wuuUl  [iroie 
ctf»  dwm  fur  it. 

Hf.  Bamii  Csrfcr.  Now,  you  have  hrard 
OwlfekTCe  aj(fiiii«t  ynu,  by  siilceu  witnesses, 
jwMnd  upnn  four  defeoee. 

idM.     NotiTjihaiiitiding  what    the  people 
Wtlwurc  aipiinit  me,  I  hope  lo  mnke  it  ap- 
fMTlbal  I  Km  Inniwenl. 
Ybommj  Bliu  wnfr  a  prisoner  in  December, 


A.  j>.  n«>. 


r« 


d  tie  suriDDteil  111  escape  by  a  rope,  lo 

Co*et  a  iiDiise;  uut  lomepeiipleseciughitn, 
M)  off  the  bouse  on  the  other  side,  whicb  is 
U  f**4  hi|rh  :  I  neol  mund,  and  fouud  hitn  ly- 
■(  an  the  uroiind  ;  I  Inoli  hiin  up  hy  the  arm, 
wdaaknl  liim  the  rMuti  why  he  <li<l  so  ;  he 
■U,  be  wu  poor,  and  be  cuald  not  gel  out, 
mhootKHnebody  would  assist  him:  I  put  him 
iolB  the  aick  ward,  to  b«  taken  care  of,  and  al- 
bvcd  him  two-^Dce  p«r  day  ;  and  bad  a  sur- 

r\n  bftthe  hiB  leir,  niiich  he  had  hurl  in  the 
Re  conliuuetTii 

o  the  pump  ward; 
4tm  cnaitahle,  but  for  souie  misdeineanaur 
aM  turned  oul ;  it  was  for  cheaiine  the  olher 
■onMisoriheward.  AtterliewasdiBcharged, 
It  (ontiiiurd  three  weeks  nt  one  Gresbam's 
Mr  the  Uariliahe*  gnie,  and  was  fuddled  se- 
wd  dayi.  lie  weot  into  the  oounlry  and 
mi  uji  Huaio,  and  said  he  bid  catcbedcoM, 
«kni  iuU)  tlu!  hoa|Ulai.  and  ibere  died  of  a 
*m.  My  lord,  sinM  his  fidl,  be  never  had 
iMbani  on,  aod  be  liieil  near  twelve  iiionibB 
wt  I  have  several  wiliieiisea  ready  lo  prove 
*Mfe«U.v.4lioh  Iwdteall. 

Samutl  ll'tllMk  sworn. 

jMaa.  ftift^  Ml  acfiouul  of  what  usage  Bliss 
M  ia  tbc  fratm. 

AaWccij,  lattor  OHtliiaf  a  UMg  neuse.)    My 

M,  I  may  br  a  little  slntlleil,  havlug;  Dav«f 
he*  ha^c  mkIi  au  auibance  bcfiire,  tb«r«lore 
4mm  a  hltla  time  t<>  recnver  wysclf. 

lir,  Bataa  CM-ier.  \  on  miut  prapow  wkat 
VMisttt  j'lti  would  hate  a«ii«d,  lu  tbe  Conn. 

idM.  Please  lu  H>k,  my  lard,  if  ttlihs  whs 
I  Wllbt  (apadtio  lu'tMt.aMwliat  usage hesaw 
•kabecaoM  back. 

IWbcA      In  Mareb.  173.%  or  17^6.  I  went 

ti  iH  Mr     ti-t/..i    4'mI  ilM/ir-  waMRB  outcry..  He 

:ii>d  AcloQ  went  into 

..]  linMighi  Blisa  alouK 

iiuily  used,  but  saw 


'V. 


l*i™ 


a>li,  if  be  SI 


fe  Mr.  Vino  tilt  Iv  waaioalinaillu  theuck 
Nv  aoA  a  InitA  uo<l  myself  gave  a  afailbi^ 
iiipliuiiBil  be  woaiUw- 


Acton.  My  brd.  please  to  ask,  if  he  di<t  ui  t 
camplain  of  his  toga  and  back  by  llie  ftll. 

Bultock.   I  saw  biro  in  a  miMrablo  coinlil'on. 

Mr.  Oaron  Carter,  Tba  qiipslion  wns.  if  ha 
did  not  complain  of  bis  leg  and  back  hy  Ilia 
fall? 

Bullock.  He  complained  of  hia  ankle  and  hi* 

Acton.  Plaaaa  to  aak,  my  lord,  if  there  wu 
any  irons  on,  should  he  have  aeen  them. 

Mr.  Baron  Carter.  [  ibink  Ihsl  quebliun  will 
not  he  ao  niuch  for  your  service  ;  you  may 
have  it  asked  if  you  pleaaa. 

Hobert  Hnltaa  wmam. 

Acton,  Pleaaelo  ask  him.  taj  lord,  wbetlier 
he  remembers  the  escape  of  Bliss,  and  when, 

Ilolma.  I  know  uf  Bliss's  breaking  otit  into 
Ale  ami  Bottle  yard,  and  saw  AcUid  and  Ro* 
gers  brin^  liim  into  tbe  priaou,  supporting  bin 
upor)  their  shouldars. 

Aclon.  Pl«ase  to  ask,  if  he  had  any  iroaa  on, 
or  abuse  |;iveu  him. 

Haim*.  He  had  do  irons  on,  no  nbuu 
given. 

Alton.  Whatdidhacomplainor? 

Holmct.  He  only  complained  of  hii  legs. 

Acton.  Wliete  did  he  go  aller  ho  was  dil* 
charged  ? 

Uolmet.  He  want  aod  lodged  at  one  Gre- 
sbam's,  and  I  drank  with  bim  very  often  in  an 
eteniog,  and  he  and  1  look  a  walk  together, 
ami  he  Iheu  dedared  to  me,  Ihal  Acton  bad 
lucd  Uim  very  well,  and  if  it  had  not  been  for 
him,  be  must  have  perislted  before  be  eat  dii> 
charged;  and  when  be  came  backlo  Mr.Or«B 
sbam's.  ho  lold  aa,  Ite  was  la  go  U>  work  at 
Southgate,  ikbiob  he  dkl,  and  staved  there  nine 
days;  and  when  he  catoe  back,  lie  said  he  had 
caiched  an  ague,  aod  look  a  sweat;  and  two 
or  threa daysaller  thai  weni  iolo  ^.  Tlrantae'l 
Hospital.  1  met  Ulisa's  wife  on  ibo  bridge 
and  she  said 

Mr.  JlisriA.  I  apprcbeod  wttat  aba  said  can - 
not  be  evidence. 

Mr.  Baron  Carter.  I  tell  you  bow  Ht ;  iha 
is  ajfovil  witivas  lo  ctmlradict  herself. 

Mt.  MarsL.  You  csu  only  ciilf  ibia  wiine&i 
lo  invaliUale  berteBitaionn'.  \V  hat  did  she  say 
about  Iter  buebMwI'adeuIi  ? 

Mr.  Baron  Carlir.  She  has  said,  tbe  bbwa 
he  received  from  dwtoo  were  tbe  oaeaaioa  of 
his  death  ;  and  Ihe  wiueu  majr  ba  aaletd  ta 
ivbat  she  «aid  as  lo  thai.  Did  you  aeaaay 
irons  u^a  Blisa,  altar  Ibe  hll  from  tbm  hauae  7 

Hoimt*.  No. 

Mr.  Baron  Carter.    Was  he  id  iIm  iMrang 

Uolmet.  No,  be  was  in  the  sirk  tvard. 

Alton-  Pleasa  to  ask,  my  turd,  bow  long 
b«  was  ID  prisan  after  be  came  out  of  the  sida 
ward. 

Mr.  Baron  Carter.  What  aa^  jou  la  ibal 
que-ilion  f 

hidn**.     Seven  oceiglit  ouinlha. 

Aclaa.  Whottiouditiuaof  baaWi  wu.b«inP 

Uolmet.  Very  good. 


4673  5  GEORGE  U. 

AetoH,   Pletse  to  aik,  if  be  e?er  complained  ^ 
tf  any  tbinfr  but  hU  hme  leg. 

Hoimei,  I  ne?er  hetrd  bim  complain  of  any 
^iog  else.  He  iraa  at  work  aereral  times  in 
my  rtM>m. 

Mr.  Ward,  He  did  complain  of  one  le^yon 
•ay ;  did  be  not  complain  .of  both  F 

HolmtM,  No,  be  never  did. 
'    Vir.  Harding.   Did  you  nefer' see  him  fet- 
tered alter  be  aitemptcU  to  escape  ? 

Holmes.  No,  I  never  did. 
'   Mr.  Baron  Carter.  Before  be  went  into  the 
tick  ward,  was  be  in  the  I'Kl^e? 

Holmes.  I  came  down  into  the  lodge  with 
him. 

Mr.  Baron  Carter.  Where  was  be  carried 
next? 

Holmes.  He  was  set  down  there. 

Mr.  Baron  Curler.   You  did  not  see  him  in  ' 
Uie  yard  ? — Holmes,  No. 

Mr.  Baron  Carter.  The  witnesses  say,  that 
hewaftfirM  bniupbt  iuto  the  lod^e,  and  there 
had  irons  put  on,  and  then  was  carried  into  the 
yard,  and  there  it  was  that  all  the  witnesses  say 
he  was  beat. 

Mr.  Marsh.  I  did  not  hear  that.  ' 

Mr.  Baron  Carter.  It  is  so  said. 

Mr.  Marsh.  When  did  be  fall  from  the 
lu)nse  f 

Holmes.  About  seven  or  eight  o'clock  at 
siffbt. 

Mr.  Marsh.  What  time  of  the  year  was  it  ? 

Holmes.  1  can't  say ;  1  believe  about  March. 

Mr.  Baron  Carter.  Let  the  time  be  whenever 
it  wili,  it  must  be  taken  after  the  fail  oft'  the 
houRe. 

Mr.  Marsh.  When  did  he  fall  ? 

Holmes.  As  near  as  1  can  guess,  in  March 
next  .coming,  four  years  ago. 

Mr.  Marsh.  You  were  speaking  of  bis  con- 
tinuing well  when  he  came  out  of  the  sick 
svard ;  when  did  he  come  out  ? 

Holmes.    About  two  months  after  March. 
f    Mr.  Marsh.  Were  yon  a  prisoner  then  ? 

Holmes.  No,  I  was  a  prisoner  before. 

Mr.  Marsh,  You  were  discharged  then,  and 
Jived  in  the  prison  ?—i/o/mf I.  Yes. 

Mr.  Marsh.  Had  von  not  the  privilege  of 
the  gate  ? — Holmes,  \  was  no  prisoner. 

Mr.  Marsh..  Had  you  no  privilege  granted 
you  ? 

Holmes.  Yes,  by  Mr.  Darby.  1  had  the 
privilege  of  lodging  in  the  prison ;  he  gave  it 
me  gratis. 

Mr.  AfartA.  When  were  yon  discharged  ? 

Holmes.  About  four  years  since,  by  the  Act 
of  Insolvency. 

Mrs.  Blki^  being  in  Court  to  confront  Holmes. 

Aeton,  I  desire  he  may  ffive  an  account  of 
the  conversation  he  bad  witn  Mrs.  Bliss. 

Holmes.  I  met  Mrs.  Bliss  on  Saffron- bill, 
and  she  told  me,  slie  thanked  God  her  husband 
irasdead. 

Mr.  Banm  Carter.  Dkl  abe  tell  yon  what 
wasihe  Mcaaion  of  his  death  ?  What  did  she 
lellyottheiUedoff 


Trial  of  Wiiliam  Acton f 

Holmes.  That  he  died  of  an  ague  an 
in  St,  Thomas's  hospital.  I  met  ner  on 
da\  last. 

Mrs.  Bliss.  My  loni,  I  did  meet  1 
Tuesday,  but  never  said  any  such,  words 
was  no  such  word  spoke. 

Henry  Chapman  awom. 

Acton,  Don't  you  remember  Bliss's  i 
to  escape? 

Mr.  B:g^n  Carter,  1  would  have  y 
one  tiling  for  granted,  that  he  fell  off  the 
ask  Any  thing  that  was  the  consequence  > 

Acton,  Please  to  ask  him,  if  he  sa 
after  htr  fell  off  the  house. 

Chapman.  Bliss  whs  found  in  the  ^ 
Bottle  yard,  and  was  broughi  in ;  he  b 
his  leg,  and  as  so(»n  as  be  came,  he  n 
into  the  sick  ward ;  Dr.  Draper  was  s 
to  bira,  and  used  what  means  he  t 
proper. 

Mr.  Baron  Carter.  Tell  me  if  you  si 
when  he  wrnt  back  to  the  lodge  ? 

Mr.  Chapman.  He  was  carried  to  tl 
ward  directly.  I  saw  nothing  of  him 
was  brought  into  the  Hick  ward. 

Aclon.  My  lord,  Cbapnian  uas  notoo 

Mr.  Baron  Carter,  Bliss  must  coo 
the  lodge? — Chapman,  Yrs. 

Mr.  Baron  Carter.  Where  does  I 
through  the  y  ard  to  the  lodge  ? 

Chapman,  1  saw  nothing  there;  but 
carried  to  the  sick  ward,  and  the  duci 
called  out  of  bed  to  him. 

Acton,  I  desire  he  may  be  asked,  wh( 
did  not  order  the  doctor  to  come  to  hio^, 
him  have  three- pence  [two-pence,  p. 
per  day  while  he  was  sick. — C/iapman, 

Mr.  Baron  Carter.  How  long  did  1 
tinue  in  the  sick  ward  ? 

Chapman.  I  can't  tell  how  lon^. 

Acton,    Please  to  ask  him,  if  hedi 
member  Bliss's  being  constable  of  the 
ward,  and  drawing  garnishes  for  his 
prisoners. 

Chapman.  Yes,  I  do  remember  it  ven 

Acton.  What  condition  was  Bliss  in  w 
was  brought  out  of  the  sick  ward  ? 

Chapman.  He  was  healthful,  but  com] 
of  the  hurt  of  his  leg. 

Acton,  Did  von  ever  see  any  irons  on 

Chapman.  No. 

Acton.    Did   you  see  him  in  the 
Room  ?^-Chapman,  No. 

Acton,  Please  to  ask,  my  lord,  if  he 
usually  see  Bliss  every  day. 

Chapman.  J  saw  him  frequently. 

Acton,  Did  you  ever  hear  him  comp 
having  irons  on  ? 

Chapman,  No ;  but  he  desired  me  t( 
interest  to  get  him  the  charity  money, 
him  out  of  the  gaol. 

Acton.  Please  to*  ask,  If  he  did  not  g 
Bliss  into  tlie  sick  ward,  and  if  1  stamjie 
hit  breast  How  long  did  be  cootiniw  m 
after  he  came  cot  of  the  sick  want  f 

t 


fS9] 


ftfr  the  Murder  of  Thomas  Bliss. 


A.  D.  17M. 


[490 


CAapmau.   It  was,  to  the  best  of  my  me- 

Hr.  Sirmnge,    Was  it  a  great  or  a  little 
while  I* 

Ckapmam.  It  was  a  considerable  time ;  bat  I 
amh  be  ccrtaia. 
ActoH,  Please  to  ask,  whether  he  never  saw 

It  Mr.  Gresham's  ? 
Otfman.  I  drank  with  him  there. 
How  was  he  in  health  there? 


CkfBMn.    He  was  well  in  health ;  and  he 
"  ^ *'  ^e  was  as  well  as  efer  he  was  in 


IkMk. 

Mr.  Baron  Carter.  Who  is  Gresham  ? 

Cktpman,  He  k<*eps  the  Dolphin  ale-honse, 
m  the  Kaol  door. 

Mr.  Baron  Carter,  You  saw  him  when  he 
CHwfrom  Southffate ;  tell  me  whether  he  was 
ifUinhMlUi  then? 

Chill  wail  He  was  well  then  ;  but  he  com- 
fUnf  m  atitcb  in  his  side,  and  that  he  had 
■Mienty  and  that  work  did  not  agree  with 

Mr.  Buroo  Carter.  Was  he  well  in  health 
iM? 

Omfmmm.  Hewas  well  in  health,  but  wished 
l9|amto  the  hospital. 

Mr.  Baron  Carter.  Did  he  complain  of  any 
Mvaiie  of  Acton?  ' 

Gb|mMfi.  Neferio  hislife. 

AtUm.  Be  phased,  mv  lord,  to  ask  him  as 
lltheiilronff  Room ;  whether  if  he  was  to  be 
Itcfcad  op,  he  would  not  rather  choose  to  be 
Utfd  up  there,  than  in  the  wards. 

CI^MMn.  Yes. 

idea.  Whether  prisoners  have  not  chose  to 
]|jelhm,  rather  than  in  any  other  room  ? 
CImiiii.  1  have  heard  several  people  re- 

idaa.    Is  there  any  common  sewer  runs 

i4ef  the  Strong  Room  ? — Chapman.  No. 

Mr.  Marth.  i  ou  say,  there  is  no  common 
mtr  under  the  Strong  Room  ? 

Clspaurii.  I  am  sure  of  it. 

Mr.  Marsh,  Have  you  no  place  or  office 
■  the  gaol? 

Ckapasan.  1  draw  beer  for  twelve-pence  a 
Ind,  which  Mr.  Halsi^y  gives  me ;  and  vic- 
Mand  drink  from  Mr. 'WiUon,  and  since  he 
U,  from  Mr.  Acton. 

Mr.  Marsh.  What  Halsey  ? 

Chapman,  Halsey  the  brewer. 

Mr.  Ward.  You  say,  you  heard  Bliss  com- 
|Imb after  he  was  at  Sontbgate ;  What  did  he 
ttsplainof? 

Chapman.  He  did  complain  of  his  legs  swell - 
ill,  and  other  pabS|  and  wished  to  be  in  the 
^ital. 

Thomas  Fletther^  surgeon,  sworn. 

AcUm.  Mr.  Fletcher,  pray  tell  the  Court, 
iftcr  Bliss  fell  from  the  nouse,  whether  you 
biked  after  him  in  the  sick  ward. 

Fletcher.  1  visited  people  in  the  sick  ward, 
Iri  the  deceased  asked  me  to  look  at  his  leg; 
i  hi  kiok  upon  it,  and  saw  a  large  tumour, 
0A  Med  tho  beat  mcaos  1  cookl.    I  went  to 


my  own  ward,  and  got  some  oils,  and  used 
them  first,  and  then  applied  a  plaister.  I  often 
asked  him  where  his  |«in  was  ?  He  said,  he 
felt  no  paina  but  in  ibat  part.  In  about  14 
days  time  I  took  off  that  plaister,  and  put  on 
another,  and  then  he  was  removed  into  another 
ward.  I  was  theu  releaaad,  but  I  went  to  aee 
him  now  and  then ;  and  in  the  month  of  Fe- 
bruary or  March  following,  I  asked  him  bow 
he  did  ?  He  had  either  a  rule  or  stick  in  bia 
hand,  and  pointed  to  his  ankle,  and  aaid  he 
should  never  be  well  as  long  as  he  lived,  I 
afterwards  mei  him  in  Westminster-ball,  and 
he  to!d  me,  that  he  was  released  by  some  cha- 
rity money,  through  Mr.  Acton's  means. 

Mr.  Bsiron  Carter.  Who  was  the  occask»  of 
his  beinr  let  out  ? 

Fletcher.  He  always  gave  Acton  a  good 
won! ;  and  saki,  he  was  released  by  a  gentle- 
man coming  there  with  charity- money. 

Acton.  1  desire,  my  lord,  he  may  be  atked, 
if  he  (Bliss)  had  any  irons  on? 

Fletcher.  I  never  saw  him  with  irons  on. 

Mr.  Baron  Carter.  When  he  came  out  of 
that  room,  and  was  put  into  the  sick  ward,  had 
he  any  irous  on  then? 

Fletcher.  He  bad  no  irons  on. 

Acton,  Please  to  ask,  if  there  was  any 
bedding. 

Fletcher,  I  saw  some  bedding,  and  asked 
who  lay  there.  They  did  not  tell  me  the  par- 
ticular man,  but  told  me  a  gentleman, 

Acton,  Please  to  ask  him,  as  to  the  Strong 
Room,  if  it  was  damp. 

Fletcher.  I  do  not  think  it  was  any  ways 
damp. 

Mr.  Ward.  You  say  there  was  a  great 
swelling  upon  one  of  his  legs;  was  it  not 
eat  into? — Fletcher.  No. 

Acton.  Please  to  ask,  if  there  was  any  con- 
tusiou  of  the  other  leg  ? 

Fletcher.  There  was  not. 

Acton,  Did  you  ever  see  Bliss  in  irons  ? 

Fletcher.  I  have  seen  him  with  fetters  ou. 

Mr.  TrifjX'  Do  you  remember  the  time  of 
Bliss's  malunff  his  escape  ? — Fletcher.  Yes. 

Mr.  IVigg,  Were  there  other  people  put  in 
irons? 

Acton.  I  desire  he  may  be  asked,  whether 
he  ever  saw  Bliss  in  irons,  after  lib  last  attempt 
to  escape  f^^Fletchcr.  I  did  not. 

Mr.  Baron  Carter,  What  was  Acton's  be- 
haviour to  the  prisoners,  according  to  your 
observations. 

Fletcher,  I  never  saw  him  appear  otherwise 
than  very  handsome,  and  very  well  to  thenu 

Thomas  Whitford  sworn. 

Acton.  I  desire,  my  lord,  he  may  be  ukad, 
if  Bliss  did  not  attempt  to  escape. 

Mr.  Baron  Carter,  It  is  a;;reed. ^Tell  me 

how  be  waa  after  his  fall  ofl'the  house, 

Whitford.  I  saw  him  in  prison. 

Mr.  Baron  Carter,  Tell  me  how  he  was. 

Whitford.  From  October  to  February  (I 
was  discharged  the  same  day)  he  was  as  well 
as  ever. 


i 


40V|  S^^IU}8  II. 

JelO).  Plcfse  ta  a>k  >rh^  lie  auJ  in  rata' 

ir4i{/ard.  lie  (Blist)  Haul.  lUat  if  >l  liiU  ant 
bKU  ior  ictnii,  tie  tliuhl^  "ut  liiire  gol  oul  of 

fi^in));  jpil  Le  hiiuHll  liiul  spujie  re&^ecl- 
lUy  uf  liiui,  UDil  M  liail  tils  wile. 

Actoa.  Dill  you  gu  to  Mn.  Ulis«  P 

Wkilferd.  I  fveniui  Mn.  Qlus,  ill  tie  ole- 
liuuse,  where  she  live  J  ;  and  nite  ilesireil  I 
neuU  take  no  uuljcc  ibal  ber  huibnnJ  nas 
dead  ;  and  inM  oie,  lie  weul  iulu  tlic  counlry 
to  work,  aud  tb^re  cutclied  imU,  and  was  car* 
ried  iotoths  hosplul,  aiiil  died  o|'il;  uliicli 
va»  thougbi  ilie  occajiiao  of  liis  ilealli- 

Jclon.  Wbatdo  you  think  uf  ihe  Strong 
RooatS—H'liU/ord,  II  is  a  tjlrung  Itofxn,  but 
tbt  best  roora  on  the  tonimon  aide  of  the  gaol. 

4|r.  BarUD  Cucfci-.    l>(i  jou  say,  it  ia  ihc 


^Wt) 


Xof|44ir«I((rnnif. 


r.  &itni  CaritT,  t  remamhr  the  queti- 
tion  KhfiD  BugBJM  vaq  tried ;  it  Kta  ujted 
w«,  if  be.  inTuten  9r  Dix  ^  Von  luw"  I 
odtiiiBd  Honiu  wwnst  uuiTfruw  fqu.  aak- 
ids:  MatbeCatefJHi^Fgliii)  ont^  iif^eak- 
S^  10  Mr.  Strange].  KVbU  oondtiltn  of  health 
WM  BUm  in  after  hj^  hll  F* 

Walttr.  Id  •  «m^l  procan  of  linw  be 
walked  atiDitt  the  nfl  ■•  (rcU  u  I  did,  and 
ntJi^fteiutr.        " 

^Hr.  &UWI  Cirteri  Did  yon  bear  fliM  mj 
^Tthing of  4*^' 

Waiter.  Meter  anjf  thing ^. 

Hr.  BacoaCarter.  That lanot the  qiieatlon. 
Ba,n  voa  hutrd  him  aey  an;  thing  about 

WaUtr.   I.h^T^beaid  higa  maLin  pniie 

OfltUB. 

JoA*  Chape  ■worn. 
npiW  <«.  ■db  W  'P'*'  i*!"*  •^'e 


'^ 


'  CWf.  %  W  1%  Mry.  Boo4  cowbjjoo. 

"nlMt.MA4nw  wiJ*  fcmout 

a^b^  waft  in  good 

ȣ  gW)g   UW  tbd 


of?- 

in  bci 


I  met 
ladrii 


d<>o-t 
tbeoc. 


Jirr  the  Murder  nj  Thomas  Bli' 

tffif,  mA  Om  nM,  lie 
4tj  ind  half,  but  llie  rou 


A.  D.   171?^, 


Hr.  B«ron  Corlt 

ifVMiy.    Tbu  h 

Attaoli  In  be  the  I 

ChrUtiai 


,  «  worked  k  J»y,  or  a 
s  rountrv  wm  so  cold  he 
I  did  iioi  tee  bcr  atter  lui 

had  Mtijcbt  m\A,  ivhmh 


VrDaron  f'^rtrr.  Did  ynu  see  Bliss  after 
ItitU  froiD  tho  bon«e  7 

A^jf.  tie  lif  by  me  four  nionthB  in  the 
QHn'i  iranl. 

■r.  B«r(in  Carter.  The  Qucen'swardf 

JtlD^.    lie  nns  removed  fnno  ihe  tick  iriird 

■t.  BaroD  Carttr.  What  health  was  he  in  ? 
DU  Iw  nuJie  any  couiplaiiU  ? 

F*>i^.  I  Defer  heard  liiiu  lunkc  any  coin* 
lUu,  bill  ot'  bis  ankle. 

Ut.  Baniii  Carttr,  Did  he  complain  only  ul' 

fWy.  It  must  be  one  leg;.  He  could  nil 
tat  down  at  aitrhCi  i   and  tlio  other  leff  fua 

Hr.  Baton  Carter. 


Ti  r— FdWv.  I  dill  Mveral  time*. 
Baran  Carttr,   Did  lie  coronlain  of  any 
in  tl  lua  coniiog  out  if  the  gaol  ? 

Pmi^.  Ue  desired  me  to  lend  him  balf  s 
pwt,  txiA  he  would  go  iii  irork. 

AttwH.  lie  pleaied.my  lord,  toifb,  irite«atv 
tiB  a  the  hiHiiiital. 
fc.  Bamn  Carttr.  What  say  ynu  to  that? 
litdy.  Mr«.  Bliis  told  me  her  husbnnd  wd« 
IMv'lhtr  hospital ;  and  I  nenl  into  the  hus- 
ftA  la  bim,  and  asked  hJin  bov  he  came 
■ptT  ileaaid.he  waaat  work  inihe  coun- 
ty, ttd  piilM  off  his  waiitcoBi,  and  catcbcd 

Mr.  Baron  Carttr.  What  mi  the  prlBofrer's 
|kVii  MlaTioiir  ? 

iW^.  I  liwl  been  there  ten  monfha,  and 
Man  M«  any  harm  duue  to  any  iirisoner  in 
MMter. 

Stter  Long  snorn. 

iUm.  I  ilnire,  my  lord,  abe  mav  be  asked, 

'   /Araa*  ttliM  after  hecaiaeottlotpriHOn. 

yk.  Bsroa  Cartrr.    WbaX  ssy  ynu  to  that  f 

Mn.  i.011^.  1  aiaid  at  the  Doipliin  nle-house 

bMk  win  be  came  nut,  ami  1  wighed  bim 

Mi#Mn(outi  bethnnkeil  me,indsi1d  it 

^niaf  1^  Mr.  Aotou  ;   and  (aid,  God  IdeM 

ih.Wi^mA  out.     I  ashed  him,  IF  be  was 

'   nsied  aeain,  what  be  ivnuld  do  f  he  said, 

ABto  »atoM  tiaod  by  hitn.     Mrr.  Olin,  my 

aMr-fa  Lnf ,  came  there,  and  she  said,  that  he 

Hi  n  >■  I:  u  ever  in  his  lite ;  and  on  the  Sa- 

:  i<   aRer,  he  came  to  my  house, 

r  rid,  anil  said  to  bis  wife,  Go 

(it  I  must  go  to  Mr.  Cowley, 

-1  ih)lh'ii{pi  anri  aix  pence  to  take 

H  »gc"  -,  and  Bflemnlk  1  saw  hiiu  in 


Carttr.  What M* tlie matleriritb 


Mrs.  Long.  Mrt.  BliM  desired  to  lojp  i*;03 

e;  which  sbedld,  and  4be(uld  me,  he^  fitN- 

band  wanted  to  see  me  ;    anil  when  I  went  tH 

hitn,  lie  Kaid.  I^ter,  I  am  gfdng  \o  leave  (lie 

irld :    1  taid,  it  was  only  going  a  lillle  htSiii 

Mr.  Bor«n   Carter.    Praj  (ell  whether  h# 

iile  anv  complaint  to  van  Ol'ilny  tbiiiir  ? 

Mrs.  U,g.  W         ' 

Mr.  Baron  Cnrler.  TTbat  distemjwr  did  tii 
die  of  in  ibe  hospital  ? 

Mrs.  Ijms.  He  nid  no  wete  than  that  M 
caichedroMM  SnOlhfOte. 

AcloH.  I  desire  she  may  be  asked,  whl'lsht 
heard  Mrs.  BlifttrfkabhntBov  money  >be  «us 
lu  have  in  this  nroscculion,  and  from  tflintn. 

Mr.  Baron  Carter.  AAsner  that  qoesiion. 

Mrs.  Lang.  I  nerer  heard  no  mure  talk  tifl 
within  these  four  moAlfas ;  and  then  a  messen- 
(^er  came,  and  said,  there  was  money  for  Mrs. 
Bliu  in  Soinbw3rk  ;  aod  when  site  went  llierb 
the  gentleman  was  not  at  home  ;  and  when 
•be  came  back,  ahesaid,  she  should  ha*elbirly 
or  forty  shillings.  I  asked  foi-  what?  She 
said  upon  account  of  going  to  swear  against 
Mr.  Acton. 

Aclim.  Please  to  ask,  whether  aomrlmdy 
gave  her  any  clulTies,  and  wlio. 

Mrs.  Long.  Tlie  next  dny  after,  she  gaT«i 
out,  that  she  wns  to  go  to  some  gentleman ; 
and  I  asked  to  whom  f  She  said,  10  the  com- 
mittee, and  she  should  have  Torty  or  fifty 
jnumds;  and  when  she  came  borne,  I  saio, 
Nnntiy,  I  hope  you  will  not  he  so'fonliih  to  ea 
10  lake  away  the  life  ofa  man  for  forly  or  fifty 
puunda.     After  (hat  she  vveotto  seri^eV, 

Artim.  Did  you  not  see  Blin  and  herbrolhcr 
together,  and  what  was  ihe  conversation  ? 

Itlrs.  Lang-  1  said  [rp>.  saw']  Anbe  Blin  and 
lier  brother  together,  and  he  cautioned  ber  to 
take  care  what  she  did;  andsheaoid  she  waslo 
bare  loily  or  lifty  guineaa ;  and  he  said.  Make' 
it  up ;  if  you  gn  to  Aclou,  he  will  give  you  a 
covnle  of  guineas  ;  and  she  aaid  she  could  not 
go,  tor  her  master  said  sbeshonld  fqu.  not]  take 
tool.  She  (Bliss)  caiDe  and  said,  some  time 
after,  she  had  two  guineas  gfven  ber  by  otri; 
of  ilie  gcn^emen  of  the  committee,  and  ttiat 
she  did  go  and  live  with  him  in  an  alley  by 
Little  Moor- Fields. 

Mr.  Baron  Carter.  Yoii  talk  faster  than  I 
ato  take  notes  of  what  you  say  ;  ynu  have  no 
occasion  to  ulk  so  much.  Wbom'did  youaay, 
■lie  said,  she  went  10  live  with  ? 

Mrs   Long.  One  ofthe  committee. 

Mr.  Ogtethotjic.  My  lord,  »itb  humble  stib' 
mlHsiou,  I  desire  leave  to  speak, 

Mr.  Baron  CarfCT",   Sir,  von  may. 

Mr.  Oglethorpe.  Then,  my  lord,  I  dcxjrcthls 
matter  may  be  ihoroiigbtiy  sifted,  and  the  cii- 
dencea  may  he  contrimleif. 

Upon  whidi  Mra.  Bliii  was  called  to  con- 
front Ueiter  Long. 

Hn,  Blui.  Whtti  V  went  to  my  sister  Long,, 
she  said,  sbe  would  have  me  consider,  not  tor 
be  ruled  by  Mr.  Newland,  and  if  t  would,  alia 


495] 


S  GEORG^  II. 


Tritd  of  WtUiam  Aelon, 


[496 


could  go  to  llr.  Acton  and  oiake  it  up,  and  he 
would  ffive  me  sompthinf^ :  I  told  her,  she 
noTer  hked  my  husband,  and  Mr.  Jennin^ 
woold  not  for^Te  rae,  if  I  made  U|i  my  hu8- 
Imnd't  death  ;  and  she  (Lont;)  said  ai^ain,  her 
hntband  would  not  forgive  ine,  ami  wondered 
bow  I  could  pretend  to~go.  1  told  her  aAer 
that,  my  master  Jenuinfi^s  had  lent  me  two 
guineas,  and  desired  thti  ^eiiiluiuan,  where  I 
went  to  live,  tfiat  be  would  see  the  money  laid 
ont ;  and  gave  the  gentleman  the  money  with 
his  o\vn  hands,  and  his  wife  laid  it  out  for  me. 

Mr.  Baron  Carter.  Did  you  not  say,  tliat 
you  were  to  have  40  or  .50/.  P 

Mrs.  B/iji.  1  said  no  such  thing. 

Mrs.  Long,  The  person  that  came  from 
Kewland  said,  it  would  be  a  great  deal  in  her 

way. 

Mr.  Oghthorpe.  I  desire  she  may  be  asked, 
who  that  person  was,  and  whether  he  was  one 
of , the  committee. 

Mr.  Baron  Carter.  Who  was  Mr.  Newland  ? 

Mrs.  Ijmg,  A  baker  in  South  wark. 

Mr.  Baron  Garten  Mrs.  Bliss,  I  ask  you, 
whether  you  said,  that  Mr.  Jennings  told  you, 
that  you  should  not  take  lOG/. 

Mrs.  Bliu.  He  said,  if  they  were  to  offer  me 
100/.  I  should  not  take  it,  not  to  do  justice  to 
my  husband. 

Mr.  Baron  Carter,  How  came  you  to  leave 
Jennings's  service  ? 

Mrs.  Blist.  'there  were  so  many  came  flock- 
ing up  and  down  after  me,  that  I  could  not  live 
with  him.  There  came  two  gentlemen  last 
Sunday. 

Mr.  Richardson,  You  say  you  could  not  live 
with  your  master,  because  so  many  people 
came  after  you.    Whom  did  they  come  from  ? 

Mrs.  Bins,  They  said  they  came  from 
Acton. 

Mr.  Baron  Carter.  What  they  said  is  no  evi- 
dence. 

Mr.  Oglethorpe,  My  lord,  I  must  with  all 
humble  submission  beg  leave  to  speak.  Repu- 
tation is  a  very  valuable  thing ;  and  here  is  an 
aspersion  thrown  out  at  random  against  a 
member  of  a  committee,  which  may  affect  the 
characters  of  several  gentlemen  who  are  not 
here  present. 

Mr.  Baron  Carter.  There  are  many  com- 
mittees, and  1  should  have  taken  notice  if  any 
thing  had  been  said  of  any  committee  of  the 
House  of  Commons. 

Mr.  Oglethorpe,  There  are  many  com- 
mittees, as  vour  lordshi ji  says ;  there  is  one  of 
aldermen,  there  was  also  another,  which  1  find 
is  not  forgot.  I  would  have  them  explain  what 
committee  they  mean ;  the  charge  is  a  very 
heavy  one,  no  less  than  subornation  of  perjury, 
and  this  founded  on  a  hearsay,  so  as  to  render  it 
impossible  for  any  persons  to  justify  them- 
aelves :  I  therefore  desire  this  may  be  strictly 
examined  into,  and  insist  upon  knowing  wlio 
this  person  was,  and  his  oaoie. 

Mr.  BaroD  Carter,  Wat  there  any  name 
mentioncfl  ? 

Mrs.  Long.  She  said,  one  of  the  committee. 


and  the  committee's  spouse  was  to  lay  out  the 
money  for  clothes. 

Mr.  Richardson.  I  ask  you,  whether  or  no 
she  said  she  was  to  Uave  two  guineas  from  Jca- 
niogs,  or  any  one  else  ? 

Mrs.  Long.  From  nobody  but  3Ir.  Irnwip 

Robert  Cole  sworn. 

Mr.  Acton.  My  lord,  please  to  ask  Rabat 
Cole  if  I  gave  Bliss  money  ? 

Cole.  Some  time  after  the  committee 
met,  they  had  sat  once  or  twice^  I  met  Mn. 
Bliss  on  I^ndon  briiig(\  and  asked  her,  if  she 
had  been  with  the  committee  or  Acton.  She 
said.  No ;  but  if  Acton  would  give  hpr  5/.,  slie 
would  nut  mention  any  thiug  of  her  husband's 
death. 

Mr.  Baron  Carter,  How  long  was  this  before 
Acton  was  taken  up  ? 

Cole.  About  three  weeks  ;  I  canHbeccrttia. 

Mrs.  Bliss,  I  said  no  such  thing. 

Mr.  Richardson.  Are  you  subpoenaed  f 

Cole.  No. 

Mr.  Richardson.  How  came  you  here,  if  oot 
subpoenaed  ? 

Cole.  Hearing  Mr.  Acton  was  to  be  tried. 

Mr.  Richardson,  How  did  you  know  be  wis 
to  be  tried  ? 

Cole,  I  heard  it  by  being  in  the  3IanbatMi 
as  a  prisoner. 

Thomas  Rogers  sworn. 

Acton.  What  usage  did  B'iss  receive  after 
he  fell  off  the  house  at  the  Marshalsem  P 

Rogers.  His  ankle  was  swelled  as  big  is 
his  calf. 

Acton.  I  desire  he  may  be  asked,  how  the 
other  leir  was. 

Mr.  Baron  Carter.    What  say  you  to  that? 

Rogers,  As  usual. 

Acton.  I  beg  he  may  be  asked,  whether  ke 
was  with  Bliss  when  he  was  brought  into  the 
lodge. 

Rogers.  Mr.  Acton  and  1  supported  bin. 

Mr.  Baron  Carter.  This  man  was  aecused 
of  beating  Bliss ;  I  will  not  press  the  tbiog 
upon  him  toalfect  himself. 

Seij.  Baynes.  If  he  thinks  himself  innocent, 
he  may  be  voluntarily  a  witness,  though  he 
could  not  be  obliged  to  it. 

Mr.  Baron  Carter.  He  may  be  a  wimess; 
but  don't  let  mc  lead  him  into  any  thing  tbit 
may  injure  himself. 

Acton.  I  desire  then  he  may  be  asked,  if  hi 
saw  Bli'<^  111  the  sick  ward  ? 

Rogers.  I  did  ;  and  IVfr.  Acton  sent  for  a 
surgeon  into  the  sick  ward  to  batlie  his  leg. 

Acton.  I  desire  he  may  be  asked,  if  hcwai 
put  in  irons. —  Hogfr.^.  He  was  not. 

Acton.  Were  you  by  there  all  the  while  ? 

Rogers.  I  was. 

Acton.  1  desire  he  may  be  asked,  if  beooo* 
tinned  a  prisoner  after  Bliss  was  discharged.     . 

Rogers.  I  did. 

Mr.  Ward,  You  are  asking  too  many  qu«* 
tions. 


^  lAc  Murder  ^TkomaaBliu. 


A.  D.  1799. 


■  I  ierin  be  ma;  b*  uked,  if  he  ever 

I  kAct  he  wu  d»chug«d. 

y,  I  did  Mebim,  atid  drank  whh  htm ; 

ras  -wtTj  merry  and  wdl. 

.  Hoaxers,  m  V  lord,  was  in  the  gaol ;  I 

nay  M  askea,  if  the  iron  cap  was  erer 


[4dB 


proper I 


quaibOD. 


eof? 

<rua  Carttr.  Thxt 

erer  know  t^at  it  i 

),    I  nw  it  ibere  la  Burieigh' 

r  saw  it  uB«d  from  that  time  to  I 

■charge ;  it  bong  up. 

rard.    I  ask  vou,  vrhether  you  nerer 

•  beat  wilh*lioir»-j '    '  * 

t.  1  nerer  mw  him 


bntat: 


Mr.i 


BIr,  Baugh  nrom. 
.  IdeureBfr.  Baugfamajbeesaminad 
bdoDged  to  thig  court  many  yean), 
W  haa  not  aecn  aacb  an  iustniment 
kuruog  felatH  in  the  cheek. 
i.'  I  bawE  seen  lucli  an  iuslniment  naeil 
people  io  the  cheek. 

J<ihit  Grace  awora. 
L  I  deiire  he  may  b«  aiked,  whether 
I,  cap  was  not  ia  the  prison  before  I 

t,  Hy  lord,  I  remember  the  IVIufbal- 
n  abore  a  year  before  Mr.  Acton  knew 
(he  iron  cap  hong  up  there,  and  I  eo- 
be  me  of  it.  There  was  on  act  in  king 
ft  time  for  bnnring  fdons  in  the  cheek ; 
m  naHl  Ibr  that  porposc ;  and  iliat  wa« 
iy  gaol,  liU  withu  ibese  Atc  years  and 

I,  Please  to  ask  iftliere  were  not  irons 
pdr — Grace.  Tlieae  irons  were. 
Vdrd.  Huw  do  ynu  know  ? 
b  i  was  Clerk  of  the  I'apers  Iit^  years. 
I,   Pleaseloukirtliere  was  uot  an  la- 
left. 

k  When  Burleigh  led  the  gaol,  there 
arentory. 

Ja/tn  Botatll  sworn, 
laron  Carter,   Did  yon  see  Bliss  after 

!ll.  I  nw  Bliss  bronghl  in :  I  was  in 
c  at  that  time,  and  Acton  had  him  to 
ward,  and  had  a  surgeon  to  bleed  bim, 
;  for  ointment  to  anoint  him. 
laronCorfrr.    Where  was  he  hurt? 
:U.  It  was  the  small  of  both  h»  l^s. 
laron  Carter.  Did  l>e  complain  of  bnth 
V  hart  wilh  the  fall  of)'  the  house  ? 
■it,    lie  did;  it  was  twenty-four  feet 

Vtrd.  Was  be  dresu^  of  both  bis  legs  ? 

•.a.  Yes. 

Vard.  Whether  the  deceased,  before  he 

U  tbe  tick  itard,    hsd  aay   irons  or 

crews  on  bimf — Bottccll.  No. 

Itroo  Carter.  Did  you  sec  liira  carried 

the  lodge  latolbe^lckwardr 

ctt.  Yea. 

Una  Carter.    What  way  wag  he  car- 

BmmII.  Cmw  the  yard.  

-  xru.  J     3  K 


;  being  very  inl 

he  said,  Yerywell, 


Mr.  Bairn  Carter.  How  long  was  he  in  tbs 
lick  ward  t—Bomell,  Two  months. 

Mr.  Baron  Carter.  Where  was  be  afler- 
wards  F.:-£oia>eU,  In  the  Queen's  ward. 

Hr.  Baron  Cortrr.  Did  be  go  out  of  tbs 
sick  ward  into  tbe  Qneen's  ward  F 

Botaell.  He  went  into  another  ward  beforp,' 

Mr.  Baron  Cor(er.  Was  it  the  Pnmp  ward  f 

BNBwff.  Yes;  hewentinto the Famp ward. 

Hr.  Baron  Carter.  Did  any  one  meddle 
wilh  bim  when  he  went  crocs  tbe  yard  ' 

BotB>ell.  Nobody. 

Acton.  Please  lo  ask,  my  lord,  bow  he  was 
in  liealtb  afler  be  iras  abroad. 

Botaell.    He  lay  three  weeks  next  door  tn 
tbegaolat  tbeDolpbin;  I 
I  asked  bim  bow  he  did ; 
And  he  worked  for  me  in  the  gaol,  i 
then  a  day,  when  he  was  able. 

Mr.  BaroD  Carter,  How  was  ha  when  he 
was  out  of  tbe  gaol  F 

BomtU,  Be  said  he  was  very  well  in  heatlbj 
but  bis  legs  were  not  quite  come  to. 

Hr.  Baioa  Carter,  Did  he  complain  of  ooq 
or  both  \egtt—Bomell.  Of  both. 
Siunutl  DaWttuh  a  worn. 

Hr.  Baron  Carter.  Did  you  se^  Blin  after 
bis  fall  from  the  house  F — DaTienuh.  Yes. 

Mr.  Baron  Carter.  What  slate  of  health 
was  he  in? 

Daveniih.  In  a  good  atate  of  health,  only 
laraeofhisfoot;  Ineier  saw  any  thiagotlicr- 

Mr.  Baron  Carter.  Did  you  see  bim  after 
bo  was  out  of  gaol  F 

Daveniih.  1  did,  and  draok  with  him  at  tbs 
Marshalsea  eate ;  be  was  in  tery  good  health. 

Aclou.    locate  to  ask,  if  be  ever  saw  any 


1  Carter.   You  hear  the  qaestion, 


Datenith.  No,  directly  or  indirectly. 

Mr.  Baron  Carter.  Did  Acton  behave  him- 
self welt  lo  his  prisoners  ? 

Davenish.  He  never  behar  eil  himself  inde^ 
cently  to  any  of  the  prisoners. 

Blr.  Baron  Carter,  Was  bis  behaviour  good 
or  bad? 

I>ttvenuk.  Very  f(ood ;  I  never  saw  an  ill 
action  of  his  in  my  bfe. 

Benjamin  Broain  sworn. 

Mr.  BaroQ  Carter.  What  do  you  say  J 

BroBin.  As  to  what? 

Mr.  Baron  Carter.  As  to  Bliss  ? 

Broan,  I  saw  Bliss  when  he  fell  from  Iha 
house,  and  he  complained  of  both  legs ;  ona 
was  worse  than  the  other. 

Mr.  Baron  Carter.  What  was  Acton'abehf. 
viour  towards  tbe  prisoners  in  general  F 

Brown.  Very  good. 

John  BoKdlertwom. 


Mr.  Baron  C«r(ei 
BlissF 

was  in  the: 


What  do  you  know  of 
ward  with  Um 


499]  S  GEORGE  IL 

■eT€n  months,  and  be  was  Tery  hearty  and 
well. 

Mr.  Baron  Carter^  How  Was  he  after  the 
fall  from  the  house  f 

BowdUr.  He  bad  hurt  one  leg  by  the  fall. 

Mr.  Baron  Carter.  Wbat  waa  the  prisoner's 
general  behaYiour  ? 

BoBfdler.  I  nerer  had  any  thing  bat  rery 
good  u8afl;e  while  I  was  there,  which  waa  three 
years  and  three  months. 

Mr.  Baron  Carter.  .  Was  the  prisoner  there 
all  that  time  ?—Bo»di^.  Yes. 

Hixaheth  Ootling  sworn. 

Mr.  Baron  Carter,  How  was  Bliss  after  his 
fall,  when  he  was  brought  into  prison? 

ikn,  Omling.  He  had  sprained  one  of  his 
ancles,  and  was  carried  into  tne  sick  ward  for 
three  months ;  he  lived  at  my  boose,  and  said, 
he  was  as  hearty  as  ever  in  his  life,  only  as  to 
the  sprain  of  bis  ande. 

Mr,  Baron  Carter,  What  was  the  general 
Jbeharioor  of  the  prisoner? 

Mrs.  Ooiline,  J  never  beard  him  have  an  til 
diaracter,  or  that  he  struck  any  one  in  his  life. 

Robert  Greshttm  sworn. 

Mr.  Baron  Carter.  What  state  of  4ieakh 
was  Bliss  4n  after  he  came  out  of  prison  ? 

Gre$ham.  In  February  17  26,  or  1727,  he 
came  to  lodge  at  my  boose,  with  two  more, 
and  lodged  there  near  three  weeks. 

Bfr.  Baron  Carter^  Praytake  notice  of  the 
qnestion  that  vras  asked.  What  state  of  health 
was  be  in  ? 

Gretham.  He  looked  pale,  but  eat  his  vic- 
tuals well. 

Mr.  Baron  Carter.  Did  he  complain  of  any 
in  usage? 

Greshanu  I  never  beard  him  complain  of  any 
ill  usage. 

Mr.  Baron  Carter.  Did  you  see  bim  after 
he  bad  been  in  the  conntry  ? 

Greiham.  Yes;  he  came  to  my  bouse,  I 
was  not  at  borne  when  be  came,  but  went  up 
after ;  and  he  said  the  weather  was  too  sharp 
Ibr  him,  and  be  caught  cold,  and  could  not 
slay  in  the  country. 

Jane  Lapworth  sworn. 

Mr.  Baron  Carter.  What  are  you  ? 

Mrs.  LapzDorth.  Nurse  of  the  hospital.  I 
was  there  on  the  11th  of  March ;  Bliss  was  in 
there  a  few  days  before. 

Mr.  Baron  Carter.  What  condition  wu 
lie  in? 

Mrs.  Lapworth.  He  was  ill  of  a  fever,  Dr. 
Coatsworth  had  the  care  of  him,  and  he  took 
jpiedicinesfor  a  fever  and  flux. 

Mr.  Baron  Carter.   When  did  be  die  ? 

Mrs.  Lapworth.  I  went  to  the  hospital  on 
the  nth,  and  he  died  on  the  25th  or  26th. 

Mr.  Baron  Carter.  Did  he  say  what  was  the 
oecasion  of  bis  death  ? 

Mrs.  Ldntoorth.  I  beard  hfan  say  no  more, 
ttian  that  ne  had  been  in  the  country,  and 

iMflUaiiagat  wd  an  intamittwg  ftrar. 


qf  William  Achn^ 


[JiOC 


Mr.  Baron  Career.  What  do  you  take  to  b( 
the  cause  of  bis  death  ? 

^  Mrs.  Lapworth.  The  fever  was  the  cause  ol 
bis  death. 

Acton,  I  desire  she  may  be  asked,  wbetba 
after  be  was  laid  out,  there  were  any  bruises  is 
his  head  or  hce. 

Mr.  Baron  Carter.  What  aay  you  to  Ibt 
question,  woman  ? 

Mrs.  Lapworth.  His  head  waa  abaved,  and  1 
saw  no  wound,  bruises,  or  scabs  in  any  pail 
whatsoever. 

Atton.  Please  to  adi  if  his  wife  vraa.there. 

Mrs.  Lapworth.  No. 

Acton,  Did  she  sit  op  with  him  in  bis  ID- 
ness? 

Mrs.  Lapworth.  She  sat  up  one  nkjibt 

Acton.  Please  to  ask,  if  he  voided^  blood  si 
not 

Mr.  Baron  Carter.  Answer  that — ^What  di 
you  hesitate  at? 

Mrs.  Lapworth.  Not  during  my  time,  fnm 
the  11th  to  the  26th  of  March. 

Mr.  Harding,  Did  you  see  no  marks  aboot 
him? — Mn. Lapworth,  No. 

^c^oR.  My  lord,  I'll  rest  this  part  of  ay  d^* 
fence  here,  but  beg  leave  to  call  some  wilwsMS 
to  my  character. 

Mr.  Baron  Carter,  Call  whom  yon  wilL 

Sir  John  Darnell^  Seijeant  at  Law,  and  Jiid||C 
of  the  Marsbalsea  Court,  sworn.  ' 

fiRr  John  Darnell.  My  bird,  I  did  not  bear  ai| 
thing  of  this  affair,  till  I  came  here  to  the  s»i 
sizes.  I  think,  my  lord,  it  is  five  years  sfs 
since  I  had  the  honour  of  having  the  patentnc 
steward  of  the  Palace- court ;  and  it  ;is  tbrei 
years  since  Acton  has  been  in  the  office  that  hi 
now  is  in;  and  in  all  the  time  that  1  hafi 
known  bim,  both  as  turnkey,  and  when  he  cbm 
to  be  deputy,  I  always  thought  him  a  very  bv- 
mane  man.  I  have  often  heard  complaints  si 
th^  prisoners,  and  have  -spent  whole  days  li 
mediate  between  their  keeper  and  then ;  ud 
never  found  but  be  was  very  willing  to  ban 
them  made  easy.  Tbis^  only  I  must  say,  thai 
he  was  careful  of  the  custody  of  them .  in  sn 
whole  observation,  I  neither  thought  binii  croB 
nor  severe. 

Mr.  Ward,  Do  yon  believe  he  was  gnS^  si 
murdering  prisoneis  by  duress? 

Mr.  Baron  Carter.  I  can't  ask  bim  that  qua 
tion. 

Mr.  Marsh,  Was  there  no  applicatkm  by  pe 
tition^to  you,  as  judge  of  the  Court,  from  thi 
deceased? 

Sir  John  Darnell,  No ;  I  never  beard  thi 
he  was  a  prisoner. 

Mr.  Marsh.  Was  there  no  petition  to  yoa  i 
relation  to  six  persons  being  put  in  irona  f 

Sir  John  Darnell.  No. 

Edmond  HaUey^  esq.  awwfe. 

Mr.  Baron  Carter.  SSr,  the  priiOiMr  cril 
yon  to  his  character. 
Halaey.   I  have  known  tiie  priaOiier  cM 

uoe  ho  WM  fU  tha  Blanhd^ 


Jbr  lie  Murder  of  Thomas 

ily.  anil  neter  lieard  an  ill 

'  ihat  be  wu  a  rery  boncit 

min,  and  pajil  ter;  well 

Mr-  Ward.  Do«s  he  keep  a  sliop  ? 
Baitfy.   He  bu^sbreail  anil  beer. 


^ril:  I  liiT«  known  the  prisoner  btller 
Ikalmlve  niualhK,  >nil  I  lhnui{bl  liiin  impro- 
ffbt  the  |i08l  he  wai  in  IroiB  bui  tog  great 

MaloJe,  esq.  one  or  hifl  tnftjeslj's  Justices  or 
Pnt%  tor  llie  uiJ  coumy,  Bworu. 

Mr.  Baraa  Carter.  You  m'lHl  speak  lo  the 
flMnl  dtaracter  nf  the  prisoner. 

I^it.  I  life  ill  the  neigh  bnu  I  hood,  and  most 
CMHDonly  am  applied  to  if  ajiy  abuies  hare 
k(D  MmmiHed  in  Ihe  prison  -,  and  I  nerer 
Wi  hcinl  ao}'  complaint  of  llie  ill  uaag«  of 

tU.  OarOD  Carlcr.  What  ia  hii  general  cha- 
Xa^.  Bia  general  ctiaracter  i*  good, 

Mr.  Bayiey  sworn. 
BtifMy.  The  nrigoner  was  four  yeart  a  ser- 
nH  <nth   iiiy  fallier,  and  his  bchavioLir  was 
«n  mO;  he  was  a  Gcood-naiureil  man. 

at.  Ward.     In  what  capacity  did  he  serve 
jmUiiatf—IIaytty.  As  a  butcher. 
Jahit  JIfarrit  alTBrD  ■ 


t  1  bate  diicDarged  three  hnndreil  poor 
■a,  and  1  never  found  heller  usage  in 
1   afpalthan  in  ihi<. 

'  '  I.  I  doire  be  may  (rive  an  account 
. .  _.I1  «r  nlacn  ike  Strong  Room  is. 
Ifaiii.  I  have  been  of  the  bnitding  trade, 
*rtk>ra  taken  particular  notice  of  the  Strong 
^■i  mad  WMild  choose  it  rather  than  nay 
I  aa  (lie  common  side.  I'liis  rises  leo 
*  aurl'ace,  and  is  hoarded,  and 
liaiU^  tviib  a  tarpaulin;  andlheoibera 

cp. 

ene  to  aak  if  any  wet  could  come 

doD't  believe  any  wet  could  get 

;.  It  bad  Dot  been  built  long  ttbcn 

r.  Ttrrant,  in  the  Borough,  sworn. 


1  4c«rc,  my  lord,  be  may  be  aakcd 
"■ gitoooi. 

■aa  ciirioui  to  see  the  Strong 
k  ia  a  boarded  placu    of  nine  I'eet 

u  Carter,  PiayouHaitf 


Blus.  A.  D.  1729. 

Terrant.  Yei, 

Mr.  Baron  Carler.  Was  it  dry  P 

Terrant.  Ilwas. 

Mr.  Baron  Carttr.  Was  there  any  ilenchf 
I      Tcrranl.  It  i*  very  close. 

Mr.  Mirth.  When  did  you  gntoseeit? 

Terrant.    About  two  maotJis  ago. 

Mr.  iUtiriA.  IVasitovertbecommon-ieiverr 

Trrraiit.    No, 

Mr,  Ward.  Was  it  dry  nealher  when  yoo 
saw  it? — Tcrrajil.  It  was. 

Mr.  2ii^'(ir,of  the  Borough. 

Acton.  1  desire  be  may  acquaint  the  Conrt 
what  is  my  character. 

ToyloT.  In  relation  to  his  characler  lie  ■ 
a  very  honest  man,  aod  a  man  of  bumanily  to 
all  people. 

Acton.  1  desire  be  may  be  asked  aa  la  the 
Strong  Room. 

Toflor.  Tlie  Strong  Room  is  dry  ;  there  is 
a  drain  runs  some  diatanue  from  it,   but  not 

Mr.  Whitaker,  of  the  Bormigh,  sworn. 

Whilaker.  I  have  been  with  Acloo  in  and 
out  nf  gaol,  and  never  uw  liirodoany  Ihinrill. 

Aclua.  Please  to  ask  liim,  my  lord,  about 
the  Strong  Itoom, 

Mr.  Baron  Carter.  Give  Bii  accountof  what 
you  know  of  that. . 

IV/iitaker.  The  Strong  Room  is  dry,  tbcr« 
IS  no  drain  runs  under  il,  but  there  ia  a  dratn 
nboul  five  yards  from  it. 

BIr.  Lamb  sworn. 

Zamb,  I  have  bad  the  happiness  of  know- 
ing him  Ibese  tliree  or  four  years.  He  lisa 
had  a  good  character,  and  was  a  man  of  hu- 
manity. 

Mr.  5yf^a//,  Apothecary,  sworn. 

Mr.  paron  Carter.  What  was  the  prisoner'a 
character  f 

Sj/dall.  Having  had  recourse  to  Ihe  gaol, 
the  prisooera  tnid  me  he  bad  a  very  good  cha' 

Mr.  Sroivii  sworn. 
Mr.  Baron  Carter.     What  character  had 
the  prisoner  F 

hrown.     I  believe  01  good  U  any  uaD'a 

Mr.  Httrruon  sworn. 

Harriioa.  1  hare  known  his  character  IbcM 
three  or  four  years,  and  he  is  a  very  modest 
man,  and  of  a  good  behaviour. 

Acton.  My  lord,  I  humbly  apprehend  I 
have  called  a  sufiicieni  number  of  witne«sea  to 
my  character,  and  will  rest  my  delence  heca. 
1  appraheiid  it  can't  be  conceived,  that  any 
man  can  be  guilly  of  stKh  inbuoianiiy  aa  is 
hrre  laid  to  my  charge,  aod  to  live  a  year, 

Mr,  Baron  Carter.  You  must  not  iay  thai ; 
Tor  Iheii  Ihetc  could  have  been  no  room  for  tlia 
prosecution. 

Atlm.    By  kll  circunuUDCM,  ay  Igrd,  Ihit 


603]  3  GEORGE  U. 

man  mast  certainhrdie  a  Dataral  death ;  and  I 
hambly  apprehend,  that  they  iniut  be  mistaken 
in  point  or  time,  for  that  no  irons  were  used 
ilie  second  time  of  his  attempting  to  escape. 

Mr.  Manh,  1  would  not  be  wanting  to  my 
clients,  and  yet  would  presenre  all  rale  and 
order,  and  must  beg  leare  to  obserY^*— 

Serj.  Bayne$.  I  naTe  been  concerned  in  se- 
Teral  criminal  prosecutions,  and  ne? er  knew  it 
admitted. 

Mr.  Strange.  The  prisoner  is  not  allowed 
coansel  to  speak  for  him  in  his  defence ;  there- 
fore the  king's  counsel  have  no  right  of  reply. 
It  was  not  allowed  in  Hoffgins's  Trial. 

Mr.  Baron  Carter.  In  Huffgins's  Trial  Mr. 
Jostice  Page  and  myself  woola  not  allow  it 

Mr.  Bvton  Carter.  Gentlemen  of  the  jury, 
tlia  prisoner  stands  indicted  for  the  murder  of 
Thomas  filiss. 

To  prove  this,  a  great  number  of  witnesses 
have  been  called  on  the  part  of  the  king,  not 
less  than  sixteen,  to  make  good  the  charge. 

The  first  thing  necessary  to  be  proved  is, 
that  the  prisoner  at  the  bar  had  the  care  and 
custody  of  the  prisoners;  for  which  purpose 
John  Wilson  was  called,  who  proved  that  Dar- 
by was  keeper,  and  the  prisoner  Acton  turnkey 
amd  servant,  and  acted  under  Darby.  That 
^t  stands  plain,  that  the  prisoner  at  the  bar 
liad  the  tare  and  custody  of  tlie  prisoners ;  and 
if  he  has  behaved  in  such  a  manner  to  prisoners 
as  death  ensues,  he  must  answer  for  it.  It  is 
said,  that  every  prisoner  must  be  treated  with 
humanity,  and  the  law  is  very  tender,  and  di- 
rects that  no  prisoner  shall  die  in  gaol,  but  the 
coroner's  inquest  must  sit  upon  his  body ;  and 
the  reason  of  that  is,  that  he  should  not  be 
killed  by  the  duress  of  the  gaol. 

The  question  stands  singly,  whether  upon 
what  you  have  heard,  there  has  been  such  a 
behaviour  of  the  prisoner  to  Bliss,  tliat  it  has 
been  the  occasion  of  his  death.  If  that  is  so, 
then  you  will  find  the  prisoner  guilty. 

Wilson  spoke  much  of  the  escape ;  he  talked 
about  it,  but  did  not  know  when  he  escaped ; 
he  only  goes  to  that.  He  sajs,  that  he  never 
did  see  Acton  beat  him ;  but  that  he  was  well  to 
some,  and  beat  others,  which  came  from  the 
prisoner's  own  question ;  therefore  I  was  put 
to  ask  it,  and  I  have  told  you  the  answer. 

The  next  vritness,  the  wife  of  the  unfortu- 
nate man,  says,  that  her  husband  was  there  for 
a  small  sum  of  money,  but  that  is  not  material ; 
lier  husband  was  almost  laknisbed  and  starved, 
and  therefore  attempted  a  second  time  to  escaiie. 
The  means  he  used  to  escape  is  not  material) 
that  is  not  what  you  are  to  rely  upon.  She 
says,  there  was  some  assistance  given  him  ;  a 
rojK)  was  provided,  and  he  unfortunately  mis* 
carried  in  the  attempt;  and  ho  was  brought 
back  into  the  prison  again,  and  she  saw  him 
beaten  by  Nichols,  Page,  and  Rogers;  and 
^bat  is  remarkable,  she  saw  the  prisoner  beat 
bim  with  a  bnU's  pizsle,.and  the  end  of  a  rope; 
that  he  cried  oat,  it'he  had  any  mercy,  he  would 
faavemMejapoBhiBi.    He  then  fut  hin  into 


Trial  of  WiUkmActtm^ 


[5H 


the  S^g  Itooro.     As  to  the  mftare  ef  the 
place,  that  is  a  consideratkMi  I  shall  take  np  by 
and  bye.     She  says,  she  taw  htm  with  an  ia» 
stntment  of  iron  on  bis  head ;   that  the  hkMi 
came  out  of  his  month,  and  out  of  hia  thnali  ; 
that  he  had  thumb-screwa  on  his  thtunhsy  mk 
sheers  on  his  legs ;  that  she  saw  bim  to^ 
down,  and  saw  the  prisoner  on  top  of  hia  !§• 
veral  times.    After  he  bad  treated  him  in  tUi 
manner,  be  began  to  relent,  thmking  he  iniighl 
die,  and  it  was  time  for  him  to  tiuce  ceie.ef 
him,  and  sent  him  a  piece  of  meat.    She  saj^ 
his  legs  were  swollen,  his  body  ttib  bwoBtu  | 
she  got  bim  a  pair  of  stocl'Jngs,  but  lue  kfi 
were  so  swollen,  she  could  not  get  then  s^ 
After  this,  when  he  was  removed  to  another 
ward,  she  said,  heerew  something  bettor.  Tfait 
when  he  was  discharged,  he  used  hk  cadia- 
vours  to  get  work ;  (gentlesaen,  yoa  did  eh^ 
serve  the  qoestun  came  from  the  prisoner)  hot 
though  he  was  with  the  man  that  be  traslBi' 
with,  he  got  another,  he  could  not  woilci  Ui 
legs  were  swollen,  and  there  were  marks  m 
them.     All  the  time,  to  the  tim^he  was  pel 
into  tlie  Strong  Room,  be  constantly  esm- 
piained  of  obe  breast  and  his  side ;   and  sAw* 
wards,  when  he  became  so  bad  that  be  eseld 
not  work,  he  was  put  into  the  hospital.    Oss 
thing  is  ^ery  observable,  that  all  his  disoonrw 
was,  when  any  one  asked  him  eoncemiflg  his 
usage,  that  he  said,  he  did  believe  that  he 
should  never  recover  it,  but  wouMlay  hudsalh 
to  Acton ;  this  evidence  was  given  oy  the  wi^ 
dow ;   she  was  asked  by  a  question  from  the 
prisoner  whether  she  told  her  sister  of  thb? 
She  said,  No :   did  you  tell  your  mother.  No; 
her  mother  and  she  were  not  upon  good  terM^ 
and  she  never  was  with  her  but  a  very  shsil 
time.    Then  she  was  asked,  if  Newknd  dil 
not  &«ud  for  her ;  she  said,  Yes ;  it  was  tboeehl 
that  he  was  a  very  considerable  man ;  and  mi 
she  was  asked,  wiiat  did  he  say  to  yuu,  he  ssiii 
he  would  have  her  husband  done  right  tow  IlMft 
there  was  a  question  asked  of  Hester  Long, Si 
to  money,  slie  (Bliss)  baid  she  was  to  hsvcr 
and  Bliss  says,  that  she  never  did  say  any  i 
thing. 

Susannah  Dodd ;  she  gives  yon  an 
that  she  has  seen  Bliss  iu  irons  in  the  Slrsng 
lloom ;  that  he  was  treated  crueUy  ;  that  he 
had  then  screws  upon  his  thumba.  There  itis 
a  very  particular  circumstance,  that  he  desired 
her  to  chew  bis  meat  for  him,  for  thatiie  ooald 
not  do  it  himself,  by  reason  of  having  the  scoQ- 
cap  on  ;  that  she  carried  him  a  three-farthia||f 
mug  of  aie,  and  the  screws  were  unoe  ha 
thumbs,  therefore  she  was  forced  to  ^ivehun 
the  drink,  as  he  could  not  put  the  mog  to  his 
mouth  to  drink,  because  of  his  thumbs  hdmg 
confined ;  that  she  saw  fettens,  very  laigeonei» 
on  his  legs,  and  thei'c  was  a  pair  of  sheers  oanb 
his  legs;  that  he  continued  there  two  dij|ev 
and  Sie  saw  him  alter, .  and  saw  his  timi 
bleed ;  and  tlie  Strong  Room  was  a 
room,  and  leaded,  and  tisat  she  tliiaksit  i 
imhealthful  room. 

Bmlcr|.ihegifetdndccsBatef  hkittiidjr 


Jar  ike  MurJbr  tfTkoMt  SH 


A«  D*  17991 


ISM 


iaHBTOv,  that  fbetsw  Ike  pri- 
him  (mm)  with  a  boiri-pttsle,  and 
SiBiwls  was  beatbif  Inn,  she  nw 
llw  deeeaied  down,  aod  nw  Acton 

■  kkn  thfee  tunat^  and  ihtwed  the 
if  iRaatthat  he  eoaiplaiDed  ef,  and 
ndh  waa  owing  to  neh  vmge.  It 
fllhr  and  itomob  thai  be  •tamped 
I  ne  wasvenrill  when  be  did  it; 
Iqpi  weredwdUed ;  but  that  he  «nd, 
da  Tenr  wall  hot  ftrthepainln  lif 
I  aaja^  UMl  the  StoMig  Room  was  not 
I  any  hnnnui  cnatore ;  that  be  went 
lagwt,  and  eaine  abont  Cbritimaa. 
km  ariud  aa  tohia  ehainelert  ihe 
I  good  and  bad ;  and  eayt,  that  the 
ft  waaacanphdiitaMideithat  Aoton 
tthorofMadeith. 

M^Bneon  tHten  no  notice  or,  flae  bw.^ 
Ifia ;  she  agrees  as  to  the  fall  from 
\  and  she  says,  that  NitfbollM,  Pftge, 
BheldBiiMtiU  Aeion  beat  him  i^ 
mle;  that  hewas.earriedtothetiek 
e  was  asked  how  long  they  were 
I  in  thfe  manner;  the  said,  half  a 
an  honr.  Repatatioo  is  not  so  ma* 
I  nMdaose  of;  yon  are  to  codrider  if 
m  done* 

8t  witnem  was  one  James  Abbot; 
asr(l  willtske  it  in  his  own  words) 
■I  as  dmbbed,  that  he  never  saw  any 
bhad  in  hiali^  with  aropeand  boll's- 
fasays,  be  did  not  see  Acton  there, 
iiavm  him  with  it;  and  be  agrees 
voeTbebavkHir  of  Acton.  Jf  the  act 
litted,  he  might  be  there,  and  yet 
seen  by  him.  He  was  asked,  as  to 
's)  character;  and  he  saii},  he  saw 
nany. 

r  Brandon  says^  that  his  legs  were 
lien,  and  the  skin  was  broke ;  that  he 
arks  of  the  irons.  As  to  the  fidi 
KHise,  and  the  straining  of  one  of  his 
HOWS  aothb|f  of  it  He  swears  di- 
be  skins  bemg  broke  of  both  legs ; 
re,  that  he  oftien  talked  with  fitirn, 
id,  that  he  did  believe  the  iniories  he 
red  from  the  prisoner  wonra  be  the 
im,  and  he  gave  an  atcooont,  that  the 
nd  his  legs  were  circular:  that  it 
win^  to  the  irons,  and  not  to  arise 
My  IS  the  observation  the  conosel 
t  yon  will  be  governed  by  seitoe  and 

Lenwood ;  shesays,  that  she  M#  him 
ly  aod  that  his  legs  were  so  bad,  that 
rare  forced  to  be  pulled  off ;  that  the 
ito  his  legs;  andinto  his  ancle,  they 
siy  deep ;  that  the  skin  was  broke, 
were  sore;  this  she  saw  in  the  Ml 
mi  he  was  m  so  terrible  a  condi^ 
paverty,  that  be  bad  nothing-to  help 
ststhes,  bnt  a  piece  of  UanM:  she 
im,  and  carried  him  som^  of  her  hns- 
Ihsa.    Risremarkslble,  that  she  car- 

■  psfr  of  stockings,  and  they  wonM 
hiaMldnet|^thm«ii«   MM'digrii^ 


they  warn  bar  bndNnMFs,  bad  thillier  hnsbandt 
was  not  a  very  btffe  man. 

Peter  Poraraee ;  he  says^  that  hb  legs  wcrd 
resy  moeb  swelled^  and  be  taek  it  to  be  the 
marks  of  the  irans ;  be  saw  his  thimibs  very 
blacky  which  betook  to  ba  bnit  by  the  thnmh* 


Coomius;  be  aaya»  that  his  legs  were  ?eiy 
moob  awalled,  and  apprehends  it  to  be  occa* 
sione^by  the  irons }  compares itto  the  fetlodt 
ofa  banecaltvith  a  dog^  that  the  Sma^ 
Beam  Wasa  place  of  tenlir»  to  beep  them  (Vote 
being  dMArderly;  and  that  be  b«ud  Acton  arr 
to  Bliss,  be  tboAght  ha  had  gifea  bhn  Cndugtti 
bnt  ha  waaM  give  him  more; 

Edward  llnmy  sayk  tbil  ba  Mfer  saw  wnf 
tbbig  en  mocb  beaten  In  hie  whole  Mb;  that 
hlslaga#era  Mack,  and  Uneyibd  green.  Tbtf- 
conasel  duebad  yao^  gatoilwiiBB^  to  take  notiee 
what  tMs  witnem  sa&l,  that  h«  complauied  hf 
hiasMa^  whkdi  had  baen  bnrt  ^  the  bmiMi  he 
had  reeeived  from  Acton*        -   ■ 

HabMisays,  that  hcTwenl  toHr.  Daiby  npda 
aaartienlareocasion;  bnt  I  can't  mention  to  yeai 
wnst  he  smd,  beosnie  it  is  mA  evidence;  hli 
oonfinia  Ibft  etfaers  in  amna  meainre  that  ha 
had  rather  bai^a  larger  hronsi  that  his  legt 
were  ao  avfiAcd^,  diat  bi^  conld  scarce  see  thd 
pair  cf  fetlen  on  tfad  sidOi  because  the  swelling 


Tbd  Ifing^coonselcdled  three  witnesses,  aa 
to  tbe  deceased  woildng  at  floothgato.  Cowldy 
says,  be  wanted  woi^  and  he  was  willing  to 
let  Um  have  it  The  man  went  down,  and 
csma  no  again/  and  the  second  day  he  treated 
hhn  with  motton  hrotiiy'  5ec.  but  this  is  not  mif  • 
terial.  Bnt  he  says,  he  complained  of  bis  side, 
and  idwaya  said  be  had  received  it  from  the 
prisoner  at  the  bar ;  ha  sahl»  there  were  hoM 
in  his  legs,  and  that  Aeton  wai  the  authdt  of 
bv  dealn. 

Oowlay,  the  yoangerj  skya  th6  same ;  that 
they  treated  him  Kke  an  old  acquaintance,  and 
provided  him  with  broth ;  that  the  man  was  io 
sick  he  could  not  work ;  that  bis  legs  were 
swollen  black  and  blue,  and  be  complatned  of 
his  breast ;  both  shewed  with  their  hands  how, 
by  pointing  to  their  own  breast,  and  said,  he 
points  to  bis;  and  that  Bliss  said,  if  he  died^ 
he  wooM  lay  his  death  to  that  rogoe  Acton. 

Pftrker  says,  that  he  was  to  be  his  comrade, 
to  be  empkyed  in  eome  task  work ;  thatthoo^bf 
thrf  lam  him  by  the  fire,  his  ^sicknem  m- 
creased,  and  they  broo^t  him  to  town  ita  a 
carl^  and  ril  his  confphdnt  was,  throogb  Ai 
injury  he  had  received  from  Acton ;  that  bii 
lege  were  iwdlen. 

Therefore,  upon  the  whoje^  wbat  craltt  yov 
wiU  give  to  the  witnesses  fbr  tba'  Uggi  fi  Ml 
your  own  breasts. 

Now,  ai  you  have  gr^jpm  ftftnlbtt  «a 


what  has  been  said  •gunf^m,  w^  jf^y^ 
notice  of  what  has  been  leU  wrfib  awn  pmt , 
if  it  is  contradictor^^  l2«»J«i^«sy  |^^,^ 
that ;  yon  ^^J^?g°.*°gy* n*^    " 


SOT]  S  GEORGE  IL 

Sainael  Bollock ;  he  says,  that  he  saw  Bliss 
broug^ht  in  aAer  his  fall ;  that  he  had  hurt  his 
mncle ;  but  he  savr  no  barbarity  used ;  aud  saw 
him  carried  into  the  sick- ward.    TheDezt  is, 

Robert  Holmes ;  he  says,  That  there  were 
no  irons,  only  on  one  le^;  and  Acton  always 
used  him  well,  and  if  it  had  not  been  K>r 
ilctoii,  he  would  have  perished.  This  cha* 
racter  differs  from  what  has  been  laid  before 
you.  fie  tpive  an  account  that  he  can(pht  a 
sad  cold,  which  was  the  occasion  of  his  death ; 
he  says,  that  he  never  saw  him  in  the  Strong 
lioom :  and  that  as  to  his  health,  it  was  very 
good  the  whole  time.  This  is  their  opinion  of 
Bliss ;  these  people  would  make  you  believe 
that  he  was  perfectly  well,  and  hail  received  no 
injuries  from  Acton.  He  savs,  further,  that  he 
met  the  woman  on  Saffron* n ill,  he  asked  how 
her  husband  did  ?  When  he  asked  her,  she  said, 
she  thanked  God  he  was  dead,  ^the  woman  was 
glad  10  get  shut  of  him)  and  said  he  died  of  an 
ague  and  fever. 

Chapman  saw  him  afler  the  fall.  The  first 
place  he  begins  with,  is  the  sick  ward,  and  that 
Acton  sent  doctor  Draper,  and  that  nothing  was 
done  to  him  in  the  ^ard.  The  yard  is  the 
place  that  the  principal  evidences  speak  to ; 
that  the  prisoner  was  humane  to  him,  that  he 
had  so  great  compassion  for  him,  that  he  al- 
lowed bim  two-pence  halfpenny  or  three-pence 
m  day,  till  he  was  better ;  therefore,  he  would 
have  you  to  believe  he  was  a  very  humane 
man,  and  that  he  could  not  use  the  man  as 
others  say  the  prisoner  did.  He  says,  that  he 
was  removed  to  the  pump-ward,  and  was  con- 
stable there,  and  came  to  the  tap ;  that  he  saw 
him  at  Gresham's  very  well,  and  saw  him 
afler  he  came  from  Soutbffate  very  well.  It  is 
Tery  remarkable  he  should  never  complain  of 
Acton.  He  savs,  that  he  looked  upon  it  that 
the  occasion  of  his  death  was,  from  the  cold 
he  caught  at  Southgate;  that^the  Strong  Room 
was  not  so  terrible  a  place ;  tliat  it  was  a  dry 
room,  though  a  Strong  Room ;  that  the  pri- 
soners were  so  far  from  thinking  this  room  a 
terror,  that  they  chose  it ;  that  he  ooropUuned 
only  of  one  leg,  which  differs  from  the  other 
witnesses.    All  were  conversant  with  it. 

Thomas  Fletcher  you  will  find  was  a  sur- 
geon ;  he  says,  one  leg  was  very  much  swollen, 
from  the  fall  he  got ;  he  said  it  was  a  tumour, 
in  his  way  of  cUaiect ;  he  went  home,  and 
brought  proper  things,  got  some  ointment  and 
a  sear-Cloth.  He  says,  that  Bliss  told  him  be 
should  never  have  been  discharged  but  for 
Acton. 

Thomas  Whitfield ;  he  tells  you  Mrs.  Bliss 
told  him,  that  .her  husband  had  ffot  cold  in 
the  country,  and  had  a  fever  and  ague.  He 
was  asked  in  relation  to  the  Strong  Room, 
which  he  said  was  the  best  place  on  the  com- 
mon side ;  that  the  prisoner  had  a  good  cha- 
racter, and  gave  victuals  to^  many  <n  the  pri- 
soners that  wanted. 

Robert  Walter  says,  he  was  not  privy  to  any 
ill  usage  Bliss  received  from  the  prisoner; 

thai  iw  iralkad  well,  and  tslM  hwtUyi  Mid 


Trial  of  WiJUam  Adofit 


[508 


complained  of  nothing,  only  one  leg,  which  he 
apprehended  he  had  hurt  by  the  fiUl.  He 
spoke  in  praise  of  the  prisoner  for  his  homa- 
nity. 

The  next  is  John  Chope ;  he  says.  Bliss  was 
well  in  the  February  before  be  died ;  he  cosh 
plained  of  nothing  of  the  prisoner  ;  that  ater 
be  was  discharged,  he  says,  he  went  to  Soolh- 
gate ;  that  became  from  thenoe,  and  slier  thst 
conaplained  of  a  great  cold. 

William  Bolland  says,  that  he  never  saw  the 
prisoner  misuse  Bliss;  that  he  consptaiacd 
only  of  his  leg ;  that  he  eat  and  drank  well ; 
that  he  saw  him  afler  he  was  disohaiged, 
and  be  said,  that  the  prisoner  had  besn  civil 
and  kind  to  him. 

Westbury  says,  tliat  he  complained  of  ooa 
leg  only  ;  that  he  went  into  the  country  and 
catched  cold,  and  that  was  the  occssion  of  his 
illness. 

Fandy ;  he  says,  that  he  lay  with  him  in  tht 
Queen's  ward  several  months.  I  don't  apprs- 
hend  he  was  in  the  Queen's  ward,  but  he  did 
prove  him  to  be  there.  I  will  tell  you  how 
that  matter  was :  This  man  speaks  to  a  eso^ 
sidcrable  length  of  time  after  his  cscspiag; 
the  time  is  not  settled,  both  are  at  a  loss  Sft 
the  one  side  and  the  other ;  it  should  have  been 
reduced  to  a  certainty,  because  the  indidBeot 
is  confined  to  the  second  escape.  He  says  one 
leg  was  bruised  only,  the  other  swelled ;  tlMt 
he  liked  to  drink,  and  did  not  go  to  Iwd,  and 
sat  up,  and  that  was  the  reason  of  it ;  that  he 
saw  Bliss  in  the  hospital,  and  he  said  to  hia 
that  he  had  catched  cold  ;  that  he  was  at  woik 
in  the  country,  and  that  he  was  brought  into 
that  condition  hy  an  ague  and  fever. 

Hester  Long  has  given  a  long  evidence; 
I  hope  yovL  have  taken  it,  because  it  is  a  very 
long  evidence,  and  affects  the  character  of 
Bliss.  She  says,  that  slie  saw  him  several 
times,  and  that  be  was  as  well  as  ever  he  was 
in  his  life ;  that  he  was  to  go  to  his  master  for 
7«.  6d.  the  profits  of  his  lal^ur ;  therefore  he 
was  fit  to  work,  and  had  obtained  that  liberty 
from  Acton.  It  seemed  she  had  some  disoourso 
with  Mrs.  Bliss,  and  said  she  was  ber  sister-in- 
law,  and  she  desired  leave  to  lodge  with  her.  After 
the  death  of  her  husband,  she  never  heard  any 
complaint  made  about  Bliss:  that  four  months 
ago,  a  gentleman  sent  to  her  f  Bliss)  to  swear 
against  Acton ;  that  Long  was  there,  and  Anntt 
Bliss's  brother,  and  he  cautioned  her  not  t» 
concern  herself;  that  a  man's  life  ought  to  be 
taken  care  of  with  the  utmost  caution ;  thai 
she  was  to  leave  her  master,  one  Jennings,  to 
go  to  another  place ;  and  Jennings  said,  that 
she  should  not  make  it  up  for  forty  or  fito* 
pounds.  Her  brother  said,  that  if  she  wou» 
make  it  up  with  Acton,  she  might  have  forty 
or  fifty  shdiings.  Bliss  denies  that  she  had 
any  sum,  that  she  was  never  offered  fortv  or 
fifty  pounds  to  swear,  and  her  master  said  shw 
should  not  take  any,  and  advised  her,  that  if 
they  would  give  a  hundred  pounds  not  to  take 
it,  to  hinder  the  prosecntwn.  She  (Bliss)  says^ 
that  JeBBtfgt  lot  lier  baTO  two  or  thns  gu^ 


A,]>.mt. 


t51t 


V^^w  the  sick  nard, 
^^7 of  bU  ancle. 
^71  be  luclgeil  at  his 
^^^U  due  barged,  and 
^T!  had  got  from  the 

Ine;  tihe  U  a  fer; 
she  MjB,  ibat  he  had 
tave  a  descn|ition  of 
it.  Me,  poor  man, 
nedlcliiea  a|iplied  by 
ja,  she  ap[)rcbeaded 
iirouebt  bim  into  a 
rkable,  she  laid  him 


;atiB,  or  any  tbing 

credit  Ibis  will  re- 
but this  eridGDce 
bare  giien  you  a 
ry  glad  you  haTe 


I  tbunMu  of  tba  primMT,  bw  wit- 

,  Im  ia  K MIT  hanuM nu ;  udif 

bAn  than  dowo,  tney  m  in  nmnber  mf- 

-Ut  IM. 

My  brother  Dunoll  Mya,  be  bu  ben 
siensird  er  lb*  FebM  wnit  abont  Atb  yeari^ 
end  nera  be>r4  nj  wmpltiot  agunat  tha 
prisoDw;  tbatttbtbne  yean aiaee Acton  ha* 
t>een  iD  tbc  office  be  noir  ia  id,  and  in  all  that 
limt' liBtbaaafat  hima  Tory  hnnaDs  naD,  and 
III  I' I  iboiwht  him  cniel  orKreie^ 

Mr,  BiMey  laya,  ha  waa  a  rery  bnimna 

.  Syall,  Ur.  Udt,  Ur,  Bayaey,  give  bin 
1  cry  odod  character. 

Mr.  lIoRiaOffl  iaye,  Ibat  tba  other  rooma 
'ere  under  gromMl,  and  tb«  Sttoog:  Room  waa 
-    iiBbeaaboreptwaiadry place, and corer- 

>  IT  tba  top  with  lead. 
:>Ii-T«ir>BtHiVB,thathe  tbuika  tfaeBtrane, 
ItooLiV  a  rery  dry  place,   and  girea  Acton 
n  |.">i>tl  cbaracter. 

'Hkh,  gentlenMn,  Hr,  Taylor  nyi,  he  waaa 
I'l^iii'iffaDmaDity  ;  and  that  there  waa  no  drain 
iji^rilieStroagBoois. 

.tlr.Bowdl^  girea  him  asood  character; 
and  tbor  or  fi*o  Other  wilueiiTiaTe  been  called 


the  Srai^  RooB  I  don'tflnd  moefa  nidenes 
to  affgel  Ibo  priiooer  u  to  that.     Hmto  ii 


pnaoncr,  la  wl 
Upon  tba  wbolA,  if  yon  ar« 
Isfied  that  tba  priaoaai  '     -••"-••- 
manner  aa  tbc  Uog^  wi 
oTbiadi 
led  bi 


ia  death,  and  tlut  lie  had 


ill,  and  beat  him,  yon  will  And  him. 
((I'l.ivi  uuiif  Im  wainotaotrcated.anditwaa 
not  i1i«occaaion  of  hii  death,  you  will  find  bim 
not  gidlty. 

TJiere  are  great  oantradictiona  in  the  eti- 
dcDce,  I  aearce  ever  Iteard  ao  great  It  ia  a 
mmer  of  great  coMitqnenoe,  ana  dwBTTai  your 
nuLtnre  cwuideration.  . 

Tben  one  waa  awom  ta  bep  tha  Jury,  atid- 
they  willidraw,  and  Baroa  CaKar  went  ta 
dinner ;  and  when  be  reUraad,  they  gave  tlieir 

CI.  ef  Arraiffa.  Gnllemen,  are  yea  all 
■grreediDyourverdictr— Ommi,   Yea, 

Ci.cfAtT.  Wboahalliayfor  jon! 

Omruf.  Foreosan. 

CI.  ofJrr.  William  Acton,  bold  if  ihr' 
baud.  (Which  be  did.)  I<ook  npenlbairr- 
mner  ;  how  Mv'yon;  leheOnillT  oftbeHoajr 
and  niiuder  wb««of  he  atandl  iu^ibW. «  Met 
GuitlyF 


»11} 


S  GEOBGE  II. 


TrUiifWmamAclim, 


[SU 


483.  The  Trial  of  William  Acton,  for  the  Murder  of  John  Brom- 
field,  at  Kingston-upon-Thames,  in  Surrey,  before  the  Hon. 
Mr.  Baron  Carter,  August  2:  3  Gi:oitGE  II.  a.  d.  1739.* 


Saturday,  Auguit3, 1739. 


CI.  i^Arr.  You  good  nieo,  that  ve  im- 
ptandled  to  enquire,  &c.  uiawer  U>  your  DUae% 
and  uxeyonr  boes. 

CI,  ofArr.  William  AdOD,  bold  up  TOur 
hanJ.  (Which  be  did.)  Yon  stand  mdicted 
bv  the  Dsmeof  Wiitiam  ActOD,&C. 
'CLofArr.  HowMTeittfauo, William  Adon, 
■rttbou  Guiltj  grtbeieloojand  murder  where- 
of tbouataadest  indicted,  or  Not  Guilty  F 

Acloa.  Not  Goiity. 

CI.  i^Arr.  Culprit,  how  will  thou  be  tried  F 

Acton.    By  God  and  my  country. 

C/.  e^  Att,  God  pend  you  a  good  delifer- 
anob 

rally  arraigfned  upon  two 
one  tor  the  murder  of  Ro- 
bert NewtoD,  and  the  oiber  for  ihe  murder  of 
Jamei  Thomp*on,  to  which  he  lererally  plead- 
ed Not  Guilty,  and  put  himself  upon  God  and 
hii  coaotry  in  maonei  aforeaaiJ. 

Then  procIamatipD  was  made  for  iDforma- 
tion. 

CI.  t^Arr.  Thou  the  prisoner  at  the  bar, 
tiiosc  men  that  thou  slialt  h^ar  called  are  to 
pa*i  between  our  ■orereiiia  lord  tlic  kinr  aaJ 
lbee,upanthetnaloftliylireBDildealb;  thcre- 
fbre  if  tliou  wilt  challenf^e  lliem,  or  any  o[ 
them,  your  time  to  speak  ia  as  they  cume  to  the 
book  to  be  sworn,  beforo  they  are  cwom. 

Then  the  tame  pauoel  was  {Toinc  lo  be  called 
orer,  which  had  tried  him  tbedaybelore. 

Upon  wbioh  Hr.  Paxton,  the  solicitor  fbrthe 
CTOWD,  three  WTeral  times  inaitted  uiion  a  new 
fUuel, 

Ur,  Stramge.  The  other  pannel  cannot 
write;  Ihet^are  men  of  abiliiyajidexperieoce. 

Then  the  pannel  was  called  orer. 

Mr.  nfard.  WedtallonKeRubertParkburst, 


fiduit  was  lut  read.) 

Jrar. 

Thonai  CMe,  George  Wadbrook, 

Milei  Puote,  Thomas  Banillurd, 

Vuicent  Hollit,  WiUiom  Bmwue, 

Cbariea  Bnckland,  John  Walter, 

William  Ooawell,  Robert  Patten, 

John  SiffitH,  James  Wellbeloved. 

*  Sm  the  ptceding  and  bUowii^  CaMt, 


CI.  of  Arr.  William  Acton,  bold  up  thy 
band.    (Which  he  did.) 

Mr.  Strange.  My  lord,  you  will  pleaae  to  ad- 
mit him  to  the  other  bar. 

Hr.  BaroD  Carter.   It  shall  be  allowed. 

CL  of  Arr.  You  of  the  jury,  look  upon  (he 
prisoner,  and  hearken  lo  hia  chargv.  He  ataads 
indicted  by  the  name  of  William  Aetun,  jcc. 
Cprout  in  the  indictment  mutatii  mutaniSt.) 

Acton.  1  desire  it  may  be  read  in  Latin. 

Mr.  Baion  Carter.    You  had  tbe  i 
yesterday  read  in  Latin,  you  found  it  ni 
(age  to  yon ;  if  yea  purooae  any  adrantage  by 
it,  you  may  have  it  read.t 

Acton.  Idesiremy counselmay hearitread. 

Mr.  Baron  Carter.  Let  it  be  read.  (Which 
waa  accordingly  done,} 

Ur.  Harding,  My  lord,  and  you  gentleBCa 
of  the  Jury,  1  am  counsel  for  the  kinr.  The 
prisoner  al  tbe  bar  stands  inilicled  for  Rm  mur- 
der of  John  Bromfield.  The  indictment  sell 
forth.  Thai 

Wb  will  call  our  witnesses,  aud  dont  doaU; 
if  we  proTc  him  guilty,  hut  you    will  fiod 

Mr,  Ward.  Oentlemen'ofthe  jury,  you  sM 
what  the  nature  of  the  indictment  is  ;  it  it  fir 
the  inhuman  and  barbaroua  treatment  of  Joba 
BromReld, of  which  he  died.  If  wasbewyoa, 
that  that  was  the  real  and  true  causo  of  his 
death,  it  cannot  be  doubted  but  that  be  put  him 
to  death.  Gaolers  oughLto  treat  their  prisM>BS 
with  humanity ;  they  are  to  conAue  them  in  a 
place  of  a  secure  custody,  but  not  to  treat  ihea 
mhuraanly. 

On  the  first  of  March,  1725,  captain  Brom- 
field becams  a  prisoner  in  tbe  Harshalsea  pri- 
son, gentlemen  ;  he  fell  under  the  displeaaora 
-if  Ai^on,  tbe  prisoner  at  the  bar,  and  in  order 
o  satisfy  his  resentment,  he  bmt  him  inhu- 
manly and  unmercifully,  that  Ihc  marka  and 
strokes  of  tbe  blows  weri.*  Tislble  after  his  death. 
Nut  satisfied  with  this,  lie  put  him  in  double 

,  which  the  man  cuuld  scarce  well  bear; 
and  put  him  into  a  hole  which  is  damp,  dirty, 
and  strait ;  ao  that  he  could  not  stand  tiprighl, 
or  lie  at  length  :  he  was  kept  there  for  aereral 
days.  The  prisoner  then  began  to  rcleat,  and 
took  him  into  another  place,  but  di^  nut  taka 
the  iruna  off  at  that  time ;  but  tbe  nian  baring 
contracted  an  ill  sUie  of  health,  uben  the  pn- 

:  thought  it  would  be  the  occasion  of  bii 
death,  be  then  took  off  the  irons  ;  hul  that  waa 
late,  for  he  soon  died.  This,  gentJmen, 
will  shew  you  the  reason  why,  cunsequenllri 
the  coroner's  iuquesl  should  have  aat  upou  IM 
iNHty  ofcaplain  Broni6eld;  but  no  coroner'*  io- 
fuest  did  ait ;  and  the  reasoo  is  plain  that  il  did 

t  Sac  Ihe  pnceding  CiM^ 


US] 


fir  the  Murder  of  John  Srom/leU. 


A.  D.  1729. 


Ml,  for  if  it  bad,  they  would  haTo  seen  that  he 
hid  come  to  his  death  bj  a  Tioleot  uccasion. 
If  we  prore  this  to  be  the  case,  gentiemen,  von 
«iU  do  jostioe  to  your  country,  and  find  him 


t. 


e  will  call  our  witnenes  to  prove  the  facts. 
William  Wheeler  sworn. 

Mr.  Ward.  Do  you  know  the  prisoner  at  the 
hr»-W'AcWer.  Yes. 

ifr.  Ward,  Do  you  know  whether  he  was 
lanlGsy  in  1785? 

Wkultr,   He  was  turnkey  to  Mr.  Darby. 

Mr.  Ward.    What  was  tlie  business  of  torn- 

Wkfuier,  To  take  care  of  the  prison  and  pri- 


Mr.  Ward,  Did  you  know  captain  Brom- 
Add  to  be  a  prisoner  then  ? 

WJkeier,  Yes ;  be  way  a  prisoner  in  the  be- 
fiaaingof  the  year  1785. 

Mr.  Ward.  Gire  an  account  of  what  usage 
jaa  saw  captain  Brom field  have. 

If  heeler,  1  Imlged  in  the  same  room  with 
Aim.  We  were  locked  up ;  and  coming  down 
MirB  there  was  a  batch,  which  was  locked,  and 
•as  IMrins  kept  tlie  key  of  it ;  and  he  made 
•anb  to  let  captain  Brom  field  come  down. 

Mr.  Ward,  What  was  Perkins  ? 

Whuler,  Serrant  to  the  gaoler. 

Mn  Ward.  Go  on. 

Wheeler,  There  were  some  words  passed ; 
kti  at  bat  Perkins  did  let  the  captain  down, 
ad  be  went  into  the  chandler's  shop,  and  Per- 
UaiaDd  the  captain  fell  into  greater  disputes  ; 
mi  the  captain  took  a  knife,  and  jabbed  it  into 
FbtUbs's  breast. 

Mr.  Ward,   Did  you  see  Acton  there  ? 

Mr.  Baron  Carter.  What  did  he  do  then  ? 

Wheeler,  He  dropped  down  the  penknife, 
sad  it  was  found  in  the  chandler's  shop.  The 
csptain  was  carried  into  the  ponnd. 

w.  Baron  Carter,    Where  is  the  pound  ? 

Wheeler.  The  pound  and  the  chandler's  shop 
jsin. 

Mr.  Baron  Carter.  Where  was  he  carried 
hem  thence  ? 

Wheeler.  He  was  carried  from  the  pound  to 
the  kHlge ;  further  1  could  not  see.  fie  took 
bin  away  refractory. 

Mr.  Ward.  Did  you  see  him  with  irons  on  ? 

Whuler.    I  saw  him  with  irons  on  in  the 


renioff. 
Hr.% 


Hr.  J'M/er.  ^Vhat  did  Acton  order  f 

Wheeler.    After  the  court  broke  up,  Acton 

ne  down  and  spoke  to  the  captain ;  and  ask- 
•d  bias,  what  was  the  reason  tnat  he  stabbed 
Ibe  man  in  •  passion. 

Mr.  Ward.  Did  you  see  the  fetters  on  ? 

Wheeler.  I  did. 

Mr.  Weard.  How  long  was  he  confined  in  the 
We' 

IFAer^fr.  He  continueil  in  the  hole  from  the 
Im  ha  was  taken  out  of  the  lodge,  till  the  next 
^jaiaeoVlock. 

^  Mr.  Ward.  Did  you  see  Acton  with  him  dur* 
■I  an  or  any  part  of  this  time .' 

VOL.  XVII. 


r5i4 

Wheeler.  When  Acton  had  ironed  him,  he 
turned  him  over  from  the  master's  to  the  com- 
mon side. 

Mr.  Ward,  How  long  had  lie  the  irons  on  ? 

Wheeler,  He  had  the  irons  on  about  five 
days ;  Acton  scot  him  from  the  bole  to  tha 
common  side,  to  George's  wanl. 

Mr.  Ward.  When  did  he  die? 

Wheeler,  He  died  the  latter  end  of  June. 

Mr.  iiaron  Carter,  When  did  he  die? 

Wheeler,  Aliout  four  years  ago,  the  latter 
part  of  June  1785. 

Mr.  Baron  Carter.  Tell  me  when  the  faal 
was? 

Wheeler.  I  can'ttell  the  month. 

Mr.  Ward,  Did  you  see  him  after  he  was 
dead? 

Wheeler,  ^XeM. 

Mr.  Ward,  What  condition  waa  his  body  in  P 

J^lieeler,  It  was  all  black. 

Mr.  Ward.  What  was  the  occasion  of  its 
being  black. 

Wheeler,  It  was  said  to  be  the  jaiiudiee« 

Mr.  Ward.  When  did  it  turn  black? 

Wheeler,  It  turned  black  after  his  decease. 

Vir,Ward.  Was  it  one  continued  black|  or 
was  it  in  streaks? 

Wheeler,  It  was  one  intire  black. 

Mr.  Wurd,  Did  the  coroner's  inquest  sit 
upon  him  ? 

Mr.  Baron  Carter.  That  is  no  charge  upon 
the  prisoner.  It  was  not,  in  Fiens's  case;  if 
the  coroner's  inquest  had  sat  on  all  others,  and 
had  not  sat  u|K>n  this  man,  then  this  bad  been 
eviflence;  but  as  it  is  generally  omitted,  it  is 
no  evidence. 

Hugh  Martin  sworn. 

Mr.  Ward.   Did  you  know  capt.  Brorofield  f 

Alar  tin.  Yes  ;  he  wus  prisoner  about  tlie 
begioning  of  the  year  1725. 

Mr.  Ward.  Giv  e  an  account  of  what  usage  he 
receiFed  from  Acton. 

Martin.  He  was  bedfellow  with  me  in  the 
nursery  ward,  and  on  a  court  day  lie  was 
down  in  the  chandler's  shop;  and  one  of 
Acton's  servants  would  have  had  him  go  up 
into  his  ward,  but  he  refused  to  go  ;  and,  upoa 
that,  the  servant  would  force  him  up.  . 

Mr.  Ward.  What  is  the  ser?aut's  name? 

Martin.  John  Perkins. 

Mr.  Ward.  Goon. 

Martin.  As  thoy  had  a  scuffle  together^ 
capt.  Bronifield  privately  stabbed  him,  and 
dropt  down  the  knife.  There  was  an  outcr^',  and 
a  doctor  was  sent  for ;  and  in  the  time  that  ha 
was  called,  Acton's  servant  carried  the  captain 
to  the  common  side. 

Mr.  Ward.  Was  Acton  there  at  that  time  ? 

Martin.  I  did  not  see  Actun. 

Mr.  Ward.  Who  took  him  away? 

Martin.  Acton's  servants. 

Mr.  Ward.  Did  Actoii  i^'we  any  orders? 

Martin.  I  don't  know. 

Mr.  Ward,    Did  you  see  Acton  in  the  yardf 

Martin.  I  saw  Acton  in  tlie  yard^  or  between 
that  and  the  Jo*Ige. 

2L 


51S]  S  GEORGE  U. 

Mr.  Ward.  Which  way  wu  (^ptftin  Brom- 
fteld  carried  ? 

Martin,  He  was  taken  oat  of  the  cbandler't 
ahop,  and  carried  throu^^h  the  pound. 

Mr,  Ward,  Was  Acton  io  thechandlet's  shop, 
or  ooiradf — Martin.  No. 

Mr.  Ward,  Did  you  see  Acton  before  cap- 
tain Bromfield  was  carried  into  the  yard  ? 

Mr.  Baron  Carter,  You  say  you  saw  Acton 
in  the  yard,  and  that  captain  Bromfield  was 
pot  on  the  comnoon  side? — Martin:  Yes; 

Mr.  Ward,  After-  he  was  brought  into  the 
yard,  did  you  see  any  thing  dono  to  him  ? 

Martin,  I  did  not  see  any  thing  done  to  him, 
because  I  could  not  go  out,  I  was  confined. 

Mr.  Ward.  Did  jrou  see  any  body  beat  him  ? 

Martin.  No,  but  I  saw  irons  on  him. 

Mr.  Ward.  What  irons? 

Martin.  They  were  double  irons;  I  taw 
him  come  out  of  the  hole  the  next  morning 
with  irons  on,  between  eight  and  nine  o'clock. 

Mr.  Ward.  Who  put  him  in  the  hole? 

Martin.  I  was  not  tliere  to  see  it. 

Mr.  Ward.  What  sort  of  a  place  is  the  hole  ? 

Martin,  It  is  a  little  place  under  the  stairs ; 
Kttle  bigger  than  a  large  coffin  in  width  and 
length. 

ilr.  Ward.  Did  he  lie  or  stand  ? 

Martin.  He  stood,  but  could  hardly  stand 
upright ;  he  bad  nothing  but  the  earth  to  lie  on, 

Mr.  Ward.  Was  the  earth  wet  ? 

Martin.  It  was  dampish. 

Mr.  Ward.  How  do  you  know? 

Martin.  I  saw  it  at  that  time. 

Mr.  Harding.  Was  there  any  door  to  it? 

Martin,  There  was. 

Mr.  Harding.  When  it  was  shut,  was  there 
any  place  to  let  in  the  light  ? 

Martin.  There  vas  the  key-hole,  and  a 
crevice  of  the  door. 

Mr.  Ward.  When  did  become  out? 

Martin.  Between  eight  and  nbe  o'clock  the 
next  uiorDing. 

BIr.  Ward.  Where  did  he  go  afterwards? 

Martin.  Afterwards  he  lodged  in  George's 
ward,  opposite  against  the  hole,  upon  the  left- 
hand  ;  I  think  it  is  called  George's  ward. 

Mr.  Ward,  Had  he  irons  on  in  George's 
ward? — Martin,  Yes. 

Mr.  Ward.  How  long? 

Martin,  I  don't  know. 

Mr.  Ward.  Did  you  see  him  after  be  was 
dead? 

Martin,  I  did ;  1  helped  him  into  his  coffin. 
His  body  was  a  sad  spectacle ;  but  I  can't  say 
whether  by  the  distemper  or  not. 

Mr.  Ward,  What  state  of  health  was  he  in 
before  he  was  confined  in  this  bole  ? 

Martin.  He  was  in  good  health  on  the  day 
the  scuffle  happened. 

Mr.  Ward,  What  sized  man  was  he  ? 

Martin.  A  middle-sized  man. 

Mr.  Ward.  Was  he  in  bodily  health  ? 

Martin.  I  did  not  discern  bis  iMNly ;  he  was 
lieaHhy,  snd  eat  his  victuals  when  be  had  it. 

Mr.  Ward,  Did  you  hear  him  complain  of 
any  iUne8a?-*A£srlifi.  I  oerer  did. 


TridofWmamAdon^ 

Mr.  Harding.  How  did  he  tppear  ? 

Martin.  As  a  man  used  Io  aptws 
irons  on.  He  waa  altered  nriseiilily 
about  a  week  before  his  death., 

Mr.  Harding.  How  k>ng  was  it  from!] 
of  his  coming  out  of  the  hole,  to  the  lini 
death. 

Martin,  I  belie? e  it  may  be  three  w 
a  month,  to  the  best  of  my  knowledge. 

Mr.  Harding.  How  soon  did  tou  s 
after  he  was  taken  out  of  the  hole  r 

Martin,  1  saw  him  the  saoae  morn 
was  put  in  George's  ward. 

Mr.  Harding.  How  was  bethea  f 

Martin,  He  was  in  good  health,  hi 
cripling  by,  baring  the  irona  on. 

Mr.  Harding,  What  do  yon  apprebe 
the  occasion  of  his  death  ? 

Martin.  1  believe  the  ill  usage,  and  I 
the  hole,  were  the  occasion  of  his  dea 
for  want  of  necessaries. 

Acton.  When  he  was  in  George's 
whether  he  did  not  lie  in  a  hammock  ? 

Martin.  He  lay  under  a  hammock. 

Mr.  Baron  CortfT.  What  distemper  < 
look  upon  it  he  died  bf  ? 

Martin,  Some  people  weM  apt  to  jad 
he  died  of  the  jaundice. 

JoAft  Saunderi  sworn. 

Mr.  Ward.  Did  you  know  captam 
Md. 

Saundert.  I  did ;  he  waa  a  prisoner 
master's  side ;  he  came  on  the  first  of 
1725. 

Mr.  Ward.  Give  an  account  of  what 
he  had. 

Saunders,  It  was  upon  a  court  day, 
latter  end  of  May,  captain  Bromnel 
brought  up  ftt>m  the  master's  side  to  tii 
men  side,  and  there  locked  up. 

Mr.  Ward.  Did  you  see  him  brought 
Saundert.  He  was  brought  along  by 
and  Nichols,  and  Acton  followed,  and  i 
him  to  be  taken  to  the  lodge,  and  iron 
from  thence  they  brought  and  put  him  i 
bole,  under  the  stairs,  adjoining  to  G 
ward. 
Mr.  Ward.  How  long  did  he  oontiriuf 
Saunders,  Three  or  four  nights  and  ( 
Mr.  Ward,  Was  he  let  out  m  that  tin 
Saunders.  He  was  let  out  sometimes 
they  thought  fitting,  to  ease  his  body. 
Mr.  Ward,  What  sort  of  a  place  is  it 
Saunders,     It  is  a  place  under  the 
which  a  woman  used  to  put  greens  in ; 
not  fit  for  a  Christian  to  be  in  ;  there 
floor,  and  a  cold  place,  and  there  was  i 
to  sit  on,  but  what  the  woman  put  her 
on,  which  was  an  old  bn)ken  chair. 
Mr.  Ward.  Did  you  see  him  there  t 
Saunders.  I  saw  him  every  day. 
Mr.  Ward.  What  sized  man  was  he? 
Saunders,  Hewastatlertbannie»and 
believe  he  could  stand  upright  in  the  hoi 
Mr.  Ward,  Could  he  lye  down? 
Saunders.  He  ctold  not  Jye  at  laogl 


W2 


Jot  the  Murder  ijfjohn  Bromfield. 


A.  D.  1729. 


[518 


kt  dont  not  Ijre  down,  it  wu  so  damp  and 


Mr.  Word,  \¥ hat  did  Acton  order? 

Saumders,  Acton  ordered  hiio  to  be  taken  to 
hft  (^JP^i  i^od  ironed. 

Mr.  Baron  Carter.  What  did  he  order  after? 

Mr.  Ward.  Was  there  any  application  made 
Id  Acton? 

Smad^f.  One  Ktn^p  attended  Bromfield, 
aiiSronifieid  desired  me  to  go  along  with  him 
ItielMi ;  And  I  said  it  was  more  proper  for 


Xr. 


\ 


Baron  Carter,  Answer  my  qaestion. 

StMmdtTM.  T  saw  captain  Bromfield  carried 
iMt  tbe  lodge,  and  from  thence  immediately 
ins  the  bole. 

Mn  Ward.  Was  Acton  there  ? 

SnmderM.  I  saw  Acton  there  al  tlie  time 
when  lie  was  carried  to  the  hole. 

Mr.  Word.  Was  he  by  when  the  irons  were 
fHooP 

.  Smaiden.  He  was  hv  then,  and  ordered  the 
^Mtain  to  be  carried  /rom  the  lodge  into  the 

Mr.  Ward,  Wat  he  first  ordered  to  the 
hte? 

Smmiert,  That  order  to  carry  him  to  the 
bdffs  was  first  gifen. 

Mr.  Ward.  What  did  he  order  after  f 

^nmden.  He  then  ordered  liim  to  be  car* 
Md  into  the  hole. 

Hf.^Ward.  Whether  ]^ou  saw  any  other 
fas  or  f  ioleoce  used  lo  him  by  any  one  ? 

itmaderg.  As  to  this  purpose,  Acton  came 
liMclf.  and  saw  the  irons  put  en. 

Mr.  ITer^.  Were  the  irons  taken  off*? 

imudert.  I  heard  they  were  taken  off  by 
Sarand  Rogers,  with  Darby's  leave. 

Jv.  Ward.  Where  was  captain  Bromfield 
pBi,  when  he  n  as  taken  out  of  the  hole  ? 

Saunders.  He  was  carried  into  George's 
VH  i  ]  went  with  him  into  tlie  ward. 

Mr.  Ward.  Were  his  irons  taken  off  then  ? 

Saandari.  They  were  taken  off  when  be  was 
iiod  weak. 

Mr.  Ward.  What  sUte  of  health  was  he  in 
Ubre  he  was  put  into  the  hole  ? 
^  Saunders.    He  apfieared  to  me  to  be  a  man 
koerfcGi  health  ;  if  ha  had  any  distemper,  I 
U  not  know  it. 

Mr.  Ward,  Do  you  believe  his  being  con- 
iMd  in  the  bole,  and  the  ill  usage,  were  the 
•eesswn  of  bia  death  ? 

SsKii^ers.  1  do,  in  my  c«uscience,  beliere 
tktu  ware  ibe  occasion  of  bis  death. 

ib.  Ward.  How  long  did  be  Vue  after  this 
mmtt 

^  Smaders.  1  believe,  from  his  being  first  put 
iHs  tbe  Im^s,  to  tbe  day  of  his  death,  was 
ikut  14  days. 

Mr.  Wmrd.   Did  you  see  him  after  be  was 

har 

SoMiadtrs.  I  helped  to  put  him  into  his  eofiin. 
Ml  bis  body  was  of  several  colours,  black  and 


Mr.  Ward,  Were  there  any  marks  upon  his 
**!?   Bamndtn.  I  saw  no  iiuurks. 


'  BIr.  Harding.  Were  you  with  him  when  he 
died  ? 

Saunders.  I  staid  by  him  when  he  died ; 
(he  said  the  night  before  he  should  not  live  till 
morning)  and  he  gave  me  his  hand,  moved  his 
mouth,  but  could  uot  speak. 

Mr.  Ward.  You  were  with  him  when  he 
died;  did  he  declare  then,  or  at  any  other 
time,  what  was  the  cause  of  his  death  ? 

Saunders.  The  night  before  he  died  he  de- 
clared, that  the  punishment  (which  was  being 
put  in  irons,  and  confined  in  the  hole)  was  the 
occasion  of  his  death.  In  the  morning  he 
could  not  speak. 

Mr.  Ward.  Was  there  any  coroners'  inquest 
sat  on  the  deceased  ? 

Saunders.  No,  there  was  no  coroner's  in- 
quest sat  upon  any  one  then. 

Mr.  Baron  Carter.  If  the  coroner's  inquest 
had  sat  upon  all  others,  and  not  sat  upon  thia 
mso,  then  this  had  been  evidence ;  but  as  it  is 
not  geqerally  so,  it  is  no  evidence. 

Mr.  Ward.  How  soou  was  he  buried  after 
he  died  ? 

Saunders.  He  was  hurried  away,  I  beUere, 
the  same  day  of  his  death. 

Martha  Johnson  sworn. 

Mr.  Ward.  Did  yon  know  captain  Brom- 
field ?— -Mrs.  JoAnson.  Yes. 

Mr.  Ward,  Give  an  account  of  tbe  usage 
he  had. 

Mrs.  Johnson.  I  never  saw  any  thing  done  to 
him. 

Mr.  Ward.  Did  you  see  him  in  irons  ? 

Mrs.  Johnson.  I  saw  him  come  out  of  the 
hole  in  irons,  and  go  into  George's  ward. 

Mr.  Ward,  Who  brou&^ht  him  out  ? 

Mrs.  Johnson.  When  the  door  was  unlocked, 
he  came  out  of  himself. 

Mr.  Ward.  Did  you  see  him  after  he  was 
dead  ? — Mrs.  Johnson,  I  saw  his  bfidy. 

Mr.  Baron  Carter,  When  you  saw  his  body, 
did  you  see  any  marks  ? 

Mrs.  Johnson,  H'i«  body  was  covered  when 
I  saw  it,  he  did  not  lie  naked. 

Mr.  Ward,  We  shall  call  no  more  wit- 
nesses ;  for  if  what  John  Saunders  says  is 
true,  it  is  a  full  proof  of  the  indictment. 

Mr.  Baron  Carter,  You  have  heard  tbe 
charge  and  evidence  against  you,  you  may 
now  proceed  upon  your  iletieuce. 

Acton,  CapUin  Bromfield  stabbed  Perkins, 
and  I  went  lor  a  surgeon,  and  whilst  I  wae 
gone,  Bromfield  was  put  io  iroos.  Mr.  Darby 
had  him  put  in  irons,  till  the  man  was  out  of 
danger.  After  this,  he  was  very  well ;  and 
had  the  yellow  jaundice,  of  which  he  died. 
As  to  the  coroner's  inquest,  there  waa  none 
ever  sat  upon  the  bodies  of  any  prisonera  at 
that  time. 

Mr.  Baron  Carter.  You  are  not  to  answer 
for  that. 

Acton.  T  will  call  my  witnesees.  CbU 
George  Carew. 

George  Carew  sworn. 
Aeton,  My  lord^ooe  wituesasays,  thatoip- 


SI9]  8  GEORGE  11. 

taiti  Brom6e1d  foniiaiied  one  night  in  the 
bulc,  aud  the  other  says,  he  onntinued  two  or 
three  nit-iits.  Did  you  see  captain  Brumfield 
stafi  Perkins  P 

Catcw.  Actfin  went  for  a  surgeon. 

Acton.  What  was  done  whilst  I  went  for  a 
Bur^)u  ? 

Carew,  John  Littleton,  who  was  turnkey, 
came  \\\  witli  two  or  three  more,  and  took 
Bromfitld  from  the  pound,  and  carried  him  to 
the  iad^e,  t^nn  ironed  him. 

Acton,  What  was  done  with  him  afler? 

Carew,  He  was  broufi^ht  on  the  common 
side,  and  there  ordered  to  he  put  in  George's 
ward. 

Mr.  Baron  Carter.  Who  brought  him  there  ? 

Carezc,  John  L^tleton. 

Mr.  Barou  Carter.  Did  Acton  giFe  any  di- 
rectidus  for  imtting  him  into  the  holef 

Carew,  No. 

Mr.  Baron  Carter.   Who  pnt  him  io  ? 

Carew,   John  Littleton  put  iiim  in. 

Mr.  Baron  Carter,  How  long  did  he  conti- 
nue there  ? 

Carew.  Three  or  four  hours  as  1  heard. 

Aci»n,  How  was  he  after  he  came  out  of  the 
hole,  as  to  his  health  ? 

Carew.  1  saw  him  come  out  of  the  hole,  and 
he  was  very  well  in  health. 

Mr.  Ward.  He  has  contradicted  himself; 
he  just  now  said,  he  was  carried  from  the  com- 
mon side  to  George's- ward. 

Mr.  Baron  Carter.  If  the  man  mistakes,  you 
must  allow  him  to  correct  himself.  How  soon 
after  he  came  out  of  the  hole  did  you  see  htm  ? 

Carew,  The  next  day,  J  saw  him  walk  about 
the  yard. 

Acton.  Please  to  ask.  Whether  Bromfield 
was  in  irons  before  I  returned  back  from  the 
surgeon. 

Carew.  Yes,  aud  he  was  put  on  the  common 
side. 

Acton.  When  did  he  die? 

Carew.  He  was  on  the  common  side  a  month 
before  he  had  any  sickness. 

Mr.  Baron  Carter,  When  did  he  die.^ 

Carew.  In  six  weeks  time. 

Mr.  Baron  Carter,  What  distemper  did  he 
die  of?     , 

Carew.  Of  the  bhuJc  jaundicei  as  it  was  gifren 
out  in  the  craol. 

Acton.  Did  you  see  him  a  week  before  he 
died? 

Carew.  Yes^  and  his  face  was  yeUow  and 
black. 

Blr.  Ward.  You  saw  him  when  the  scuffle 
happened  ;  he  was  very  well  then  ? 

Carew.  I  can't  9^y  he  was  very  healthy  io 
constitution. 

Mr.  Ward.  Who  carried  him  to  the  hole? 

Carew,  He  was  carried  hj  John  Littletoo  to 
the  place. 

Mr.  Ward,  Were  there  qo  orders  given  by 
Acton? 

Carew*  Acton  was  gone  before  John  Little- 
ton came  into  the  poimd  for  him ;  he  waf  gone 
ttr  tiie  forgiooi  tt  bt  nid  ka  WDiiM« 


Trial  of  William  Adon, 


[SM 


Mr.  Ward.  Who  carried  him  td  tiie  lodge? 

Carew.  Littleton  carried  him  to  the  krage, 
and  after  that  to  the  common  side. 

Mr.  Ward,  Was  not  the  common  side  ibntf 

Carew,  it  was  then. 

Mr.  Ward.  How  dkl  he  get  in  P 

Carew.  He  was  let  in. 

Mr.  Ward.  How  long  did  he  continue  on  tin 
common  side  ? — Carew.  Six  weeks. 

Mr.  Ward.  Was  he  not  pot  in  the  whole? 

Carew.  I  don't  know  that  he  wan  in  the 
hole  at  all,  tor  1  saw  him  put  on  the  oemnmi 
side. 

Mr.  Harding.  After  the  stroke  with  the  pen- 
knife, was  not  Brom6eld  sdzed  ? 

Carew.  No. 

Mr.  Harding.  Whisndid  Actop  cmnef 

Carew,  Acton  came  down  when  BramfieM 
was  in  the  pound. 

Mr.  Harding.  How  long  was  Acton  gnnef 

Carew.  8ome  minutes. 

Mr.  Harding.  Might  not  Acton  gtreorden 
to  Littleton,  before  he  went  for  the  surgeon  ? 

Mr.  Baron  Carter.  I  must  not  hang"  a  man 
upon  a  might  or  might  not.  Did  Acton  come 
hack  with  the  surgeon  ? 

Carew.  He  brought  the  anrgeon  back,  and 
stood  by  till  Perkins  was  dressed. 

Francii  Cartwright  sworn. 

Acton.  I  desire,  he  may  g^ve  an  aooaontof 
what  he  knows  of  this  matter. 

Cartwright.  Mr.  Acton  came  out  ef  the 
court  into  the  pound,  hearing  a  noise,  and  they 
told  him  thatcaptaiii  Bromfield  had  stabbed 
PerluDs ;  Bromfield  was  ironec),  and  Littklsn 
put  him  into  the  hole,  without  Acton's  direct 
tions. 

Mr.  Baron  Carter.  Was  he  in  the  potind  be- 
fore Acton  came  down  ? 

Cartwright.  Yes. 

Blr.  Baron  Carter,  Did  Acton  say  any  thing 
about  ironing  him  ? 

Cartwright,  Mo,  but  said,  that  ho  would 
fetch  a  surgeon. 

Mr.  Baron  Carter.  When  was  he  taken  oot 
of  the  hole  ? 

Cartwright.  He  was  taken  out  in  about  six 
hours.  They  usually  lock  up  the  nrisoners  at 
nine  o'clock  at  nii^ht,  after  Lady-oay,  and  he 
was  taken  out,  and  put  in  George's- ward,  aboHt 
that  time. 

Mr.  Baron  Carter.  How  long  did  he  remain 
there  ? 

Carfwright.  He  staid  there  three  or  four 
months  after  the  thing  was  done. 

Mr.  Baron  Carter.  Who  used  to  lock  the 
prisoners  up  ? 

Cartwright.  The  aeryants  to  Acton  need  |o 
lock  them  up  every  night. 

Mr.  Baron  Career.  Answer  me  another  qne»> 
tion.  What  state  of  health  was  captain  Brooi* 
fieUin? 

Cartwright.  He  was  always  a  ferj  wvakl^ 
man,  but  very  mischief  ous. 

Mr.  Baron  Carfer.  When  waabetakmiinf 

Cartwright.  AUnlmmgom. 


for  the  Murder  of  John  BrmJUld.  A.  D.  1 728. 

10' Carter.    Wu  lie  ill  (tliilst  you         Atlon.  tlewdDyi 
Ctrtm'igkl.    lie  WW  not  ill,  only  poor  (wd     «ontiiiiiaUy._ 


Ur.  WarJ    When  nas  BromfieU  ironed? 
CarlKright,     L\tt\et<m  ironed    him,    wbilc 
Irw  w&*  guoe  I'ur  llie  surgeon,  anil  pul  liiiu 
U*(b«-  hole. 
Xr,  IFarJ,  Where  wuh«ironed? 
Cvbrri^At.    He  nu  carried  Arit  into  ibe 
MfitDil  mned,  and  then  |>iil  into  the  hule, 
Jr.  H'nrrf.  Where  u  (he  holef 
CtturieAt.   On  the  conimnn  iticle. 
Nr.  Wto'd.     Dill  yuu  see    George   Carew 
Acre? 

C^rtwrighl.  I  dou't  boon  whelber  he  ful- 
I«*i4  tiim  down. 

Ur.  Ward.  Did  Carew  go  ilouif  vrilb  Ut- 
tom,  when  he  nut  him  inlo  Ihe  hole  f 

C«rtBrig*(.  I  can' I  say,  whelherhedid  or 
ML 

Jdirph  Wood,  a  sargeon,  sworn. 

Acttn.  Please  to  BiL  him, my  lord.if  1  came 

bfHch  bim. 

Mr.  Bsroo  Carttr.  Whstiay  you  tothM? 

Wtod.  Aclon  came  to  me,  and  desired  me  lu 

p  ibiag  with  him ;  whidi  1  did,  and  found  « 

(sna  alnbbed  in  the  breast.     TheiiFxtdnyl 

WQU  la  thr  person  who  had  wounded  him,  and 

ImM  him  bow  he  could  be  «i  barbarous. 

Mr.  Baron  Carter.  Thai  is  not  material. 
VtMMatt  of  health  did  Bromlield  seem  to  be 
laf- 


well  ii 


Wiei.  BrainSeld  seemed  to  b«  pretty 

tiltm.  Where  did  you  see  Bromfield  ? 

ITnd.  li)lfieloil)j:e. 

icfoa.  Uid  you  Kiy  any  ihin^  to  bim? 

WuM.  I  aaid,  t  Bod  you  are  ironed :  I  ihiok 
Jta  ittene  it  ;  and  he  uid,  that  Darby  order- 
rf  him  lu  be  ironed,  and  he  was  glad  ActOD 
«Nt  ■in'  B  surgeon. 

Mr.  Ward.    AVhat  time  did  you  see  Brom- 


The   neil    moniing,    about 


Mr.  H'aril.  Where  did  you  see  him? 

u  itay  there  ? 
WeaJ.     1  suid  Ihere  a  trining  time,  about 
Uf  an  boar,  and  left  him  there. 


JcUa.  T  ilnir«.  my  lord,  he  may  give  an 
MeBiiiii«f  Kbit  he  kuoivs  as  in  captain  Brom- 

Jma.  DnmBeld  came  in  April  from  the 
■miit'i  aide  to  the  cmnmun  lide,  and  was  put 
» imm  bT  J"hn  LilileloD. 

A.im. '   llcase  to  ask  what  state  of  health 

Jmti.  Knimfield  waslna  wdstate  afhealth, 
hlU)>iehi>l  the  gaul  distemper,  he  bad  the 
JndiM  on  lum. 

Aitim.  What  did  U  die  of? 

Ma.  Afnw. 


ut^eoii;  I  took  notice 


1 


lloM  did  I  behave 
Broiuiidd  f 

Jonrt,   You  were  kind  tn  him  at  all  timet. 

Acloa.  I'lease  to  ask,  my  lord,  h'lit  I  bebar- 
ed  myself  10  the  prisoners  m  Gfeneral. 

Jonft.  Acton  wonld  never  suffer  any  thing  or 
bardsliip. 

Aclan.    Hare  you  seen  any  acts  of  I'riend- 
ehip? 

JontK.  Both  your  pocket  and  your  table  liaia 
been  made  use  of. 

Mr.   Baron   Carter.     Did  you  tec  captain 
firomtield  pul  in  Ibe  bole  f 

Jones    I  saw  noboily  pul  iq  the  hole. 

Mr.  Ward,     Did  t>ot  you  see  Bromfield  in 
the  hole  ? 

Jones.     I  never  saw  him  iu  ihe  bole. 

Mr.  Harding.  1  b^  leavv  lo  moke  an  obeer- 


Mr.  Baron  Carter.     You 
don't  tliiok  vuu  have  used  me  well  before. 
^ntleman  iiiat  is  ■  young  counsel, 
a  more  than  the  record. 
llariiitg.     1  ogwned  DO  more  I 


m 


opeoni 
fact. 


Mr.  Baron  Carter.  Geatlemen  oTthejniT, 
■lie  prisoner  at  ihe  bar  stands  inilicted  fur  tne 
murder  of  John  BromGeld.  The  Indictment 
sets  forth, 

You  are  to  consider,  whether  you  have  stiffi* 
■cient  evidence,  10  induce  you  10  believe  hjm 
guilty  of  this  fact.  Whatever  is  opened  by 
the  counsel,  that  is  not  proved  to  von,  ia  to 
bare  no  weiffhl  with  you.  It  11  set  forth,  that 
he  was  heal,  and  that  ibe  marks  and  strokes 
were  itpoD  him.  1  don't  observe  by  Ibe  evi- 
dence, that  any  stroke  was  given  to  the  man 
at  all. 

Gentlemen,  let  the  consequence  be  what  it 
will,  evidence  is  to  determine  every  man's  fate. 

The  Indictment  sets  forth,  thai  Darby  waa 
keeper  of  llie  gaol  nn  ihe  ISIhof  Jnly.andlbat 
Bromfield  died  the  second. 

The  fact  is  charged  precedingto  that  time; 
tbe  fact  i*  laid  in  April,  and  all  this  is  laid  to  be 
in  the  space  of  hre  days. 

Wheeler  is  Ihe  first  evidence  for  the  king ;  ht 
snys,  that  Aclon  was  turnkey,  and  servanl  to 
Darby  ;  thai  he  knew  Bromtield ;  thai  he 
lodged  in  the  nursery,  and  coming  down  Ibe 
iluirs,  there  was  a  hnlcb  upon  the  stairs,  and 
Perkins  kept  the  key  ;  thai  he  and  tbe  captain 
iiuarrelled,  and  that  thcv  went  into  the  chati- 
dler's-shop,  and  quarrelled  further,  and  then 
Bromfield  slabhud  him  with  «  pen-knife,  and 
thereupon  dropt  the  knife.  He  was  carried 
from  thence  to  the  pound  and  carried  (ram 
Ihence  away  to  tbe  iMge,  and  was  refractory ; 
but  he  did  not  liear  Aclou  order  any  thing. 

He  says,  gentlemen,  thai  he  saw  fetters  ou 
him,  when  he  came  out  of  the  bole  ibe  iirxl 
moniing-,  and  ihal  he  was  turned  from  tha 
luatter's  to  tbe  comnuB  side;  that  bia  body 


523J 


3  GEORGE  II. 


Trial  of  IVUl'utm  Adoti^ 


wai  all  over  black,  and  turned  oo  after  bii  de- 
cease. IleMiys,  that  it  was  not  iu  atreaki),  but 
one  continued  hlackneiJK. 

Tbe  second  witness,  Hug^h  Martin,  says,  tliat 
he  knew  captain  Brotufitld :  that  be  was  bis 
bedfellow;  that  he  baw  the  captain  in  tbe 
cbandier's  shop,  and  Perkins  refuted  him  a  fa- 
vour, and  Broinfield  stabbed  him ;  that  he  did 
not  see  Acton  there,  but  saw  him  in  the  yard, 
and  saw  him  s^o  tu  the  court-bouse.  That  he 
Mw  Bromfield  on  tbe  common  side  with  fetters 
on,  and  saw  him  in  tbe  hole,  but  saw  no  beat- 
ing ;  that  he  continued  m  there  all  night,  and 
the  hole  is  a  little  place,  has  no  floor,  and  is 
damp ;  that  there  is  no  place  to  let  in  tlie  au: 
and  light,  but  tbe  key-bole  and  ere? ice.  He 
says,  Uiat  he  saw^romfield  in  George's  ward 
ia  irons}  that  it  was  three  weeks  or  a  month 
before  he  died;  that  he  wanted  necessaries, 
and  that  he  was  apt  to  judge  he  died  of  the 
janadice. 

On  tbe  1st  of  March,  1725,  Saunders  says, 
that  Bromfield  became  a  prisoner ;  that  Nichols 
and  Utilaton  brought  Bromfield  along;  and 
that  he  saw  him  ironed  by  Acton's  orders. 
This  is  the  only  witness  that  says  Acton  or- 
4arod  it.  That  Bromfield,  he  belief  es,  was  in 
the  hole  three  days,  it  might  be  a. little  longer; 
that  the  bole  was  under  a  pair  of  stairs,  there 
was  no  light,  nothing  in  it,  but  a  piece  oi'  a 
chair  that  a  woman  set  b«r  greens  on :  that 
BnNoifield  oonid  not  stand  upright,  that  he 
dared  not  lie  down,  because  it  was  so  wet ;  that 
King  and  Bromfield  spoke  to  Acton  to  take -the 
iroas  off,  but  he  could  not  do  it  withont  Darby's 
Older.  It  was  bis  opinion  that  Bromfield  was 
well,  and  that  tbe  hard  usage  was  the  occasion 
of  his  death.  That  he  saw  his  body  after  he 
was  dead,  and  it  was  of  several  colours.  He 
was  asked,  if  he  saw  any  sign  of  a  stroke  on  bis 
body,  and  he  said  that  it  was  all  of  a  colour. 
He  says  that  Bromfield  told  him,  that  tbe 
Bsage  of  tbe  hole,  and  the  fetters,  were  the 
occasion  of  his  death,  the  night  before  be  died. 
So  tliat  what  be  said  is  evidence,  and  ought  to 
have  its  weight ;  such  cruelty  iliould  not  have 
been  continued. 

Martha  Johnson ;  slie  savs^  that  she  saw 
Bromfield  come  out  of  the  liole  in  irons. 

So  that  there  is  but  one  witness  that  says  he 
svas  pot  there  by  Acton^s  order;  and  the  pri- 
soner insists,  that  he  did  not  order  him  there ; 
and  if  he  did,  be  did  not  die  by  duress,  but  by 
tbe  jaundice. 

George  Carew,  tbe  first  witness  for  the  pri- 
soner, says,  he  was  \ha»i  and  Aoton  went  Sov 


(' 


a  surgeon,  and  littleton  came  from  the  lot 
and  took  Bromfield  there,  and  iron^  him, 
put  him  into  George's  ward,  but  that  A> 
gave  no  directions ;  that  he  was  in  there  tl 
or  four  hours,  and  that  he  saw  him  well 
next  day,  aud  that  he  walked  about  the  y 
That  he  feU  ill  of  tbe  jaundice,  and  his  face 
black  and  yellow  a  week  before  be  died, 
was  asked  by  tbe  king's  counsel,  if  be  wi 
healthful  man  ?  And  he  said,  he  was  not. 
says,  that  Acton  was  gone  before  Littl 
came ;  so  that  in  his  opinion,  Acton  did 
thing  ;^  and  says,  that  Bromfield  died  of 
jaundice. 

The  second  witness  for  the  prisoner  Si 
that  he  saw  Acton  run  out  of  the  court  into 
pound,  and  Aclon  said  he  would  go  for  a  i 
geon.  That  Littleton  ironed  him,  and  put 
mto  tbe  hole,  and  it  was  all  done  before  Ai 
came  from  the  surgeon.  He  was  there  be 
Littleton  came,  and  said,  he  would  go  and  f 
a  surgeon.  He  says,  that  Bromfield  wa 
tbe  bole  six  hoars ;  that  he  locked  him 
every  night,  and  he  looked  upon  him  to  I 
weaK  man. 

Wood  savs,  that  be  saw  Brosifiekl  (be  i 
day,  and  taiked  with  him  about  irons ;  and 
said  he  was  ironed  by  the  direction  of  Mr.  I 
by ;  aud  that  Acton  was  always  very  kin 
him. 

Jones  says,  that  Littleton  ironed  Bronfi 
and  that  it  was  in  April,  and  be  died  in  Ji 
He  says,  tliat  he  was  a  surgeon,  and  that  A* 
was  always  very  kind  to  the  deceased. 

Gentlemen,  in  the  first  place  you  are  to  i 
aider,  whether  the  man  was  put  into  the  1 
bv  tbe  direction  of  Acton ;  and  in  tbe  i 
place,  if  it  was  done  by  Acton,  and  this  was 
tbe  occasion  of  bis  death,  you  will  acquit 
as  to  that.  But  if  you  believe  Acton  ordt 
him  into  bis  hole,  and  that  it  was  the  occa 
of  his  death,  he  was  guilty  of  duress;  but 
will  be  contrary,  four  witnesses  to  one. 

The  Jury  agreed  upon  their  Verdict  imi 
diately,  without  {foiog  out  of  Court. 

CL  ofArr.  Gentlemen,  are  you  all  agree 
your  verdict  ? 

Omnes.   Yes. 
'  CLofArr.  Whosballsay  foryou? 

Omnes.  Our  Foreman. 

67.  of'Arr.  Hold  up  tby  bond.  (Wbicl 
did.)  Look  upon  the  prisoner ;  bow  say  y> 
Is  he  Guilty  of  the  murder  and  felony  whe 
he  stands  indicted,  or  Not  Guilty  ? 

Foreman*  Not  Guilty. 


Jor  %\*  Murder  of  Robert  Ncwtoti. 


[596 


The  Trial  of  Wiiliam  Acton,  for  the  Murder  of  Robert 
Newton,  before  Mr.  Baron  Carter,  at  the  Assizes  held  at 
KiDgston-upon-Thames,  for  the  County  of  Surrey,  August  2; 
5  Geobce  II.  A.  D.  1729.* 

Saturday,  Aiiguit  2,  1739. 

William  Aclon  hirins  been  befbi 
i^eil  for  the  ranrder  ofRolwrt  Ncn 
tbe  Counsel  proceeded  as  foDowB  :• 
arding.  AlY    Lord,  and  yoa  Qr.u- 


r  ttie  Jury,  I  am  of  couniel  for  (be 
Ilia  n  an  mdieliuent  igainit  William 
~  the  mnnlcTof  Robert  Newton.  The 

It  Ml*  forth 

UriM.  My  Ion),  aoJ  you  geollemen  of 

tliia  is  «n  indiclmeut  agaimi  tlic  pri- 
he  lit,  Wiltism  dclnn,  tor  t!it!  niur- 
cRnbcrtNentuii.  It  netn  lorlhtliil 
u  priiici|Ntl  cmler,  and  Aclun  under 
entuQ and  Harlneii  ncre  chunu  or 
ies;  and  irbiist  Ibey  nere  there,  one 
— ited  to  e«cape;  il 
■ud  Acton  cli{ipi 
ire  ahacklei,  and  he  waa  ordered  into 
tl!e<I  the  Strong  Boom,  a  iilace,  ne 
wibfy  yon,  wai  a  room  not  at  all  Gl 
'noaa  into.  We  aay  it  ii  a  Tprji  bad 
d  a  very  dangeroua  place  to  llie  heoltli ; 
I  Newton  waa  confined  for  a  consider- 
e ;  there  he  waa  kicked  up,  and  the 
t  by  an  inferior  officer  of  the  gaol, 
on  nai  to  very  teniible  be  was  in  a 
'  way,  ifaat  purely  fnr  his  oivn  Eafclj', 
irdered  him  out  of  tliat  ]ildcc  into  the 
en  carried  him  into  the  bick  ward, 
noed  there  tome  time,  and  complained 
nrdsliip,  thit  impritonmetit,  and  tbe 

put  upon  him  by  Acton ;  and  that 
le  of  a  mail  was  his  mnrderer;  For 
lad  applied  to  the  judge  of  the  court, 
'aa  pleased t'l  make  uu  urdcr,atlerbie- 
angjy  with  wbat  Aclon  had  doijc,  to 
im  out  of  hia  hardship ;  hut  he,  not- 
lio^,  disobeyed  thaturder.  Therefore, 
OUT  H  ilncsscB  to  shew  lie  contracted  by 
can  illness  of  wliich  he  languished 
.  it  will  remain  on  tbe  prisoner  to  i-hew 
died  of,  and  that  he  died  of  aoina  other 
r  ;    anil  then  you  will  judge  of  (he 


Captain  Tudman  sworn, 
'ord.   Did  yon  know  Hubert  Newton  ? 
en.   I  did  i    he  was  a  priiuner  in  Hay 

'urd,    Gire  an  accoant  of  wbat  you 
iceminiif  bim  f 

the  prec«dinf  and  fullowing  CaMs, 


Taiman.  Newton  and  Hartnen  lay  in  tb« 
Park  when  Ihey  were  prisnneni  in  the  iHaralial- 
sea;  and  thtylrokeout,  and  afierwanig  were 
retutten,  and  committed  to  the  prison  a^ain  ; 
anil  Acton  put  them  in  irons.  Newton  fell 
sick,  and   languished  fiir  aome  tjrae,  and  died. 

Mr.  Ward.  Who  had  tbe  care  of  the  pri- 
soDers  then  ?  ' 

Tadman.  Mr.  Darby  waa  head  nan,  anl 
Aelon  was  under  him. 

Mr.  Ward.  Was Newtnn  ironed? 

Tadmiin.  1  went  to  set!  him  in  tbe  lod^  ; 
he  ff  ai  ironed  there,  and  then  tent  lo  the  StruDor 
Room. 

Mr.  Ward.  How  long  were  the  ironi  con- 
tinned  on  7 

Tttdnum.  Til  he  petitioned  air  John  Darned. 

Mr.  Strange.  If  he  petitioned,  sir  Jobu  Dar- 
nell, and  there  was  any  order,  they  onght  to 
CrtMloce  it  in  writing,  and  prore  it.  It  might 
e  a  parole  order,  and  that  may  be  girea  Ir 
eridence. 

Mr.  Ward.  Did  you  hear  any  verbal  order 
giren  by  sir  John  Darnell  for  hi>  releasemeiil  f 

Tudman.  No. 

Mr.  Ward.  How  long  did  Newton  lie  ia  the 
Strong  Room  T 

luAnon.  I  can't  gueuattbe  lime. 

Mr.  Word.  Wbat  waa  done  afier  the  ir*Ht 
were  pnt  on  ? — Tudman.    1  cannot  nay. 

Mr.  Ward.  Whei«did  bcdie? 

Tudman.  He  died  in  the  sick  word.  1  mr 
him  four  or  Arc  days  before  he  died. 

Mr.  Ward.  ^nlkLt  sort  of  a  place  if  tt« 
Strong  Room  ? 

Tudman.  llic  Strong  Room  is  ball  of  irMif, 
and  is  a  very  strong  place  to  kecppriKWen 
iolikeaiheil. 

Mr.  Ward.  If  there  not  a  nmmwt  leirer 
runs  under  il  ? 

Tudman.  The  comnwaieirerlf  pntty  g^^ 
it,  within  tfvenlv  ortUrtJjardL 

Mr.  Ward.  Who  ma  be  ifOMrf  by  P 

Tudman.  I  saw  him  \«mti  \n  Darbr 

Mr.  Ward.    Wu  Acta  bcad-iunj^^y  * 

Tudman.  Yes. 

Mr.  Mtnh.    Was  tkn  Mr  cnrriMr'i  * 
ic><t  sat  upon  bin  afitt  ht  wtM  dnd  > 

Tudman.  Then«MBA 

Mr.  Harding.    Wm  A«r  anv  ~^r. 

the  ah- ?  '    '      ^ 

Tudman.  ThntMeeBhl-;  b.iWr 


qnc><tsi 


MT]  S  GEOBGB  IL 

Ikdman,  He  had  no  iUdcm  before  he  wis 
pot  in  irons ;  be  was  a  hale>  sirong',  young 


Etbnund  Carr  sworn. 

Blr.  Martk.  Did  you  see  Newton  in  the 
M&rsbalsea  ? 

Carr.  1  was  a  prisoner  there  when  he  and 
another  broke  out ;  they  were  taken  again,,  and 
carried  into  the  lodge,  and  when  1  saw  them 
eome  out  of  the  lod^e,  they  were  brought 
along  by  Rogers  in  irons,  and  put  into  the 
Strong  Room,  and  he  looked  them  up  there. 

Mr.  Baron  Carter.  What  was  the  name  of 
the  other?— Carr.  I  have  forgot. 

Mr.  Baron  CflF^.  Was  it  Uartness  ? 

Carr.  Yes. 
•  Mr.  Ward.  How  long  did  he  continue  in  the 
Strong  Room  ? 

Carr,  He  continued  there  two  court  days, 
which  it  about  fourteen  days. 

Mr.  Ifar<^.  You  knew  Newton.  What  state 
of  health  was  he  in  before  he  was  put  in  that 
room? 

Carr,  T  knew  Newton  very  well ;  be  was  a 
fat,  jolly  young  man^  and  seemingly  very 
well 

Blr.  Ward.  When  did  he  die  ? 

Carr.  He  fell  sick  in  the  Strong  Room,  and 
was  carried  to  the  sick  ward. 

Mr.  Ward,  How  long  did  heliTe  after  ? 

Carr.  I  cannot  tell. 

Mr.  Ward,  What  was  the  distemper  he  had 
in  the  Strong  Room  ? 

Carr,  I  do  beliere  that  it  was  the  gaol  dis* 
temper  he  took  in  the  Strong  Room. 

Mr,  Baron  Carter.  What  is  the  distemper 
ef  the  gaol  ? — Carr,  The  ague  and  jaundice. 

dlir.iVard,  You  say  he  took  the  distemper 
in  the  Strong  Room  ;  do  you  beliere  that  was 
the  occasion  of  it  ? 

Carr,  I  do  belieye  that  did  occasion  the  dis- 
temper. 

Mr.  Ward.  What  irons  had  he  on  ? 

Carr.  Double  irons  ;  an  iron  on  each  leg, 
snch  as  I  had. 

Mr.  l^ard.  What  might  the  irons  weigh  ? 

Carr.  Twenty  pounds,  or  less. 

Mr.  Ward,  Who  was  with  him  when  he 
waB4brought  from  the  lodge  ? 

Carr.  I  saw  nobody  but  Rogers  and  Clark. 

Mr.  Ward.  Did  you  see  Acton  in  the  lodge  ? 

Carr,  I  did  not  look  in  to  see  if  he  was  there 
er  not. 

Mr.  Marsh,  Who  ordered  the  irons  to  be  put 
on  ? — Carr.  I  don't  know. 

Mr.  Marsh,  Did  Acton  go  to  the  Strong 
Room  ? — Carr,  I  can't  iell. 

Mr.  Marsh,   Was  Newton  locked  up  there  ? 

Carr,    He  was  locked  up  erery  night  clotie. 

Mr.  Marsh,  Had  he  liberty  of  coming 
eut  of  days  ? — Carr.  Not  at  first. 

Mr.  Marsh.    How  long  was  he  confined  in 
the  Strong  Room,  before  he  had  leave  to  come 
oat  ? — Qarr.  I  cannot  tell. 
J  Mr.  ilerti.  HowleogwaaheintheStFong 
Room  before  he  feHsickr 

1 


Trial  of  WUliamAciaih 

Carr,  About  fourteen  daysor  moi 

Mr.  Marsii,  What  sort  of  a  p 
Strong  Room  ? 

Carr,  It  is  a  boarded  plsce,  an^ 
damp  ho|e  under  it ;  and  there  is  t 
carry  the  water  off. 

Mr.  Marsh,  I  ask  you,  what  kin* 
it  is  ?  Whether  there  is  any  place  i 
air ;  and  whether.tbe  sun  fisits  it? 

Carr,  It  is  an  odious  place,  and  tl 
a  little  hole  to  let  hi  the  air  ;  it  is  b 
the  side  of  a  wall,  and  the  sun  does  i 
it  is  coTered  with  boards,  and  seemi 
deck  of  a  ship. 

Mr.  Mursa,  What  was  the  occs 
being  taken  out  of  that  room  ? 

Carr.  He  was  taken  out  for  sickm 

Mr.  Marsh.  How  long  was  he  in 
Room  in  all  ^-^Carr.  About  fourteei 

Mr.  Marsh,  How  Ions;  did  he  lie 
Strong  Room? — Carr.  I  cannot  tell 

Mr.  Marsh,  Where  was  he  cai 
taken  out  of  the  Strong  Room  ? 

Carr,  To  the  sick  ward. 

Mr.  Marsh.  What  condition  was  1 
carried  to  the  Strong  Room  ? 

Carr,  He  was  ?ery  well ;  he  tl 
hale,  jolly  man 

Mr.  marsh.  Were  you  witli  him 
ward? — Carr.  1  was  almost  e?ery  d 

Mr.  Marsh.  How  long  before  he  i 

Carr,  \  cannot  tell. 

Mr.  Marsh,  Was  it  within  a  day  o 

Carr.  Within  a  week. 

Mr.  Marsh,  Did  he  tell  you  wbi 
occasion  of  his  death  ? 

Carr,  He  said,  that  the  confinem 
Strong  Room  was  the  occasion  of  his  < 

Mr.  Marsh,  Do  you  believe  it  to 
casion  of  his  death  ? 

Carr,  He  being  a  hale  man,  and 
fresh^  I  believe  the  confiDement  was 
sion  of  it. 

Mr.  Marsh.  Wastbereany  coronc 
sat  upon  his  body? 

Carr.  There  was  no  uiquest  sat  uj 
any  other. 

Acton,  Please  to  ask,  my  lord,  if 
not  let  out  of  the  Strong  Room. 

Mr.  Baron  Carter.  What  say  you 

Carr,  At  first  they  were  not,  hut ; 
they  were. 

Mr.  Baron  Carter.  What  becam* 
ness? — Carr,  He  was  let  out. 

Mr.  Baron  Carter.  Did  he  lie  tin 
as  the  other  ? — Carr,  Yes. 

Mr.  Baron  Carter,  Did  he  contra 
ness? — Carr.  No. 

Mr.  Baron  Carter.  Were  his  iron 
as  Newton's? 

Carr.  I  can't  tell,  I  never  weighed 

Mr.  Baron  Carter,  The  question 
is,  whether  the  irons  were  one  as  he 
other  ?    W  hich  I  expect  y on  to  answ 

Carr,  I  believe  they  were  coeifaal 

Mr.  Baron  Carter.  Answer  meanc 
tioB.    You  were  saying  there  was  m 


a»] 


Jor  the  Murder  of  Robert  NeiiaoH. 


A.  D.  172$. 


[590 


MnToffthewiter;  where  does  the  water  oome 
■  r 
Cmrr,  There  wm  a  place  abont  as  biff  as  the 
in  the  Court,  where  the  water  settles,  and 
QDdcr  the  room,  and  makes  it  damp. 
Mr.  Baron  Carter,    What  ill  smell  is  there? 
Carr.    A  sort  of  a  damp  smell ;  and  abun* 

of  rats  creep  into  it. 
Vf.  Baron  Carter.   When  the*  prisoners  are 
kt  Sit  of  days,  is  the  door  always  kept  shut  or 

Mtf 

C^r,  Sometimes  it  is  locked  up,  sometimes 

Mt 

Edicard  Phitiipt  sworn. 
Mr.  Ameron.  Did  you  krow  Newton  7 
PkiUipi,  I  was  a  prisoner  in  the  Marsbalsea 
hm^  tne  time  Newton  and  Ilartnecs  were  in 
Ihctaol. 
Mr.  ^sieron.  Did  von  see  him  in  irons  ? 
PAt//u».  I  saw  Acton  and  Rngrrs  in  the 
WjR  when  they  were  ironed. 
tf.Amenm.  Where  were  thev  carrieil  afler* 

FkUiips,    They  were  carried  to  the  Stron^^ 
Bmd. 

Mr.  AmeroH,  What  kind  of  a  place  is  it  f 

fkUUpt.    It  is  a  pbce  not  fit  for  a  human 
yowilo  be  in. 

Mr.  JsMTun.  Is  the  common  sewer  under  it  f 

flUlm,  The  common  sewer  runs  by  it. 
*  Mr.Asitron.    How  long  did  Newtou  stay 
ioef 

fhittim.  About  fourteen  davs. 

Mr.  Jmerun,  How  near  is  the  common  sewer 
Hitf 

Hilfyi,  The  soil  that  comes  from  the  neces- 
ni^-house  runs  within  three  or  four  yards  of 
n. 

Mr.  Mar$h.  Was  it  infested  with  vermin  ? 

hiliips,  1  saw  rats  there,  and  the  side  of  a 
MS*!  face  cat  away  in  three  or  four  hours  at- 
Iv  he  was  dead. 

Mr.  Marsh,  What  mi^ht  be  the  weight  of 
it  irODs  Newton  had  on  ? 

PkUUps.  The  irons  he  had  on  were  twenty 
pntds  weight. 

Mr.  Mar$h.  How  long  was  Newton  in  the 
kiise  Room  before  he  was  taken  sick  ? 

fkiilips.  Ten  or  tweUe  days. 

Mr.  Marsh.  What  became  of  him  then  f 

fkiUips.  He  was  carried  to  the  sick  ward. 

Mr.  Marsh,  How  long  was  he  sick  in  the 
liskK  Room? 

tiSUips,  J  cannot  say. 

Mr.  Marsh,  Were  his  irons  taken  ofi*? 

FhilHns,  Hb  irons  were  ^ken  off,  I  belie? e, 
t|f  srtitioo. 

Mr.  JlfsrfA.  Who  was  the  other  man  ? 

?hilUps,  The  other  wan  one  Hartuess. 

Mr.  Marsh.  How  was  he  as  to  his  health  ? 

fkiliips.  Vm  well. 

Mr.  Marsh,  What  sort  ot'a  man  was  Newton  ? 

PkUUps,  He  was  a  robust  man. 

Mr.  Marsh,  From  the  time  of  his  l»eing  put 
hi  mto  thesick  ward,  to  the  time  of  his  death, 
W  was  be? 

FUUfpi.  He  continued  to  grow  worse  and 
•MiiUbedicd. 

VOL.  xvn. 


Mr.  Marsh,  Did  he  say  what  wis  the  occa- 
sion of  his  death  ? 

Fhillips.  I  heard  him  say,  that  the  ill  nsage 
and  confinement  were  the  occasion  of  his  death. 

Mr.  Marsh,  What  was  your  opinion  of  hiu 
before  he  was  put  in  tbe  Strong  Room  ? 

F hiliips.  My  opinion  is,  that  he  was  a  strong 
young  man  when  he  came  in. 
,  Mr.  Marsh.    When  did  he  tell  vou  that  hi$ 
death  was  occasioned  by  his  oonnnement  and 
usage  ? 

Phillips.  I  beliere  it  was  some  days  after 
he  was  in  the  sick  ward. 

Mr.  Marsh.  What,  in  your  opinion,  was  the 
cause  of  his  death  ? 

Phillips,  My  opinion  is,  that  the  confine- 
ment and  usage  were  the  cause  of  his  death. 

Mr.  Marsh.  Was  the  prisoner  at  the  bar  in 
the  lo<lge  when  the  irons  were  put  on  f 

Phiiups.  The  prisoner  at  the  bar  was  there 
with  Roff.ers  when  they  were  put  on. 

Mr.  Marsh,  Was  there  any  bed  in  the  Strong 
Room  ? 

Phillips,  There  was  no  !)ed  there ;  and  if  he 
had  had  one,  ,they  would  hare  prevented  it's 
coming  in. 

Mr.  Marsh,  Do  you  know  of  any  appficatioM 
made  to  Darby,  in  relation  to  Newton  ? 

Phillips.  No. 

Robert  Smith  sworn. 

Mr.  IFord.  Did  you  know  Newton  ?  . 

Smith.  I  knew  Newton  very  welt ;  I  knew 
him  to  be  a  lusty,  bale  man  ;  and  that  he  was 
confined  iu  the  Strong  Room  eight  or  ten  days, 
or  more. 

-  Mr.  Ward.   Did  you  see  him  in  the  Strong 
Room  ? 

Smith,  I  never  saw  him  but  through  the  hole. 

Mr.  Ward.  Did  be  complain  of  bis  irons  ? 

Smith,  Yes. 

Mr.  Ward.  Did  you  draw  a  petition  for  him  ? 

Smith.  I  did. 

Mr.  Ward.  You  have  seen  the  Strong  Room, 
what  sort  of  a  place  is  it  ? 

Smith.  1  have  smelt  noisome  stenches,  and 
seen  persons  dying  in  it. 

Mr.  Ward.  Was  it  damp? 

Smith.  I  believe  it  was  damp  ;  I  saw  it  once 
open. 

Mr.  Ward.  Was  it  open  when  you  saw  New- 
ton there  ? 

Smith,  No.  I  saw  him  through  the  hole ; 
nolK>dy  was  admitted  to  him  then. 

Mr.  Ward.  How  often  were  you  there  ? 

Smith.  1  was  there  twice  or  thrice  in  the 
middle  of  the  day  to  see  him,  and  the  door  was 
always  shut. 

Mr.  Demotet  vworn. 

Mr.  Ward.  Did  you  know  Newton  ? 

Demotct.  I  knew  Newton  before  he  come  in 
de  |>ark,  (which  he  spoke  in  a  very  broken 
manner) ;   1  cannot  sjieak  F.nglish  well. 

Mr.  Ward.  He  is  a  foreigner,  and  can*! 
s|>eak  Kngfi&h  to  l)e  understood,  therefore  we 
desire  he  may  be  allowed  au  iuterpreter,  wbe 
is  here  ready. 

S  M 


531] 


S  GEORGE  11. 


Trial  of  WilHam  Acion, 


[5» 


Acton,  He  can  speak  English  rery  well ; 
here  is  one  that  heard  him,  who  ean  prove  it. 

Mr.  Baron  Carter,  When  I  went  the  Oxford 
circuit,  the  Welch  would  not  speak  English, 
because  it  was  a  dishonour  to  their  country.  I f 
he  can  talk  English  to  he  understood  (which  1 
•hall  judge  of  when  he  is  examined),  I  can't 
allow  him  an  interpreter. 

AJr.  IVartI,  Give  an  account,  as  well  as  you 
can,  of  what  vou  know  of  Newton. 

Deniotet,  I  knew  Newton  the  time  lie  hroke 
out  of  the  room ;  he  was  retaken  three  or  four 
mouths  after,  and  was  carried  into  the  Strong 
Room  very  soon  in  the  morning. 

Mr.  Ward.  How  long  did  he  contimie  (here  ? 

Demotet.  He  continued  there  fourteen  or 
fil\een  dayv,  and  lay  on  the  ground,  and  had 
nothing  to  keep  him  there. 

Mr.  Ward.  VVas  he  ironed? 

Demotet.  He  came  ironed  out  of  the  lodge. 

Mr.  Ward.  Who  brought  him  out  of  the 
lod|ife?  • 

Detnotet.  R(»gers  and  Nichols  brought  him 
down. 

Mr.  Ward.  Was  Acton  there  ? 

Demotet.  Acton  came  and  saw  Newton 
locke«l  into  the  Strong  Room.  When  he  uas 
first  put  in,  capt.  D&gol  was  confined  there 
at  the  same  time. 

Mr.  Ward,  Was  Newton  sick  in  the  Strong 
Room? 

Demotet.  lie  fell  sick  there ;  both  of  them 
were  lousy ;  his  wife  and  young  child  came 
to  take  care  of  her  husband,  and  petitioned  to 
sir  John  Darnell  to  liave  him  released  ;  he  was 
put  in  the  sick  room,  and  there  died  in  four  or 
five  days  atler.  His  wii'e  broke  her  heart,  and 
she  and  the  little  child  died  in  the  same  week. 

Mr.  Ward.  What  was  the  occasion  ol*  his 
being  sick  ? 

Demotet.  That  he  was  on  the  ground,  he 
had  no  bed  to  lie  on,  and  the  water  came  in 
at  the  top. 

Mr.  Ward.  What  kind  of  a  place  is  the 
Strong  Uoom  ? 

Dcjiiotet.  It  is  not  fit  to  put  a  man  in,  the 
rain  comes  in. 

Mr.  Baron  Carter.  Were  you  ever  in  it  ? 

Dtmotei.  I  was  in  it  myself;  Grace  put  me 
in  there. 

Mr.  Baron  Carter.  How  long  were  you  in 
the  Strung  Room  ? 

Demotet.  I  was  in  there  for  ten  minutes, 
and  there  were  two  dead  men  in  at  the  same 
lime,  and  1  iell  sick  for  five  months. 

Mr.  Manh.  Was  it  infested  with  rats  ? 

Demotet.  It  was  very  much  infested  with 
rats  and  vermin. 

Acton.   Do  you  know  Hester  Overstoun  ? 
I         Detnotet.  I  do  not  know  her.    (Ail  spoke  in 
broken  English.) 

ilfar(Ao  Johnson  sworn. 

Mr.  Marsh.  Did  you  know  Newton  ? 
Mrs.  Johnson,   1  did,  he  lired  in  the  park, 
'  OD  the  master  side,  before  he  hroke  out. 

^^r.  Marsh.   Did  you  see  him  confined  in 
rung  iioom  P 


Mrs.  Johnson.  I  never  saw  hhn  conffaicd  in 
any  pbce,  but  I  saw  him  in  irons. 

John  Johnson  sworn. 

Mr.  Ward.  Give  an  account  of  what  you 
know  of  Nen  Ion. 

Johnson.  I  paw  Newton  in  the  Strong  Rom. 

Mr.  Ward.  What  sort  of  a  place  is  it  ? 

Johnson.  It  is  a  close  place. 

Mr.  Ward.  Is  it  fit  to  put  any  one  in  ? 

Johnson.  It  is  not  fit  to  put  a  man  into. 

Mr.  Ward.  Was  there  any  smell  there? 

Johnson.  There  was  a  noisome  smell,  nd 
so  there  was  on  all  the  common  side. 

Mr.  Ward.  Is  it  moieor  less  healtby  than 
the  other  rooms  on  the  common  side  ? 

Johnson.  They  are  all  unhcahhy,  h  is  mocb 
the  same  as  the  rest. 

Acton.  I  desire  he  may  be  asked,  when  be 
went  to  captain  Delagoll  m  the  Strong  Roon, 
if  the  door  was  open. 

Johnson.  It  was  open  ;  it  was  opened  for 
me  to  go  to  shave  him. 

Ruth  Bullcr  owom. 

Mr.  Ward.  Did  yon  know  Newton f 

Mrs.  Butler.  I  remember  Newton  very  well ; 
he  was  confined  on  the  master  side  in  tbe 
park,  and  there  broke  out ;  he  was  rettkca, 
and  brought  to  the  prison  again,  and  put  into 
the  Strung  Room  by  Mr.  Acton'a  order;  I 
heard  Acton  give  the  orders. 

Mr.  Ward,  Was  he  ironed  ? 

Mrs.  Butler.  He  was  ironed  on  both  legi; 
I  heard  Acton  order  them  to  be  put  on. 

Mr.  Ward.  How  long  did  he  continue  in  the 
Strong  Room  ? 

Mrs.  Butler.  He  continued  there  a  good 
while,  more  than  a  month  ;  he  was  sick  there. 

Mr.  Ward,  Mow  long  was  Newton  confined 
in  the  Strong  Uoom  ? 

Mrs.  Butler.    About  two  months. 

Mr.  Ward.  Are  you  sure  it  was  two  months. 

Mrs.  Butler.    I  really  think  it  was  so  kmg. 

Mr.  Ward.   When  was  he  taken  ill  ? 

Mrs.  Butler.  He  fell  ill  in  the  Strong  Room, 
aad  continued  there  some  time  after  he  was 
taken  sick,  and  then  was  carried  to  the  sick 
ward,  and  died  in  three  or  four  days  after  ha 
was  put  there. 

Mr.  Ward.    When  were  his  irons  taken  off? 

Mrs.  Butler.  His  irons  were  taken  off  in 
tbe  Strong  Room. 

Mr.  Ward.  What  was  the  occasion  of  his 
sickness  ? 

xMrs.  Butler.  I  can't  tell  what  it  wat  oe- 
casioned  by,  unless  by  the  rain  and  wet  that 
came  in. 

Mr.  Ward.    ^Vas  it  covered  at  top  ? 

Mrs.  Butler.  It  was  boarded  at  top,  buttbO' 
rain  came  through  the  top,  tbe  hoards  not  be- 
ing close  enou^rh  to  keep  the  rain  out. 

Mr.  Ward.  How  near  is  the  common  www 
to  it? 

Mrs.  Butler.  The  common  sewer  nus  jMl 
by  it,  and  smells  very  offensive. 

Mr.  Ward.    Had  Newton  any  bed  tbtivP 

BIrs.  Butler,    No. 


Jiir  ihe  Murder  of  llotierl  Newton. 
ttf.  Ward.    Wm  Ub.  fit  place  lur  aaj- 
His.  BuiUr.    It  wu  not  fit  foe  aay  mi 


Mr.  U'ottl.  miRlgaTctlieDiunliissuikQras? 
Mr.  U*iai>  Carter.     Slie  bos  aoiwered  that 

Hr.  tf'ard.     Did  lie  make  any  coroplniot  ? 

Hn.  Bailer,  lie  coiDpluiiieil  tiis  leRs  were 
«niilti  the  i(iiD9;  I  &aw  Kin  te^  wlieo  liia 
■Mrititip  wem  off,  in  the  sick  ward,  snit  hix 
lc|t  »vn  iwclled,  the  irons  being  too  liglil  far 
Urn. 

■/.  Btran  CW/er.    Will  you  ask  her  any 

Nicholai  Pvrdett  sworn. 
Mr.  Wurd.  Do  yaii  know  the  Siroog  Bxton  T 
PunJcit.    I  wai  in  it  aeieral  times,  n  hcu  twu 
anha^pv  meu  were  In  it,  who  came  f'roui  (lie 
King  S'UCDth.     Efi-ry  lime  it  raina,  the  ram 
ran*  I hniu|{h,  anil  there  Haggle*,   till  it  dries 
ihrBuiih  the  hoards. 
Mr?  Baron  Carter.     When  wu  that? 
Piitiicn.     About  a  year  and  a  hatl'ago. 
Mr.  lUron  Carttr.  That  is  ahort  at  ifie  time 
U  LatJie  indictincol. 
Hr.  Ward,     t  allow  it  short  of  the  time. 

Edmund  Cnmniiiu  svroru. 
ilr,  Ward.     C 
Ibb«  of  Newton. 

Cmumiri.     I  remember  Newton't  being  put 
laibrHiraiig  Kuam;  at  that  lima  it  rainnl 
M^jcidrd  Iwtwera  the  joials. 


t  of  what  JO 


li.  H-afd. 

Did  il  ram 

inwl 

en  Nenton 

inf 

It  did  rain 

uihe 

n,  and  ao  i 

.ere. 

Had  No, 

,n,.    I  «au 

him 
Iota 

in  iron*  in 

Mr  11  .,nl 

What  kin 

phce  «ai 

Qmmmi. 

It  was  wet  and 

dirt,,  the 

MMgtbfonebMthil  time; 

aiid  it  t^as 

"STua 

-Kr 

whole 

«,me  pl«:e 

A.  D.  1729. 

',  Gire  an  account  or»bat 


Mc  Watd,    We  Uiall  call  no  more  wit- 

Mr  Barau  Caritr.  Now,  priwiicr,  any  what 
;M<ill. 

Atlm.  On  the  20th  day  of  July.  Hartncss 
ltd  Nvwioa  hroke  out  of  gaol,  and  weic  re- 
hUn  in  Kent,  and  hruu)(ht  to  the  (plot ;  and  I 
ttmulivt  a  mHieauier  to  Mr.  Utrby,  lu  kntiw 
iit  would  bare  thtm  put  in  irooi;  and  he 
IK  ward  back,  they  abould.    They  were  not 


pa  b  that  niffhi,  but  were  put  in 


s  the 


_L  day,  aniTwcnt  about  the  yard  ;  and  in 
4nit  tight  or  uiiM  ilayn  linie  were  discbarjjcd. 
!(f«t«n  waa  afliirwarils  taken  ill,  and  put  in  the 
■t:  waid,  MtA  there  died. 

tioUrt  Bvimaswom. 
J'ln.    PlcaMtoaak  biiD,  what  he  knoHi 


Mr.  Baron  ('ai 

,.« ta». 

Uuhiit.  Nenlan  escaped  out  of  a  roiiia  in 
the  park,  and  was  retaken  and  brought  to  the 

!;aul,  and  I  helped  one  of  ihem  doWu  into  the 
Dd[{e,  and  Avlnn  bid  me  ijO  ta  Mr.  Darliy,  10 
know  hoiv  to  dispose  of  ibem:  and  Onrliy'i 
orders  nei  e  to  iron  them,  and  put  them  in  the 
Slroiik;  Itoum. 

Aclon.  Please  In  ask,  my  lord,  if  he  brought 
Ibe  message  l>ack  tn  me,  or  any  other  persoii. 

Solmei.  I  came  back  lo  Adnn,  and  told 
him,  that  Mr.  Darby's  orders  were  lo  have 
ilieiii  |iut  iti  the  IStrnng  Ituoin,  and  ironed; 
and  (be  uexl  day  tbey  were  put  in  iraus  by 
Grei^iiwoy  and  NichuU. 

Atloa.  Did  Darby  rawe  there  the  next 
day  ? — Rahnti.  Vet. 

Ailaa.  Please  lo  ask,  if  they  were  locked 
up  mid  unlocked,  OS  the  rest  of  iheprisoners. 

Ilolma.     Yes,  they  were. 

Air.  Uaron  Corfer.  What  iraus  bad  they  «n? 

HoliHa.     CuraiBon  ironi,  as  tiut  felou  dbmI 

nir.  Baron  Carter.  How  long  were  they 
conlinrd  there  ? 

Holma.    Seven  or  eiffht  nii^ls. 

nir.  Baron  Carter.  What  day  did  they  ooBH 
in  ?— Holma.   On  a  Thursday. 

Mr.  Baron  Carter.  How  long  were  they  in 
irona?— iW>n«,  Seien  or  ei^ht  days. 

Mr.  Baron  Carter.  What  conditivu  of  hestlb 
were  they  io  then  ? 

Holmes.     In  perfect  i;ond  health. 

Alton.  How  lon^  did  Newton  routinuesoi 
aiier  he  was  taken  out  of  the  Strong  Koum  ? 

Holmec.  Newton  went  into  the  Uuke'a  ward, 
and  siiid  there  six  weeks,  and  was  in  p>od 
health  all  thai  time ;  1  drank  with  him  seteral 
limes,  and  played  at  trap-ball  with  bira. 

Atton.  Plfase  to  auk,  whether  his  (rieadi 
did  nnl  bring  him  necenariea. 

Ilulmet.  There  were  his  wife  and  sister 
i^ame  lo  htm ;  but  Hartness's  wife  did  more 
than  either. 

Aiion.    Whatwastbecauseofhisdealb? 

Holmet,  The  gaot.dialeaiper  ;  there  ware  • 
great  many  sick  at  that  time. 

Actim.  Were  other  |»cnuinssid(ortbeiame 
distemper  at  the  same  lime  i" 

Ueinei.  It  ia  iny  opioion,  but  1  can't  be 
certain. 

Acioa.  WIiatthinkyoueflheSsroogUwtmF 

Holmes.  1  think  it  ia  the  h«t  room  on  the 
common  side  for  any  two  or  three  to  lie  in,  and 
1  hate  knowD  several  desire  to  lie  there. 

Mr.  Marilt.  Consider  with  youraalf,  that 
many  persons  have  said,  that  he  lav  14  or  1> 
daya  in  lb*  Strong  Room,  and  was  tlieDcerriad 
lo  the  sick  ward  ;  and  you  say ,  that  b*  was  lix 
weeks  in  the  Duke's  waid. 

Holinr.t.  It  wua  when  he  was  lakrn  out  of 
tlie  (Jtrnne  Room,  and  carrird  to  the  Duke's 
ward,  he  got  his  illiieaa.  (o  tli«  beat  of  my  know- 

Nr.  Marih.   When  wm  be  taken,  oiler  the 


539] 


GEORGE  II. 


Trial  of  William  Acton, 


[MO 


.  Mr.  Ward,    IHil  you  nolhtog'  but  tbree- 
pencf? — Berkley'.  No. 
-  Mr.  Ward.     Who  iras  you  appointeil  by  ? 

Berkley.    The  iut>n  in  thv  gaol  chose  me. 

Mr.  Mard.  How  came  ihey  to  choose  you  ? 

Berklet^,  They  look  luc  to  be  a  sober, 
modest  woman,  and  so  chose  lue. 

Mr.  fiarou  Carter,  You  see  you  have  an 
Boswer ;  she  is  a  sober,  modest  woman. 

Mr.  Ward.  But  it  is  difficult  to  get  the  truth 
out  of  ber. 

John  Boswell  sworn. 

Acton.  Did  you  build  the  Strpng  Room? 

BotaoelL  I  did  ;  it  was  made  to  put  pirates  in. 

Acton.  Is  it  a  wholesome  place  ? 

Bow^ll.  It  is  a  very  wholesome  place ;  it 
is  Dipe  inches  from  the  ground. 

Mr.  Baroo  Carter.  Is  the  common  sewer 
under  it  ? 

Boswell.  It  is  not,  it  is  twenty(four  feet  from  it. 

Mr.  fiaroD  Carter.  How  coqie  you  to  know 
it? 

BoswclL  Because  I  measured  it^  sev^al 
tjmes. 

Acton.  Was  there  a  covering  at  the  top  ? 

BowelL  It  was  covered  with  whole  deals, 
imd  pitched  and  tarred. 

Mr.  JIf or rii  sworo. 

Acton,  Do  you  know  the  Strong  Room  ? 

Morris.  I  do^  and  it  is  better  than  any 
ground-room  on  the  commoa  side;  there  is  a 
•tep  up  above  the  surface. 

Acton.  Please  to  ask  him,  what  business  he 
is  ? — Morris.  1  am  a  carpenter. 

Mr.  Bacon  Carter.  How  is  the  room  cover- 
ed? 

Morris.  With  boards,  and  I  think  there  is  a 
tarpaulin  at  top. 

Mr.  Baron  Carter.  How  near  is  the  common 
ftewer  to  it  ? 

Morris.   It  is  above  eighteen  feet  from  it. 

Mr.  Boron  Carter.  Is  it  offensive  ? 

Morris.  I  don't  think  there  in  any  thing  of- 
fensive. 

Mr.  Ward.  Do  you  know  when  it  was  built  ? 

Morris,  it  waa  built  about  four  or  Ave  years 
ago. 

■  Overston  sworn. 

Acton.  What  did  yon  hear  Mr.  Demotet  say 
concerning  mc? 

Overtton.  I  heard  Mr,  Demotet  say,  he 
would  hang  Acton,  right  or  wrong,  to  oe  an 
exampU  to  all  other  gaolers ;  and  that  he  was 
maintained  by  some  gentlemen  to  bang  him. 

Mr.  Ward.  Uow  long  ago  was  it  that  you 
Lennl  him  say  this  ? 

Overston.  It  W9i  the  fourteenth  day  of  July 
last,  in  the  cellar  of  the  Fleet  prison. 

Mr.  Marsh.  IIow  came  you  to  be  ift  the 
Fleet? 

Overtton.  I  went  backward  and  forward  to 
the  Fleet. 

Mr.  Marsk,,  What  are  jou  ? 

Overston.  k  servant/ 1  rive  in  FeUiir-JIfff ^ 


Mr.  Demotet  was  called,  to  confront  Overston. 

Mr.  Marsh.  Du  you  know  that  wouiau? 

Demotet.  I  do. 

Mr.  Marsh.  What  was  it  you  said  to  herf 

Demotet.  1  saiil,  I  would  say  nothing  ta 
the  tnith,  and  do  nothing  but  what  the  law  re- 
quired. 

Mr.  Marsh.  Overston,  What  was  it  Demotsi 
said  to  you  ou  the  14th  of  July,  in  the  Fleet 
prison  ? 

Overston.  lie  was  in  the  ceRar  there,  and 
said  he  would  swear  against  Mr.  Acton,  right 
or  wrong,  in  order  to  make  nn  example  of  bim. 

Deomtet.  I  said,  I  would  say  what  wastmth. 

Elizabeth  Clayton  sworn. 

Acton.  What  did  you  hear  Demotet  sa^  ? 

Clayton.    In  the  cellar  in  the  Fleet  pnson  ? 

Mr.  Marsh,  Mistress,  hold  ;  were  not  yeua 
prisoner  in  theMarshalsea  ? 

Clayton.  1  was  a  prisoner  tbere  tweire 
months  ;  but  bearing  that  Demotet  bad  sworn 
against  Acton,  1  had  a  mind  to  talk  with  hin 
about  it ;  and  he  said,  that  Acton  had  killed  a 
hundred,  and  that  he  would  be  revenged  id 
him,  if  he  swore  himself  to  the  devil. 

Mr.  Marsh.  She  was  a  prisoner  in  the  Blar- 
shalsea.  how  came  she  into  the  Fleet  ? 

Mr.  Baron  Carter.   How  came  you  there? 

Clayton.  I  went  to  Mrs.  Overstoo,  she  was 
at  one  Mr.  Solas  wife's. 

Demotet.  (In  a  passion.)  She  is  an  old  basrd, 
and  brought  whores  to  Solas. 

Mr.  Baron  Carter.  You  most  not  beban 
yourself  ill  to  witnesses. 

Demotet.  What  she  has  said,  is  not  trno, 

John  Hull  sworn, 

Acton.  Please  to  ask  him,  what  Demotet  de« 
clared  to  him. 

Hull.  Mr.  Demotet  declared,  that  be  would 
hang  Acton  right  or  wrong,  to  be  aa  exanple 
to  all  other  gaolers. 

Mr.  Ward.  There  is  a  very  remarkable  dif- 
ference in  the  witnesses,  in  i-elatioa  to  the  place 
the  man  was  supposed  to  go  tu,  after  he  came 
out  of  the  Strong  lloom. 

Mr.  Baron  Carter.  Gentlemen  of  the  jory, 
the  prisoner  at  the  bar  stands  indicted  for  ine 
murder  of  Robert  Newton ;  the  iodictoieDtsets 
forth,  that  he  put  him,  against  hia  will,  into  a 
place  called  the  Strong  Room,  and  kept  him 
there  fourteen  days ;  tnat  there  were  unwhelr 
some,  noisome  smella ;  that  it  was  damp  and 
wet,  and  that  he  got  a  distemper  there  where- 
of he  died.  To  prove  this,  they  called  lefcral 
witnesses.  The  first  wan  captain  Tudman;  he 
saya,  that  he  knew  Newton  ai|d  Hartness,  and 
that  they  broke< out;  and  ia  a  month  or  two 
after,  Newton  was  taJ^  again,  and  brought 
into  the  lodtre,  and  ironed,  and  theD  rimo^ 
into  the  Stroikg  RiMm-;  be  savf,  Ibat  ifiere  is  a 
little  bole  to  put  in  drink ;  and  says«  that  beSs^ 
Newton  went  into  this  |4ace»  ha  WW|  a.lMd% 
strong  yoong  GbUov*. 


fo,  the  Murder  of  Robert  Nni^lon. 


iUrtnm.  I  wu  in  (lie  room  irilh  NewtOD, 
mi  brhml  jIh^  thne. 

a*.  Rvna  Curler.  Hwl  be'ilierty  top>om? 

Barlmta.    He  liid  lilierij  lo  goout  orilmys. 

Mr.  Btrhn  Corltr.  Wlipu  hr  trentuut  ul'iUe 
iiHig  Room,  wliere  illd  lie  (^  ? 

ffn-fni-a,  I  think  liirwFnlinlolhfttck  ward. 

Br.  Jijri'o  Carter.    Wlieii   be  wrul  oul  of 


.glieP 


ir  buslitnil 


,  Very  well, 
if.  Bron  tWrr.  J 
Wtrt  br  wu  Iflkeli  ill 
Scfncii.     lie  wBii  not  ukeo  ill 

Mr.  tUmn  C.ir/tr.  Where  JiiJ  y. 
fi.  vliM  lie  Iclk  the  Strung  lloorn  i 

Htrtitat.    Into  ihe  l'.-titi<>riiii|{-raoiD. 

Ur  tUn>ii  Catlrr.    )lo^<  lung  iliil  Nevloo 
hi  >ftn  h*  went  out  of  the  Hlrong  Uoom  f 

Kirfwn.  Six  w«eki,  or  belter. 

ictm.  PIcnse  to  atk  bei'.  U  niie  captain  De- 


Birlnr. 


Il< 


mil  my  biiilianil  and 
Brum  were  very  glad  thai  they  were  I'a- 
imthI  in  iniji^,  ill  having  so  [f'''>J  "geutle- 

'   I ■■■.  he  having  caiiilte  iberc. 

■  :  (  'iriiT.  What  sort  oln  place  tvat 

.    Ii  wif  clean  anJ  dry;    I   cotild 
f   )m  »uhcil   m^   hiuhand  there  uJl  the  time. 
^""^  I.  PIcaK  10  uh,  loy  lord,  whether  «he 
mptuin  ofill  u9a|,'eP 


'Ion  complain 
and  tliai  they 


Mr.  Barou  Carltr.  Did  Nt 
Wihe  iroiii  bad  burl  iiia  legi 
tmiittWeil  ?~-BerliMii.  Nu, 

ft.BirooCarrer.  Who  were  tbeiroDttnken 

ArtMii.  Tbey  nere  taken  oiT  by  Darby's 

icfm.   P1e«ae  lo  aak,  if  NewloD  ever  com- 
fbalorme? 
Strtnat.    I   DDver  heard  him  cay  a  misa 

mrioTjoii. 

ilrtn.  Please  to  ask,  my  lord,  if  she  ap- 
fU  U  Darby  to  hate  the  irons  taken  off. 

BtliutM.  i  went  lo  Darby  on  a  noitrt  day, 
Ml  he  w«l.  be  would  bave  them  off. 

Mr.  M'arJ.   >Vho  do  VOU  live  with  ? 

Ibrfum   Oiie  col.  bniiit. 

Mf-  WtrJ    Where  don  he  live  ? 

lUrUia.  He  lives  laChtrlei-ilreel.CoTent- 


Mr.  irnr<f.  Was  jour  liuiUnd 
waidf— Hurini-M.  So. 

Mc   H'nrii.    How  en ii Id  they  lye  Iflcethi 
Harliteit,    1  Rpokeofthis  bel'orf  they  wi 


m 


;s  not  say  a  word 
lay  in  the  peti' 
a  ibesick  wacd. 


Ur.  W^d.  How  « 
wImiW  Bm«tnf 
ilvtacn.  1  am  cerranl  locolond  Brown. 
Mr  H'larW.  IVfaal  i>  your  hutbniid  ? 
Bvfnfft.    lie  ia  cvok  to   the  capt«iu  ol'  i 

Mr.  Ward.   Whm  did  Ntwfoo  lie  after  hi 
naw  Ml  of  ih*  flirone  Room  f 
Acrtaeu.   My  huawuid  and  Newlou  wen 


»  it  liial  yuo  lire  wilb 


Hr.  WarJ.  I  tfX|ieiAedyou  worse  than  1  find 
{•■■     Aher  )our  hiislmtid  Came  out  ur  the 
WMf;  BowD,  nhrri!  ivm  be  carried  to  i 
"   '        TvUwi^iltOoiiig-rooiii. 


Mr.  RsfOii  Curler.  She  d. 
as  to  the  Strong  Hooin  ;  oni 
tioning-room,  anil  the  other 

Mary  Be<  klry  sworn. 

Aden.   Do  you  temenibec  Newi 
the  Strong  Itoom  f— Berkley.  I  dd 

Actoa.  Hud  he  n  bed  Ihcre  ? 

Berkley.  He  had. 

Acton.  What  kind  ofa  place  is  the  Sttoos 
Room  ?  ** 

Berkley.    It  is  a  boarded  room,  and  floored 

Uittuni ;  ii  was  every  day  washed ;  1  naib- 

Mr.  Baron  Carter.  Did  be  not  complaia  of 
any  bardahiij?— BrrftW.   No. 

Str.  Baron  Carter.  Wliere  did  be  ^<t  when 
lie  came  out  of  the  iSlrong  Room  i" 

Berkley.  He  went  into  the  Duke's  ward. 

Air.  Baron  Curler.  How  long  was  he  there  f 

Berkley.  Seven  weeks. 

fllr.  Baron  Cur/<r.  Where  did  Newlon  fall 
ill? 

Btrkley.     In  the  Duke's  ward. 

Mr.  Barou   Carter.    Did  you   sea  Newton 

Berkley.  1  did  see  him,  I  wasaurse;  bis 
distemper  was  the  eaol  distemper,  an  ^ue  nnd 
lever ;    lie  woi   taken  ill  with  a  shivenog  and 

nil*.  Baron  Carter.  Did  you  look  after  bim 
all  the  lime  he  was  ill  ?~BerkUv.  Yea. 

Mr.  Baron  Curft^r.  When  did  be  die? 

Jkrklry.  He  died  in  Noveraber. 

Mr.  Baron  Carfer.  Did  he  complain  of  any 
hard  usage  ? 

Berkley.  No;  he  went  about  wilb  hisfellcn. 

Artmi.   Did  you  see  him  after  he  died? 

Berkley.  Yea,  I  washed  bim;  hewBsa*ery 
clever,  clean  corpse,  wiltiout  spot  or  blemish. 

Mr.  Marsh.  Did  you  see  no  marks  of  the 
irons?— Birftfaj/.  No. 

V^t.Mar^h.  Did  yon  wash  iheStrong Room 
with  the  water  that  fell  from  the  heavens? 
You  dried  it  uu 

Mr.  Baron  Ctrler.  Did  it  rain  in  f 

Berkley.  It  never  rained  in  there;  It  trai  a 
idfv ,  neat  place. 

"Mr.  I^orrf.  Have  yon  no  office  in  the  gaol  7 

Berkley.  I  looked  after  ihesicb. 

Mr.  W'urd.  Had  vouanysllowanceuonrse, 
and  by  whom  paid  f 

Berkley.  I  bad  no  allowance. 

Mr.  Ward.  Hod  you  nothing  paid  you  ? 

Berklty.  Who  shonld  pay  mef 

Mr.  Ward.  What  did  yoa  do  it  for  ? 

Berklty.  I  did  it  for  Christianity  sake. 

Mr.  Baron  Carter.  Di4  Acton  make  yoti  any 
allowance  f 

Btrktey.  I  bad  three-pence  a-piecelVoro  the 

"-'  that  came  into  ibe  ward,  which  «a» 
Ifaelwr. 


laiJal 


M3] 


S  GEORGE  II. 


Trial  of  WaUam  ActoUt 


[M 


plaint,  but  just  before  be  was  carried  there :  He 
liad  a  {(ooil  opiuion  of  the  Strong  Room,  and 
requejitfHl  to  work  there,  and  says,  that  he  let 
•Newton  bate  a  bed;  which  contradicts  all  the 
other  evidences.  He  was  asked  about  the 
beds,  and  said,  that  he  got  theiii  by  his  savings, 
mud  that  he  let  them  out  to  hire. 

Haitness  says,  that  she  knows  very  well  that 
Kewton  had  a  bed,  and  her  husband  and  he  lay 
together,  and  a  captain  was  there ;  that  she 
never  found  the  room  wet,  nor  any  thing  like 
it ;  that  they  went  ont  of  days,  and  were  lock- 
ed up  in  the  Strong  Room  of  nights ;  that 
!Newton  was  six  ^eeks  or  two  months,  before 
he  died,  in  the  Duke's  ward ;  that  her  husband 
received  no  damage.  She  says,  that  it  was  a 
clean  room ;  that  she  never  heard  Newton  com- 

Slain  of  his  irons,- or  ill  usage  of  the  prisoner, 
he  says,  that  she  went  to  Darby  to  liave  the 
irons  taken  off,  and  he  ordered  them  to  be  taken 
off,  while  she  stood  by,  and  gave  directions  ac- 
cordingly. 

Burton;  she  says,  that  she  saw  Newton  in 
the  Strong  Room,  and  she  saw  a  bed ;  so  there 
are  three  witnesses  as  to  that.  She  says,  she 
washed  the  room  every  day ;  it  it  very  extra- 
ordinary, after  so  many  nave  swore  it  to  l>e 
▼ery  duty.  She  says,  that  he  never  did 
complain  of  the  prisoner ;  that  he  went 
into  the  Duke's  ward  for  seven  weeks;  that 
she  was  curse,  and  that  he  died  in  No- 
Tember,  and  died  of  an  ague  and  fever ; 
that  she  laid  him  out,  and  never  saw  a  finer 
corpse ;  and  that  the  rain  never  came  into  the 
Strong  Room.  In  order  to  take  off  part  of  her 
testimony,  site  was  asked,  Whether  she  was 
not  obliged  to  tlie  prisoner  at  the  bar?  She 
said,  that  she  was  nurse,  and  that  she  had  three 
pence  a-niece  of  those  she  took  care  of; 
and  that  she  was  chosen  by  the  free  election  of 
the  prisoners. 

The  prisoner  called  two  or  three  others,  to 
the  Strong  Room. 

Boswell  says,  he  built  it,  and  that  it  was 
very  wholesome,  and  it  was  twenty  four  feet 
from  the  common  sewer. 

Morris  says,  the  Strong  Room  was  very 
wholesome,  and  that  it  wal  better  than  any 
ground- room  on  the  common  side,  and  that 
there  was*  a  tarpaulin  at  top. 

Ovcrston  was  called  to  impeach  the  credit  of 
Demotet.  She  says,  that  in  the  Fleet  cellar, 
she  heard  him  say,  that  he  would  hang  Acton 
right  or  wrong,  as  an  example  to  other  gaolers, 


to  deter  them  from  being  rogues.  The  pr 
jtnner  called  two  others.  EliMielh  Clavtog 
she  heard  him  say,  that  he  would  hang  A^m 
though  he  sent  himself  to  the  devil  ;  aodih 
other,  John  Hull,  beard  him  say,  that  he  wool 
hang  Acton  right  or  wron|f . — ^Demotet  beia 
called  to  confront  these  witnesses,  denies  k 
ever  said  what  they  assert  he  did. 

This  is  the  evidence  on  both  sides  ;  then 
fore  yii't  will  consider  if  Acton  caused  bira  i 
be  put  into  the  Strong  Room ;  for  if  he  did  nc 
then  he  must  lie  acquitted :  If  he  did  put  hii 
in,  you  arc  to  consider,  whether  this  plaee 
such  a  place  as  ihry  have  set  forth. 

There  is  not  a  single  witness  for  the  kii 
that  does  not  give  the  same  account  of  ll 
Strong  Room  :  It  is  pretty  extraordinary,  thi 
to  a  man  the  witnesses  should  remain  m  oi 
opinion  for  the  self-same  purpose ;  their  won 
were,  that  it  was  not  fit  for  a  human  creatm 
to  be  in. 

The  witnesses  for  the  king  say,  that  he  die 
in  two  or  thrcie  days  alter  be  was  taken  out  < 
the  Strong  Room  ;  the  others  say,  that  be  lif 
ed  two  months ;  therefore  consider,  ifjie  wa 
put  in  this  room,  and  it  was  not  the  eccisw 
of  his  death,  he  ought  not  to  be  found  guilt] 
in  that  he  was  very  wdl  for  a  month,  aooi 
say  six  weeks  after ;  and  that  he  fell  sick  of  tk 
gaol  distemper  in  the  sick  ward. 

If  he  did  nothing  in  relation  to  the  ironf,  li 
must  be  acquitted  as  to  that. 

If  the  room  was  such  as  was  fit  for  a  ma 
to  be  put  in,  there  was  no  harm  in  patting  bii 
in  there. 

If  he  did  not  die  by  duress,  by  being  put  i 
that  room,  I  believe  he  must  be  acquitted  o 
thitt  head. 

If  he  was  put  in  the  Strong  Room  by  ActOE 
against  his  will,  and  it  was  so  unwholesom 
that  he  can*;lit  a  had  distemper,  and  died  of  il 
you  must  tind  him  guilty. 

The  Jury  agreed  upon  their  Verdict  immc 
diately,  without  going  ont  of  Court. 

CI.  qf'Arr,  Gentlemen,  are  you  all  agree 
in  your  verdict? — Omnet,  Yes. 

CI,  of  Arr.  Who  shall  say  for  you? 

Omncs.   Foreman. 

Cf,  of  Arr,  William  Acton,  hold  up  tfa] 
hand.  (Which  he  did.)  Louk  upon  the  pri 
soner.  How  say  you,  Is  he  Guilty  of  the  felo 
ny  and  murder  whereof  he  stands  indicted,  oi 
Not  Guilty  ? — Foreman,  Not  Guilty. 


for  the  Murder  of  James  Thompson. 


A.  D.  1729. 


[54« 


be  Trial  of  William  Acton,  for  the  Murder  of  James 
liompson,  at  the  Assizes  held  at  Kingston-upon-Thames,  in 
iirrey,  before  the  Honourable  Mr.  Baron  Carter,  August  2  : 
Geokge  II.  A.  D.  1729. 

ftlr.  Btron  Carter.  He  was  asked,  who  pat 
bira  into  the  Strong  Room  f  And  he  told  yoa 
the  ward  company. 

Cummins,  My  lord,  I  could  not  say  so. 

Mr.  Baron  Carter,  1  heard  you  say  so. 

Cummins.  My  lord,  I  heard  you just  now 

indulge  a  witness  lor  the  prisoner  to  explain 
herself.  I  thought  your  lordsliip '  woulo  not 
take  so  much  notice  of  one  of  the  king's  evi- 
dence making  a  mistake.  I  came  here  to  speak 
the  truth ;  and  if  your  lordship  will  not  gire 
me  leave  to  explain  myself,  1  will  go  down. 

Mr.  Baron  Car/er.  Indeedyou  behave  your- 
self  very  impertinently ;  but  go  on. 

Cummins.  Mr.  Acton  did  say  that  was  the 
reason,  that  the  ward  company  com^ned  of 
him  for  making  water. 

Mr.  JMarsh.  How  long  was  Thompson  in  the 
Strong  Room? 

Cummins.  He  was  there  five  or  six  days ;  I 
saw  him  whilst  he  was  alive  there ;  ne  laj 
there  on  nights,  and  had  no  bed. 

Mr.  Marsh.  When  you  saw  him  theie,  what 
condition  was  he  in  ? 

Cummins.  I  saw  him  in  a  had  conditiott. 

Mr.  Marsh.  Where  did  he  die? 

Cummins,  In  the  Strong  Room. 

Mr.  Marsh,  Did  yon  hear  Acton  say  any 
thing  about  it  f^^Cummins.  No. 

Air.  Marsh.  Did  you  see  him  after  he  was 
dead  ? — Cummins,  I  did. 

Mr.  Marsh.  How  long  was  he  dead  when 
3'on  saw  him  P 

Cummins.  He  was  alive  over  night,  and  I 
saw  him  dead  the  next  morning.  He  had  only 
a  nicht-ffown  v^ith  him. 

Mr.  Marsh,  Did  you  see  bis  face  P 

Cummins,  His  face  was  disfigured  with  the 


^turday^  August  3,  1739. 

M  ACTON  having  been  before  ar- 
r  the  murder  of  James  Thompson, 
d  Not  Guilty,  the  counsel  proceeded 

Idieton.  My  lord,  snd  yon  gcntle- 
}  jury,  I  am  of  counsel  K>r  the  king, 
nentsets  forth — 

M  our  witnesses  to  prove  the  fact. 

rsh.  My  lord,  and  you  gentlemen 
ff  the  evidence  for  the  king  against 
er  at  the  bar  for  murdering  one 
Hnpson,  is  to  this  effect :  that  the 
had  the  misfortune  to  be  troubled 
letes ;  and,  according  to  the  account 
liat  distemper,  it  does  occasion  [)er- 
id  a  great  deal  of  water.  Tlie  pri- 
10  far  from  compassionating  of  him, 
t  him  against  his  will  into  the  Strong 
I  he  lay  there  ten  days  or  more  in  a 
.on  ;  that  no  regard  was  had  to  him ; 
re  sufSered  to  continue  without  a  bed 
side  mortified.  It  was  a  very  bad 
me  of  the  witnesses  for  the  pnsoner 
I  account  of  it,  that  it  was  ouilt  for 
pirates :  this  place  was  built  up  for 
is  now  said  by  the  priMner  to  be  tKe 
in  this  gaol.  One  of  the  witnesses 
:ause  spoke  of  the  pirates  being  put 
hen  Thompson  was  in  this  place, 
lone  ;  his  miserable  couditiun  was 
1  to  Acton,  and  he  made  use  of  a 
expression,  *  Damn  him,  let  him  lie 
perish.'  We  will  call  our  witnesses 
e  fact,  and  it  must  be  left  to  you  to 
iicther  he  is  guilty  or  not. 
vus  so  little  care  taken  of  this  man, 
le  was  carried  into  the  Dtikc's  ward, 
^erefl  to  be  put  again  into  this  place, 
lied. 

Edmund  Cummins  sworn. 

rsh.    Did  yon  know  James  Thomp- 

nmins.   Yes. 

rsh.  Whose  care  was  he  under  ? 

f.   He  was  under  the  cure  of  Anton. 

irsh.     Who  put  Thompson    in  the 

Dm? 

I.    He  was  put  in  the  Strong  Room 

rard. 

r$k.    What  was  the  occasion  of  his 

there? 

I.  I  don't  know  what  was  the  reason 

»g  pot  there  ;    but  Acton  gave  that 

t  the  ward  company  complained  of 


rats ;  I  saw  the  riarks. 

Mr.  Marsh,  What  was  the  occasion  of 
Thompson's  death  ? 

Cutnmins.  He  might  die  by  lying  in  that 
room. 

Mr.  Marsh.  What  do  yon,  in  yonr  opinion, 
believe  to  he  the  occasion  of  his  death? 

Cummins.  I  believe  his  being  put  there  was 
tlie  occasion  of  his  death. 

Mr.  Marsh,  How  soon  was  he  buried  aHer 
he  died  ? 

Cummins.  He  ^^as  hurried  away  in  an  hour 
or  two  «ifler  he  dieil,  and  was  buried. 

Mr.  Marsh.  Who  gave  any  orders  for  hurr}'- 
ing  him  away  ? 

Cummins,  The  men  carried  him  away  that 
used  to  do  it. 

Mr.  Marsh.  When  was  he  carried  away  ? 

Cummins,  The  very  same  morning  he  died ; 
in  two  hours  aAcr. 

3  N 


547] 


S  GEOBGE  IL 


Trial  tfJamt$  Thampiont 


[648 


Mr.  Monk,  How  long  was  he  in  the  Strong 
Room? 

Cummimt.  Five,  liz,  orteren  days. 

Mr.  AfanA.  Had  he  any  bedlo  he  on  ? 

CummtMM,  He  bad  not. 

Mr.  Alarih.  I  ask  you,  whether  you  saw 
him  carried  to  the  Hooog  Room,  and  whether 
ActiNi  was  present  ? 

Cummin$,  Mr.  Acton  was  there;  and  the 
man  was  unwiHiog  to  go,  and  desired  lo  stay ; 
hut  Actoo  said,  he  should  not. 

Matthew  Brandon  sworn. 

Blr.  Monk,  INd  yon  know  captain  Thomp- 
son ? 

Brandon.  I  did ;  he  was  in  the  same  ward  I 
belonged  to,  which  is  called  Pomp  ward. 
Mr.  Marsh,    Had  be  any  infirmity  ? 

Brendan.    When  he  was  in  the  ward  he 

maile  a  little  water  ;  and  some  complaint  was 

made,  and  he  was  turned  into  thetkrong  Room. 

-  Mr.  Marsh.  Did  you  risit  him  when  he  was 

there  .^ 

Brandon,    Several  times. 

Mr.  Marsh,  Did  you  hear  Actoo  give  any 
orders  about  his  being  there? 

Brandon,  1  diil  not. 

Mr.  Marsh,  How  long  did  he  lie  there  ? 

Brandon.  Ten  days ;  then  he  was  remanded 
back  to  his  ward,  and  lay  there  one  night ;  and 
then  remanded  back,  omd  put  in  the  Strong 
Roomaeain. 

Mr.  Marsh.  Did  he  tell  yon  any  thing  ? 

Brandon.  He  lold  me,  that  he  was  unwilling 
to  go  back  to  the  Strong  Room,  tor  ttiat  it  would 
he  his  death. 

Mr.  Marsh.  Did  yon  visit  him  there? 

Brandon,  8ever:il  times ;  and  the  first  time 
I  saw  liim  he  had  nothing  to  lie  on,  and  1  fur- 
nished him  with  a  piece  of  a  blanket,  and  after 
with  a  piece  of  a  <|uilt. 

Mr.  Marsh,  [lo»v  long  was  it  liefore  he  died 
that  you  saw  him  ? 

hrandon,  1  saw  him  two  days  before  his 
death. 

Mr.  Marsh,  What  condition  was  he  iu  ? 

Brandon,  He  could  not  stir ;  three  or  four 
days  before  he  died,  he  lay  on  his  left  side. 

Mr.  MarsL  Did  you  not  see  one  of  his  hips 
very  sore,  angry,  and  had  ? 

Mr.  Baron  Carter.  You  know  you  muit  not 
lead  the  evidence. 

Brandon.  Thero  was  a  very  bad,  angry, 
sore  place. 

Mr.  Marsh,  Where  *vas  it? 

Brandon,  it  was  in  one  of  his  thighs. 

Mr.  Murkh.  When  did  you  see  it  ? 

Brandon.  It  was  so  when  he  was  in  that 
room  ;   I  don't  remember  it  before. 

Mr.  Marsh,  Did  capt.  Thompson  complain 
to  you  ol'  any  thing  ? 

Brandon.  He  complained,  before  he  went  into 
the  Strong  Room  a  second  time,  if  he  was  to 
go  in  there  again,  it  would  he  the  deatli  of  him. 

Mr.  Marsh,  How  many  days  was  it  atier  he 
was  put  in  again  to  the  Strang  Room  betot  he 
died. 


Brandon.    I  can't  justly  My,  but  I  b«li«v« 
about  six  or  eight  days. 

Mr.  Marsh,  Where  did  he  die? 

Brandon.  In  the  Strong  Room. 

Mr.  Marsh.  Did  you  see  him  aflier  he  was 
dead? 

Brsiid<0fi.  I  saw  him  the  next  nMnniiig  aHir; 
hia  thigh  looked  not  quite  so  wigry,  hot  them 
was  a  sore  place  there. 

Mr.  Marsh.  Dkl  you,  in  behalf  of  the  cap* 
tain,  make  any  apphcation  to  Actoo  ? 

Brandam.  NVilsoo,  Cnmmios,  aod  myself 
went  to  Acton,  and  represented  his  csooditiou  to 
him,  and  desirvd  he  would  be  pleased  to  let  hia 
go  to  the  sick  ward ;  and  Acton  bid  Wilaou  go 
about  his  business ;  and  that  was  all  the  UMwer 
we  conM  get. 

Blr.  Marsh,  When  yon  Mw  hiai  after  hs 
was  dead,  did  you  see  any  marks  about  him  F 

Brandon,  f  saw  his  nose  and  ear,  and  part 
of  his  cheek  eat  away. 

Wdliam  Jennings  sworo. 

Mr.  Marsh.  Did  you  know  James  Thsap- 
son? 

Jennings,  Yes;  he  wasaprisootf  htba 
Marsbalsea,  in  1726.  tz 

Mr.  Marsh,  Had  he  any  distemper  then? 

Jennings.  He  had  no  distemper  whsu  bu 
first  came  into  the  ward. 

Mr.  Ameron,  What  was  the  oocasioo  tf  Uft 
being  removed  outof  tlie  ward? 

Jennings.  They  found  fault  that  he  mm 
troubled  whh  a  diabetes. 

Mr.  Ameron,  Did  yon  hear  Actoo  give  woif 
orders  to  carry  him  to  the  Strong  Room  ? 

Jennings,  Acton  did  order  him  into  the 
Strong  Room. 

Mr.  Ameron.  How  long  did  he  remain  thcref 

Jennings.  He  remained  there  eight  or  teo 
dayH,  at  first,  aod  then  was  pot  into  the  Pooip 
ward,  and  stayed  there  two  nights,  and  tbca 
was  put  iuto  the  Strong  Room  again. 

Blr.  Ameron.  Did  Acton  order  liim  in  agaio  f 

Jennings,  1  heard  Acton  order  him  to  Se  po^ 
there  agaio. 

Mr.  Ameron,    What  were  you  then?  , 

Jennings,  1  was  then  one  of  Acton's  wstch* 
men ;  I  went  to  see  the  gentleman,  and  b« 
said,  he  should  certainly  perish  if  continued  m 
that  place ;  and  I  desired  Acton  to  have  hii9 
removed  ;  and  Acton  said.  What  business  hsv« 
you  to  meddle  with  it?  Let  him  die  like  a  SO0 
of  a  bitch,  and  be  damned. 

Mr.  Ameron.    What,  in  your  opinion^  wa# 
the  occasion  of  his  death  ? 

Jennings.    I  believe  his  lyiog  tliere  io  thaS 
place  was  the  occasion  of  his  death. 

Mr.  Manh,  It  was  represented  to  be  a  cleap 
room,  was  it  washe<l  ? 

Jennings.    1  don't  believe  it  was. 

Mr.  Marsh.    How  long  were  you  beloogni|^ 
to  the  Marshalsea? 

Jeanifil^j.    1  lived  lour  years  out  of  ac? cff 
there. 

Mr.  Marsh.    Wii  it  wadwd  4ttbBf  Ihii 
time? 


519] 


Jirr  the  Murder  tfJamet  Thompton. 


A.  D.  1729. 


[550 


Jemmimgi,  It  was  very  seUom,  if  erer  washed. 

BIr.  Mmr$h.    Did  Toa  ^o  into  the  room  ? 

Jemmimgs.  I  have  been  in  it  aeYeral  times ;  I 
lAve  rouvh  swept  it. 

Mr.  Aiartk,  is  it  dry  at  top  P 

Jtmmings,    No,  the  rain  ouroes  in. 

Mr.  Mchardton.  Had  capUio  Thompson 
csBMiitled  anj  crime  before  be  was  put  in 
thtfc? — Jtnnmgt,  No. 

Mary  Seathand  sworn. 

Hr.  Marth,  Did  you  know  capt.  Thompson  ? 

SmMb^nd.  I  remember  him  ;  he  was  a  pri- 
swr  in  Pump-ward,  and  he  was  remof  ed  from 
tkmot  into  the  Strong  Room ;  but  I  don't  know 
Sfsn  what  occasion. 

Mr.  Manh.  By  whose  order  was  he  carried 
ttsn  t^SeoibaruL  By  Mr.  Acton's. 

Mr.  JMsrtA.    How  do  you  know  ? 

Sniiand,   Thompson  said  so. 

Uv.Manh.  You  never  heard  Acton  give 
•dfis?— &u6ani.  No. 

Hr.  Marih,  Did  you  see  captain  Thompson 
vWa  in  the  iiitrong*Room  P 

Senbaud.    1  did ;  he  had  no  bed  to  lie  on, 

Hi  the  wet  was  under  him. 

M'*  M'^''*^'  ^0^  i<>ng  was  it  before  he  died, 
All  yoD  saw  him  ? 
SidMML  I  saw  him  the  minnte  he  died. 
Hr.  Manh,    Did  he  tlien  declare  any  thing 

^ititband.  He  declared  nothing  to  me  then  ; 
kl  tbree  days  before  be  died,  a  gentleman 
oaeiato  see  him,  and  Thompson  told  him, 
ilstski  be  tlie  occasion  of  his  death  if  he  was 
HI  removed. 

Nr.  \Iartk.  What  condition  was  he  in  in 
iWtJironglloom? 

SuAaid.  Hi«  lefl  side  mortiOed,  which  was 
*KiiioBed  by  his  hard  lying  ou  the  ground, 
litfioibewet. 

Mr.  AfartA.  Was  not  part  of  his  face  eat 
Itijr? 

Smband.   The  rats  had  eat  out  his  lefl  eye. 

Mr.  Marih.  How  long  did  he  continue  in 
Ae  Strong  lioom? 

Seoibaii.  1  can't  say  how  many  days,  1 
*  Mere  he  was  there  three  weeks. 

Mr.  Manh,  How  do  you  know  that  his 
■M  was  eaten  away  by  the  rats  ? 

Staiband,  I  have  reason  to  know,  for  they 
*trs  very  troublesome  when  I  was  there. 

Mr.  Marsh.  -Was  it  a  proper  room  to  put 
^9  0De  in?— Sras^flfu/.  No. 

Mr.  MarMh .    Was  it  swept  ? 

SeoMband,  I  never  saw  it  swept ;  1  was  in  it 
&••  the  first  of  January  till  the  sixth,  night 
asdday. 

Mr.  Manh.   Was  it  washed  ? 

Seatband.  It  was  not  washed  while  1  was 
|Wis ;  there  were  several  barrows- full  of  dung 

Mr.  AfartA.    What  was  there  in  it  ? 
Statbaad.    Wet,  and  straw,  and  dirt 
Mr.  Marah.    How  did  it  smell  ? 
9mba9d.    Very  badly  ;  1  have  seen  there  a 
Ms  if  rats  at  a  time. 


Actan,   Please  to  ask,  what  time  of  the  day 

ptain  Thompson  died. 

Mr.  Baron  Carter.    What  say  yoa  to  that  ? 

Heatband.  He  died  about  six  o'clock  in  tha 
morning,  and  was  buried  before  ten. 

Actim.   Who  gave  directions  for  his  borial? 

Scatband.    1  don't  know. 

Acton,  Was  there  any  person  to  view  tha 
body  ? — Seashand.  There  were  no  searchers. 

Acton.    Who  sent  you  to  capt.  Thompson  f 

Sea$band.  Nobody  sent  me,  I  went  of  my 
own  accord ;  I  carried  him  twice  mutton  broth* 

Thomas  Snape  sworn. 

Mr.  Ward,  Did  you  know  capt  Thompson  P 

Snape.  Yes,  be  was  first  in  the  Pump-  ward, 
and  went  from  thence  into  the  Strong  Koom. 

Mr.  Ward,   By  whose  orders  ? 

Snape.  I  can't  tell ;  he  was  removed  from  tba 
Pump- ward  to  the  Strong  Room,  and  was  there 
for  some  time,  and  then  went  into  Pump- ward 
again,  and  was  there  some  small  time,  and 
then  carried  back  again  to  the  Strong  Itoom. 

Mr.  Ward.  How  long  did  he  continue  in  the 
Strong  Koom  the  second  time  ? 

Snape.  He  was  there  nine  or  ten  days  both 
times. 

Mr.  Ward.  Did  he  die  in  the  Strong  Room  P 

Snape.  Yes. 

Mr.  Ward,  Did  yoa  see  him, after  be  was 
dead  ?  « 

Snape.  Yes,  I  saw  his  corpse  laid  out,  and 
his  side  was  very  bail ;  it  was  black,  and  turned 
as  to  ff  mortilication. 

Mr.  Ward,  Hon*  long  was  it  before  he  died 
that  you  saw  him  P 

Snape.  Three  or  four  days. 

Mr.  Ward.  Did  he  make  any  complaint  P 

Snape.  No. 

Acton.  Was  he  confined  there  all  the  time, 
or  did  Le  go  about  ? 

Snape.  I  saw  him  go  out  and  in  to  the 
Strong  Room. 

Mr.  Ward.  When  was  he  laid  out? 

Snape.  Between  six  aud  seven  o'clock  ia 
the  morning. 

Eleanor  Ewer  sworn. 

Mr.  Ward,  Did  you  know  captain]  Thomp* 
sonP 

Ewer,  I  remember  the  captain  ;  he  was  in 
goml  health  when  he  went  into  iraol. 

Mr.  Ward,  Whim  did  he  die  ? 

Ewer.  He  died  the  9th  or  10th  of  July. 

Matthew  Bacon  sworn. 

Mr.  AfariA.  Did  you  know  captain  Thomp« 
sonP 

Bacon.  I  did ;  he  waa  arrested  and  put  into 
prison  the  latter- end  of  May,  1726.  1  remeni* 
berhewas  brought  into  the  Pump -ward,  and 
continued  there  three  weeks;  and  then  was 
removed  to  the  Strong  Room  ? 

Mr.  Marsh.  How  long  did  he  oODtiana  io 
the  Strong  Room  ? 

Bacon.  He  lay  there  about  ten  nights,  and 
«then  came  into  tlie  Pump -ward,  and  tsmainail 


631]  3  GEORGE  II. 

m  niiifht  or  two ;  and  from  the  pnrop-ward, 
If  ent  back  again  to  the  Strong^  Uoom. 

Mr.  Marsh,  How  long  was  he  in  the  Strong 
Room  the  seeond  timeP 

Bacon,  He  was  th^re  aboDt  ten  days  more 
before  he  died. 

Mr.  Marsh.  Did  jon  see  him  there,  the 
latter-part  of  the  time,  before  he  died  ? 

Bacon,  I  did. 

Mr.  Marsh,  In  what  condition  did  he  lie  ? 

Bacon.  He  had  bundled  up  a  piece  of  a 
blanket  to  lay  his  head  upon. 

Mr.  Marsh,  Did  be  make  any  complaints  of 
his  hardships  ? 

Bacon.  He  said,  a  day  or  two  liefore  he 
died,  that  the  cruel  usage,  and  lying  hard, 
would  kill  him. 

Mr.  Alarsh,  Did  he  complain  of  any  sore, 
or  hurt,  or  of  his  side  ? 

Bacon.  1  can't  say  he  did  ;  but  after  he  was 
dead,  his  left  hip  appeared  black. 

Mr.  Marsh.  What,  in  your  opinion,  was  the 
occasion  of  his  death  ? 

Bacon.  The  hard  and  cruel  usage  was  the 
occasion  of  his  death. 

Mr.  Marsh.  Was  the  Strong  Room  washed, 
or  swept,  or  kept  clean  ? 

Bacon.  It  was  not;  andif  any  person  swore 
so,  they  did  not  swear  true. 

Mr.  Baron  Carter,  Were  yon  there  every 
day  ? — Bacon,  1  can't  say  every  day. 

Mr.  RicharHson.  Was  it  fit  to  put  a  roan  in  ? 

Bacon.  It  was  contrived  for  a  punishment, 
for  people  who  had  committed  great  crimes 
against  the  rrovemment. 

Mr.  Richardson,  Were  there  other  rooms 
fit  to  put  Thompson  in  f 

Bacon,  Yes,  there  were. 

Mr,  Richardion.  Was  there  any  application 
to  have  him  removed  ? 

Bacon.  There  was  none  by  me. 

Peter  Purchace  sworn. 

Mr.  Ward.  What  part  of  the  prison  was 
Thompson  confined  in  ? 

Purchace.  He  was  first  in  the  Pump-ward, 
and  waj  taken  out  of  that  room  contrary  to  his 
inclination,  and  put  in  the  Strong  Room. 

Mr.  Ward,  How  do  you  know  it  was  con- 
trary to  his  inclination  ? 

Purchace,  He  oHen  itaid  so. 

Mr.  Ward,  Did  you  see  him  removed  from 
the  Pump  wanl  to  the  Strong  Room  ? 

Purchace,  Yes. 

Mr.  Ward.  Was  he  carried  there? 

Purchace.  No,  he  walked  there. 

Mr.  Ward.  You  were  by  when  he  went  iiito 
the  Stn»ng  Uoom  ? — Purchace.  Yes. 

Mr.  Ward.  Were  you  by  when  Acton  ijavc 
orders  to  carry  him  there? — Purchace.   No. 

Mr.  Ward.  Who  was  with  Thompson  when 
be  went  there  ? 

Purchace.  Nichols  and  Rogers  went  along 
with  him  ;  and  they  said,  they  bad  orders  to 
go  to  the  Strong  Room. 

Mr.  Ward,  How  long  did  he  continue  in 
the  Strong  Room  f 


Trial  of  William  Adon^ 


[503 


Purchace,  I  can't  be  certain  of  the  time. 

Mr.  Ward,  But  yon  saw  him  in  the  Strong 
Room? 

Purchace.  I  freqtiently  Tiiited  him  in  the 
Strong  Room. 

Mr.  Ward.  Did  yon  obserre  thmt  it  «w 
washed  or  cleansed  ? 

Purchace.  It  was  not,  during  the  time  I  was 
a  prisoner  tliere. 

Mr.  Ward.  What  land  of  a  place  wai  it  ? 

Purchace.  It  was  a  wet,  damp,  nasty  plaee, 
not  fit  for  a  Christian  to  be  in. 

Mr.  Ward,  Do  you  know  of  any  applieetien 
made  to  Acton  concerning  captain  TfaomniOD? 

Purchase.  Wilson  and  I  went  to  the  loi^to 
enquire  for  Acton,  and  told  him,  that  ThompsiMi 
said,  the  confinement  in  that  miserable  place, 
would  be  the  cause  of  his  death,  end  ne  do* 
sired  to  be  removed  to  another  plaee ;  but 
Acton  would  not  hear  us,  but  bid  oa  go  ibavt 
onr  business. 

Mr.  Ward.  When  did  you  see  him  laat,  be* 
fore  he  died  ? 

Purchace,  I  saw  him  the  night  befim  be 
died ;  and  be  then  said  that  the  coofintmcnt 
in  that  place  would  be  his  death. 

Mr.  Ward.  Did  you  see  him  alUM  be  wu 
dead  ? 

Purchace,  I  saw  his  body ;  he  bad  en  hti 
thiti^h  something  like  a  mortification. 

Mr.  Ward.  What  was  the  oecaaion  of  bis 
death  ? 

Purchace.  I  believe  lying  upon  the  bare 
boards  was  the  occasion  of  his  'death. 

Mr.  Ward.  Was  there  any  water  in  tba 
room  ? 

Purchace,  At  some  times  there  was ;  when 
it  mined,  the  water  came  in  at  top ;  I  have 
seen  the  rain  come  in. 

John  Wilson  sworn. 

Mr.  Marsh,  Did  you  know  captain  Thomp* 
son? 

Wilson.  Yesr,  he  was  committed  a  priaoner 
the  latter- end  of  May  ;  he  was  a  fimnight  or 
three  weeks  in  the  Pump- ward. 

Mr.  Marsh.  What  sort  of  a  man  was  he  ? 

WUion.  He  was  a  hearty,  strong  man,  of  a 
merry  disposition,  singing  songs,  and  chonia'S. 
He  was  in  the  pump- ward,  and  aAer  was  pot 
into  the  Strong  Uoom ;  some  people  came  to 
fetch  him,  and  said  it  was  by  the  order  of 
Nichols,  Rogers,  and  others. 

Mr.  Marsh,  [low  long  did  he  remain  there? 

Wilson,  fie  remahied  there  a  week  and 
better,  in  a  bad  condition. 

Mr.  Marsh,  Had  he  any  thing  to  lie  on  F 

Wilion,  He  had  on  a  banyan  camUet  night 
go»'o,  but  lay  upon  the  bare  floor,  which  was 
wet  with  the  water  that  came  in. 

Mr.  Marsh.  Where  did  the  water  come 
from  ? 

Wilson,  It  came  from  the  top  of  the  room ; 
I  saw  it  rain  through. 

Mr.  Marsh,  Could  lie  come  ont  ? 

Wilson.  He  had  a  power  of  coming  ont  oT 
the  room  in  the  day-time,  but  he  bad  ao  power 


553] 


fw  the  Murdtr  cfjamet  Thompton. 


A.  D.  1729. 


[55i 


of  cMDinif  to  Ue  aoy  where  cbe  on  nighti ;  be 
Uy  two  days  in  tlie  Pump- ward,  and  then  was 
pat  into  the  8lrone  Room  a^^n ;  and  then  de- 
sired me  to  (^  to]  the  Petitioning  room,  to  get 
him  into  another  place. 

Mr.  AlariJL  Did  you  make  any  application 
iahia  behalf? 

Wilstm,  f  went  nfith  Parchate  to  Acton,  bnt 
wit  not  beard, 
■r.  Mmrsk.  What  did  Acton  say  to  you  T 
WUmm.    I  began  to  tell  the  story  relating  to 
lWaan*s  misery,  and  Acton  said  — 
Mr.  Marsh,  What  did  you  tell  Acton  ? 
Wibon.   I  said,  he  would  perish  if  not  re- 
■sfsd  ;   and  Acton  bid  me  gt>  and  trouble  my 
bead  with  my  own  business. 

Mr.  Marsh.   Did  he  order  him  to  be  taken 
•at  af  the  Strong  Room  ? 

WUtoHm  No. — 1  then  went  to  the  nurse  of 

the  adc  ward,  to  desire  her  to  entertain  him 

is  that  ward ;  and  she  would  not  do  it,  because 

Ai  had  not  orders ;    so  he  continued  in  the 

Strong  Room  rery  miserable.    1  took  him  out, 

M  put  him  in  the  chimney  corner  to  dry 

kimelf ;  and  when  he  came  to  dry  himself  be- 

fert  the  fire,  he  smelt  7ery  ufflj^  and  nasty 

(tUi  wtt  after  the  second  time  of  his  Gfoing  into 

Ae Strong  Room);    then  he  went  back,  and 

hjTcnr  miserably  for  three  or  four  days. 

mt.Ward,    Did  you  ercr  see  the  Strong 
Jloom  washed? 

WiIkhi,  1  ne? er  saw  it  washed  all  the  time 
IW  csptain  was  there ;  within  these  twelve 
BMQllii,  or  within  these  six  mouths,  it  has  been 
vakcd. 
Mr.  Ward,  Was  it  covered  at  top  ? 
Wdton.  There  was  a  tarpaulin  laid  over  it 
klriy,  since  be  was  there. 

nr.  Ward,    What  state  and  condition  was 
itJD  when  Thompson  was  there  ? 
Wilsnn.   It  is  in  a  better  state  and  condition 


I  liaTe  seen  tho  water  pour  in,  and  it  was 
is  u  bad  a  state  when  he  was  there,  as  ever ; 
aad  tbere  was  uo  tarpaulin  put  upon  it,  till 
aitbin  these  twelve  months. 

II r.  Ward.  How  was  the  floor? 

WUion.  The  floor  lies  five  inches  higher 
Ibtt  the  ground,  but  the  boards  not  being 
Ibick,  they  were  grown  rotten,  with  the  great 
M  of  water  that  settled  there  afler  a  rain,  for 
Ibe  room  was  worse  tlie  next  day. 

Mr.  Ward.  What,  in  your  conscience,  do 
yon  bdiere  to  be  the  occasion  of  his  death  ? 

iriVjoR.  I  believe,  in  my  conscience,  that  he 
W  seemingly  of  a  strong  constitution,  and 
noiinued  the  same  till  his  going  into  that 
Hwo ;  and  thgt  tlie  severity  of  the  weather, 
M  his  hard  lying,  were  the  cause  of  his  sick- 
m,  of  which  he  languished  and  died. 

■         Phillips  sworn. 

Nr.  Marsh.  Did  you  know  captain  Thomp- 

PkUUps.  Very  well ;  he  was  trouble^l  with 
yfattes  when  hr  first  came  in  ;   he  was  put 
2  the  Pomp-ward,  and  there  he  continueil 
or  m  month;  he  was  then  removed 


1 


to  the  Strong  Room :  1  saw  Acton  and  his  two 
servants  there.  ' 

Mr.  Marsh.  What  condition  was  he  in  ? 

Phillips.  lie  was  in  a  very  miserable,  de- 
plorable condition,  for  he  had  that  distemper 
when  he  went  into  the  Strong  Room ;  he  was 
offensive  to  the  rest  of  the  people  of  the  ward. 

Mr.  Marsh.  Did  you  visit  him  in  the  Strong 
Room  ? 

Phillips.    I  frequently  went  to  him. 

Mr.  Marsh.  How  long  was  he  there  beforo 
ha  died  ^-^PhilUps.  Ten  days. 

Mr.  Marsh.  Did  you  see  him  therein  a 
good  or  bad  condition  r 

Phillips.  He  lay  in  a  miserable,  deplorable 
condition. 

Mr.  Marsh.  Did  yon  make  any  application 
\q  Acton  in  his  behalf? 

Phillips.  1  had  endeavoured  to  speak  to  him^ 
but  nerer  could  meet  with  him. 

Mr.  Marsh.  How  long  before  he  died  waa 
it  that  you  saw  him  ? 

Phillips.  I  saw  him  the  night  before  he  died. 

Mr.  Marsh.  Did  he  make  any  complaint  to 
you? 

Phillips.  He  said,  that  lying  in  that  condi- 
tion would  be  the  death  of  him ;  and  said, 
that  it  was  by  Acton's  order  that  he  was  put 
there. 

Mr  Marsh.  When  did  he  say  this  ? 

Phillips.  Some  da}s  before  he  died. 

Mr.  Marsh.  Did  yon  ever  see  the  Strong 
Room  washed  ? 

Phillips.  I  was  in  the  gaol  nine  or  ten 
months,  and  never  saw  it  >«  ashed. 

Mr.  Marsh.  How  long  ago  ? 

Phillips,  Two  or  three  years. 

Mr.  Marsh.  Did  it  rain  in  ? 

Phillips.  The  rain  did  come  in ;  I  saw  pud- 
dles oi'  water  in  it  several  times. 

Mr.  Marsh.  Was  it  flt  to  put  any  one  into  ? 

Phillips.  It  was  a  terror  to  every  body  to 
go  there. 

Mr.  Marsh.  What  do  you  believe  was  the 
occasion  of  his  death? 

Phillips.  I  believe  the  diabetes,  and  lying  in 
that  manner,  were  the  occasion  uf  his  death. 

Mr.  Marsh.  Was  there  any  other  room 
empty,  fit  to  put  him  in  ? 

Phillips.  There  \^as  n  room  over  against  his 
own  ward  that  was  empty.  There  was  another 
room  empty,  and  proper  fur  any  body  to  be 
put  in,  railed  the  P^  titioning  room. 

Mr.  Marsh.  Hud  he  any  murks  about  him 
when  deud  ? 

Phillips.  I  saw  a  wound,  and  put  my  fist  in, 
whii'li  looked  as  if  the  flekh  had  been  gnawed 
away. 

Mr.  Marsh.  There  was  a  ward  called  the 
Sick  ward  ;  was  there  ri»om  tliere  for  captain 
Tliompsiin  ?— Phillips.  Yes. 

Mr.  Marsh.  We  shall  call  no  more  witnesses, 
There  is  strong  evidence  given  as  to  the  fact 
and  the  Sirontic  Room. 

Acton.  With  humble  submission  to  your 
lordship,  captain  Thompson  was  put  into  the 
Pump  ward,  and  a  complaint  came  from  cap« 


555]  S  GEORGE  It. 

lain  Thanpson  ;  I  will  acquaint  your  Inrdihip 
« liat  wu  tlic  TnaiitKA'  of  it.  Captain  Thoin|i- 
Bon  hail  ihe  diabcln,  and  his  ward-inates  aaicl 
ho  stunk,  and  fintid  him,  aiidtook  hii  coat  from 
him,  and  carried  it  away,  anil  tbe  man  liad  not 
money  to  redeem  it,  or  wlicrewitbal  tn  i-aiae 
any,  and  desired  he  lAighl  goto  aome  place 
wliere  be  might  be  in  peace ;  I  aiked  hun,  if 
there  was  any  particular  person  he  deaired  to 
be  with,  or  if'he  would  go  iutu  the  aick  ward? 
He  laid,  he  had  rather  go  into  the  Strong  Room, 
for  if  he  tfent  into  Ihe  aick  ward,  they  would 
fiae  him  there  again. 

Chritlopker  Coiling  anom. 

Aetmt.  I  deiire  lie  may  |>iTe  an  account  of 
ilut  be  knows  abnut  ca^itain  Thompaon. 

Coiling.  I  WW  tilline;  at  tliu  toige  door,  and 
captain  'I'hompion  caiue  np  to  Acton,  and  de- 
aired  him  to  let  him  go  into  the  Stron);  Room  ; 
Acton  sai<l,  lie  might  go  into  tlie  sick  ward  ; 
tiid  Thompson  aaid,  the  men  in  the  ward  had 
tormented  liiin  so,  that  he  had  rather  lie  in  the 
l^rnn^  Room  ;  and  Acton  made  aoswer,  you 
may  he  there. 

Mr.  Baroa  Carler.  What  did  they  torment 
lliui  about? 

Cmling.  About  piuin(c ;  be  pissed  very 
much  there. 

Mr.  Ilarun  Carter,  What  answer  did  Adon 
mak«  him  ? 

Omling.  lie  bid  him  do  wliat  he  would. 

Aetoa.  Whm  he  was  in  the  Strong  Itoom, 
did  Uiey  not  use  to  torment  him  * 

Golfing.  Yea. 

Mr.  Barou  Carler.  How  Innz  did  be  lie 
iXitnt— Catling.  fiTe Or tix weeks. 

Actoit.  Pleaise  to  ask  him,  if  captain  Tliomp- 
■on  did  not  ^ay  he  was  mucli  beholden  to  me. 

Gotling.  Ilesaid  an. 

Adoa.  >Va»  there  any  anger,  ur  any  thing 
between  us? — Gosling.  No. 

Acton.  Dill  nut  cnptain  Thompson  say,  he 
desired  to  gi>  into  the  titrung  Room  ? 

Gulling.  Hecxpressty  desired  to  beremOTcd 
into  the  Slrontf  Room. 

Acton.  Uaii  lie  a  bed  there  ? 

ilo  you  r.ill  a  bed  ? 
Oosliig.  A  pillow  and  blanket 
ftlr.  Richardson.  Is  it  very  usual  for  people 
to  lie  in  such  beiU  ? 

Robert  Halmeityrom. 

Acton.  V\tnie  to  luk,  if  he  did  not  cnmc  to 

me  from  captain  Thoinpsoo,  and  what  was  hix 

Mr.  Baron  Carter.  What  cay  you  tn  that? 

HiiliHCi.  lie  was  so  tnrmpnlcd  by  tlie  ward, 
that  he  desired  me  to  i>:a  tn  Mr.  Actiin,  lo  deiiire 
him  to  let  him  (cn|>tHiu  Thompson)  go  into  the 
Mtron-;  Itonm ;  and  I  atkeil  Mr.  Acion,  and  he 
||ivc  liim  leave,  auU  ofTered  him  to  go  into  the 
■ick  ward. 

^ctou.  Whatwutheoccaaionof hiideairing 
to  go  there? 

Hal-net.  lie  naa0D»ul7,U»tlh«w>rdcbid 


Trial  of  William  Atton, 


[SM 


bim,  and  hecouM  lye  awett  anil  dean  in  Iha 
Strong  Room. 

Hr.  Baron  Carter.  Did  Thompaan  came  np 
alonn  with  ynu  ? 

Holma.    He  did  ;     he  was  not  uck  at  IbU 
lime,  but  some  time  afler  he  fell  sick  and  divL 

Mr.  Baron  Carler.    Did  he  make  aay  ooai- 
plaiot? 

Helmet.  At  Itut  lie  did  make  complaint,  Ibit 
he  was  ill,  butdidnotthendrwreubcrrleaMd. 

Acton.    Had   be  liberty  to  go  in  and  oat  of 
tbe  Strong  Itooin  ? 

Uoiina.  He  bad,  whnwrer  he  pleased,  anlj 
some  unlucky  fellows  locked  him  in. 

Mr.  Ward.  Had  be  liberty  to  be  oat  ? 

Holma.  No. 

Mr.  Ward.    I  ask  yon  whelber  Actiu  went 
with  him  to  the  Strong  Room  T 

Hoimci.  I  can't  say  be  did ;   he  gun  )aat 
lesK  to  go  into  the  Strong  Rootn. 

Eliiaifth  G mil n^  sworn, 

Mr.  Barnn  Carttr.     How   came  captain 
Tlinmpson  to  be  in  tlie  Strong  Room  ? 

Mra.  Gosling.  Bv  bis  own  dcBre;   be  waf 
tronhled  with  an  infirmity. 

Mr.  Baron  Corfcr,  How  duyouknowit  waa 
by  his  own  desire? 

Hr«.  Goiling.  f  heard  him  nv  so. 

Mr.  Baron  Carffr.  Had  be  liberty  toga  eot 
night  or  day  t 

Gotling,  He  bad  the  liberty  to  come  in  ani 

Mr.  ITorrf.  What  aTe  you? 


fore  of  Mr.  Biirteigb,  and  coulinues  under  Hr. 

BenjnmiTi  Broirn  sworn. 
Mr.  Baron  C'arirr.  Wbalduyou  knowabonl 
Thompfon? 

Brown.  He  said,  God  blcM  Mr.  Acton,  {<K 


.  he  had  died. 

Air.  Richardirm.   Did  he  gif  e  any  p 
reason  why  lie  sh<iulil  lisve  died  ? 

itroErn.  That  if  he  made  water  in  Ihe  iMia 
be  was  to  pay  a  quartern  of  gin. 

Mr.  Ricliiirduin,  Did  yuu  tiiit  bim  in  lb* 
Strong  Room? 

Urovn.  I  oIlenlimMrisiledhim.  ' 

nir.  Rifkordson.  Had  lie  a  bed  ? 

Brotrn.  Hehad  agaol  bed. 

Mr.  Baron  Carter.  Had  he  the  libettj  rf 
going  in  and  nnt? — Brown.  Yea. 

Kir.  Richardson.  Was  not  the  Strong  RoM 
a  place  of  cnutinement  ? 

Bnitrn.  Yes;  but  when  I  was  a  priMncr,  I 
had  the  li belly  of  thegate, baring sereTalcaosS 
in  my  own  right. 

Marii  Barton  sworn. 

Acton.  What  did  you  hear  captaJa  Tbonp- 
son  say  ? 

Uta.  ilarfoa.  1  heard  him  caj  ibathaidMa 


if] 


/or  the  Murder  of  Jamts  Thompson* 


A.  D.  17S9. 


[558 


iveto  lie  in  the  Stroncf  Room,  and  tliat  be 
is  disturbed  in  his  own  ward. 
Adorn.  Please  to  ask,  if  he  did  not  say,  that 
I  bad  rmtber  eo  to  the  Stronnf  Room,  than 
melo  the  sick  ward. 
Mr.  Baron  Carter,  Answer  that. 
Nn.  Barton,  He  said,  he  mii^ht  ha?e  gone, 
\  be  would,  into  the  sick  ward,  bat  he  bad 
iribrr  go  to  the  Strong  Room,^  btfcause  be 
omM  be  there  in  peace. 

ilcfm.  Had  be  a  bed  in  the  Strong  Room  P 

Via.  Barton.  Yes,  such  a  bed  as  |KN>r  |»eople 
ie  as,  a  flock -bed ;  it  was  a  broad  w>later, 
which  be  could  lie  at  his  whole  length,  and 
toa  himaelt'  upon,  such  as  they  bad  in  the  gaol. 

Hr.  BaroD  Carter.  Was  be  looked  up  on 
ij|^f — Mrs.  Barton.  No. 

Vkr.Ward.  8he  is  kept  by  Acton ;  she  had 
Ihifc-peiice  out  ot'efery  prisoner. 

Mr.  BarOD  Carter,  *8be  was  put  in  by  the 
|tM€nieo« 

Mn.  Barton.  Yea,  or  else  tbey  would  bare 
iHflho  gaoler  to  pieces. 

John  Bowdler  sworn. 

Bflpd/cr.  I  was  in  the  ward  when  captain 
IWmpsoD  went  out;  and  the  wanl  being  un- 
m  with  him,  be  said  lie  would  make  interest 
tilr.  Acton  to  go  into  the  Strong  Room ;  and 
kioak  his  bed  and  bedding,  and  went  into 
ieflinngRoom. 

Mr.  Acton,  Please  to  ask,  whether  Thomp- 
M  toM  him  he  had  nuide  interest. 

Bawdier,  Tbompaon  said,  that  he  had  asked 
bMfsf  Acton,  and  be  bad  granted  it. 

—  Davenuh  sworn, 

Dnenith.  In  the  month  of  June  17^6, 1  was 
*M  into  the  Pump-ward  to  captain  Tbumpson, 
udliis  ward-mates  swore  at  him,  and  called 
hii  oasty  son  of  a  hitch.  That  his  ward- 
Ms  were  very  uncivil ;  that  he  was  troubled 
^  a  diabetes;  and  he  said,  lie  wuiild  desire 
lib.  AeiOQ  to  let  liiui  go  to  the  Strong  Uuom  ; 
*s4  tbe  next  day  I  saw  a  wnnoan  washing  of  it. 
VIkb  be  was  there,  1  asked  him  several  times 
if JM  wanted  any  thing;  fur  Air.  VVitiiiigham 
■id,  be  would  relieve  him  if  he  w  anted  for  auy 
IbsK;  and  he  said  the  woman  of  the  sick  ward 
cunc  to  bim,  and  be  wanted  fur  nothing. 

Robert  Walker  sworn. 

Mr.  Baron  Carter,  What  do  you  know  about 
ttptiin  Thompson  ? 

Watker.  He  was  carried  to  the  8tronsr  Room 
^kit  own  ounsient;  and  asking  him  the  next 
**aiag  bow  be  did,  be  said,  Extraordinary 
an, 

Mr.  Baron  Carter,    Had  be  a  bed  tliere  ? 
Ifatter.    Yes. 

Mr.  Bsrou  Carter,   Did  be  complain  of  any 
mm? 
Watker,    I  saw  tbe  people  making  game  of 

Mr.  BaroB  Carter.    Was  he  locked  up  on 
^^^-^Waiker.  So, 
^<(«i.  A  Dun«  ftst  up  with  bim  on  nights, 


Mrs,  Conisor;  sbe  had  been  nurse  of  the  sifk' 
ward. 

BenjiAnin  JohtiMon  sworn. 

Mr.  Baron  Carter,  What  have  yon  to  say 
to  Thompson's  consenting  to  go  to  tbe  Strong 
Room? 

Johnson.  I  spoks  to  him  two  days  before  he 
went  there ;  and  he  said,  he  should  be  glad  if 
Acton  would  grant  bim  the  favour  of  lying 
there. 

Mr.  Baron  Carter,    Had  he  a  bed  there  T 

Johnson,  I  saw  him  carry  his  bed  there; 
and  he  thanked  God  that  Mr.  Acton  was  so 
good  to  let  him  lie  there,  for  he  hoped  it  would 
be  tbe  saving  of  his  life. 

Balpk  Malban  swore. 

Mr.  Baron  Carter.  What  do  yoo  know  of 
captain  Thompson  ? 

Malban,  I  can  say  nothing,  but  that  when 
I  was  in  the  ward  one  night  1  saw  a  great  deal 
of  abuse  offered  him ;  and  tbe  next  day  I  asked 
him  hnw  he  came  to  suffer  such  abuses ;  and 
he  said  he  had  a  noisome  distemper,  and  so 
they  abused  him;  and  in  a  month  or  three 
weeks  I  saw  him  again,  and  he  then  said,  be 
had  leave  to  get  into  the  Strong  Room,  and 
thanked  God  for  it. 

Thomat  Fletcher  sworn. 

Mr.  Baron  Carter.  What  do  you  know  of 
Thompson  ? 

Fletcher.  I  know  Thompson  bad  the  dia- 
betes,  and  that  his  fellow-  prisoners  did  often 
reflect  ufMin  him.  I  was  out  of  prison,  and 
then  came  in  again,  and  I  asked  Thom|><toii 
how  he  did  ;  he  said.  Very  well  as  to  his  health, 
ex(*ept  as  to  the  diabetes;  and  Acton  had  given 
him  leave  to  lie  in  the  Strong  Room. 

[Here  the  Prisoner  rested  hi»  Defence.] 


Mr.  Baron  Carter.  Gentlemen  ^f  the  jury, 
the  prisoner  at  the  bar  stands  indicted  for  the 
murder  of  one  James  Thom|>!»on.  The  indict- 
ment sets  forth,  that  the  said  JamesThom|»Bon 
died  by  duress,  so  that  tlie  priiiouer  was  there- 
by ffuilty  of  nmrder. 

There  were  several  witnesses  called  for  the 
king.  The  first  was  Edmund  Cummins;  he 
says,  that  he  knew  Thompson  very  well ;  that 
he'  was  iu  the  Pump-ward,  and  thnt  lie  was  put 
in  the  Strong  Unoni,  as  Ac.tou  said  for  having 
the  diabetes,  bome  of  the  ward  complaining  of 
his  being  nasty  ;  that  he  canie  out  wometimes, 
and  he  hHw  liiiu  alter  he  died ;  and  he  was 
very  quickly  buried ;  and  he  saw  a  mark  ujion 
his'face.  He  says,  that  Acton  did  order  his 
burial,  because  lie  was  curried  by  those  that 
usually  c^rry  corpse  to  hu  buried,  lie  says, 
that  he  was  resolveil  to  stay  in  the  ward,  ami 
uould  not  have  gone  out,  but  Acton  would  not 
let  him  stay. 

Mattiie%v  Brandon  vayn,  he  saw  Thompson 
in  the  Strong  Uoom,  ami  he  did  hear  the  pii- 
soner  order  hiiu  to  lie  put  there,  lie  s:iyS|  tliit 
there   wag  a  courplaiut  of  the  uard  that  lie 


5593 


3  GEO£GE  II. 


Trial  qf  JVilliam  Aetoitf 


[SflO 


WB8  nauseons :  that  two  days  before  his  death 
liR  could  not  stir  at  all ;  that  he  had  a  sore 
plaoe  on  his  left  side,  and  he  says,  that  he  com- 
plained if  he  hIioiiKI  go  there  again  it  would 
D(>  the  death  of  him.  He  says,  that  Wilson 
and  Cummins  went  to  Acton,  and  they  repre- 
sented the  condition  he  was  in,  and  desired  he 
might  go  to  the  sick  ward ;  and  Acton  said  to 
Wilson,  Go  ahout  your  business.  He  says, 
that  there  was  a  mark  upon  his  nose  and  ear, 
and  the  wound  was  not  so  angry  after  his  death 
as  it  wns  before. 

Jennings  says,  he  was  not  to  ill  when  he 
came  there,  but  only  had  the  diabetes,  and 
the  prisoner  ordered  him  into  the  Strong  lloom 
where  he  continued  eight  or  ten  days,  and 
Mien  came  out  for  two  days;  and  then  was 
ordered  back  by  the  prisoner.  He  desired 
Acton  to  have  Thompson  removed  ;  and  Acton 
(aid,  Let  him  die  like  a  sou  of  a  bitch,  and 
be  damned.  He  said,  he  died  the  next  morn- 
ing, and  died  in  this  Strong  Room.  That  the 
Strong  Room  was  seldom  washed,  it  was  rough- 
swept  ;  but  what  he  means  by  that  1  cannot 
see :  be  says,  that  it  was  not  dry  o?er  head. 

Mary  Seasband  says,  that  he  was  removetl 
into  the  Strong  Room,  and  Acton  gave  no  or- 
ders concerning  him  ;  there  was  some  wet  un- 
der him,  Init  she  does  not  explain  from  whence 
it  came,  therefore  it  might  come  from  the  dis- 
temper. She  says,  that  his  side  mortified; 
that  there  was  some  disfiguration  on  the  side 
of  his  face,  it  was  eat  by  the  rats.  She  thinks 
it  a  very  strong  room,  and  it  was  not  a  proper 
place  to  put  any  person  in ;  thai  it  was  never 
washed ;  that  abnut  six  in  the  moruing  he  died, 
and  was  buried  about  ten. 

Snape  cannot  say,  whether  Thompson  went 
by  his  qwn  consent  or  not ;  but  that  he  went 
from  the  i'ump-ward  to  the  Strong  Room, 
and  staid  nine  or  ten  days,  and  then  staid  two 
or  three  days  in  the  Pump-ward,  and  wont 
back  again,  and  staid  nine  or  ten  days  both 
times.  He  says,  he  came  in  and  out  when 
he  pleased.  lie  says,  that  he  saw  his  corpse, 
and  one  side  of  his  thigh  was  black  ;  he  suw 
liim  three  or  f(»ur  days  before  he  died,  and 
he  never  coniplainc<l  of  his  thigh  :  it  was  very 
wonderful  he  should  not  complain  of  it. 

Kleanor  Ewer  s:nd  nothing  to  the  purpose. 

liacon  says,  that  he  came  in  the  latter  end 
of  May,  1726,  and  Thorn |>son  and  he  were  in 
the  pump-ward;  that  Thompson  remained 
there  three  weeks,  and  was  carried  from 
thence  into  the  Stronc^  Room ;  that  he  has 
seen  twenty  rats  there  at  a  time ;  when  he  had 
been  there  ten  days  he  came  back,  and  staid 
in  the  Pump-ward  two  days  and  tlicn  return- 
ed ;  that  he  had  no  bod,  or  hut  a  liltle  piece  of 
one.  He  says,  thnt  Thompson  complained  of 
the  severe  usasre,  and  that  it  would  be  the  oc- 
casion of  his  death  :  but  not  of  the  sore.  He 
says,  the  room  was  made  on  purpose  to  punish 
|ienpl<>  for  great  crimes  ag:iinst  the  government, 
and  Thom(Hion  told  him,  that  it  would  be  the 
occasion  of  his  death. 

PuFcbace  tays,  that  he  saw  him  removed, 


and  said  he  walked  there ;  that  he  visited  him 
▼ery  fi'equeutly,  and  the  room  was  not  washed 
all  the  time  he  was  there  a  prisoner ;  that 
there  was  no  complaint  of  his  sore,  but  of  his 
usage ;  he  says,  that  it  was  wet,  and  the  raia 
came  in  at  top, 

Wilson  says,  Thompson  was  in  the  Pomp- 
ward  ;  that  he  was  very  hearty  and  merry, 
and  gave  some  instances  of  his  mirth  ;  tliat  ha 
was  put  in  the  Strong  Room,  and  was  io  a  bad 
coudition.  He  gives  you  an  account  of  tba 
floor ;  that  tliere  was  water  there ;  that  MMne 
came  down  from  above,  and  some  was  maile  by 
Thompson,  lie  says,  that  he  was  locked 
up  00  nights,  but  not  on  days ;  ha  went  to 
Acton  to  intreat  him  to  remove  him,  and  he 
bid  him  hold  his  tongue;  he  told  him  he 
should  die  if  he  was  not  put  in  another  place ; 
and  tliereupoo  he  went  to  the  nurse  of  the 
sick-ward,  but  she  refused  his  coming  there. 

He  says,  there  was  a  tarpaulin  put  on  the 
top  of  the  Strong  Room  about  a  year  ago,  and 
before  that  the  wet  came  in,  and  he  belie?es 
that  this  was  the  cause  of  his  illness  and  death. 

Phillips  says,  that  Thompson  was  troubled 
with  a  diabetes ;  that  he  was  io  a  misetable 
condition ;  that  he  was  in  the  room  ten  days 
before  he  died ;  and  that  he  bid  upon  the 
ground  all  the  time,  and  he  was  put  there  by 
the  prisoner's  order ;  and  that  he  never  saw 
the  room  washed.  He  savs,  that  he  might 
have  been  put  in  a  better  pkur-e,  for  there  was 
room  in  the  sick  wani ;  and  he  might  have 
been  put  in  a  room  against  his  own  ward,  ibf 
it  was  empty. 

Gentlemen  of  the  jury,  you  will  consider 
the  state  of  this  indictment ;  and  that  there 
are  necessary  to  be  taken  notice  of  two  things. 

Tiie  first  is,  that  Thompson  was  put  in  u# 
Strong  Room  cgainst  his  consent. 

The  next  is,  that  the  confinement  there 
was  the  occasion  of  his  death. 

The  prisoner  says,  that  he  was  very  far 
from  putting  him  there,  for  he  asked  leave  te 
go;  so  that  a  charge  is  laid  upon  him  who 
never  gave  Thompson  any  offence,  or  used  any 
hard  words  to  him  ;  therefore  he  oaooot  besO 
barliarous  as  represented. 

There  are  eleven  witnesses  that  he  has  call* 
ed,  who  give  an  account  of  Thompson's  having 
the  diabetes,  that  the  ward  was  very  uneasy 
with  him;  and  because  he  had  done  in  the 
ward,  what  they  iisc-il  not  to  have  done  there, 
the}'  took  all  his  clothes  away. 

Christopher  Gosling  says,  that  Thompson 
was  offered  by  the  prisoner  to  go  into  the  sick 
ward,  and  he  refused,  which  confirnos  what 
the  other  witnesses  say,  (and  then  Acton  bid 
him  go  whitlier  he  would,)  and  he  said  htf 
would  go  into  the  Strong  Room ;  and  Actoa 
said,  if  you  go  into  such  a  room  (the  witoeff 
naming  the  room)  won't  that  be  as  well,  tf 
he  went  into  the  Strong  Room  on  his  owo  de« 
sire,  Acton  is  not  irnilty. 

He  says,  that  Thompson  had  a  pillow  ibJ 
blanket,  which  is  explained  afterwards,  that  b0 
Goukl  lie  upon  it  and  turn. 


561] 


Jitr  the  Murdtr  t^Jamtt  Thompson. 


A.  D.  1729. 


[568 


Holnei  89V8,  that  Thompson  was  so  tor- 
■leated  by  the  ward,  that  Thompsoa  dettir- 
cd  him  to  ^o  to  Acton,  to  desire  he  rni^ht  go 
ioto  tlie  Strong;  Room,  and  upou  that  Acton 
gftve  leare ;  and  says,  that  he  was  desired  to 
go  to  the  sick  ward ;  and  says,  that  he  was 
Mt  contiried  in  the  day-time,  unless  he  was 
boiled  in  by  his  fellow-prisoDers,  that  bad 
fliftd  the  rnifue  with  him. 

UEabeth  Goslinf^;  she  pves  an  account 
M  her  husband  did ;  that  Thorn psuo  owned 
bfv  firiendly  the  prisoner  had  t)een  to  him^  and 
IkU  it  was  so  far  from  being*  looked  on  as  a 
piaithmctity  that  it  was  a  matter  of  favour 
fheoght  by  Thompson  to  \te  there. 

Brown  says,  that  he  talked  with  Thompson, 
ud  Thompson  said,  Goil  bless  Acton,  he  hail 
Mfcd  bb  life,  for  if  he  bad  stayed  any  longfer 
m  the  ward,  be  shouid  have  died  ;  and  says, 
there  was  a  bed  there. 

Barton ;  she  beard  the  captain  say,  that  he 
Hktd  leave  to  go  into  the  Strong  Room,  b«;ing 
Mwt  and  easy  to  be  there ;  and  that  he  bad  ra- 
ther be  there,  because  iie  was  always  at  ease. 
Bondler  says,  that  the  ward  was  uneasy ; 
ipon  which  Thompmn    made  interest  to  go 
line,  and  took  his  bed  and  bedding,  and  asked 
kave  of  Acton  to  go. 

Direnish  says,  that  the  people  of  the  wa^d 
CMDcibrbim,  and  he  saw  him  carried  quite 
thraofdi.  He  goes  into  the  Strong  Room, 
■y  awed  Thorn |)Son,  how  he  came  to  be  there ; 
ib4  he  owned,  by  the  civility  of  Acton  that  he 
VH  there.  He  says,  that  Thomi>son  bad  a 
M,and  that  be  went  out  and  in  when  be 
ikiHd. 

Mnson  says,  that  Thomimnn  said,  that  he 
Aid[ed  God  that  Acton  was  so  good  to  let  him 
Kfli6re. 

There  were  two  other  witnesses,  who  spoke 
to  hri  asking  leave. 

(jeutlemen,  now  yon  will  confider  how  the 
taoetidenres  tally,  and  what  injury  there  was 
done  to  Thompson. 

For  the  king,  they  say,  that  he  was  put 
tbfre  without,  and  n«^inst  his  consent ;  an<l 
^tbe  prisoner,  eleven  witnesKts  Kay,  it  was 
^tb  bis  consent.  If  you  should  he  oV  an  opi- 
Bino  that  it  was  wtihout  his  consent,  tlicn  itde- 
ttrrei  another  consideration  ;  hut  if  you  sdiould 
kof  an  opinion  that  it  w.is  with  his  consent, 
to  there  must  he  an  end  of  tliis. 

loibe  next  place,  you  will  coiisidcr  in  rela- 
tion to  the  distemper.  As  to  the  dialu'tcH,  some 
biveuid  on  one  side,  that  tlicy  looked  ufMMi 
it  to  he  mortal,  and  that  he  never  complained. 
h  it  very  observable,  that  he  never  should 
■Bphiin. 

lathe  next  place,  they  tell  you,  h6w  he 
CMiKht  it,  by  lying  upon  tlie  bare  boards.  Nome 
tf  the  witnesses  for  the  king  say,  he  had  only  a 
*l  of  a  bcti ;  ami  eleven  uitnesses  for  the  pri- 
^vny,  he  bail  a  l»e<l ;  and  if  he  had,  he 
^  BOI  lie  on  the  ground,  ami  could  not  have 
^diblenper  from  lying  tliere;   it  was  im- 


The  third  part  if,  whether  he  was  a 
VOL  XVll. 


soner  in  the  Strong  Room?  You  hare  beard, 
the  witnessscs  for  the  king  all  agreed  that  he 
went  out  on  days,  though  be  was  locked  np 
on  nights. 

The  witnesses  for  the  prisoner  all  agree,  he 
went  out  on  days,  and  be  was  not  lodged  up 
on  nights. 

As  to  bis  goinjr  to  the  sick  ward,  the  wit- 
nesses say,  that  Acton  ordered  it,  and  be  lo- 
fused  to  go. 

If  this  place  gave  him  the  distemper  of 
which  he  died,  and  if  be  went  withoot  bia  con- 
sent, you  will  find  the  prisoner  guilty  ;  but  if 
he  went  out  and  in  when  lie  wouhl,  in  conse- 
quence, he  was  not  con Uneil  there;  there  is 
no  reason  to  find  him  guilty. 

Wlien  be  asked  leave  to  go  to  the  Slrong 
Room,  the  prisoner  gave  it  in  a  vAy  boioaiiia 
manner,  and  gpave  him  bia  choice,  to  ge 
there,  or  into  the  sick  %vard« 

Upon  the  whole  I  must  leare  it  to  you. 

The  Jury  agreed  upon  their  Verdict  imme- 
diately, without  going  out  of  court. 

C/.  of  Arr,  Gentlemen,  are  you  all  agreed 
in  your  verdict  ? 

Omnen,   Yee. 

C7.  of  Arr.  Who  shall  Aiy  for  you  ? 

Omnes,  Foreman. 

CV.  of  Arr,  William  Acton,  hold  op  thv 
hand. '  (Which  he  did.)  L6ok  u|)on  the  pn- 
soner,  how  sny  you  ;  Is  he  Guilty  of  Uie  fe- 
lony and  murder  whereof  he  stands  indicted, 
or  Not  Guilty  ? — Tortinan,    Not  Guilty.       , 

Mr.  Strange.  The  prisoner,  my  lord,  has 
been  very  much  fatigued,  and  desires,  upou 
paying  his  fees,  he  may  be  now  discharged. 

Acton.  31  y  lord,  I  desire  you  will  discharge 
me  now. 

Mr.  Baron  Carter.  1  can't  comply  with 
your  request. 

Mr.  Strange.  Mr.  Paxton,  speak  to  the 
judge.  [Upon  which  Mr.  Faxlon  went  out  of 
court.] 

Mr.  Strange,  Mr.  O^^lethorpe,  I  desire  you 
will  interfere,  and  speak  to  the  judge,  and  that 
you'll  give  your  opinion.  Pray  speak,  praj 
tell  whether  you  consent. 

Mr.  Oglethorpe,  Were  I  prosecutor,  1  should 
desire  the  prisoner  might  be  released  ;  not  that 
I  ihiok  him  innocent,  but  that  every  English- 
uian,  let  him  be  never  so  unjastly  acquiUed, 
hath,  by  the  Habeas  Corpus  act,  on  his  ac* 
qniital,  a  right  to  be  discliarged  ;  nor  can  any 
subornation  of  perjury,  or  any  management  of 
a  jury,  prevent  it,  for  they  are  cognizable  at 
anotlicr  time. 

[There  being  then  a  great  noi?c  in  the  Court, 
interrupted  his  spenkiug  for  sonio  time,  and 
OS  s<»on  as  it  reused,  he  went  on  Hgnin.] 

A<9  I  said  lu't'ore,  I  nni  not  the  prosecutor :  if 
I  wprc,  I  knew  uhat  I  should  have  done.  The 
Attorney  General  was  ordcrcit  to  prosecute  by 
the  crown  :  aurl  it  is  he,  or  his  representative, 
that  should  anfiwer  this  question,  and  not  I  ; 
pri-  I  and  since  I  am  speaking,  1  desire  to  be  in- 
I      SO 


MS]  3  GEORGE  II. 

dQlg^  a  word  more,  Ibat  1  may  telltba  reaaoo 
of  my  coming  here. 

HaTiDff  bail  tlie  honour  of  beio^  one  of  those 
gfetitlrmen  who  were  appointed  to  eiH|uire  into 
aevprul  matter*,  aome  of  whirh  have  been  this 
day  under  your  couiiideration  ;  not  koowinsf, 
therc'lure,  what  questioDS  mii^ht  arise,  for  the 
-clearin^r  up  of  which  I  might  be  neceaaary,  1 
-Iboucrht  it  incumbeat  on  me  to  attend. 

1  have  bad  nothiopf  to  do  in  eoiiductini^f  the 

Iiroaecutinn  here,  which  baa  appeared  evident- 
y ;  therefore  I  can't  imaifine  why  any  appli- 
cation should  be  maile  to  me. 

DoMiNUs  RExvenuf  Acton. 

Michaelmas  Term.  3  Geo.  2.* 

Tbe  Defendant  was  deputy -kee}>er  of  the 
llantbalseif- prison  ;  and  upon  tbe  A<ldresa  of 
the  House  of  Commons,  was  prosecuted  for 
several  murders,  supposed  to  have  been  com- 
mitted by  him  on  prisoners  in  his  custody.  He 
was  tried  on  four  several  indictments,  whereon 

*  Sir  John  Stran^^e's  Re^torts,  vol.  2,  p. 
851. 


Proceedings  relative  to  the 


[564 


the  only  question  was,  Whether  a  pbice  withio 
tbe  prison,  called  tbe  Stronsf  Room,  waaa  pro- 
per place  to  confme  disorderly  prisooers  inf 
And  tiie  jury  upon  all  the  four  trials  acquitted 
him,  to  tlie  satisfaction  of  almost  every  body; 
Hud  in  consequence  of  these  acquittals  he  wu 
discbartred.  Presently  after  he  was  at  liberty^ 
a  sini;ii' justice  of  tbe  peace,  upon  iufornaatiaa 
of  a  filtb  iKfi-son's  havings  been  put  imo  the 
same  Strong  Room,  and  dying  wiibio  a  3 car 
after,  tboug[bt  tit  to  commit  tbe  defendant  agaia 
for  murder;  and  npon  a  Halieas  Corpus^ 
Strange  pro  Def.  moved  he  might  lie  admiitetf 
to  bail,  on  protlucing  copies  of  the  ioforiHatioot, 
and  affidavits  of  the  former  trials,  and  of  tba 
identical  nature  of  tbe  oilences ;  but  tbe  Court 
refused  to  look  into  tbe  informations,  though 
they  ware  pressed  with  tbe  lord  Mohnn's  Case, 
Salk,  124,  where  they  looked  into  tbe  deposi- 
tions taken  by  tbe  coroner,  upon  a  motion  to 
i»ail :  And,  in  tbe  present  case,  they  remanded 
tbe  defendant;  who  lay  in  prison  till  tbe  next 
assizes  ;  when  tbe  grand  jury  did  bim  tba 
justice  to  return  tbe  bUI  Ignoramus,  and  he  was 
discharged. 


486.  Several  Proceedings  relating  to  the  bailing  Mr.  BAMBaiDGE, 
both  at  the  King's-Bench,  and  at  the  Sessions-House,  in  the 
Old-Bailey,  previous  to  his  Trial  for  Felony  :*  3  George  II. 
A.r>.  1729. 


Al  ike  King*S'Bcnch,  June  7,  1729. 

1  HIS  morning  Mr.  Bambridi^e  was  brought 
by  Habeas  Corpus  from  Newj^^ate  to  the  Court 
or  king's-bench.  Tbe  Habeas  Corpus,  and 
tbe  reiuru,  which  contained  the  several  mat- 
ters, wherewith  he  was  charged,  were  read, 
▼iz.  1.  A  Comoiitiueiit  by  tbe  honourable 
House  of  Commons,  for  many  Barbarities, 
Cruelties,  and  Crimes,  in  tbe  execution  of  the 
office  of  Warden  of  the  Fleet.  l>.  An  Indict- 
ment for  the  Murder  of  Mr.  Castell.  3.  A 
Charge  of  Felony  for  stealing  goods. 

Tbe  prisoner's  counsel  moved  tbe  Court,  that 
he  might  be  admitted  to  bail;  for  that  as  to  tbe 
first  of  tbe  said  commitments  it  was  ended  by 
tbe  expiration  of  the  sessions  of  parliament ;  as 
to  tbe  second,  tbe  prisouer  upon  a  fair  trial, 
liud  been  acquitte<l ;  and  as  to  the  third,  it  was 
a  charge  brought  in  U|»on  tbe  prisoner,  on  bis 
being  acquitted  of  tbe  murder,  and  no  bill  of  in- 
dictment either  tbund,  or  offered  to  the  grand- 
jury,  though  they  coaiinued  sitting  till  tuc  day 
after  tbe  trial ;  and  more  especially,  was  it  rea- 
sonable to  admit  bim  to  bail,  fur  that  by  a  late 
act  of  pnriiament,  he  is  oblige«l,  on  the  pains 
aud  penalties  of  felony,  forthwith  to  make  out 
true  and  perfect  llsu  of  all  the  prisoners  in  tbe 
fleet,  till  June  14,  and  to  qfive  up  all  secoritirt, 


imma 


i*  Ste  the  prroadiog  and  foUowing  Cates. 


&c.  which  it  was  impossible  fo;*  bim  to  do, 
without  having  bis  liberty  to  go  to  tbe  Fleet, 
to  ius|)ect  tbe  boiiks,  and  examine  the  officera 
there ;  and  eight  persons  being  ready  to  be* 
come  his  sureiies,  whereof  notice  was  given ; 
therefore,  it  was  hoped  tbe  Court  would  admit 
him  to  bail.  Tbe  king's  counsel  alledged  that 
the  crime  which  tbe  prisoner  stood  charged 
with,  on  oath,  was  felony,  without  benefit  of 
clergy :  that,  as  to  what  was  said  of  the  pri- 
soner's being  liable  to  the  pains  of  death,  in 
case  be  refuses  or  neglects  forthwith  to  make 
out  the  said  lists,  6cc.  the  said  word  '  Ibrtbwitb,' 
in  this  case,  imports  a  conrenient  time,  or  as 
soon  as  is  reasonable ;  and  therefore,  on  behalf 
of  tbe  king,  they  bo|)ed  he  should  not  be  ad- 
mitted to  bail.  The  Court  were  of  opiui<Mi,  thaS 
as  this  case  is  circumstanced,  there  weie  noC 
sufficient  reasons  to  admit  tbe  priaoDer  to  baily 
the  crime  he  is  charged  with  being  capi;al ; 
and  one  of  the  king's  evidence  being  out  of  tb* 
way,  tbe  last  day  of  the  sessions  at  tlie  Old 
Bailey,  the  bill  against  him  was  not  preferredy 
and  tne  Court  there  iiaving  onlered  tbe  pri* 
souer's  detainer  till  next  sebsions.  Tlie  Court 
al(<o  declared  their  opinion,  that  in  case  the  pri- 
soner, to  tbe  utmost  of  his  power,  complied  witii 
the  act  of  parliament,  in  delivering  such  Iiil0» 
&c.  he  would  be  no  way  liable  to  tba  peoahM 
thereof;  ill  tha  «ud  b«  vra«  reuMiided  !•  Mtvr 
gstt. 


Hailing  Thomas  Bambritige. 


[566 


IS  uf  0>cr  ADil  Terminer,  and 

R'ridtrcry,  held  Bt  JuXiRa-hall.  ai  ilii^  Old 

M(T(  ou  U>a  Dili  day  of  Jutj,  1799,  lielore 

Mr  Uotwil    Bayli*,   kniglit,  lord -mayor,  and 


»ly'«  ju.i 
>r  for  the  < 


Tk*  Solicitor  for  the  Crown  not  beiii^  ready 
I*  WW  Thomaa  BninhndgF.  wlio  sUitd  indict^ 
teUniy  ;  ibo  kin^'N  L-ounsel  did  not  alttod 
MllwlHh  of  Jul;,  the  UtdayoltheKiriuinB; 
«W»  l>#nt  ctiirl- baron  I'en^'elly.  briun  ill,  vitta 
•0«f  tomi ;  and  Mr.  Justice  R«ynoldi  Wing 
lUaed  to  go  the  circuit ;  there  were  ouly  on 
ItoWDch,  iJr  Williaiu  Tliompion the  recorder, 
nd  Ur.  KtMJeaot  Raby,  (he  deputy  recorder. 

WIirM  Mr.   Bambriilge  was  hrougbt  from 

Ntwgvic  10  ibe  Old  Bailoy,  be  petitioned  Uie 

Cowrl,  ihal  he  niigbt  be  either  tritni,  bailed,  or 

di»cbar|[ed  ;    and   that  in  the  mean   time   be 

ttigtii,  ni.dcrlhecusloily  ol'ihekeeiierorNew- 

fitc,  bo  (icnnitled  to  go  lo  the  judges  chatnbers, 

loiMpecI  ibc  bad  books,  an<l  commitments,  to 

*aiU«  blni  to  [terlect  thi:  lisli  of  all  bis  jiri- 

F\itn,  itliich  the  prcteu I  warden  had  demand- 

iili  hy  n  late  act  of  |)arliament  he 

■■'•  dpliver,  ou  the  p«ins   of  felony 

111  uf «lergy;  and  the juilges  going 

j~on  Monday  nexl,  liia  iieiilion  set 

imii,  iiiii  It  might  be  too  lale  for  him,  alter 

A>  rait  iif  iho  aeuiiins,  to  lna|iect  the  (aid 

kwki.    1'he  Court  were  iileaaed  to  record  the 

MliDO,  and  ta  graiil  the  lirsl  part  of  it,  tic. 

Ibube abiiiild  either  be  tried,  hailed,  nr  dig- 

Aiapi\ ;  and  a*  In  the  other  part  uf  li 

iMjiltciareii  that  hecoutd  not  incur 

HbiiD  Ibe  <aitl  act,  if  he  did  the  ulinovt  in 

bfWirtn  perfect  the  sai<l  li«U,— Aud  oe« 

^.IJoly  10,)  Mr.  fininbridire,  who  had  peli- 

*mi  ltii>  Court  IV  he   trieil,  bailed,  or  din- 

•Hpdi  WM  iodioled,   Kigether  with   Jamn 

"-■-■-,  and  Willium  Pindar,  (bis  arcomphcea) 

'  Jdg  open   the  door,   and  t'eJoniously 

•"'r.ri;:  iliL  ^uodji  of  AlrB.  Ucrklcy,  a  |>risoner 

|"i!i'  1  l.'i  ;    when  the  grand-Jury  fouud  the 

t>i|  Ji;jiii»i  ihciii  all;  Mherrupou  Douglaa  and 

hdflar  «tiuuiKled. 

And  on  13th  July  173P,  lieing  the  last  day 

(Itlw  Kaaiuna, 

~        ■  Bambridge  (being  before  arraigned) 

ulit  to   tlie  liHi',  to  he  Irivd  tor  Ibe 

-Mrcofhe  alnod  indicted  ;   when  lir 

iTbompaou  (poke  ai  follows  : 

I  l'A«im^Mi».  As  I  have  the  honour 

•toflbcHoiiBeofCi 

I  proMCUlion  waa  ordered    by   Addrran 

_m  il«UB«  of  C«nimoni,  it  may   be  oh- 

:  !>/  iIm  priMurr,  thai  1  am  both  d  pro- 

''■'idgt.     1  have  do  perianal  objection 


fliiH  jaD,  and  1  beg  I  may  iiolbv  uniler- 

■^"' — ' niraonal  ol.jeition  to  you; 

uelonKing  to  the  llou»e  ot 
')  bat*  uuy  tbiog  lu  du  with  it. 

tyuK .  Uf.  Atloruey,  jnu 


h  W^^. 


•ee  the  priMoer  (hinka  me  not  a  pro|i«r  judge 
10  try  bim. 

Jit.  Gen.  I  apprthend  it  U  not  a  l^^l  ob- 
jection ;  1  belieie  it  has  freqiienlly  happened, 
that  membera  haieaal  asjudges,  uhme  proae- 
culions  have  beeu  ordered  by  the  Houae  of 
Commona. 

Sir  Wiiliaifi  Tliompum.  Me  mny  not  think  me 
diTCBted  of  partiality  ;  it  may  beihongliliD  me 
a  remote  objeclinn,  bnt  I  would  avoid  lying 
under  any  imputation  of  partiality. 

All.  Gen.  1  dun'l  sav  it  is  not  a  legal  olgeo- 
lion ;  a«  the  prisoner  does  insist  upon  ii,  it  ia 
not  right  in  me  to  instnuiKm  your  trying  him; 
but  if  you  do  notthinkpruperio  try  him.tbrtbe 
sake  of  the  prniecQtion,-and  ll>e  solemnity  of 
it,  I  hope  ihe  trial  will  go  off  tilt  a  judge  is 
here :  hut  1  am  told  there  is  danger  l1isi  some 
of  the  wimeases  may  be  gntie  out  nf  llie  way  ; 
and  as  witnesses  are  the  most  nitlurial  in  alt 
iriaU,  i  should  be  glad  of  its  coming  on  as  soon 
as  possible- 
Sir  William  Thompion.  I  Witl  tell  voa  biHr 
that  matter  happens ;  there  is  not  a  ijay  next 
week,  that  my  iorit-maynr  is  not  engayied  ia 
business; suppose  itsbouldbe  put  olT till  Mon- 
day se'ii-night,  some  of  Ihe  Juilges  may  ba 
oome  home  from  their  circuits  on  IjatnitUy 
uighl ;  tlie  sessions  ahill  be  adjourned  nii  pur- 
pose ;  there  shall  lie  all  the  care  in  the  world  ta 
support  the  prosecution.  As  this  mailer  doe* 
liappen,Bndthe  prlaoner  still  iniiisis  iifiou  it,  let 
it  be  Wednestiiy  nr  Monday  se'n-night. 

All.  Gen.  I  ixtlieve  Monday  will  be  the  pro- 
perest  day ;  lord  chief-justice  l^yre,  nuil  baron 
Carter,  may  he  in  town  then. 

8ir  IVilluan  Thmnptott.  He  sees  ibc  incon- 
venience;  if  he  will  wave  the  objecilnn,  I  am 
ready  to  try  him,  and  be  shall  have  all  the  in- 
dulgence tne  law  will  alluw;  I  du  it  not  l« 
wave  the  fatigue ;  and  as  for  Mr.  Keijeanl 
Raby,  be  is  not  well,  he  baa  bad  an  ill  stale  of 
liealib  for  some  lime,  anil  is  not  able  lo  try  him. 

Atl.  Gen.  If  it  goes  off  to  Monday  seren. 
iiighl.itmsyhepDlofTtill  uextsessiiina;  there- 
fore I  should  ihmk  it  belter  for  tbe  jiriMiner  to 
be  tried  now  :  I  don't  desire  him  ;  it  sliull  b« 
voluntary  in  him. 

Bambridge.  I  insist  upon  ibe  objeclinn. 

Alt.  Gtn.  Pray  lei  it  be  on  Monday  leven- 
nik'hl. 

Kir  iriUiom  TAon^ison.  It  i«  tbe  Aliorney's 
denire,  thoi  it  may  be  ailjoiiroed  till  Monday 
seren-  night, 

Bumhridgt.  The  trial  I  went  under  U>t  ses- 
sions, Ihr  (he  murd,'r  id  Mr.  CaMell,  met  wiih 
false  rcpresenuiiioiis  in  the  papers;  iherelore, 
rather  ihno  run  any  baaard  ot  n  iinsreprcsenu- 
lion,  1  ileEire  it  may  he  adjounied  to  the  tim< 
Mr.  Ailnmey  meutious. 

Sir  Witlium  Thompvm.  VihttX  was  loierled  in 
Ihe  paiwr*  I  have  nuihing  tii  wy  In. 

Buiiilridgt.  If  thiugs  wer«  iiuii represented 
then,  they  may  ajjaio  \  and  I  have  itoflVred  so 
much  in  my  chnracter  under  sui'h  misreprc^rn- 
intiona,  that  i  ought  to  be  coiitious  how  1  coa- 
duvt  myuir. 


867] 


3  GEORGE  U. 


itigs  relating  to  the 


[5GB 


TbeD  the  Covrt  ifis  adjoained  to  Monday 
teveo-oiglit. 

ProclamatioD  waa  madR  for  informatioD. 

€/.  rf  Arr,  Set  up  Thomas  Baiuhridgfe. 
(Which  was  accord'mij^ly  doue,  and  the  indict- 
ment raad  in  £n(;lish.) 

Sir  William  Thcmpton.  This  matter  was 
put  off  till  to-da^  (the  prisoner  having*  tboueht 
fit  to  object  a^inst  me),  in  expectation  tnat 
■ome  of  the  judges  woald  come  to  town. 

My  Lord  Mayor  has  sent  to  those  in  town, 
mnd  they  sent  word,  that  it  wonld  not  be  conve- 
nient for  them,  beiugf  fatigued  with  the  circuit. 

Alt,  Gen,  Mr.  Serjeant  Cheshire  and  my «eif 
•re  ready,  and  the  king's  witnesses  nn •  rencl^f . 
'  Sir  Wiliiam  Thoinpum,  I  have  had  the  objec- 
tion in  my  mind  ;  and  the  more  I  consider  of  if, 
the  more  1  thi!ik  it  will  lie  very  improper  for  me 
to  try  him.  I  know  no  instance,  no  parallel. — 
There  was  an  act  passed  last  sessions  of  psHia- 
ment,  to  which  I  was  a  party ;  the  prosecuiiou 
was  ordered  by  Address  from  the  House  of 
Commons,  to  \^  hich  I  was  a  party ;  and  it  does 
remain  a  scruple  %^itli  me,  that  it  does  not  be- 
come me  to  try  this  man. — ^The  trial  must  he 
put  off  till  next  sessions. 

Lord  Majfor,  The  jud^^  sent  word,  tliat 
they  were  so  fatigueil  with  the  assizes,  that 
their  health  would  not  permit  them  to  attend. 

Att,  Gen.  I  have  been  here  twice :  next 
sessions  is  the  27th  of  Au»:ust ;  I  must  be  out 
of  town,  and  cannot  be  able  to  attend  the  trial. 

Serj.  Cheshire.  I  shall  be  150  miles  out  of 
town  at  that  time. 

Sir  William  Thompson.  The  sessions  \ou 
don't  usually  attend  ;  1  wish  it  was  otherwise : 
if  you  can  tell  me  of  any  case  where  a  judge 
acted  as  prosecutor  and  judj^e,  1  will  try  him. 

Att,  Gen.  I  can't  recollect  any  precedent ; 
but  the  Court  of  King's- bench  grants  informa- 
tions, and  tries  the  cause  after. 

Sir  William  Thowpson.  After  the  Court  of 
King's-bench  grants  informations,  they  hear 
both  parties.  Whoevrr  reads  the  act  passed 
last  sessions,  if  I  had  tried  hiui,  would  say  I 
was  not  impartial. 

Att,  Gen.  If  it  is  a  scruple  the  prisoner 
makes,  he  cannot  be  discharged. 

Sir  WilliaiH  Thiwipson.  The  trial  luust  go 
over ;  it  must  take  its  fate.  Mr.  Allan ,  take 
care  of  the  prisoner. 

At  the  Old  Bailey,  Aug.  27,  1729. 

Dns.  Rex  ver.  Bambrioge. 

Mr.  Conningsby  attended  on  behalf  of  the 
crown,  and  made  a  motion  te  put  off  the  trial 
(»f  Thomas  Bamhridge  till  next  8e«>sions ;  but 
the  Court  did  not  think  fit  to  enter  into  the  ar- 
gument then,  and  deferred  it  till  the  89th  of  the 
same  instant. 

August  29. 

Mr.  Conningsby.  1  am  of  eonnsel  for  the 
king,  my  lord     J  have  aa  bumble  motion  to 


make  to  the  Court,  that  the  trial  of  Mr.  Barn- 
bridge  may  be  put  off  till  the  next  sessions ; 
and  when  I  ask  this,  it  will  be  necessary  to 
assign  some  rea^ion :  the  last  time  1  made  the 
motion  to  the  Court,  your  lordship  was  plcasei 
to  determine,  that  the  prisoner  was  not  m  tbt 
meaning  of  the  Habeas  Corpus  Act,  as  he  waved 
being  tried  hini!it»lf ;  and  therefore  it  is  discre- 
tionary in  the  Ojurt  what  tbay  will  do  id  this 
matter,  as  the  trial  was  before  put  off  by  tbo 
prisoner's  concurrence.  My  lord,  the  king's 
counsel  being  out  of  town,  or  upon  the  circuits^ 
is  one  reason ;  but  I  don't  barely  insist  opoa 
that ;  ffir  1  have  an  affidavit,  that  a  malmal 
fiilnfss  fur  the  king  is  absent,  and  can't  be 
found;  that  he  has  absconded  for  debt;  but 
that  we  shall  be  able  to  have  him  by  next  ses- 
sions, though  not  now ;  I  submit  it  upon  that. 

Then  the  afRtlavit  was  read,  which  was  to 
the  following  effect: 

"  Nicholas  Comer  maketh  oath,  That  he 
had  souj;ht  afker  Gifford  Lane,  formerly  derk 
to  Mr.  Gybbon,  late  deputy  wanlen  of  the 
Fleet,  to  ser%e  him  with  a  snbpcena ;  but  oooM 
not  find  him  out,  because  he  has  abscomled  for 
debt;  but  believes  he  shiHl  find  him  by  the 
next  ensuing  sessions ;  and  thst  it  was  not  safe 
to  proceed  to  trial  without  his  testimoDjr,  &c." 

Mr.  Conningsby.  I  ho|)e,  upon  this,  my 
lord,  the  trial  will  be  put  otf. 

Mr.  Just.  Fivbyn.  While  Mr.  Wynn  is 
speaking,  1  desire  1  may  look  over  the  affi- 
davit. 

Mr.  Wynn  (Counsel  for  the  Prisoner).  My 
loni,  I  hope  the  reason  given  is  uot  sufficient 
to  put  ojf  the  trial :  I  will  not  mention  now  the 
long  time  that  he  has  been  kept  in  prison,  it  is 
so  frcKh  in  memory. 

As  to  the  absence  of  the  king's  counsel,  there 
is  no  occasion  for  them,  as  that  learned  gentle- 
man is  present ;  and  1  humbly  apprehend,  that 
can  be  no  tbundation  to  put  the  trial  off*. 

The  next  argument  is  founded  ufion  die  affi- 
davit of  Nicholas  Comer,  That  he  had  not  been 
able  to  find  Lane ;  and  that  Lane  was  a  ma- 
terial witness  for  the  king:  what  foundation  ho 
had  to  believe  Lane  a  material  witness  does  not 
appear ;  and  it  is  very  easy  to  seek  for  a  man 
where  he  is  not  to  be  found.  The  other  day, 
my  lord,  there  was  nothing  then  pretended  but 
the  first  part  of  the  motion  ;  aud  Mr.  Paxton 
himself  will  own,  that  he  could  assign  no  other 
reason  than  the  absence  of  the  king's  counsel; 
and,  I  picsunie,  as  your  lordship  would  not 
allow  that  as  a  sutficient  reason  then,  I  hope 
you  will  not  now.  At  the  latter  end  of  a  ses- 
sions no  affidavit,  the}'  themselves  are  conscionsy 
can  have  any  weight. 

They  supiiosed  that  your  lordship  wonki 
hardly  eiitcr  mto  it  now,  and,  for  that  reason, 
have  very  artfully  spun  it  out :  I  called  npoa 
them  then  to  give  a  reason  for  putting  the  trial 
off.  IV  hy  was  there  not  a  proper  afiplicalioo 
yesterday  P  The  affidavit  would  have  been  fiM, 
and  the  prisoner  would  have  had  a  proper  op- 
portmiity  to  give  evidence  as  to  the  ckaFMler 
of  Comer;  andif  any  thingistobeprcniaiMit 


560]  BtuUng  Thomaa  BamMdge. 

yonrloidriiip  will  pretume  it  in  ikfour  of  the 


A.  D.  17S9. 


[570 


r  will  notukc  op  any  more  of  your  iord- 
Aip%  tioia ;  bsl  humbly  iimst,  that  yoar  lord- 
ifen  will  proceed  upon  th^  trial,  or  admit  him 

Mr.  ConningMby.  The  learned  g^tleman, 
■viwi,  innnysles,  that  «e  eearcbed  tor  Lane 
MM  be  was  not  to  be  found :  the  affida?  it  sets 
ftil^  That  Comer  learched  at  hia  place  of 
Mie^aiid  at  other  placee,  where  it  wan  thought 
kna  likely  to  be.    We  do  take  u|Hni  us  to 

2^  ba  is  a  material  witnets:  if  we  swear 
riy^  that  lies  upon  ut  to  answer ;  and,  I  ap- 
ynfaeid,  the  crown  would  be  no  more  surprised 
An  the  prisoner. 

■BmAndge.  As  to  Lane^s  being  a  material 
ailisisi^  if  yon  look  upon  the  indictment,  you'll 
■M  sea  him  upon  the  oack  of  it. 

Mr.  P&rfoff.  That's  not  to  the  purpose; 
hi  u« seldom  pot  the  .most  material  evidence 
SB  he  back  of  the  indictment. 

Bmkridge,  1  beg  leave,  m^  lord,  to  men- 
fa  sas  circamstance,  which  is  notorious,  and 
Mv  publicly  talked  of:  there  was  one  gen- 
leasB  of  tiie  grand  jury,  who  was  very  soli- 
dhas  to  the  rest  of  h\%  brethren  to  find  this 
hj^haalwd  violent  hands  upon  himself  for  the 
i^^vy  dofie  to  me« 

Mr.  Just.  Probifft,  That  is  not  to  the  purpose. 

BaAridge.  He  has  not  sworn  to  Lane*s 
(faeeaf  abode. 

Mr.  Paxton.  There  is  one  remarkable  cir- 
cowisnce,  that  the  Court  was  adjourned  for 
Kfwsldays,  that  the  prisoner  might  have  a 
hpi  trial,  audit  went  off  upon  the  prisoner's 


Btmkridge.  I  am  surprised  Mr.  Paxton 
1  say  that ;  1  did  not  speak  one  word  that 
diy.  ]  have  in  writing  what  was  said,  which 
tmis  one  ready  to  swear  to.  [Which  he 
nadorer.] 

Mr.  Just.  Probyn.  That  relates  to  the  prayer 
«f  the  Habeas  Corpus  Act. 

When  people  are  in  custody  a  considerable 
time,  without  some  particular  reason,  they 
disiild  be  discharged. 

One  of  the  reasons  always  admitU^d,  is  tho 
«iBt  of  evidence  for  the  prosecutor :  if  endea- 
tours  have  been  used,  and  they  cannot  be  had, 
hat  always  is  a  sufficient  reason.  As  to  the 
iflidavit,  it  is  not  so  strong  as  usually  is  made 
apsQ  such  occasions:  it  says,  that  he  was  con- 
essad  for  the  prosecutor ;  but  it  don't  appear 
bow  he  was  concerned.  He  says,  that  he  had 
jmda  enquiry  at  Mr.  Gybboiis'H  house,  but 
ion'tsay  that  he  ever  lodged  there;  but  goes 
St  and  savs,  that  he  enquired  at  several  other 
|hees  wbere  it  was  likely  to  find  him ;  but 
wt  say  he  lodged  at  those  places.  Why 
vsbH  tou  eonsent  that  the  prisoner  should  be 
■dhdr 

Mr.  Conningshy,  I  don't  know  what  service 
ksin  be  to  him. 

Mr.  n^nn  (afterwards  Seijeant).  I  am  sur- 
1^^  tnat  any  thing  should  be  mentioned 
^telhs  appeily  which  is  a  private  cause. 


Kir.  Conningtbjf,  I  mentioned  noihuig  of 
the  appeal  now. 

Mr.  IKysn.    Yon  did  the  other  day. 

Mr.  Baron  Comym.  As,  on  the  one  band^ 
care  should  be  taken  that  the  prosecution  should 
be  so  carried  on,  that  the  perscm  guilty  should 
be  punished  ;  so,  on  the  other  hand,  it  should 
be  carried  on  with  such  speed,  that  no  person 
should  be  longer  confined  than  necessary,  ft 
does  appear,  by  the  concessions  on  all  hands, 
that  tne  prisoner  has  continued  in  prison  ever 
since  May  last:  though,  by  the  waver  of  not 
being  tried,  be  is  not  intitled  to  his  discharge, 
yet  he  ought  to  be  considered  as  to  the  length 
of  time  he  has  continued  in  prison ;  unless  yoa 
can  show  any  disadvantage  to  the  crown,  if  he 
is  admitted  to  bail.  If  it  secures  the  liberty  of 
the  subject,  on  the  one  hand,  we  shall  take  care 
on  the  other,  that  the  bail  shall  be  so  suflicient, 
tliat  he  may  be  amenable  to  juslice. 

Mr.  Paxton,  The  trial  was  put  off  upon  Mr. 
Bambrid;re's  own  motion. 

Mr.  Justice  Probyn,  He  ought  to  be  ad- 
mitted to  hail.  Mr.  Baml»ridge,  have  you  bail 
ready? 

Bambridge.  1  can't  say  I  have  this  instant ; 
but  if  it  is  your  lordship's  pleasure  to  order 
bail,  upon  giving  notice  to  the  solicitor  for  the 
crown,  ril  get  them  ready. 

Mr.  Just.  Probyn,  Give  the  names  of  the 
bail  as  soon  as  conveniently  you  can ;  for  it 
should  be  done  in  court. 

Mr.  IVi/nn,  Can  you  undertake  to  get  them 
ready  in  two  or  three  hours  ? 

Bambridge.  1  have  two  or  three  ready  in 
court  now. 

Mr.  IVynn. 
be  bound  in  P 

BIr.  Paxton. 
justify  in  a  particular  sum. 

Mr.  Just.  Prohtfn.  lie  shall  enter  into  a 
recognizance  himself  of  1^,000/.  and  the  bail 
1,000/.  a- piece. 

BIr.  Paxton.  I  sbotiM  h.iTc  an  opportunity 
to  enquire  into  their  circiimstaiices. 

Mr.  WiUiams,    Yon  know  me. 

Mr.  Paxton.  I  know  you  to  be  a  tradesman 
in  Long-acre;  but  donH  know  what  you  are 
worth. 

Mr.  Just.  Probyn.  You  that  are  here  now 
may  justify  :  you  say  you  know  one  of  them, 
only  want  to  be  satisfied  as  to  his  circum- 
stances. 

Mr.  Wm.  Beatniff  (conchmaker  in  High- 
Holborn).     1  am  ready,  my  lord,  to  justify. 

Mr.  Just.  Probyn.     Is  he  sworn  ? 

Mr.  Tanner.    Ves,  my  lord. 

Mr.  Just.  Probyn.  Mr.  Bentniff,  are  you 
worth  1,000/.  when  all  vour  debts  are  paid? 

Beatniff.     I  am,  my  lord. 

Blr.  .lust.  Protn/n.    Is  Williams  sWorn ? 

Mr.  Tanner.     He  is. 

Williamt.  I  cannot  swear  to  1,000/. ;  but 
1  will  swear  to  500/. 

Mr.  Just.  Probyn.  Are  you  worth  500/. 
when  nil  your  debts  are  |>aid  1* 

Willianis,    I  ami  my  lord. 


What  sum,  my  lord,  shall  they 
I  desire,  my  lord,  they  may 


071]  S  GEORGE  IL 

Bambridge.  There  is  one  of  the  Serjeants  of 
the  compter  has  oflered  to  be  the  other. 

Mr.  Justice  Probi/n,  Let  him  be  sworn. — 
Titus  Parker,  are  you  a  house-keeper  ? 

Parker,  Yes. 

Mr.  Just  Frohyn,  Are  you  worth  five  han> 
dred  pounds,  when  all  your  debts  are  paid  ? 

Parker,  1  am,  with  my  pUce. 

Mr.  Just.  Probyn,  I  have  nothings  to  say 
bow  you  make  it  up ;  but  1  ask  you»  whether 
you  are  worth  500/.,  over  and  above  what  is 
necessary  to  pay  your  debts? 

Parker,  I  really  belii>ve  I  am. 

Mr.  Just.  Probyn,  That  is  not  enough  for 
you  to  say. 

Upon  which  he  would  not  swear  otherwise, 
and  withdrew ;  and  Mr.  BambriJjj^Q  was  di- 
rected to  get  anotlier. 

Saturday f  August  SO;  1729. 

The  Calendar  being  called  over,  Mr.  Bam- 
Widge  was  broutfht  to  the  bar. 

Bambridge,  The  person  that  1  did  propose 
for  the  third  man,  i  cannot  have  while  the 
Court  is  sitting,  fur  he  is  out  of  town. 

Sen.  Raby,  Then  you  can't  comply  with 
the  wnole. 

Bambridge,  I  canH  now ;  therefore  I  de- 
sire I  may  be  referred  to  the  lord  mayor  to  take 
the  bail. 

'blr,  Harbing,  The  third  person  was  just  now 
in  town;  I  saw  him  with  an  agent  of  Mr. 
Bambridge  at  Fleet-ditch. 

Bambridge,  My  lord,  Harbing  is  one  in  the 
cons[)iracy :  I  shall  have  yon,  and  Comer  tuo, 
by-and-bye. 

Harbing,  That  audacious  front  of  your's 
will  do  vou  no  service. 

Serj.  Raby,  You  say  you  can't  be  able  now 
to  comply ;  you  can't  give  security  now  ;  and 
you  desire  it  may  be  referred  :  Whoever  taki's 
that  authority  upon  them,  will  do  it  by  Ihe 
order  of  the  Court.  Let  it  be  referred  to  the 
Lord  Mayor,  and  any  two  of  the  alJennen 
upon  the  rota.  When  do  you  propose  to  give 
in  bail  ? 

Bambridge,  I  propose  on  Tuesday  morning. 

Serj.  Raby,    Let  it  he  W^ednesday,  and  give  { 
three  days  notice :  it  will  be  better  fur  you ;  for 
the  Solicitor  fur  the  crown  may  say  that  he  had 
not  sufficient  notice,  and  that  may  delay  you. 

Lord  Mayor,  You  may  attend  me  on 
Wednesday  morning  at  ten  o'clock.  Tuke  care 
to  give  Mr.  Paxton  notice. 

On  September  9th,  he  was  bailed  before  the 
Lord  Mayor  and  Court  of  Aldermen,  at  Guild- 
hull,  for  the  felony  of  which  he  stood  indicted  ; 
having  given  sufiicient  sureties  for  his  appear- 
ance at  the  next  sessions  at  the  Old •  Bailey  ; 
though  he  was  continued  a  prisoner  in  New- 
Cfnte,  boitig  charged  on  an  appeal  for  the 
murder  of  Mr.  Cabtcll. 

Dns.  Rex  vcrv.is  Bambridge,  At  the  Old  Bailey, 

Oct.  20,  1?29. 

The  said  Thomas  Bambridge  being  brought 


Proceedings  relating  to  the 


[671 


to  the  bar  (the  king's  counsel  not  being  then  in 
Court),  proclamation  was  made  for  information, 

CI,  of  Arr,  Thou  the  prisoner  at  the  bar, 
these  men  that  thou  shalt  hear  called,  and  per^ 
sonally  appear,  are  to  pass  between  our  so. 
vereign  lord  the  king  and  thee,  npon  the  trial 
of  thy  life  and  death  ;  therefore,  if  you  ckal- 
lenge  them,  or  any  of  them,  your  tiuM  to  ^Mak 
is  as  they  come  to  the  book  lo  be  awoni^ 
before  they  are  sworn.  [Then  part  of  the  paa- 
nel  was  called  over,  as  follows :] 

CI,  of  Arr,  Robert  Johnson. 

Johnson.   Here. 

Bambridge:  I  object  to  him.  I  mm  tar- 
prised  he  should  be  summoned :  He  was  a  pri- 
soner in  the  Fleet,  and  was  cleared  by  the  kte 
Act  of  Insidvency  ;  and  so  are  half  of  the  per- 
sons  that  are  now  summoned. 

Officer,  I  took  the  best  care  I  could. 

Bambridge.  These  ought  not  to  have  been 
upon  the  pannel :  I  am  ready  to  be  tried  by 
anV  twelve  honest  and  indifferent  men. 

Ij.C.  J,  Raymond,  1  don't  know  bow  this 
matter  is ;  if  you  have  any  just  cause,  yoa 
may  challenge  any  of  them. 

CI,  of  Arr,  John  Lewis.  (Who  ansirered, 
and  was  sworn.) 

Bambridge,  Halfof  them  were  prisoiien. 

Wir,  Mattheus.  Have  you  any  other  pan- 
nel ? — Officer.  There  is  another  pannel. 

CI,  of  Arr.  William  lierry  (not  here). 

CI.  of  Arr.  John  Fowler  (answered^  and  was 
sworn.) 

CI.  of  Arr,   Richard  Evans. 

Richard  Evans.  Mere. 

CI.  of  Arr,  Look  upon  the  prisoner. 

Mr.  Kettlcby,  Let  the  prisoner  look  npon 
him,  to  see  if  he  knows  him. 

Then  the  King's  Counsel  came  into  Court. 

Serj.  Clieshire,  3Iy  lord,  there  is  a  witness « 
that  IS  to  go  throu;rh  the  whole  cause,  one 
Turner,  who  is  very  ill ;  and  we  shall  have  an 
affidavit  presently,  that  be  can't  without  peril 
of  his  life,  come  out.  He  was  here  on  Friday « 
and  this  is  the  act  of  God :  Three  or  four  timetf 
the  king's  counsel  have  attended,  and  hoped 
this  would  have  been  the  last.  It  is  our  duty  to 
acquaint  your  lordship,  that  he  goes  ihrougb 
the  u  hole  cause :  W^e  are  very  sorry  it  has  so 
happened ;  but  we  cannot  try  it,  unless  we  aro 
to  try  the  cause  without  this  witness. 

Alt.  Gen.  It  is  impossible  for  us  to  go  oa 
without  this  witness  ;  this  accident  is  what 
we  did  not  meet  withal  till  the  Court  was 
sitting;  there  is  a  messenger  seut,  and 
an  a|>othecarY,  to  desire  him,  if  possible,' 
to  come  in  any  manner,  in  a  chair,  or  other- 
wise ;  if  not,  we  shall  lay  before  your  lord* 
ships,  by  affidavit,  the  condition  he  is  in,  wheB 
(he  apothecary  comes.  This  witness  is  tbs 
most  material  in  the  cause;  it  is  impossiUs 
to  charge  the  prisoner,  or  try  the  cause  witboot 
him.  The  witness  was  here  on  Friday,  wuk 
there  can  be  no  inconvenience  to  the  pri^ 
soner,  f«)r  that  in  re^anl  to  this  indictment  he 
is  bailed ;  he  is  not  in  the  same  case  where  kt 


J]                     Sailing  Thomas  Bamhridge.  A.  D.  17^.               [574 

lid  be  kcpl  io  custody  ;    but  if  that  was  the  may  be  read,  (which  was  accordingly  done,) 

»,  it  is  •  tfufficient  cause  to  put  off  the  trial,  and  is  to  the  following  effect : 

iKwintf'  he  was  not  upon  bail.     I  hafe  at-        ..  i„.^_  r* .  ^  »,       -r^     i 

..re  done  with  this  aUend.nce.             *"  '^^'Zl'  fa,  i '   "  ir    "  ^  «»«""y  "wke 

f '   I    »««m«m,l    I  .-.n't  k>v  .nv  thinff  to  "*'"»  *■""  •"'  '»•»»«";    •"•J  Jamw  Current 

B™.*.j./,..   I  djd  «,t  be.r  one  word  that  SXHe  tT'^nz^'^tb^^o.S  f^^, 

LC  J-!  Tbcr£;«  alleged,  tbat .  material  T*''''''  '""'IT  '"'r  ""jf^  H"*!  •^T"^'"*'  ^ 

«M;.that  gL  .hrou«h^.b'e  whole  cause.  iT„'^!:i'^w^i',l«J?„^!l„"n  "'7k '.!?"' 

ZoTwith  an  V  aafely  to  b«  life  attend.  Tlier^  Lilhnnton  now  lies  daogerousl  v  ill ;    that  the 

<c  J     •»  '        "  •.           .  iT^  i.     irl  wound  w  SIX  incbea  lonjr,  aud  three  deep,  and 

"'f.-.r-J ?!L*'«j'  i.r         'r  «i'll.^  •«  "^"""o'  »>•  b«»igbt  «ut  without  mSufert 

B  of  till  It  does,  and  thev  say  it  cannot  be  ^        ^j.  ^^  ,;f      »                              ""  ™ 

Jtl'tTiir'^^J^rife'tri;?.™  »  Coodac^s ;  he  swears  that  be  ba.  been  to 

riy  bailed.     1  hmB  you  bear  me.  for  1  am  ^j^.^  j^,,„  ^.^^^^^  ,„j  ^^^^  ^^  ,j,,,^j  ^.^  ^  ~ 

b   *!.  -J        M»  1-.  1    ¥   I.  k  ..  .  ^..     »u:-  lentl y  ill  of  a  plenretic  fever,  and  he  cannot  be 

irit^nd'ijeSgi^sSiri^a;'-"  jrl'""*°*  ••"  '"'•^"*  ^•""""^  "^  *»'■ 

tmtridge.  I  don't  know  bat  this  witness  fe'U'y  .^''j  i'"!""'  ""*  V  A  ".•-ii"'* 

.•Kof  the  people  maintained  in  the  Fleet  at  T""^/?.^it"  7T*T  t"**  fl''^"K*^'""l£• 

■riw.8e..Tba.  been  put  off  already.*-  ?"":.  ^.     J^t"  ♦TIT"*'  """  "•*"•*: 

sS:  &z  sit  tS"'' '  •"-  lii^t.r/;;'i*'n»e  ^prSrs 

1S^«/h':rnot''ouXu 'it  wa.  not  v;itho„t  the  benefit  of  .he.>  testi^ 

M  in  Jnly  last,  we  bad  all  our  witnesses  tboD  J";„"Si.»"* '*^  on  Friday,  though  he  wa. 

at.  Strange.     An    honourable    gentleman  ^^/.  Gen.  We  that  are  counsel  for  the  king, 

OKietbe  objection,  then  upon  the  bench.  cannot  oblige  the  attendance^  of  witnesses  i  we 

Au.  Gen.    I  must  observe  that  the  prisoner  cannot  keep  them  in  health ;  1  should  have 

■Med  upon  it  himself.  been  very  glad  to  have  went  on  with  the  trial ; 

hmkridge.    1  am  very  sorry,  so  weak  a  what  has  been  one  of  the  means  of  putting  it 

ifeniisrero  as  this  is  made  use  of  to  put  it  off.  off,  was  the  prisoner's  insisting  upon  an  objec- 

LC.J.    Have  a  little  patience  till  the  affi-  tion,  that  was  made  by  an  honourable  person, 

McomeN,!  cannotsay  any  thing  to  it  till  then,  then  upon  the  bench.    The  affidavit  is  so  full, 

Babridce.    I  have  had  a  great  deal  of  un-  that  I  need  not  trouble  your  lordship  with  anj 

cooHmm  sufferings  in  this  cause.  observations  iipon  it.     The  course  of  all  courts 

L  C.  J.   That  is  nothing  to  me,  I  can't  say  is  upon  such  an  affidavit  to  put  off  the  cause, 

Mjr  thing  to  it ;    1  am  here  only  to  try  tlie  and  it  is  not  safe  to  go  to  trial  without  this  wit- 

iUK,  ness.      By  my  brief  we  cannot  safely  proceed, 

Bambrid'if,   I  have  brought  a  gentleman,  for  the  prisoner  was  committed  upon  the  af* 

Mr.  Holder,  one  hundred  miles,  and  this  trial  fiduvit  of  Turner. 

siB^  put  off  from  time  to  time,  the  expcoce  Sol.  Gen.  I  apprehend,  that  what  we  apply 

I  to  great,  that  it  is  enough  to  ruin  any  man.  for,  is  so  reasonable  it  will  begrauted. 

L  C.J,    You  must  siay  till  the  affidavit  L.  C.  J.  Thcaffidavit  is  sworn  by  three  wit* 

•m«s.  nesses. 

Shtj.  Chethire.   Tliis  witness  swears  to  the  Mr.  Kcttkhy.  1  sm  counsel  for  the  prisoner, 

teling  the  goods.  In  cases  of  felony,  counsel  may  he  assigned  for 

Then  Mr.  Bamb.  idge  went  from  the  bar,  and  ^^cT  K^STe  '"  m^go't 

lewurt  wailing  some  time,  Mr  Paxton  pro-  ^i,^'j^,\ticby.  I  hope  the  trial  nill  not  be  put 

seed  an  affidavit,  which  the  partes  swore  to  J^; ,[^^'^^^^^^^^  \^,J\s  so  small  a  matter  to 

'  *""'*•  object,  to  put  off  the  trial ;  they  don^t  lUfntimi 

Ait.  Gen.    I  believe  you  should  bring  the  when  they  first  came  to  the  know Iinljr*.  of  ihig.. 

mnner  to  the  bar.     (Which  was  done  ac-  If  they  came  to  the  kiiowled^je  ol  it  so  soon, 

•rdiegly.)  that  the  defendant  miglit  have   had  an  op- 

Serj.  Cheshire.    Now  the  affidavit  is  come,  portunity  to  scud  people  to  vkw  the  personit  ill 

Kreare  three  witnesses,  though  I  mentioned  too,  then  this  allidavit  is  not  HUliieieui. 

•tone.     Now  it  appears,  from  the  evidence  L.  C.  J.  He  was  here  on  r  nduy 

*  three  persons,  that  there  is  another  per-  Mi\  Strange,  U  is  not  »ftidiii  the  aflidavi*, 

■i,  a  prisoner  in  the -Fleet,  that  cannot  come  ;  that  he  was  ^sub;)a»uacd,  he  might  atti:iid  a*  a 

kksi  had  a  violent  fever,  that  fell  into  one  of  J  hearer.  r       b 
■tbiehs,  and  caused  a  dangerous  wound  to  !      Att.  dn.  None  of  us  knew  it  till  jij-t  !•"• 
bwade,  six  iuciies  in  length  uiid  three  in  depth,  j  He  don't  lie  io  prison  upou  tbis  j  he  m  cfiCAs*** 
itt;  G$:i.    My  lord,  we  pray  the  affidavit ',  upon  the  appca*- 

1 


575]  5  GEORGE  II. 

Mr.  Kettkhif,  Ho  has  an  iron  knocked  off 
onejesr,  and  ready  to  be  uutupoii  the  other .~- 
And  ii'  this  holds  him,  lie  may  bp  continued 
for  ever.  1  submit  to  3'our  lonlsfaip,  that  they 
roust  c^ive  notice  to  put  oti'the  trial,  if  it  is  to  l»e 
put  off;  tliey  don't  say  whether  they  knew  of 
this  cause  before,  or  not ;  Mr.  Attorney  said, 
he  did  not  kootvof  Liltiiifiifston'sbeiii^  ill. 

Att,  Gen.  1  knew  Lillingston^s  beiug^  a  wit- 
ness, bv  my  brief. 

Mr.  Kettlf.by,  They  should  have  set  forth  in 
the  affidavit,  that  they  did  not  know  of  the  illness 
till  this  morning,  and  that  they  did  not  know  it 
before :  If  that  had  been  the  case,  it  had  been 
some  excuse ;  besides,  the  Jury  has  been 
charged  with  the  prisoner ;  the  attorney  did 
not  come  in  so  soon  :  he  has  made  an  objection 
against  the  pannel,  before  the  kinu^'s  counsel 
came  in  ;  they  said  they  were  to  have  an  in- 
formation, of  the  disability  of  one  witness. 
Now  there  are  two  ill,  without  saying^  when 
they  first  knew  of  their  disability. 

Oomer  says,  that  he  was  employed  under 
Mr.  Paxton,  and  he  knows  they  arc  material 
witnesses.  If  Mr,  Paxton  hail  given  it  upon 
oath,  that  they  were  material  witnesses,  I 
should  have  believed  it;  I  don't  know  I'rom 
whence  Comer  comes,  1  do  not  sec  it  in  the  in- 
formation ;  he  says,  tlmt  he  is  acquninted  with 
them,  therefore  concludes,  t)iey  are  material 
witnesses.  1  must  submit  it,  if  they  are  ma- 
terial witnesses  or  not ;  it  is  an  easy  matter  to 
get  three  or  four  people,  may  be  clerk's  clerks, 
to  swear,  that  they  arc  material  witnesses,  who 
I  have  no  reason  to  believe  had  sufHciont  rea- 
sons to  pfi'onnd  their  belief  upon  that  they  were 
material  witnesses ;  should  wc  not  have  had 
some  information  bcibre  ?  Perhaps  the  prisoner 
mi|L;^ht  have  sent  one  to  visit  these  pedple,  who 
might  UsLW.  swore,  that  the}  were  as  able  tn 
come,  as  these  say  tli'^'y  \^ ere  unable ;  ami  I 
humbly  be*;  leave  to  sav  that  the  attidAvit  is 
not  sutiicient.  Desides,  there  is  anothtn*  rc'H>oo, 
why  it  should  not  bo  put  oil',  he  is  stirrtMiiiered 
by  his  hail  to  take  his  trial,  aud  we  do  uol  know 
that  they  ^\til  stand  air^in. 

Ait,  inn.  They  must  stand  till  they  are  dis- 
charjjed  Uy  the  Court. 

?iJr.  KcttUbi/,  Tiicy  have  not  so  much  as 
given  notice  to  stand  aq;u'n,  he  has  not  had  so 
much  as  U!*  (tpp(»rtki:iity  of  a*<kin(:^ ;  I  hope  he 
may  be  tried,  or  else  the  cnnsi-qiicu'jf^  must  be, 
that  he  nnt>;  lie  b\  tiil  Deecsuhcr,  and  then 
somcbod\  eNcuiav  l:avc  abroUen  lo^. 

Air.  W'iinu,  1  cdu't  |»ais  over  t!ii9  aflishvit, 
without  innkin^  one  oi)serva:iiMi  ;  I  sh:n)  not 
C.1II  it  an  art'eeted  delay,  thon«;;h  it  I(M)\s  ev- 
ceedii'.LT  lil<e  i'.  Ih*?  aHidiivit  last  *:i'«sions  was 
not  shewed  the  hrjjinniiijr  «»f  iho  S'^sioiis,  that 
he  mi;^!il  liavo  had  nn  opporltuMly  lo  aniwcrit, 
but  the  la*<t  tlay  ol'  tiic  sessions ;  1  am  sure 
then  it  lookrd  like  iMi  nlf.'f-tiMl  do!ay.  The  af- 
lidavit  was  ilirn  not  I  uikul  upon  to  hcsulK- 
cient  ;  the  olijecti.Mi  then  to  >lr.  C'oiriT  was, 
that  he  \m\s  n(»  sulicitor.  Is  a  prvscni  fiittitrient 
io  iKwcar  to  witnesses  hiing  nmtrri:iK  thnl  has 
only  served  a  subpceua?    Mr.  Paxtuu  is  the 


Proceedings  relating  to  ilie  [576 

only  person  that  has  appeared  ai'  a  solicitor. 
Another  thing  that  is  pretty  extraordinary  is, 
that  the  bail  is  dischart^ed ;  there  may  be  no 
render,  hut  the  gaoler  will  hardly  pari  with  hiin 
without  fresh  bail. 

1  should  be  glad  to  know,  if  the  gaoler  will 
give  lilierty  tor  him  or  no ;  I  wonUl  not  aiW 
more  to  your  lordship's  trouble;  but  as  thii 
case  is,  tliere  is  no  manner  of  reason  to  pat  off 
the  trial. 

Mr.  Strange.  I  am  counsel  of  the  same  side, 
aud  I  must  observe  to  your  lordship,  that  this 
aifidavit  is  not  sufficient  as  to  the  inability  or 
materialness  of  the  witnesses ;  as  to  the  fint  it 
appears,  that  they  must  have  had  fourteen  days 
time  to  have  made  this  cmpiirv,  as  to  LilUng- 
ston ;  and  though  they  pretend  to  say  Tomer 
was  here  on  Friday,  they  do  not  sajr  LilMng- 
ston  was ;  they  could  have  gone  on  without  this 
Ijitlingston  then,  for  it  does  not  appear  that  he 
was  here  on  Friday  last. 

Tliat  if  it  had  suited  the  convenience  of  the 
Court  to  have  gone  on  on  Friday,  they  muftt 
have  gone  on  without  Lillingston.    There  is 
a  great  ambiguity  in  the  affidavit ;  it  says,  that 
the  tumour  had  been  laid  open,  and  that  he 
had  a  hole  in  his  leg,  and  lies  in  the  Fleet, 
and  that  Lilliugsloh  positively  cannot  be  bronght 
out.     ileally,  as  to  liillingston,  he  han  fallen 
in  very  particularly ;  the  o^eutiun  arose  as  10 
him  above  fourteen  days  ago,  and  they  might 
have  applied  to  the  Court  in  time,  so  he  oi^t 
to  be  laid  out  of  the  case,  and  he  is  to  be 
laid  out  of  the  case. — It  is  sworn  as  to  tlie 
other,  that  he  was  out  on  Friday:  hut  whe^ 
ther  he  was  subpoenaed  or  not,  is  not  sworo  • 
As  to  their  indisiiosition,  the  apothecary  onl^^ 
swears,  that  Turner  was  ill  of  a  p!«;uretic  fever  ^ 
but  I  submit  it,  whether  they  must  not  NH-ea.r 
(msitively,  that   he  cannot  ct»me  out.     I  dar^ 
sav,  there  is  no  such  witncbs  wanted.    1  tik.« 
notice  ol'tlfis,  to  shew  that  v.  hen  they  comelo 
speak  of  Turner,  they  cannot  speak  so  fuJIaa 
they  do  to  Lillioj^ston.     Comer  bays,  that   it 
is  not  safe  to  gt)  to  trial   williout  this  witness, 
but  he  don't  say  whether  it  is  sale  to  proceetl 
to  trial  with;  I   don't  know  whether  the  trial 
is  safe,  if  li*.^   \\i\9  tried   upon  this   witoe&s^ 
Hero  is  thesolicilor  ior  the  cniwn,  to  besure 
he  knows  il:o  «rrrrts  of  the  cause,  if  this  n»ao 
is  so  nmtcri:il  a  wiinsss,  ho  ou;>iit  to  aw  i-ar  t<'  i  t  : 
We  oui»ht  to  h'Wt'  the  best  aceounl  we  ra:i  » 
and  now  wc  hair  not  the  best  account,  l»ecaii«c 
the    solici»'>r  for   the  crown    di»cs    not  tak** 
upon   him  to  s»'.<Mr  to  tlie  fact.       It  is  n*>^ 
ma'!e  out  that  iIm'v  an*  so  niaterial  that  theJF 
can't  fxo  on  without  tliivn  ;  nor  dors  it  ap' 
pear,  that  tl>ry  aro  so  hnd  as  not  to  be  able  to 
come  out ;  though  3ir.  Attorney  is  phrased   to 
say,  that  it  r:tnn:)t  l«»  :uiy  injiiry  to  the  prt- 
soner,  lor  that  h'<h'iil  must  stnnd;  I  don't  b^* 
liove  the  kerprr  of  iSeivgritc  will  venture  to  1^' 
him  go  out  wiihout  fresh  hail,  mid  whether tb*** 
ha* I  will  stand  or  not,  1  don't  know. 

Bambri-f^e.  On  the  }:;!i  of  this  instaot,  * 
served  notice  on  Mr.  Piixton,  that  1  would  sui^ 
render  .my  self  ou  Friday,  to  take  my  trial}  aP^ 


877J 


Bailing  Thomas  Bamhridge. 


A.  D.  1729. 


[578 


it  IS  foarteen  days  since  Lillin^ston  has  be€Q  so 

ill :  this  is  an  iodictment  ibr  btealitiff  the  gfoods 

oTooe  Mrs*.  Berkltfy,  who  has  lately  declaretl 

that  she  is  not  concerned  in  the  tnal.    As  to 

Comer,  who  has  made  tlie  affida?it,  he  is  a 

coamoQ  Ubi^uitarian,  and  if  [  ana  to  be  coo- 

fiaed  upon  his  affidavits  and  Ilarbing's,  and 

the  rest  of  the  couspirators,  i  shall  be  kept  in 

fMl  to  the  day  of  jiid^pnent;  and  it  is  such  an 

apnce,  it  will  ruiu  any  one.    I  am  umler  a 

ansHty  to  importune  the  Court  to  be  put  upon 

■j^  trial,  for  there  is  a  person  come  out  in  a 

cnir,  that  is  a  material  witness  for  me,  that  is 

ii  dnmr  of  his  life,  and  cannot,  in  all  proba- 

ttlj,  bf  e  till  next  sessions ;    it  is  Mr.  John 

Bpwham,  the  king's  jeweller. 

L  C.  J.^  You  must  make  an  affidavit  of  it ; 
I^nol  mind  any  thing  but  upon  oath.  You 
■we  Bieotioned,  that  there  has  been  great  de« 
1ms  10  this  affair :  you  should  acquaint  the 
CJout  that  it  has  been  put  off  irregularly  :  has 
ilMt  been  done  in  this  place,  t£it  the  same 
■nmsi  that  a  man  has  been  brought  to  be 
tried,  it  has  been  put  off?  This  is  the  act  of 
God. 

Bmhridge,  They  should  have  set  forth  the 
iaewhen  they  were  taken  ill. 

iff.  Gen,  There  is  no  criticism  in  the  affi- 
Mt:  I  will  ask  any  of  those  gentlemen, 
vhdbcr  thev  ever  knew  in  the  Kiog^s -bench, 
«Caiirt  of  Exchequer,  the  times  mentioned? 
Hr.  Strange  In  the  last  instance  (that  they 
U  been  subpcenaed). 
LC»  /.  Subpcenaed  is  not  the  question, 
.iff.  Gen,  Did  you  ever  say  they  were  snb- 
fancdin  an  affidavit? 

LCJ,  As  to  the  merits,  I  know  nothing 
*rthat :  this  is  nothing  but  a  motion  to  put  off 
Ac  trial;  I  don't  see  any  thing  distinguishable' 
bit.  It  would  be  very  hard  for  him  to  lie  in 
pal,  if  he  was  not  admitted  to  bail. 

Serj.  Cheshire,  They  sny,  it  don't  appear 
Ibil  the  man  was  8ubpoeua«?d :  I  ask  any  oi* 
1^  gentlemen,  to  shew,  if  ever  they  found 
'n  in  an  affidavit?  I  was  surprised  when 
titb«r  of  them  mcntionetl  it :  they  insist  so 
ttiKli  u|ion  it,  that  they  will  think  there  is 
XHhetliini;  in  it  at  last. 

L  C.  J.  They  must  say  what  they  can  for 
l^ir  clients. 

Mr.  Kettleby.  We  don't  know  who  this 
^^Qsieris:  if  Mr.  Paxton  will  s«vear  these  peo- 
H>  tie  mattriiil  witnesses,  we  will  give  it  up. 

L  C,  J,  Has  not  Comer  been  cm  piny  ed  jn 
IW  whole  prosecution,  and  beeu  fully  apprized 
(ftheaffidaviU? 

An.  Gen,  This  is  the  slightest  of  all  their 
*l!|ec!ions ;  for  they  may  as  w<>ll  desire  the 
AUoraey  General  to  make  an  affidavit:  the 
Cnirt  expects  no  more  than  that  a  person,  ac- 
^itinted  with  the  merits  of  the  cause,  should 
^nr  tliat  they  are  inaterml  wiinessfs.  it 
I  if  done  by  a  person  to  shew  to  the  Court, 
fct  they  have  reasHin  to  believe  th»t  thoy 
*ft  material  wiiiifsses,  tliat  is  sufficient. 
Bt  iv«ara,  that  he  had  been  employed  to 
ttnry  on  the  prosecution  for  fdony  against 
VQU  XVII, 


Bamhridge,  of  which  he  is  indicted,  and  ac- 

?uainted  with  the  informations  taken  upon  oath* 
t  issiud,  why  did  not  Mr.  Paxton  swear  it? 
May  there  not  be  two  solicitors  in  a  cause  ? 
Does  it  not  olWn  happen,  that  there  is  a  clerk 
in  court  and  solicitor  concerned  in  one  cause  P 
Why  don't  they  say  a  clerk  iu  court  should 
make  it  ?  We  have  done  all  that  is  requisite  to 
show  that  they  are  material  witnesses.  Ha 
could  not  swear  it,  unless  he  Idmself  had  aeca 
the  iufonnatious. 

L,  C.  J.i  He  swears,  that  they  cannot  aaielj 
go  to  trial  without  these  witnesses. 

AtL  Gen,  He  says,  tliey  hoih  are  material 
witnesses,  and  it  is  not  sate  to  proceed  to  trial 
without  them ;  and  that  is  taking  upon  him  to 
swear  as  much  as  ever  was  required.  It  is 
urged,  that  Mr.  Bambridge!a  bail  has  surren- 
dered him :  supposing  that  he  was  quite  out  of 
custody,  and  that  he  gave  notice  that  such  a 
day  he  would  take  his  trial,  is  that  a  ditcharj^ 
of  his  bail?  No ;  his  bail  is  bound  till  he  is  du- 
charged  by  tlie  judgment  of  the  Court:  sndi 
notice  to  take  bis  trial  can  be  no  discbarge. 
One  of  the  gentlemen  says,  that  there  was 
soinethinc^  like  an  affected  delay ;  we  were 
ready  to  nave  tried  him  iu  July  last. 

L.  C.  J,  That  don't  appear  mm  you:  whom 
has  it  arisen  from  ? 

Au.  Gen.  It  might  have  been  tried  in  July  : 
there  wait  then  a  tenderness  in  the  judge,  and  a 
very  lamUble  one ;  bi\t  4ie  said,  U  Mr.  Bam- 
bridge  did  not  insist  upon  il,  be  would  try  him. 
When  the  whnesset  are  here,  then  the  prisoner 
is  ibr  having  it  put  off;  when  they  are  not 
here,  then  he  is  for  liavisv:^  it  tried. 

Biunbriiige,  That  InniMirable  gentleman 
raused  t!io  fial  to  ha  adjourned;  and  I  must 
subiait,  *.vheiher  \i  was  kuown  for  a  jmliife,  that 
was  a  part}',  ever  to  try  any  man.  Wiiat  tlio 
Attorney  urj^-^d  bei'urewas  th<it  tUe  Court  of 
Kint^'s-hencii  ori'crcd  informationb*,  end  thea 
prucecdcil  to  the  ti  \yA  of  thorn.  As  to  Cornier, 
he  is  not  a  clerk  of  Mr.  Paxton's ;  he  is  only  a 
Hie  el  Ubiquitarian. 

Mr.  J  list.  Denton,  I  am  of  the  same  opinion 
as  my  brother  Uaymoud. 

Bambriftge.  I  will  not  take  up  the  time  of 
the  C'ourt.  If  this  gentleman,  who  I  before 
mentir>ncd  to  be  a  material  witness  for  me, 
should  die,  it  will  he  i^reatly  detrimental  to  me; 
therefore,  if  your  lordship  will  let  him  be  exa- 
mined in  court,  aod  leave  the  ring  in  court,  K 
wil!  consent  to  let  the  trial  be  put  off. 

Mr.  KeAtlthy,  1  should  he  very  glad  the 
Attorney  General  will  take  the  trouble  to  exa- 
mine him. 

Att.  Gen.  I  can't  take  npcn  ine  to  consent 
to  any  thiiit;  particular;  hut  iiJiist  submit  it  to 
your  lordship. 

Mr.  Ju-»i.  Denton.  Mr.  Jlamhridge,  why 
wonHyou  hriiig  yonr  wijness  into  court? 

Bantbridfie.  Tlie  high  sheriff,  he  not  being 
well,  was  so  irooil  ns  to  let  him  be  in  his  room  ; 
he  i<i  there,  and  is  coniinir  in. 

Att,  Gen.   I  never  knew  it  done  in  capita! 


SP 


nr««f   i«f-  «i5^  :  an  J  she  hat  con<'^ 


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■    '^*' k*  Uli  lie  had 


ii««   -if.r.  -e  wroie  some  lines,  v&ii  **^     % 

*  .:n*  i-';r:"  -r.i  of  the  {^ouds  j  but  t'id  ''^'j 

.*«:•-••:  aay  further:    hut  as  he  t«irfi^  j^ 

..viHf  ''ii  of  tlie  place,  he  put  a  V^^^^0 

!ii'  :'«-f.  and  she  put  her  own  key  »u  tb*  ^; 

II!    :vked  the  door;  and  there' vias  fiot^ 

I'  •:•*  further  at  that  lime.  ^ 

Oentlemen,  on  the  23d  of  October,  B^'! 

T'li^e  and  others,  in  company  with  him,  ^  - 

:tii\ie  to  tliis  iilace  in  the  uallery  :  he  easiiv^' 

'Hr.ore  the  padlock,  but  it  was  not  so  easy   ' 

'.rue  op.^n  the  door ;  and  therefore,  «^entlemel3 

;e  sent  for  one  (iieenway,  a  carpenter,  tobriol 

'.  -nls  to  force  the  door  0|>en.     lie  was  sent  tof 

gentlemen ;  but  they  .were  impatient ;  and  odi 

'\  the  people  with  tFie  defendant,  in  the  roeai 

::roe  w  ith  a  poker  forced  open  the  door.   >Ybei 

Green  way  came,  they  did  hid  (jreenway  Kta' 

1  little;  then  told  hini,  they  had  no  oecasiu 

tiir  him.     \\  hen  he  came  into  the  rtMun,  th 

prisoner  himself  did  direct  and  assist  in  break 

'vs\'r  open  the  trunks  and  boxes ;  and  \\  h«o  the 

were  all  (»pen,  (liere  were  found  several  ringi 

and  sonut  jeMt'N  ;  ami  those  thing's  thatwei 

lii^ht  anil  portablt:  Uainbridt^e  put  in  his  pockc 

There  wen*,  ufentlenien,  very  gooil  apparel,  i 

of  tliem  m-ide  np,  linnen  anJ  other  thini^s  of 

ceiisiiicrHhli*  value:  for  these,  ^;entlenien,  Ban 

hriduo  hu'l  providiMl  a  li\r>>[e  portmanteau,  ai 

put  tiiom  u|i  and  earrietl  them  away.     Thi 

«;entleinen,  was  the  second  time  of  his  enter  t 

the  said  looiii;  and  at  this  time,  I  shou.d  ti 

you.  yfMit!c'iniM),  he  did  \*i\  on  with  the  tweh 

liiKs  wr.ic  h(l'.)ii>,  nihl  perfected  the  said  ii 

*eiito'y,  I  su,>|iose,  l»\  :i!diii:(  S(»me  moreg'ood 

And  ilh'.),  up'>n   this  'VM\  of  October,  he  wj 

ple.isi'd,  L;r:Ml«'n;eii,  to  fix  a  head  to  the  papc 

and  dncMtid  in  what  words  it  should  he  wrot 

v*hicii  were  tluse  :  '*  An  Inventory  or  A(»prais 

nient  of  (IiHids,  nfand  bil(ih<(int;  to  Klizabe^ 

Ikrkh'v,  disCiained  the  'i;»rd  uf  Oeloher,  172 

for  ri()/.  ol  an  arrear  of  rent  due  to  John  llii| 

[lins,  esq."     (Moticmen,  accordin(<f  to  my  ii 

sirui'iions,  it  udl  couie  from  our  wisnessfs*  th 

thtie  was  a  pf  rsoii  uho  pietended  to  be,  ai 

was  a  eoiistaldf  ;  and  iliire  v>as  a  person  the 

wh<»  pretended  to  appraise  the  tjfoods  ;  hut  n< 

bodv  w::s  sworn,  as  h>  la>%  the\  ou^ht :  in  th 

condiiMiii  he  did  puilect  the  paper  bt(brc-mei 

tioiHMl. 

In  lookinuf  over  the  thinp^s,  (vrmlemen.  Ban 
brid>;:e  did  ohservf  there  was  a  hi  nsh  and  a  Ii 
tie  chaik,  sonlethin^'  usual  amoni^  persons  th 
wear  jewe's  to  clean  them :  he  cried  out,  '  Lo< 
ahoui,  tlnTr  are  probably  Koine  jewels ;  for  the 
is  somt  thin«i^  to  clean  them  with;*  and  ih< 
looked  a!id  tuiind  some  riuofs,  as  o-anuis,  eni< 
rabN,  and  topa/cs;  :md  when  he  had  done  I 
carried  iliein  avtay  :  but  what  he  did  with  \ 
of  tlicm  afteiWHrtU,  uc  cannoi  tell.  Give  n 
leave  to  vay,  my  brief  iotonos  me  that  he  d 
sell  part  o!  them  for  \\  p^iiiiieas  to  one  >\es 
souic  t;<dd  l.ico,  near  iiu  ounces,  to  one  M 
liamsi  and  komesiUe I- tea-spoons,  gilt  wii 


*a 


10]  fiir  Fdwy* 

|A  ^  •>U  or  prewnted  to  Coriiett't  wife 

(wte  wu  oae  of  bifl  tipstaflfs) :   and  lier  bed 

■rfMBg,  which  he  waa  pleased  to  think 

«i  my  food,  be  caused  to  be  delirercd  to  one 

Wtojjs  delifer  to  Jenkina  a  waterman,  to 

b  cvrifd  to  bb  kidf^ngi  at  Waodiworlh. 

Wi;  ipeotlnMii,  Buuie  a  fipreat  noise,  and  Mr. 

I^■m  Gime  to  bear  of  it,  and  expostulated 

m  tke  priiODer,  and  laid  to  him,    Yon 

lit  tskeo  I  good  many  goods  belonging  to 

Ih  ElfssMi  Berkley,    under  pretence  of 

IMi^  for  ao  arrear  of  rent  owing  to  me ; 

)m  esaU  yoa  do  ao  ?  There  is  no  rent  due  to 

wu  GeotiriDen,  in  this  manner  he  ezpostu- 

llrf.   How  came  you  to  do  it  P  Tliere  is  no 

MlAie  !•  me,  for  there  is  an  agreement  with 

■yrffpaty,  Mr.  Gibbons,  who  was  to  have  the 

pMtce  of  that  time ;  to  what  value  did  you 

life?  To  which  the  prisoner  replied,  I  have 

■If  tofcento  the  value  of  IC/. ;  notwitlisiand- 

j^fortlemen,  be  had  sold  a  ring  for  14  gui- 

M^  hesides  SO  oimces  of  gold  lace,  aud  some 

and  sent  the  bed  and  bedding  to  hia 

in  the  country :  this  waa  indeed  very 

dioary. 

Il  it  plain,  gentlemen,  throngh  his  whole 
flnAwCy  be  never  intended  to  use  this  as  a  dis- 
ftcfl ;  for  when  he  Sbid  the  clothes  of  Mrs. 
Bfrblejy  be  diil  not  sell  them  as  goods  taken 
W  fiHreaa,  but  to  conceal  from  whence  he  had 
Mi ;  be  said.  These  are  my  wife's  goods. 
It  H  very  remarkable,  and  worthy  your  oh- 
,  that  though  all  the  clothes  were  made 


A.  D.  17S9. 


[580 


anisinuiil'i  or  apparel,  he  ordered  and  di- 
MM  Uie  person  who  took  the  inventory,  to 
|M  dawn  only  so  many  3rar'N,  siiificient  to 
,  gown  or  pettidist ;  there  wax,  gentle- 

a  dimity  gown,  which  he  particularly 
to  be  put  down,  dimity  auificient  to 

awrap|)cr;  which,  gentlemen,  ^'ou  will 
Miy  gue»,  was  only  to  conceal  its  being 
vsanng  apparel,  that  it  mitfht  not  be  followed; 
srslherwnie,  why  were  they  not  entered  into  the 
iavciitory  in  ihe  form  they  were,  as  made  into 
SMrel?  It  is  very  extraordinary,  that  he 
Mold  say,  ao  much  of  such  and  such  a  thinj^ 
iaiy  sufficient  to  make  a  gown,  or  whatever  it 
wsa;  this,  I  hope,  he  will  give  a  good  account 
if;  this,  gentlemen,  he  out^ht  to  explain  to 
yon:  after  be  had  got  the' other  purt  of  the 
nodi  into  hia  possession,  as  he  had  said,  the 
nrmer  were  hia  wife's,  these  be  said,  were  left 
b  bis  bands  to  make  money  of;  not  saying 
toy  •f  them  were  Mrs.  Berkley's,  taken  by 
Citress;  but  be  sold  part  of  them  as  his  wife's 
a^^ard,  and  part  as  left  with  him  by  a  friend, 
Id  make  money  of.  IVe  are  far  from  thinkintir, 
vbere  a  man  takea  a  distress  for  rent,  where 
Rat  is  due,  though  he  does  not  let  a  constable, 
ir  an  appraiser  attend,  and  demean  as  they 
s^ghtytbat  this  is  felony ;  though  this  is  a  gr«*at 
tffpcci,  and  an  enormous  abuse,  and  the  law 
viH  panitth  it  civilly  and  criaiinally,  but  not 
Mpitaliy.  If  landlords  send  servants  to  niuko 
I  dislreaiy  and  they  misconduct  themselveii, 
■d  do  not  behave  themselves  rightly,  it  wouUl 
kverj  hard  to  have  that  tum^  into  felony: 


w«  gentlenen.  aim  at  no  auch  tbing  ;  bnt 
that  la  to  be  taken  into  your  consideratum,  with 
nw  lord's  advice.  When  there  is  no  prateoca 
of  rent  due,  no  authority  for  distraining;  when 
he  makea  use  of  a  pretence  of  distraining,  \k 
get  floods  into  his  possession,  to  dispose  of  theiQ 
as  his  own,  or  as  left  with  him  to  aell ;  that 
pretence  ta  get  them  into  his  hands,  and  dia« 
poae  of  litem  as  his  own,  or  as  left  with  bini 
to  sell,  and  not  aelling  them  as  prescribed  by  biw^ 
after  doe  appraisement,  and  returning  the  tiir« 
plus  to  the  owner,  will  make  it  capital.  Gett» 
tlemen,  I  need  not  tell  you  what  the  law  ia  id 
this  case ;  bnt,  my  lord,  I  will  dare  to  aay, 
that  though  a  man  comes  by  goods  lawfully,  Sy 
consent  of  the  owner,  if  he  disposes  of  them  to 
liis  uwn  use,  it  is  fetony.  For  if  1  deliver 
goods  to  a  carrier,  to  carry  them  to  Deal,  and 
he  carries  tliem  to  sea ;  and  he  should  open 
the  pai:ks,  and  sell  the  goods,  this  ia  felony: 
this  has  been  adjudged  so  by  all  the  jn^^oi 
in  England,  asaembM  for  that  purpose. 

There  is  a  particular  case  of  an  attemeTt 
which  I  shall  take  notice  ef  to  you :  it  waa  m 
the  18th  year  of  king  Charles  the  9d :  he  had, 
gentlemen,  a  mind  to  get  abundance  of  goods, 
belonssing  to  a  woman,  out  of  her  hotise,  into 
his  povierand  posdeHsion:  he  did,  gentlemen, 
take  a  process  against  her,  aud  laid  the  woman 
in  Newgate:  upon  which  he  gets  judgment  in 
ejectment,  and  got  possession  of  her  bouse; 
and  then,  gentlemen,  he  gets  judgment,  and 
takes  the  g4M>ds  out  of  the  house,  and  takea 
them  into  hia  own  possession:  there  waa  a 
colour  of  a  process  of  law;  but  this  waa  a 
trick  to  get  the  goods  from  the  woman,  and 
done  with  a  felonious  intent ;  and  the  man  wn 
hanged  for  it.  These  things  are  proper  for 
your  considevatinn.  Without  any  further  ob- 
serrations,  we  will  call  our  witnesses,  and  sub- 
mit it  to  your  lordship,  and  the  jury,  whether 
the  prisoner's  conduct  4lid  not  shew  a  felonious 
intent,  and  \ihether  the  distress  was  not  made 
os(r  of  to  t;t:t  the  goods  into  his  possession,  for 
his  own  use. 

Alt.  Gen,  f  am  of  counsel  of  the  same  side, 
for  the  king.  The  indictment  against  the  pri* 
aoner  at  the  bar,  is  founded  upon  an  act  passed 
in  the  I2tli  year  of  the  lei^n  of  the  late  ^ueen 
Anne,  chapitr  the  7ih,  for  taking  away,  and 
seizing  feloniously,  ^ood8  t'l'the  value  or40f.,  in 
a  dwelling- house.  Gent!eincii,  this  bring  the 
statute  upon  which  it  is  founded;  the  quesiioa 
before  you  is,  upon  the  fai  l  iH'ing  gi%en  in  evi« 
dence.  Attheunif  when  the  fact  %^as  commit- 
ted in  October  1797,  T.  fianibrid(>e  was  depot j 
warden  of  the  Fh^t  prison,  under  Mr.  Iluggins; 
an  unha|)py  woman,  Mrs.  Berkley,  a  prisoner 
in  his  cnsimiy,  lieiug  committed  there  for  debt, 
had  a  room  in  the  prison,  where  she  had  seve- 
ral things  of  value :  she  being  a  prisoner,  and 
there  having  Koods  of  value,  the  prisoner  at 
the  luir,  who  was  gaoler,  ought  to  bavesufifered 
antl  |»ermittcd  her,  according  to  law,  to  have 
the  use  of  her  oun  go^nls  brought  there,  and 
enjoy  ihem  quietly,  without  distucbance  f>«» 


587] 


S  GEORGE  II. 


Trial  of  Thomai  Bambridge, 


[58S 


bim;   but,  ((entlemen,   probably  tbe  Talue  of   so  for  a  time:    we  apprehend  the  witnesaei 


these  goods  was  the  teniptatiou  to  the  fact  af- 
terwards committed.    There  were,  ffentlemeu, 
two  times  that  will  be  mentioned  by  the  wit- 
nesses, that  he  entered  the  rooin,  both  in  the 
month  of  October ;  one  some  days  before  the 
other.     I  don't  find  that  the  first  day  is  parti  • 
cularly  fixed,,  but  the  second  was  'the  23d  of 
October  1727  ;  and  the  first  time  the  prisoner 
came,  was  some  days  before  the  23d  of  Octo- 
ber 1727 ;  the  pritsoner  then,  with  three  or  four 
other  persons,  Pindar,  Barnes,  and  King^,  came 
to  the  chamber"  of  Mrs.  Berkley,  in  a  violent 
manner,  and  caused  her  to  be  removed  out  of 
her  room  ;  and  as  a  preliminary  step  to  what 
was  intended,  caused  her  to  be  carried  down  on 
the  common  side,  and  there  locked  her  down  ; 
after  they  had  disposed  of  her,  they  put  a  pad- 
Jock  on  the  door,  and  she  locked  the  duor.     I 
don't  find  that  the  gfoods  at  that  time  were  par- 
ticularly taken  away  by  the  prisoner,  but  they 
Uiought  fit  to  secure  them ;  but  before  they 
took  away  Mrs.  Berkley,  they  made  her  put 
her  key  into  tbe  lock  and  lock  the  door,  and 
they  put  a  padlock  on  it,  this  was  the  first  time 
of  entering  the  room ;  the  second  time,  after 
dark,  the  prisoner  witli  Barnes,  Douglas,  Pin- 
dar, and  a  person  to  whom  they  tho»;;lit  fit  to 
give  the  title  of  constable,  but  whether  he  hati 
any  authority  or  not  to  act  as  such,  that  don't 
appear  to  us,  but  it  is  incumbent  on  him  to 
shew  ;  then  pulled  ofi*  the  padlock ;  one  should 
have  thought,  if  any  ihing  fair  had  been  intend- 
ed, Mrs.  Berkley  should  have  been  sent  for  to 
have  openeil,  or  at  least,  to  have  seen  tlie  door 
opened.    There  was  a  lock  upon  the  door,  but 
the  prisoner  ordered  the  door  to  be  opened ; 
but  he  not  haviujr  strongth  enough  himself, 
ordered  another  to  break  open  the  door,  which 
be  accordin^^ly  did:  the  duor  being  opened  by 
force  and  violencn,  v.ithout  sending  for  Mrs. 
Berkley,  ihey  fell  to  rifling  the  boxes;   the 

I»risouer  with  his  own  hamls,  broke  open  the 
ocks  of  three  boxes,  and  tivo  trunks ;  things 
were  taken  out,  and  some  of  those  of  the  most 
▼alue,  the  prisoner  thought  fit  himself  to  take, 
and  put  in  his  pocket;  those  were  two  corne- 
lian seals,  gold  rings  in  number  five,  which 
were  of  some  value,  one  a  garnet,  another  had 
a  small  diamond  in  it,  and  another  was  an  ame- 


will  come  up  to  this.    This  being  tbe  nature  of 
the  case,  the  question  to  be  submitted  to  uiy 
lord,  is,  gentlemen,  what  the  design  of  tM 
transactions,  and  nature  of  it  was  ?  Wc  appre- 
bend  the  design  was  to  get  Uiese  goods  wrong- 
fully and  feloniously  into  his  own  custody,  ani 
take  them  to  his  own  use ;  if  that  was  the  case^ 
the  manner  of  taking  them  will  not  alter  the 
thmg ;    for  1  must  observe  to  you,  gentlemen, 
if  a  man  designs  to  take  goods  felonioosly,  let 
him  put  it  in  what  shape  he  will,  if  that  is  ool^ 
the  pretence  and  colour,  it  is  tielony ;   nay,  if 
by  colour  of  the  law,  any  man  possesses  nim« 
self  of  goods  with  a  felonious  iuteot,  in  that 
case  it  is  so  far  from  being  an  excuse,  that  it  is 
an  aggravation  of  the  offence ;  for  the  law  will 
not  admit,  that  under  its  colour,  a  man  sboukl 
l)e  atrim»ed  of  his  property ;   that  instead  of  ba- 
ing  a  uefcDce  against  one  man,  it  should  be  an 
injury  to  another ;    for  if  any  person  should 
possess  himself  by  force  of    another  man's 
goods,  it  is  felony.    Besides  the  case  meotioo- 
ed  to  you  by  Mr.  Serjeant,  1  will  take  notice  of 
one ;  that  after  goods  distrained,  and  the  goods 
carried  away,  there  is  got  a  replevin  of  theie 
goods ;   if  that  replevin  was  only  colonrably 
taken  out,  to  get  these  goo<ls  into  his  poiscs- 
sion,  that  replevin  will  not  excuse  him  from  fe- 
lony.   The  question  is,  whether  if  a  distren 
is  taken,  if  that  distress  is  only  colonrably 
taken,  it  is  not  felony  ^  Therefore,  though  it 
can't    be    pretended,   and  none    will   base  i 
thought,  I  hope,  that  it  is  insisted  on,  if  a  man 
intends  fairly  to  make  a  distress,  and  errs  in  the 
doing  it,  though  he  errs  in  a  great  many  iu* 
stances,  that  that  should  subject  him  to  felony; 
God  forbid  :    yet  if  he  makes  use  of  a  distreu 
only  as  a  colour  to  get  goods  into  his  |)Osses- 
sion,  then  it  is  felony,  and  circumstances  will 
come  to  be  material,  and  his  not  obser\'ing  tht 
method  which  the  law  directs,    will   further 
shew  with  what  intent  the  beginning  was,  and 
with  w  hat  intent  he  took  the  goo<ts,  which,  we 
apprehend,  is  material.     But  what,  I  appre- 
hend, is  most  material  for  your  conslderatioD, 
is  to  shew  the  concealed  manner  of  describiag 
these  goods,  the  method  of  disguising  them, 
and  the  manner  of  selling  them.    As  to  the  firtt 
of  these,  it  will  appear,  that  the  wearing  ap- 
tliyst  ring  of  some  value,  which  the  pristmer  |  parel,  instead  of  being  descrilied,  as  really  tbev 
thought  fit  to  put  in  his  pocket;    a  silver-ban-  (  were,  he  ordered  to  be  described,  as  so  mucn 


die  knife  and  fork,  in  a  shagreen  case,  and 
other  things  of  value,  he  put  i;ito  a  portman- 
teau, which  the  prisoner  sent  out  of  the  prison. 
After  this  was  done,  the  rest  of  the  goods  were 
taken  away  ;  and  as  Mr.  Serjeant  has  men- 
tioned to  you,  there  was  a  pretence  of  taking 
an  inventory  of  the  goods;  if  that  shall  appear 
only  a  pretence  and  colour,  that  w  ill  not  vary 
the  case  as  to  him.  The  bed  and  bedding  (the 
prisoner  then  wanted  a  bed  and  bt-dding)  he 
thought  fit  to  take  away  ;  and,  if  my  instruc- 
tions are  true,  sent  it  down  by  water  to  Wands* 
worth,  to  his  lodging;  and  Mrs.  Berkley, 
atrer  since  that,  baa  been  kept  on  tbe  coremoo 
tide,  without  bed  or  bedding,  or  at  Itait  waB  kept 


stuff  and  silk  sufficient  for  to  make  a  gouD, 
petticoat,  or  whatever  it  was.  "We  apprehend 
there  could  be  no  other  view  in  that,  than  to 
disguise  it,  that  the  truth  might  not  appear. 
And,  gentlemen,  as  to  the  disposal  of  them,  il 
will  appear  plainly,  we  think  to  you,  such  as 
shews  that  the  prisoner  had  no  inti  ution  to 
make  use  of  lliis  distress  ;  but' that  his  original 
drfign  was,  to  convert  ihem  to  his  own  use.  It 
is  very  truly  said,  by  the  learned  gentleman 
that  has  spo'ke  before  me,  that  where  a  maa 
possesses  himself  of  gooils,  though  lawfully, 
8upi>osing  hedisffosesof  those  goods  for  his  owa 
use,  it  will  make  it  felony.  There  ha?e  ben 
instances  given  you,  where  persons  caait  by 


jfer  Tdony. 

rfuny,  bat  their  disposal  of  them  to  | 
use  made  felony.  Now  in  the  pre- 
» it  will  appear,  the  goods,  gentlemeO) 
ly :  as  to  the  ring:  mentioned,  particu- 
;  m  which  the  amethyst  was  set,  the 
after  taking  that  ring,  sent  it  to  one 
Solas  to  enquire  the  value,  and  dis- 
it  to  him ;  as  to  the  garnet,  with  a 
a  the  middle,  that  was  sent  likewise 
be  disposed  of,  to  enquire  the  value  of 
as  to  the  wearing  apparel,  that  was 
»De  West  for  fourteen  guineas ;  the 
was  sold  to  one  Harris ;  ^the  gilt  tea« 
pre  sold  to  Corljett's  wife ;  and  as  to 
ind  bedding,  he  put  it  at  first  in  ano- 
i  in  the  prison,  and  after  sent  it  to  bis 
ise,  with  the  portmanteao,  wherein 
igs  of  value  were  put.  If  he  had  any 
dispose  of  these  goods,  as  taken  by 
u  a  satisfaction  for  any  demand  or 
light  have,  should  not  he  have  given 
at  to  Mrs.  Berkley  ?  And  if  there  was 
Ins,  ought  not  be  to  have  paid  it  over 
It  will  be  incumbent  on  the  prisoner, 
that  he  accounted  to  her  for  the  sur- 
t  if  there  is  no  colour  of  right  to  make 
SB,  no  regular  method  taken  in  the 
ipon  the  distress,  no  account  thereof 
B  apprehend  that  it  will  appear  a  pre- 
distress,  and  that  only  tne  pretence 
IB  was  made  use  of  to  convert  the 
bis  own  use ;  if  so,  this  will  amount 
.  We  will  be^  leave  to  call  our  wit* 
nd  then  leave  it  to  your  lordship's  di- 


■en.    Call  John  Turner.    (Who  was 

iJgc.  My  lonl,  Mr.  Attorney  Gene- 
s  declamation  that  be  has  made,  was 
o  admit,  that  if  there  was  a  legal  dis- 
le,  there  could  be  no  attempt  upon  my 

'«n.   My  declamation! 
idffe.    That  Mr.  Attorney,  in  his  de- 
ft allowed,  if  it  was  a  distress 

r>n.  My  declamation  !  I  said,  that  it 
pear  as  a  colour  of  distress  to  commit 

idge.  You  meant  in  fraudem  Icgis, 
ten.  I  sfiokc  in  English,  believing  it  to 
intelligible  to  you ;   you  may  make 
itin  words  if  you  will. 
en.  Did  you  know  Mrs.  Berkley,  and 

r.  Yes  ;  I  knew  her  in  October,  1727. 
en.    How  came  you  to  be  acquainted 

r.    By  bein^  a  prisoner  in  the  Fleet 
ibe  was  a  prisoner  at  the  same  time, 
ed  in  the  second  gallery,  within  two  or 
IBS  of  mine. 
OB.    In  what  part  of  the  gaol  did  you 

r.  I  lodged  on  the  master's  side,  in  the 

m.  How  long? 


A.  D.  n». 


[699 


Turner,  I  had  the  misfortune  to  be  there  two 
years  before  this  Seizure  was  made. 

SoL  Gen.  You  mention  a  seizure,  give  an 
account  how  it  was  made. 

Turner,  I  was  called  in  by  Pindar. 

Sol  Gen.  What  day  ? 

Turner.  Between  the  23d  and  27th  of  Oc- 
tober, 1727. * 

SoL  Gen.  What  were  you  called  in^ibrf 
What  to  do? 

Turner.  I  was  called  in  by  Pindar,  and  ho 
told  me,  that  a  distress  was  to  be  made ;  for 
being  an  upholder,  Mr.  Bambridge  called  me 
frequently  to  make  distresses. 

SoL  Gen.  Who  was  there? 

l\lrner,  Pindar,  and  I  think  King. 

SoL  Gen,  Was  Mrs.  Berkley  there  thenf 

Turner.  Yes,  but  not  Bambridge. 

SoL  Gen.  What  did  you  do  ? 

Turner,  I  took  an  mventory  of  all  that  did 
appear ;  we  did  not  then  open  any  boxes ;  we 
mentioned  them  in  gross,  and  took  every  thing' 
that  appeared  in  the  room,  as  earthenware,  bed 
and  bedding,  and  such  like  things.  In  about 
fourteen  days  afterwards,  Mr.  Bambridge  came 
again,  and  i  was  called  in. 

SoL  Gen,  Was  there  any  thing  more  done 
then? 

Turner.  Nothing  more  than  taking  an  in- 
ventory. 

SoL  Gen,  Was  there  any  constable  there  ? 

Turner.  There  was  a  person  there,  who  said 
he  was  a  constable. 

SoL  Gen,  Who  was  there  the  second  time, 
about  fourteen  days  afler  the  first  ?  Was  Mr. 
Bambridge  there  ? 

Turner.  Yes,  after  they  had  broke  the  door 
open,  I  was  called  in,  and  she  said,  they  had 
committed  felony. 

Sol,  Gen,  Did  you  hear  it  said,  whilst  Mr. 
Bambridge  was  there? 

Turner.     Yes. 

SoL  Gen,  What  did  Mr.  Bambridge  say  ? 

Turner,  M  r.  Bambridge  wondered  the  trunks 
were  not  opened  before,  and  asked  Mrs.  Berk- 
ley for  the  Keys,  and  when  she  would  not  give 
him  the  keys,  Mr.  Bambridge  himself  broke 
open  the  trunks,  and  rifled  them. 

Juryman,  Was  it  in  the  presence  of  Mt]S. 
Berkley  ?^l\irner.  Yes. 

Juryman.  Was  she  there  all  the  time  ? 

l\trner.  She  was  there  all  the  time. 

SoL  Gen.  What  did  you  do  then  ? 

Turner,  Wlien  the  boxes  wer^  opened,  I 
made  an  inventory  of  all  that  was  in  them  ; 
here  are  both  inventories. 

L.  C.  J.  Eyre.  Tell  us  who  broke  open  the 
boxes. 

Turner,  Mr.  Bambritlge  himself. 

SoL  Gen,  Tell  my  lord  what  was  particu* 
larly  mentioned  in  the  inventory,  what  thefirst| 
and  what  the  second  time. 

Turner.  The  inventory  was  dated  the  23d 
of  October,  1727,  for  56/.  for  rent  due  to  John 
Hoggins,  esq. 

Sol.  Gen,  Who  wrote  the  title  ? 

rurnfT.     Mr.  Bambridge  wrgts  it  open  % 


S91] 


S  GEORGE  II. 


Trial  of  Thomas  Bamhridge^ 


looie  piece  of  paper,  and  said.  Let  the  title  be 
eo»  and  the  date  be  so. 

SoL  Gen.  When  was  the  fint  diitress  naade  ? 
Distinguish  the  two  times. 

Turner,  I  take  it  the  former  distress  was 
about  the  S7th  of  October,  and  the  second,  the 
3d  or  4th  of  November. 

.  L.  C.  J.  Who  made  the  first  distress?  Who 
wastttereP 

,  TVimer.  The  first  distress  was  taken'by  Pin- 
dar, Mr.  fiambridge  was  not  there ;  then  1  took 
inTentory  of  the  boxes,  and  set  down  so  many 
band  boxes. 

Sol,  Gen.  Afterwards,  you  say,  a  particniar 
inTentory  was  made  on  the  4th  or  5th  of  No- 
Temberf 

Turner.  Yes,  I  beliere  it  might  be^  about 
that  time,  but  I  can't  be  positive,  not  thinking 
it  would  be  called  in  question. 

SoL  Gen.  In  what  manner  did  you  make  the 
inventory  ? 

Turner.  I  made  the  inventory  as  Mr.  Barn- 
bridge  directed. 

L.  C.  J.  Give  an  account  what  you  inserted 
the  first  time  of  taking  the  inventof^; 

Turner.  A  bedstead  and  sackiog-bottom, 
with  China  stuff  furniture,  a  feather  bed  and 
bolster,  a  down  pillow,  two  blankets,  a  calico 
quilt,  two  pairs  of  sheets,  two  pillow-biers,  two 
cane  and  two  stuff  cliairs,  an  easy  chair  and 
cushion,  two  tables,  a  looking  glass,  a  fire 
1  hovel,  tongs,  poker,  and  wooden  fender,  a 
gridiron,  a  pair  of  bellows,  a  hearth  bmsh,  a 
brass  hand  candlestick,  two  tin  tinder-boxes,  a 
kettle  and  two  drinking  pots  ditto,  four  boxes 
and  two  trunksi  three  pairs  of  dimity  window 
curtains  and  vallins,  one  curtain-rod,  two  hair- 
brooms,  a  large  India  hand  tea-board,  eleven 
printed  books,  a  pewter  standish,  two  knives, 
three  forks,  two  tin  coffee-pots,  a  sauce- pan 
and  skimmer  ditto,  a  chocolate- mill,  one  hun- 
dred vessels  of  stone  and  earthen  ware  ;  this 
was  the  first  inventory. 

X.  C.  /.  Was  there  any  valuation  of  the 
goods  in  the  inventory  ? 

Turner,  Yes,  Mr.  Bambrldge  desired  me  to 
have  a  particular  valuation  of  each  thing,  which 
J  gave  to  Mr.  Bambridge. 

Juryman^  Have  you  a  copy  of  that  valua* 
tion? 

Turner.  No,  I  gave  it  to  Mr.  Bambridge. 

X.  C.  /.  When  did  you  give  it  to  Mr.  Bam- 
bridjifef 

'^utrner.  When  I  finished  it ;  a  day  or  two 
after  the  distress. 

L,C.J>  Thatwasaftcrthe  4th  of  November. 

Sol.  Gen,  Give  to  my  lord,  and  the  jury,  the 
reason  for  giving  the  inventory  to  Mr.  Bam- 
bridge. 

i^riifr.  It  was,  that  Mr.  Bambridge  might 
luK>w  hi»w  to  dispose  of  them. 

Sol.  Gen,  Oo  on  to  the  second  inventoiy . 

Turn€r.  A  large  silver  handle  kni'e  and  fork, 
two  silver  s|ioons,  two  tea  spoons,  strainer  and 
tongs,  a  bowl.  Mid  handle  of  a  spoon  ditto,  three 
gilt  tea  spoons,  a  strainer  and  tongs  ditto, 
twenty  ounces  sAd  a  half  of  gold  Uce,  two  cor- 


nelian  seals  set  in  gold,  and  a  ring  1 1 
a  crystal. 

Sot.  Gen,  I>o  you  know  it  when  y< 

Turner,  No. 

Alt,  Gen.  Who  directed  yontosc 
crystal? 

Turner,  I  do  not  know  particniar 
bodv  was  of  oninion  it  was  a  crystal. 

Att.  Gen.  How  many  rings  were  t! 

Turner.  I  saw  bat  one  ring,  the  otl 
loose  stones. 

Sol,  Gen.  You  may  go  on  with  the! 

Turner.  One  small  emerald,  o 
garnet,  a  seed  pearl,  five  diaper  n 
stitched  top  of  a  toilet,  with  lace  roi 
a  two  pinner  head  of  MeckHn  lace, 
ruffles,  a  handkerchief  and  apron  i 
Flanders  laced  <»p,  worked  head,  and 
three  double  ruffles,  one  bead  of  hal 
lace,  and  a  pair  of  sinffle  ruffles,  ten  o 
of  Flanders  and  Colberteen  lace,  al 
yards  of  black  lace,  afurbelowedscarf  i 
trimmed  with  black  lace,  one  yard  of 
tring,  two  yards  of  xvhite  sarsenet,  b 
sufiicient  for  a  lining,  striped  dimity 
for  a  gown  and  petticoat,  some  old 
for  a  lining  to  ditto. 

Sol,  Gen.  Before  yon  go  off  from 
ticular,  1  mnst  ask  you  a  question 
these  mentioned  in  tlie  inventory,  sufE 
a  gown  and  |)etticoat,  and  sufficient  for 
were  these  pieces  of  silk,  or  were  they 
into  clothes  ? 

Turner.  These  were  things  that  I 
scowered  and  rolled  up. 

Sol.  Gen.  Was  the  dimity  ? 

Turner.  Yes,  it  was  rolled  up  as 
from  (he  scowerers. 

X.  C.  J,  Was  it  in  the  shape  of  a  gi 

I'urner,  Yes,  it  had  been  a  garment 
then  rolled  up. 

SoL  Gen,  Was  it  in  regard  to  the  1 
same? — Turner,  Yes. 

SoL  Gen,  Be  pleased  to  observe, 
and  lyhite  flowered  satiin,  which  is  sel 
the  inventory,  to  be  siiflicient  for  a  g 
petticoat,  was  that  made  up  ? 

Turner.  That  was  made  up. 

SoL  Gen,  How  came  you  to  put  it 
much  suiRcicnt  for  a  <;own  and  )>eUico 

Turner.  1  observed  at  that  very  tini 
Bambridge,  and  told  him,  we  ustiall 
distrain  wearing  apparel ;  upon  wliicJ 
said,  put  it  Sown  sutKcieut  for  wearinj^ 

X.  C,  J,  (jive  a  direct  account  uf ' 
ticular  again. 

Turner,  1  s^id  to  Mr.  Bambridge,- 
don*t  usually  set  down  wearing  appar 
Mr.  Bamhrid^jfc  said,  Put  it  down  suff 
Kuch  and  such  a  thing,  particularly, 
sufiicient  for  the  linini^  of  a  gown,wl 
made  up  ;  if  it  was  the  body  of  a  gowi 
me  put  it  dawn  sufficient  for  a  body, 
rest,  of  a  lininu*,  sufficient  for  n  lining. 

Sol,  Gen,  The  (question  is,  Wiiell 
were  actually  mode  up,  and  set  downoi 
cientP— TtfTNer.  Yes. 


69S} 


Jar  FeUmy. 


A.  D.  1729. 


[594 


&/.  Gtn.  Mention  them  particularly. 
TurntT,  There  wbb  sarsenet,  sufficient  for  a 
wrapping-gowHi  that  was  actuallj  made  up. 

5o/.  ijtn.  You  just  now  said,  that  the  thingfs 
Tou  ba%e  mentioned  you  g^ave  a  valuation  of 
ie|iaraieiy  to  Mr.  Banibridg^e ;  was  there  any 
faiuaiioD  on  tlie  inventory  you  kept? 

Turner.  The  total  sum  nj^rces  with  the  same 
uMr.  Cambridge  had,  27/.  16f.  M. 

Sot.  Ges.  Do  you  remember  any  discourse 
jisbad  as  to  the  settings  the  value  r 

Turner,    Upon  a  cursory  view  of  takini^f  the 

itveatory,  I  brnu;;ht  it  to  30/.,  and  Mr.  JJam- 

iiriilze  said,  You  have  over -rated  these  things ; 

yiQU  most  consider  there  is  a  cbr.n(ne  attending 

this  di&trevs,  and  payintjf  you  I)e8ides,  and  that 

vonld  lessen  Uic  value  of  the  things ;  and  bid 

■e consider  it  a<>ain,  and  upon  looking  it  orcr 

igiia,  I  brou$;htit  to  37/.  16it.  9:/. 

&i^  GcJi.  Were  you  upon  nafb  ? 

Tenter,    \s  hen  i  signed  tiie  inventory,  and 

finiihcd  it,  there  wns  a  coustablr,  and  I  did 

nke  an  oath,  and  I  told  jlr.  Bambridgc  there 

oifbtto  he  two  persons  to  make  the  appraisc- 

Dfot;  to  uhich  Mr.  Cambridge  said,  I  might 

tike  Pindar  ;  but  Pindar  refused,  so  only  my- 

nirnKfled  it. 

&/.  Gc/i.  Pray  give  an  account,  if  yon 
laow,  what  is  become  of  the  goods  in  the  in- 
naiory? 

j         Turnvr,  \  do  not  know  any  thing  of  them 
j      ^bv  rumour. 

1        &r.  Gen.     Pid  yon  sne  any  of  the  things 
J      ttnicd  awav  hy  Mr.  Bambridtrc  P 
I        Turner.  Ye8,thc  wearing  apparel  and  seals; 
Ike  seals  he  put  into  his  pockets. 
L.  C.  /.  Tell  what  he  put  in  his  pocket. 
Titrntr,  Tiie  gilt  silver  tea  spoons  and  rings. 
{        LC.J.    ^Vhut  did    he  put  iu  the  port- 
Bttteau  ? — Tamer.  The  doilies. 
L  C.  J.  Were  tliesc  iu  tiie  inventory  ? 
Turner,  Vps. 

<^.  Gen.  \\  hat  became  of  tho  portmanteau  ? 
Turner.    It  was  carried  out  of  the  room  by 
Ur.  bunbridge\  servaut. 

Sol.  Oca.  Was  there  any  brush,  such  as  is 
Uei]  to  clean  jewels  w  itli  ^ 

Turner.  Yes;  Mr.  Bambridgo  I'wkcd  very 
ittrrowly,  and  at  i«ist  a  brush  ap|M;ai-ul :  and, 
(ip<'n  iceing  of  that,  he  said,  Certainly  there 
veresome  diamonds :  upon  which  3irs.  herkley 
*u  very  much  chagrined;  and  she  said.  If 
you  Hnd  them,  wdi  you  take  them  ?  And  after 
>liM  he  searched,  and  Ibund  tlic  rings  nud  other 
Mooes. 
Sol.  Gen.    Was  there  any  discourse  about 

T*trmr.  There  was  i  large  parchment  in  a 
CiM;  sitic  said  it  was  a  Hccree:  It  was  in  a 
pmt  nt'ind  case,  which  3Ir.  Bambridt;c  took  ; 
>pw  Hhich  Mrs.  Berkley  said,  What,  wilt  you 
Jltor.-itje  my  papers  i*  Yes,  says  he ;  and  if  i 
«d  a!iy  b<Kids  or  bills,  1  will  inoke  u«e  of  them. 

^U  Gtn,  What  became  of  her  aftrr  they 
■t«fe^  tlie  room  ' 

Iwnir,  After  the  first  seizuro,  she  was 
^Brofd  out  of  her  room,  and  pnt  on  the  common 

VOL.  XVII. 


side,  and  kept  there  till  the  second  seizure  was 
made,  aud  then  she  was  put  into  a  room  without 
ahc<l. 

Sol,  Gen.  Was  there  any  furniture Icf\  ? 

Turner,  There  was  earthen  ware,  and  stuff 
curtains ;  but  no  bed. 

Sol,  Gen,  How  has  she  lain  since  ? 

Turner.  Without  a  betl. 

SoL  Gen.  What  condition  of  mind  ivas 
she  in  ? 

Turner.  Sometimes  slie  talked  yery  well, 
and  much  to  the  purpose ;  at  other  times  slie 
would  talk  wild,  and  would  not  believe  that 
lord  Harcourt  was  dead ;  for  she  said,  Im 
would  do  her  justice  upon  them  (meaning  Mr. 
Bam'undge  and  his  accomplice).  I  said  be 
was  dead :  She  made  answer,  she  would  not 
believe  mc  ;  for  they  would  find  him  alive  U» 
their  costs. 

SiiL  Gen.  How  did  the  woman  behave  her- 
selt? 

Turner.  The  woman  was  much  reserved, 
and  kept  herself  to  herself  f  cry  much.  She 
talked  much  to  the  purpose  when  she  did  talk  | 
hut  it  Mas  difficult  to  get  her  into  it. 

Ait.  Gen.  In  disposing  of  the  goods  iu  the 
manner  you  did,  sutticient  for  such  and  such  a 
thing,  whatrukson  had  you  to  do  it  f 

Turner.  It  was  Mr.  Bamhridge's  positive 
directions:  i  sliould  not  have  thought  on* it 
myself. 

"L.  C.  j.  Who  made  the  difficulty  first  ? 

2'nrner.  I  did,  and  said  it  was  not  customary 
to  put  down  wearing  apparel  in  inventories  upuB 
seizures ;  upon  w  hich  he  hid  mc  alter  the 
names:  I  said  it  was  not  pro|ier  to  alter  the 
names,  aud  they  ought  not  to  be  mentioned 
at  all. 

I'.  C.  J.  What  did  Mr.  Bambridge  say  f 

'Turner.  Mr.  Bambridge  said,  I  must  have 
you  let  them  beset  down,  stuff  or  silk  sufficient 
to  inakc  a  gown,  or  whatever  it  was. 

/^C.  J.  Did  you  set  them  doivn  accord- 
ing to  the  best  of  your  judgment? 

Turner.  I  did. 

S:>1.  Grn.  Was  that  the  real  value  you  set 
upon  tbein  ? 

Turner.  The  first  valuation  was  the  price  I 
woiil.l  iw.vo  givrn  for  them ;  and  when  Mr. 
BurobridgL*  .suid  the  costs  on  the  distress  would 
como  to  nvjre,  I  roducod  them  three  pounds. 

Sol.  Gen.  Would  you  have  given  the  value 
first  set  upon  them  ? — Turner.  Yes. 

L.  C.  J.  Had  you  any  other  reason  to  alter 
the  valur,than  that  Mr.  Bambridge  bid  you  ? 

Turner.  No. 

Bawbridgr.  1  desire,  my  lord,  he  may  lie 
asketl,  whether  1  tlid  not  insist  upon  having 
every  thing  particularized  in  ihe  iiivcutury. 

Turner.  Yes,  ynu  did. 

lic.mhr'vlzc.  You  say,  I  did  dri:nnd  the 
kovs  of  Mrs.  Berkley,  mid  she  rofusi  d  lo  I- 1 
ine  have  them,  and  tht  u  the  boxes  wcro  opLT.cwf 

Turmr.  Yi?s*  1  said  so. 

1,.  C.  J.  \  llinu(»nt  yon  did. 

Bamhridne.  IMy  lord,  Turner  said  that  there 
wasnome  gold  lace.— Whose  was  that  i 

SCI 


595]  5  GEORGE  IL 

Turner.  It  was  the  trimmiiig  of  tfaie  flowered 
eoit  of  clothes ;  it  wss  tbetrimmkig  of  the  suit 
of  tattiD  clothes ;  ptrt  of  the  Isoe  was  reBiam- 
ingoD  them. 

Bambridge.  Were  there  not  sereral  things 
uooDade? 

Turner.  I  said,  that  called  a  striped  dimity 
came  from  the  soowrer's. 

JL.  C  /.  As  to  the  dimity,  giro  an  acooont 
how  that  was  set  down. 

Tktmer,  That  I  set  down,  as  it  araeared  to 
me  coming  fVom  the  dyer's  as  a  roll  of  silk. 

Bamhridge.  Were  the  things  taken  away, 
part  mentKNied  in  the  inventory,  or  the  whole  ? 

l\tmer.  All  that  I  saw  talien  away  was  in 
the  inYontory. 

'£.  C.J.  Is  the  inTentoiT  the  same  you  de- 
lif  ered  to  Mr.  Bamhridge  f 

T\imer,  He  had  every  article  here,  with  the 
prices  annexed.  It  is  a  wonder  I  had  any 
copy ;  lur  1  did  not  apprehend  that  any  person 
wonid  call  upon  me  about  it. 

Bamhridge.  I  desire  Blr.  Turner  may  ac- 
quaint your  lordship,  as  to  the  conversation 
that  was  between  me,  Mrs.  Berkley,  and  him, 
at  the  time  of  making  the  distress. 

Turner.  Mr.  Banuiridfesaidjitwasashame 
she  should  life  so  long,  and  not  to  pay  any 
rent ;  for  that  it  amounted  to  fifty  pounds  and 
upwards,  and  she  had  money  enough  to  pay 
it ;  and  said,  I  am  informeu  you  ha? e  been 
abused,  and  I  will  oiquire  into  your  affiurs, 
and  see  if  I  can't  extricate  you  out  of  your  dif- 
ficulties. 

£.  C  J.  I  think  there  was  a  demand  of 
56/. ;  was  there  not  f 

Turner,  I  did  not  hear  of  any  demand;  he 
•niv  talked  of  it 

LC.J.   What  did  Mrs.  Berkley  say  P 

Turner.  She  said,  it  was  the  house  of  the 
kinff ;  and  if  she  was  ^there,  the  king  should 
finuherahouse. 

BMbridge.  I  desire  he  may  be  asked,  whe- 
ther, when  I  was  in  the  room,  he  did  concei? e 
what  was  done  was  with  a  felonious  intent. 

Turner,  I  did  think  your  power  was  suffi- 
cient  to  do  iL 

Bambridge,  Have  yon  made  any  other  ap- 
praisemenU?— Tiimer.  Yes. 

Bamhridge,  Did  yon  make  any  alteration  in 
them?— TWn^.  No. 

Bambridge.  Was  the  appraisement  done  in 
a  private  manner,  or  did  every  body  know  iti* 

Turner,  Every  body  did  know  it. 

Bambridge.  Were  appraisements  usually 
made  publicly  or  privately  ? 

Turner,  Kndar  used  to  come  and  say,  there 
•re  ffoods  to  be  distrained;  eo  I  did  it 

£.C,J.  So  it  was  left  to  yon  then,  to  ap- 
praise  as  your  discretion  should  lead  you? 

I^uner.  Yes. 

L.  C.  J.  Pindar  came  to  yon  now,  in  this 
tAtrP^Zkrncr.  Yea. 

Bamkridge.  Pindar,  my  kivfl,  was  indicted, 
tnlaknoffhisnvMlence. 

Mr.  Jaat  Bmaoidt.  Was  there  a  nonstable 
*  tenWldung  the  diitreK  r 


Trial  of  Tkanuu  Bambridge^ 

Turner,  Yes. 

Alt.  Gen.  You  said,  there  was  a  mi 
a  constable:  Did  you  know  him  to  I 
sUUe? 

Turner,  I  believe  he  was  a  constabl 

Att.  Gen,  Did  you  believe  the  n 
came  a  second  time,  to  be  a  real  const 

Turner,  Yes.  It  has  been  enqu 
since. 

Bambridge,  If  it  was  a  felony,  it  wai 
committed  in  October  1727,  and  n 
plained  of  till  February  or  March  last 

L.  C.  J.  You  are  not  come  upon ; 
fence  yet. 

Bambridee.  Do  you  not  know  the 
the  constable? 

Turner.  I  think  he  was  a  currier. 

Bamhridge,  Was  it  the  constable  tha 

attended  upon  seizures? — Turner,  Yi 

^  Mr.  Fimer,   You  say,  that  Pindai 

sired  by  Mr.  Bambridge  to  assist  in 

praisement ;  what  business  was  Pinda 

Turner,  He  was  a  distiller. 

Mr.  Filmer,  Did  he  not  ludertake 
praising  of  the  goods  ? 

Turner,  No,  ne  refused  it 

Air.  Filmer,  Did  not  Mr.  Bambric 
himtoit?— 2\(nitfr.  Yes. 

Mr.  Filmer,  Was  there  a  constable 
cgnd  time  ? — lurncr.  Yes,  both  time 

Tomer  was  going  away;  but  w 
back  at  the  request  of  Mr.  Bambridg 
siring  to  ask  him  a  question  or  two  mo 

L.  C.  J.  Propose  your  questions  to  t 
first. 

Bambridge.  I  desire  he  may  acqui 
lordbhip,  whether,  at  the  lime  when  he 
ed  the  goods,  I  did  not  recommeiul  ii 
Berkley  to  pay  the  rent;  and  said, 
slay  some  time,  and  save  the  goods  fn 
disiiosed  of. 

Furrier,    Mr.  Bambridge  did  say 
imjiosed  on  ;  and  said,  he  would  give 
assistance,  and  bid  her  send  to  her  I 
get  money  to  pay  the  rent 

/..  C.  /.   He  said  he  would  stay  ? 

Turner.   I  did  not  hear  him  say  it 

An.  Gen,   What  did  he  say  i 

Turner,  He  said  he  would  assist 
beiug  imposed  on ;  and  did  desire  he. 
for  money  to  pay  the  rent ;  but  I  did 
him  say  any  words  as  to  his  stayio] 
rent 

Thomas  Wilkimon  sworn. 

Mr.  Willes,  Do  you  know  Elizabe 
ley  ?^  Wilkinson,  Yes. 

Mr.  Willes.  Did  you  know  her  in  O 

Wilkinson.  Yes. 

Bambridge.  I  desire,  my  lord,  bd 
further  examined,  he  may  be  aaki 
money  he  has  received,  and  how  loo 
been  kept  to  give  evidence  against  me 

L.  C.  J.  That  is  not  a  oucstiDQ 
asked. 

BmiMdgCt  h  is  true,  1  aa  tort. 


for  Felont/. 

Bv  imt  JUynoldt.   Van  mii«l  prove  ihat. 

^C.J.    Yoii  cannot  uk  ■  inoa  any  thing 

b  to  acruKe  himncir. 

»bniigt.    I  dnit'l  ask  to  Ihe  corruption  ; 

:r  he  receiveil  llie  inoaey. 

t,  Keunoldi.  It  carries  BD  imputalioti 

_Mt.  WUle*.  Ha  may  prove  it  if  Iiecim. 

dtt.  Gen.  If  Mr.  Hainbriili^e  prove  ir,  it  will 
ftaoJy  to  ilia  credit  iil'lhe  wiLiicxi. 

Ht.'WilUt.  Ifheilon't,  it  will  Ko  as  to  Uls 
•«■  erariil.  Vol)  kncn  Mni.  Berkley  in  Orto- 
W,  1797f— ffittioBn.  Yes. 

Ut.  WiUa.  Where  did  ohe  lodge  7 

WiOiinton.    In  No.  8,  Dear  llie  IroDl  of  llie 

Mr.  ITi^et.  Where  did  you  lodge? 

Wdkinton.   Od  llie  cDoimon  side. 

Hb.Vfitiit.  DidyouseeMra.BecUeyatbcr 
Jnr.wfaen  it  wax  broke  open? 

VmUimm.  Yes. 

Mr.  Wiilit.    VVLattimeof  llie  year  wuit? 

BVtinj/m.    Tlie  Utter  end  orOclnber, 

Mi.  W'llUi.  IVhattimeof  Ihedsy? 

VJkintoir.  At  six  o'clock  at  Diftlit. 

Ur.  IWlia,  tVas  the  door  locked  wUea  she 
mtliere? 

Wkimoa.  It  waa locked  nilb  tivo padlocks; 
m  Piwlar  took  ofT, 

IHt.WMtt.  Whowaslhere? 

ViiJiiaum.  Mr.  Bambridge,acoaat«lile,  and 
Bnd. 

Ht.Witla.  DidPiDdartakeofftliepadlack 
•fliitawn  accord  1 

WiHamon,  Mr.  Itambridge  ordered  liim  to 
Utitaff.  There  was  another  pudlock  on,  and 
Bna  went  tu  fetch  a  haininer  lo  break  it  oR*. 

Kr.  WUttt.  Who  onlereil  liim  to  letch  a 
faaaarT — ll'iMinwn.  Mr.  Batiibrid^. 

Xi.  Ii'i///i.  Did  they  attempt  to  break  off  Uie 
pfek  with  lhat  hammerf 

ITiltiiuiHi.  Ves. 

Mr.  N'lifo.  Wai  Mr.  Bambridgc  by  all  the 
^t—WitkitKn.  Yea. 

Mr.  tPiUn.  ^Vaa  the  door  broke  o|ien  with 
whuniDer  i 

yttthmon.  Barnes,  because  Ihe  harunier 
*laU  ant  Jo,  neat  and  fetched  a  poker. 

Mr.  WUtt*.    Whatriidhedowithibepoker? 

VitHmon.    lie  broke  open  the  dour  with  it. 

Mt,  WiUet.  Who  stood  by  at  tlist  time  f 

I'l'liinion.  Turner,  myself,  IJarnet,  Piiidar, 
■*llr.  Uambridge. 

Jk.WUla.  WhMdidMr.Bambridgeorder, 
''^tbe  poker  waa  broug-bl  ? 

BVUmion,  After  llie  [mker  was  broughl,  he 
*«td  biln  to  break  open  the  door,  and  so  he 

Mr.  Willa.    Wbeii  the  door  was  broke  open, 
*)■  went  ID  with  the  eoostable  t 
^liKiuoii.    All   went  in  ;   Mr.  Bimbridge, 
Mm,  Finilar,  ttw  conslabto  and  nijseir. 

Mr.  Willa.  Yoti^  inenlion  a  countable ;  do 
hi  kaow  him  lo  bit  a  conxtatdc  t 

Viiiituoa.  Only  by  his  hating  a  ilafT. 
Jfi-WJIa.    Was  thai  all  the  reaaoD  you  bad 
"Mnc  baa  lb  b*  a  counabk  f 


U'.«.fijwn.   Yes. 

Mr.  If'i/f«.  Bare  you  M 


CS«^ 


Villant. 


r  biro  only  Iheo,  and  n< 


Mr.  WilUt.  Was  Mrs.  Berkley  there  I 

tVilkiiiim.  Yes  ;  I  went  to  fetch  ber  up, 
and  Mr.  Dambridge  iosisied  upon  her  opening 
the  door ;  but  she  would  not  open  ihe  door  her- 
self;  ao  Mr.  Baintiridge  ordered  the  door  to  be 
broke  n[>pn. 

Mr.  Il'i//c>.  When  he  came  up,  and  broka 
open  the  door,  and  came  into  Ihe  ToDm,  what 
did  he  do? 

Wilkimoa.  Mr.  Bamhridge  desired  Mr. 
Turner  to  take  ati  inventory, 

Mr.  Willa.  Of  what? 

WUkiiuan.  W  all  the  goods  in  the  rcom. 

Mr.  Willa.    Waa  Mrs.   Berkley  come  inl* 


(lien 


uF 


ilkinion.   Yes,  she  was  there. 

Mr.  WilUt.  What  did  Mrs.  Berkley  say  ? 

Wilkinton.  She  said,  it  waa  a  robbery,  it  waa 
not  justice,  it  wa»  felony ;.  aad  she  did  not 
doun  but  he  would  be  brought  to  account  lor  it 

L.  C.J.  Was  she  by? 

WUkinton.  Yes,  aod  MW  Ihe  room  broke 
open,  and  Mr.  Bambridge  order  Mr.  Turner  ta 
nuke  an  inventory. 

£.  C.  J.  What  did  Mr.  Bambndge  say  then  * 

Wilkimon,    8el  down  surb  and  sucli  things. 

L.  C.  J.   What  did  they  take  an  account  olT 

H'i/J:inion.  They  took  an  acuouni  of  some 
ihingi  belbre  they  opened  the  boxes. 

L.  C.  J.  Were  the  boxea  bickeil  ? 

Wilkinion.  There  were  two  boxes  locked, 
and  one  nailed. 

L.  C.  J.  Was  there  any  trunk  f 

Wilkintoa.  1  don't  remember  that  tliere  was 
a  trunk. 

Hr.  TTt^'cf.  Woi  she  asked  to  open  the 
hones  f^lVilkiwon.   Yes,  but  she  refused. 

Mr.  WitUi.  When  she  refused,  who  broke 
them  open  ? 

K'i/itiniaii.  Mr.  BamUridge  broke  op^n  Ihrea 
'ilh  a  hammer. 

Mr.  WiUti.    Was  she  in  or  out  of  the  n 
t  the  time  ? 

Wilkimrm.    She  was  in  the  room. 

Mr.  Willa.  Wliat  did  she  sny  J 

Wilkinson.  She  said  it  was  a  rtMiery. 

Mr.  H'if^ri.  Wheu  the  boxes  ueiv  broke 
open,  what  i^os  token  out? 

W-lkituon.  Three  suits  of  clotbes. 

ftlr.  Willa.  Who  took  them  out? 

Wilktiuoit.  Some  were  lakeii  out  by  Blr. 
BambridKC.  and  some  by  Mr.  Turner. 

Mr.  WiUa.   By  who.r  — '-  » 


ICilAiruon.     i'hiiia,  flowered   cuilaius,  two 

guld  seals,  and  twii  rint{s. 

Mr.  Willct.  Had  they  any  stonea  in  ihem  f 
WitkinioH.  One  lia.1  a  stone,  ihe  other  uoL 
Mr.  WUIa.  Wereatllhethiugi  in  thabolM 

ctuii«taw»yr— Ift'Mmnt,  Yea, 


50D] 


S  GEORGE  11. 


.,    Mr.  Willes.  By  whose  directions  P 

WUkifuon.  By  the  directkni  of  Mr.  Bam- 
brit)(re. 

fir.  WUU9,  Were  all  oftbeni,  or  only  some  P 

Wilkinson,  8ome  of  ihem ;  the  bed  WM 
carried  away. 

Mr.  WilUi.  Who  carried  it  awa^r  P 

IFii/riRson.  I  carried  it  away  into  a  lamber 
room  in  the  prison. 

Mr.  WlUet,    W  hat  became  of  it  afterwards  P 

Wilkinson,  1  saw  it  carried  to  Dorset- stairs 
after. 

Mr.  Willei.  By  whose  order  P 

Wilkinton.  By  Mr.  Bambridge's  :  I  stood 
there  while  it  was  gone ;  he  gave  directions  to 
carry  them  to  the  water-side. 

^l^.  Willes.  Did  he  onljr  c'lfe  directions  to 
carry  them  to  the  water- si£,  or  any  where 
else? 

Wilkinson.  He  gare  directions  to  carry  them 
to  Wandsworth. 

Mr.  Willes.  Wlien  did  he  gire  these  orders  ? 

Wilkinton.  When  he  carried  them  out. 

Mr.  Willet.    What  became  of  the  rings  P 

Wilkinson.  I  saw  them  put  in  his  pocket, 
and  he  called  Savage  and  Douglas  to  bcSur  wit- 
ness. 

L.  C.  J,  What  was  the  reason  for  calling 
them  to  witness  ? 

Wilkinson.  Mr.  Bnmhridge  said,  that  he  put 
them  in  ttis  pocfcet  for  fear  of  their  being  lost. 

Mr.  Willes.  What  did  he  order  to  be  put  in 
tlie  portmanteau  P — Wilkinson.  Wearing  ap- 
parM,  and  such  like  things. 

Ml'.  WUics.  Where  wa.^  it  carried  P 

Vilkhisun.  Into  the  lumber  room  above 
stairs'. 

•    Mr.  Wil/cs.     Why  did  he  order  iheni  to  be 
put  ii:lr>  tlie  porhuantcaii  i* 

WUhini'ni.  r»t»c.iu«',  he  said,  the  portman- 
teau would  hold  them  all. 

I\»i*.  Wills.  The  clothes,  some  of  them, 
j\'Qyc  very  ric'.j ;  were  ihey  uot? 

II  ilkii^sori.  Yts. 

Mr.  l\  iHfs,  Were  tlioy  put  in  ibe  portman- 
teau ? —  V.'ii'tunann.  Ye-;. 

Rlr.  n  7//tA.  Wiis  inis.  f>ciklcy  by  when  the 
rlny-s  >vfrc  put  i'l  his  jiorketi* 

\Vi/hiu..on.  Yes,  and  he  called  Air.  Douglas 
and  olhfT  po-.sons  as  witnt^sesi* 

ATr.  W'l/Us.  Uhatdid  iMrs.  Berkley  say  ? 

H'*//i/«i'7«.  It  was  felony  and  robbery. 

Mr  Willes.  Did  he  say  any  thinir  to  Mrs. 
BerkU  y,  when  he  put  them  inhi!*  pocket  ? 

]\  itkinsoH.  Mr.  Hanibridge  said,  he  did  uo- 
thii)(;  but  according  tu  law,  and  he  would  an- 
awrr  if. 

"Mr.  waits.  Was  there  an  emerald  ? 

II  i/umwfi.  Yt-s,  I  think  there  was  an  eme- 
rald, and  i\  jrarntt,  out  of  a  ring  :  he  put  tiiein 
in  iiis  pocket. 

'    f'  J    What  did  he  put  in  his  pocket? 

V  sin.  Two  (Tfdd  seals,  two  gold  rings, 
an  enieii.  d,  and  a  tj-arnet. 

L.  C.  J.  Wer;-  ilie rings  plain? 

Wilkifwn^    One  of  tiiem  1  did  not  see  pcr- 


Trial  of  Thmas  Sambridgef  [GOO 

L.C.J.  What  was  the  other  r 

Wilksnton.  A  stone  ring;  bot  tht  middle 
stone  was  wanting. 

£.  C.  J.  Were  there  any  thingi  beridcs  P 

Wilkinson.  There  were  two  ailrer-handle^ 
knifes  and  forks. 

L.  C.  J.  1  only  ask  as  to  those  thingM  be 
put  in  his  pocket ;  did  you  see  any  other  things 
put  in  his  pocket? — Wilkinson.  No. 

IVIr.  Willts.  Did  you  never  see  a  stone  called 
an  emerald  afUrwards?—«iri/^triso».  No. 

Ati.  Gen.  Recollect  bow  many  rings  there 
were. 

Wilkinson,  There  were  two  rings,  and  two 
seals. 

Alt.  Gen,  Arc  you  sure  there  were  but  two? 

Wilkinson,  Yes. 

Att.  Gen.   Had  they  stones  in  them  P 

Wilkinson.  One  of  them  had  a  stone  oat  in 
the  middle. 

Alt.  Gen.  As  to  the  bed  and  bedding ;  wby 
did  you  say  they  were  to  ^o  to  Wandsworth  P 
Do  you  rememlier  the  particular  hands  be  sent 
theiu  by,  to  be  put  into  the  boat  P 

Wilkinson.  Tom  King  was  one  ;  as  to  the 
others,  I  diiJt  not  know. 

Att.  Gen.  What  did  Mr.  Bambridge  say  in 
your  bearing  ? 

Wilkinson.  First,  he  said,  they  were  gomg 
to  be  sold  at  a  sale. 

Mr.  Willes.  Who  directed  yon  to  go  to  Dor- 
set-stairs P 

Wilkinson.  He  sent  me  down  to  the  stairs  to 
the  waterman,  and  bid  me  tell  him  to  go  away» 
and  not  stay. 

Mr.  Witlcs.  Who  did  he  bid  you  ask  for  ? 

Wilkimon.  Ue  bid  me  ask  Vur  the  Wands* 
worth  waterman. 

Mr.   Willes.     Where  were  the  rest  of  the 


goods  carried  ? 

Wilkinson.  To  Will's  coffee-house  in  Bell- 
Savai-e  vard. 

Mr.  WUlcs.  II ow  came  t1;cy  to  be  carried 
there  ? 

Wilkinson.  Mr.  BambriJ^^e  lodged  at  Will's 
coffee-hoi.*e. 

Mr.  Willes.  What  were  the  thiols  that  were 
carried  to  Will's  cofiee- house  ? 

Wilkinson.  An  easy  chair  was  carried  there  ; 
I  carried  it  myself. 

31r.  Willis.  How  long  was  this  after  the 
goods  were  taken  from  Mrs.  Bt'rkley  ? 

W^ilkinson.  Some  days  :  it  was  leh  with  Mr. 
Turner  tu  clean ;  and  then  it  was  earned  to 
Will's  coffee  house. 

Mr.  Willes.    By  whose  order  was  it  carried  ? 

Wilkinson,  it  was  carried  by  Mr.  Barn* 
brid|;;e's  order. 

Mr.  Willes.  Whom  was  it  delivercti  to? 

V/ilkinson.  It  was  delivered  to  the  man*i 
wife  at  Will's  coffee-boose  by  Mr.  Barn- 
bridge's  directions :  1  carried  it  up  oue  pair  ol 
stairs. 

hanihrid^e.  I  desire  he  may  acquaint  youi 
lordship,  W  he  did  not  fetch  Mrs.  Berkley  tO  bs 
present  at  the  oiiening  the  door, 

Wilkinson^  I  did* 


COl] 


fir  Fdony* 


A.  jf/ino. 


[809 


L.  C.  J.    lie  nid  to,  and  that  Barnes  was  | 
ardeced  to  fetch  a  poker  to  open  the  doer. — 1 1 
ask  vou,i»betlierhe  talked  uitli  Mrs.  Berkley 
for  the  payment  of  rent,  for  which  the  goods 
were  di^rained  ? 

Wiikinion,  Mr.  Bambridge  did  say  some- 
thiDip  to  her  about  seizinj^  for  reut,  and  he 
woaU  stand  by  it:  She  said,  he  could  not 
iiise  weariugr  aiiparel  for  rent,  and  tokl  hisa  it 
«iifek>ny,  and  downright  robbery. 

Bambridge.  1  must  desire  him  to  aeqaaint 
jm,  w better  it  was  not  some  days  before  the 
fMds  were  remo? ed,  after  the  last  distress. 
L.  C.  /.  Answer  that. 
Wdkifuon.  Fire  or  six  days. 
Cambridge,  Were  tbey  carried'oat  publicly  f 
WUkinwn,  Yes. 

Bmbridgc*    Were  they  carried  out  in  the 
in-time  ? 
Wiikinion,    Yes. 

Bambridge.    Were  fhcr  not  carried  out  of 
He  Innber  room  publicly  m  the  day-time  ? 
WiikintoH.    Yes. 

Bambridge.  Was  it  a  public  room  to  put 
hnberinP 
Wilkinmm.    Yes ;  but  it  was  always  locked. 
Bambridge,    I  think  he  has  acquainted  the 
jvT,  that  she  was  present  all  the  ume. 
WUkinton.  I  think  she  was. 
LCJ.    Was  Mrs.  Berkley  there  diiriog 
IW  time  Mr.  Turner  made  the  inventory  P 
WiUduoH,  I  think  she  was. 
Baa^tdge.  Hesaid,that  I  called  Mr.Savar^e 
ni  Mr.  Dcmglas  to  see  that  I  put  the  things 
ii  By  pocket :  Mr.  Douglas,  my  loid,  bas  tlie 
Oinpiiiness  tu  be  charg^l  in  the  indict mrnt  as 
*■  tcfefsary,  though  he  only  came  into  the 
^^  by  chance,  and  so  I  am  deprived  of  his 
cvuieDce :  he  was  put  in  the  indictment  to  take 
•ffltiievifleiicc. 
£•  C.  /.  lie  is  a  principal  in  the  indictment. 
Bambridge.   He  is  a  gentleman  of  a  very 
P^  fimi\y  ;    he  is  the  yonntrer  son  of  a  man 
'fttlity.     I  desire  Mr.  Wilkinson  may  ac- 
^Wiiit  your  lordship,  whether  Mrs.  Berkley 
^Dot  present  when  I  said  to  Mr.  Douglas, 
*nf  take  notice  that  I  put  the  rings  in  my 

LC.J,  Was  she? 

WitkinuiH.  1  can't  say  positively,  liecause  it 
vn  just  at  last :  at  tbe  latter  end,  she  would 
M  May  in  the  room. 

Bambridge.  Was  there  not  a  bed  ordered  for 
Kr to  lie  on? 

^ilkitwm.  There  was  a  bed  brought  out  of 
■e  loiDber  room,  a  nasty  bed  ;  and  she  said, 
■U  if  the  could  not  lie  on  a  bed  of  her  own, 
ibc  would  not  lie  on  that ;  but  went  away. 

L  C.  /.  You  say  she  went  tway  ;  you 
'■■'t  ny  ahe  was  there  then  f 

^ilkinaon.  f  can't. 

^mbridge.  I  desire  to  know,  if,  when  he 
Med  that  bed  np,  he  did  not  bring  another 

Vi/Aiam.  Yes;  f  said  so  before,  that  you 

il  srdar  mter  M ;  but  I  Mid  it  wai  a 
My 


I 


X.  C.  J.  Tell  us,  whether  that  was  i  good 
bed  or  not  P 

Wilkinson.  I  can't  say  it  waa,  my  lord  :  she 
had  reason  enough  to  complain  of  it ;  for  I 
lay  upon  a  better  bed  myself,  and  that  waa  not 
fit  for  her,  who  was  a  gentlewoman. 

Bambridge.  Was  it  any  other  than  what  jwas 
usual  for  the  people  in  the  house? 

Wilkinson.  1  have  known  i*onie  lie  on  sacks ; 
but  because  thev  could  get  no  better. 

Bambridge.  Were  there  any  better  beds  there  P 

Wilkinson.  Yes;  there  were  three, and  you 
sent  tlieui  away  with  her's :  ever  since  she 
has  lain  without  a  bed,  unless  she  has  had  una 
within  these  ten  days. 

Bambridge.  I  desire  to  know,  whether  Mrs. 
Berkley  was  turned  oat  of  her  room,  or  went 
out  of  herself,  at  that  time  P 

Wilkinson.  8he  went  out  of  it  berselfy  when 
her  bed  was  taken  away. 

Ambrose  Burgessswom, 

Alt.  Gen.  Do  you  remember  any  ffoods 
taken  away  in  tbe  Fleet  prison,  and  from  wTiom  f 

Burgess.  1  was  present,  not  at  the  breaking 
open  the  duor,  but  after. 

Ait.  Gen.  When  was  it? 

Burgess.  About  I'l  days  after  tbe  23rd  of 
October. 

Alt.  Gen.    Goon. 

Burgess.  I  heard,  that  Mr.  Bambridge  was 
going  in  to  look  on  some  affiiirs  of  Mrs.  Berk- 
ley's, and  I  went  into  the  room  a  little  after 
the  dioor  was  brokt  n  open. 

Alt.  Gen.  Who  was  there? 

Bitrg.^xs.  There  were  Mr.  Bambridge,  Tur- 
ner, Suvage,  I'indar,  Barnes,  and  Wilkinson^ 
and  one  or  two  more  that  were  strangers. 

Att.  Gen.  What  did  yon  see  done  there  ? 

Burgess.    I  saw  the  boxes  broke  npeii. 

Ait.  Gen.  Who  broke  them  open  r 

Burgess.  Mr.  Turner  and  Mr.  Bambridge 
together. 

Att.  Gen.  What  was  therein  them? 

Burgess.  Twenty  ounces  of  Orrice  lace,  a 
great  many  good  clothes,  and  a  gr^at  many 
good  tliiui^s. 

Bamhriilge.  I  desire  he  may  raise  his  voice  ; 
I  c.innot  htar  him. 

L.  C.  J.  liaise  your  voice. 

Att.  Gen.  Did  you  see  the  boxes  broke  open  ? 

Burgcsx.  I  was  there  present,  and  saw  the 
liox'cs  broke  open  by  Mr.  Bambridge  and  Mr. 
Turner;  and  saw  the  china  put  into  the  win- 
dow, niu\  some  Orrice  lace ;  and  saw  an  eme- 
ruld,  or  niby,  which  he  put  in  his  pocket. 

Ait.  Gen.  What  did  you  sec  at  that  time  F 

Bur^tSs.  1  saw  the  rings  taken  out. 

Att.  Gen.  What  did  you  see  put  in  hia 
pof'ket  ? 

Burgess.  One  was  a  pearl,  the  other  aa  em^ 
raid. 

Att.  Gen.  Were  they  set  in  rings  ? 

Buri^ess.  They  were  both  separate. 

Alti  Gen.  What  is  the  colour  of  an  emerald  P 

Burgess  It  is  of  a  greenish  colour. 

Att,  Gen.  These  tnen were  aeparttUftoiMir 


Pbos] 


3  GEOltGE  II. 


Trial  of  Thomat  Bami 


jtti.Gen.  Weie  there  any  ringsF 

Burgess.  I  can't  say, 

Ati.  Gtn.  WlialiliiJ  lieilo  *ilh  iliMestoneap 

hurgrn.  Ml'.  Bombridife  iiut  lliRin  into  his 
pocket,  and  naid  ihey  iiiij^lit  be  lost  il'  put  in 
ihc  porlmuiteBu ;  ami  atlerwanlg,  as  he  was 
dTintiitit;  punch,  he  took  ihcni  Diitof  Wm  [loukel. 

AU.Gr.n.  Had  she  any  (fold  Inci' IliercP 

hurgeu.  There  was  giild  \»tx :  itlc.  Turner 
went  and  «reli;hed  ihe  [ace,  and  broiigibl  it 
hact  aKuiii ;  and  Enid,  it  weighed  twenty  ounces 
md  an  liair. 

All.  Gen.  WhotooUitaway F 

BuTgeu.   I  ilnn't  rememlier. 

All. Gen.  You  were  in  company .^  did  you 
potobBerfe  who  took  it,  or  whether  Turner 
earned  it  away  ? 

Surgut.  1  did  not,  u]ion  my  word,  ohscrre  it. 

All.  Gea.  Vifre  yuu  present  at  the  time  of 
breaking  open  the  boxes,  and  Inkiog  out  the 

Burgeu.  I  was  pieaent  when  three  boxes 
were  broke  open. 

Alt.  Oen.  How  long  did  Blrs.  Berkley  stay 
in  tbc  room  ? 

Bargtit.  To  the  best  of  my  reiiiembruice, 
the  whole  lime. 

Alt.  Gen.  You  say  you  were  present  when 
tlie  hoies  were  broke  open ;  was  Sirs,  Berkley 
tliere (he  whole  time? 

Burgcu.  1  do  not  know  whether  she  went 
away  beliire  or  not. 

Alt,  Get.  I  think  you  said,  vou  did  not 
come  till  allcr  the  door  was  opened  f 

Burgeu.  Yes. 

Bambridgc.  I  think  you  haie  Bci]uaiulcil  my 
Iffti  and  the  jury,  that  there  were  some  atones ; 
1  deaircyou  will  iuform  him,  and  as  to  the  size 
of  them,  if  they  were  small. 

Burgta.  Yes,  they  were. 

Bambridgt.  Wu  Mrs.  Berkley  there  all  the 
time? — Burgat.   I  think  the  was. 

X.  C.  J.  VVbal  did  you  ask  him  ? 

Bambridgt.  >Vhat  iiietbe  stoues  were  of; 
whelitertbey  were  small!' 

Burgeti.  Yes,  tliey  were. 

Burges)  was  going  away,  and  at  Bam- 
tiridge's  desire  called  rack  again. 

^•iibridgt.  Mr.  Bureess  declared,  that  he 
beard  me  declare,  that  I  deured  them  to  take 
notice,  that  I  put  Ibem  in  my  pocket :  Please 
10  tell  my  loid,  and  the  jury,  wlial  I  said  when 
I  put  Ihe  stones  in  my  pocket. 

Burgeii.  Mr.  Buiabridge  shewed  them  in 
his  hand,  and  said,  Tor  fear  tbey  should  be  lost, 
Ihey  should  be  iiui  in  his  pocket. 

X.  C.  J,  Did  he  desire  Savage  and  Douglas 
to  remember  (hat  lie  put  them  in  bis  pocket  ? 
.  Bargeu.  1  believe  be  said  so  to  all. 
Satnge  was  sworn. 

Sol.  Cm.  Were  you  present  at  the  time  when 
Itte  goods  were  seized  ? 

•    Savage,  1  was  going  by  the  end  of  the  gal- 
^— jT^  ud,  hearing  a  husUe,  went  up. 


Sol.  Gen.  Mention  the  lime. 

Savugc.  At  the  time  when  the  lolt  ioTntorf' 
was  taken.  < 

Sal.  Gtn.  What  time  of  Ihe  year  ? 

Savage.  The  latter  end  of  October,  1787. 

&{.  Gen.    Give  an  account   of  what  ; 
know  of  this  matter. 

Satage.  I  wss  going  by  Ihe  enil  of 
gallery,  and  observed  a  number  of  peopll 
at  Mrx.  Berkley's  door,  and  I  went  oal  rf 
curiosity  to  see  what  was  the  mailer,  when  I 
found  Bam  bridge,  Mrs.  Berkley,  Piodarj 
Barnes,  Douglas,  and  Wilkinson,  and  sfler  I 
bad  been  thei'e  a  very  little  litne,  Bambridg* 
asked  Mrs.  Btrkley  fortrunks  and  huia:  I 
went  into  the  room  to  them,  and  Bambridgt 
ashed  her  for  the  keys  of  her  trunks  and  boMt  i 
she  said,  I  willgiveyeu  none;  to  whieh  be 
made  answer.  If  you  won't,  I  have  auffidnl 
uuthority  of  my  own  to  open  ibem,  and  I 
do  il  ;  and  ordered  the  trunks  aud  boles,  tipM 
her  refusal  to  deliver  the  knys,  lo  be  brake 
open  ;  and  Bambridgc  broke  opeo  son  * 
them  himself. 

Sal.  Gc„.  Whatwastherefoundtheref        i 

Saixige.  On  exoffli nation  of  the  trunkiatd 
boxvs,  there  were  found  wearing  apparel,  (oM 
seals,  thread,  and  gold  lace,  clothes  very  good 
of  ihe  kind,  lit  tor  any   gentlewoman  to  w«r. 

Sol.  Gtn.  Were  tliereaay  other  things? 

Sinrage,  Yes,  (here  were;  for  Bambridgt 
found,  ID  a  drawer  of  a  table,  a  box,  wbm 
there  were  rings  and  seals,  and  loose  stones. 

Sol.  Gen.  How  many  rings  were  there  ? 

Savage.  I  think  there  were  four ;  one  «M 
red,  it  was  either  a  ^met  or  a  ruby ;  oMtf' 
them  was  wbitisb,  with  a  cast  of  yeliow,  litf 
called  il  a  crystal,  I  look  it  to  be  a  topax. 

Sol.  Gen.  Were  there  any  other  slooea  ? 

Savage.  .Yes,  1  think Ibere  were ;  one  wata 
blue  or  green,  another  was  a  ring,  where  lb* 
middle  stone  was  oul,  and  two  diamonds  on  I 
side,  (wo  seals  set  in  gold,  which  I  todc  _ 
be  cornelian,  one  while  and  the  other  red  ;  tbati 
was  also  a  loose  stone,  and  a  pearl. 

SoLGcn.  WhatwastbeloosesloneF 

Savaee.  1  can't  say  wbelheragoruet  orntt.' 

Sol.  Citn.  What  did  be  do  with  them  P  i 

Savage.  After  he  had  shewn  them,  he  pot' 
them  in  bis  piickel.  | 

Sol.  Gen.  Were  there  any  other  tbingsF 

Savage.  There  was  a  sitrer  spoon,  kuife^  uAi 
fork. 

Sol.Cen.  Whatdidhedowith  thst?  t 

iSusug«.  That  was  put  in  bis  pocket,  to  ifca  ] 
hest  of  my  remembrance.  ) 

X.  C.  J.    What   became  of  the  aeala  ud- 


r«? 


I 


Savage.  He  put  them  into  bis  pocket. 

L.  C.  J.  Did  he  bid  you  at  that  liioe  \akBi 
notice  Ihat  he  put  them  in  his  pocketP 

Savage,  I  do  not  remember  that  he  aoid  M.    i 

Sol.  Gen.  What  became  of  them  after  b*^ 
put  them  in  bis  pocket?  J 

Sarage,  1  do  not  kuow. 

Sol.  Gtn,  Didbetakethemoulofhiipockti 
there? 


ms] 


Jbr  Felony* 


A.  D.  1720. 


[600 


Snagt.  No,  bat  he  did  in  the  coffee-room 
iftrrwArde. 

Sol,  Gen,  Whit  became  of  the  other  goods  ? 

linage.  The  most  valuable  part  of  the  goods 
«u  pecked  up,  and  pat  into  a  portmanteau 

truak.  - 

&/.  Oen,  Yon  do  not  know  what  became  of 

4i«lher  goods  r 

Uoage.  I  do  not  know  of  their  being  earned 

«iy,  but  there  was  some  white  china  carried 

«« the  room. 

Ir.  WiUei,    Had  not  Bambridge  a  house  at 
ffadsworth? 

&saffe.  He  had  lodgings  there. 

Hr.  WUla.  Were  the  goods  carried  there  P 

8bN^.    1  don't  know  otherwise  than  by 

iM.  Gin.  Were  you  by  when  Mr.  Turner 
wdiUke  inventory  ?-^5aTa^e.  Yes. 

iU.  Gem.  Do  you  know  of  clothes  being 
p*4twn  sufficient  for  a  gown,  or  whaterer  it 
m? 

Sm^e.  Yes,  all  the  clothes  were  put  down 
11. 

Mi.  Gem.    Do  you  know  how  they  came 
dbi  pet  down  so? 
ta^  Bambridge  ordered  it 
A».  Gm.  Did  it  arise  from  Mr.  Bambridge 
irTmar? 

ftngt.  Tuner  did  object  to  it,  and  said  it 
en  SK  usual  to  put  down  wearing  apparel. 

LCh    Pray  give  an   account   whether 
Ihi^^^e  ga?e  any  reason  for  putting  the 
<^  io  his  pocket  r 
Mi^c.  I  do  not  know  he  did. 
li-C./.  Where  tliey  inventoried  ? 
^n^t.  I  was  not  privy  to  the  inventory. 
^^taSnidge.  How  long  were  you  in  the  room  ? 
&Mfe.  1  believe  1  was  there  soon  aflervou. 
JMridge,   Did  you  continue  there  all  the 
lose? 

&Mfe.  I  believe  I  was  there  most  of  the 
li«e. 
^etMdge.   Did  you  see  any  of  the  goods 

Nsige.  I  saw  Turner  write;  but  1  do  not 
Imv  what  he  wrote. 

BtK^^idge.  Was  it  done  in  a  clandestine 
■isoer? — Savage.  I  cannot  say. 

Bsmtrulge.  What  conversation  was  there 
kitiuii  Mrs.  Berkley  and  me  ? 

Ansfe.  What  passed  was  in  relation  to  the 
•^MbermH. 

Hmtndge.  Did  not  I  lay  for  what  1  seized 

Yoa  pretended  to  seize  them  for 

rent 
Jiaakndge.  Did  I  shew  the  rings,  or  pot 
^  in  ny  pocket  secretly  ? 
Jemge.  They  were  shewn  to  every  body  in 

^mhidge.  Were  the  rings  shewn  in  the 
^  luew  P— Ssroge.  Yes. 
fcrfrWn.  Where  is  the  coffee-room? 
'■Nfe.  In  the  Fleet  prison. 
Mr^ge.  Was  it  a  public  place? 
'■Mp.  Yts,  but  U  was  in  a  private  room 


where  yon  shewed  the  rings,  iu  which  was 
only  your  ovrn  company. 

Jacob  Mendez  Solas  was  set  up  to  be  examined. 

Mr.  Fihner,  Mr.  Matthews,  let  hinr  be 
swdm  upon  the  Old  Testament,  he  is  a  Jew. 

Mr.  Kettleby.  I  must  olgect  as  such,  to  his 
being  sworn  at  all. 

Mr.  Just.  Reynolds.  1  remember  a  great 
cause  upon  an  indictment,  for  the  stealing  of 
snuff  from  some  Jews,  and  I  remember 
they  were  admitted  to  ^ve  evidence. 

Solas.  I  am  a  Christian. 

Att.  Gen.  The  objection  is  at  an  end,  he  is 
a  Christian. 

L.  C.  J.  Are  yon  a  Jew  or  a  Christian  ? 

Solas.  I  am  by  extract  a  Portuguese  Jew, 
but  am  a  Christian  now. 

L.  C.  J.  Have  you  been  baptized  ? 

Solas.  Yes,  my  lord. 

Then  he  was  sworn. 

Vlr.Filmer.  What  do  you  know  as  to  any 
diamonds  or  jewels  that  were  brought  to  you'f 

Solas.  One  captain  Dcuglas  brought  a  ring 
to  me,  to  have  the  stone  pulled  out,  that  i 
might  see  how  much  the  gold  weighed. 

Sir.  Filmer.  What  sort  of  a  stone  was  it? 

Solas.  It  was  an  amethist,  but  Douglas  said 
it  was  a  crystal. 

X.  C.  J.  Who  did  he  tell  you  he  had  it  from  ? 

Solas.  From  Bambridge.  Douglas,  after  I 
told  him  it  was  an  ameUiist,  and  the  value  of  it, 
went  and  told  Mr.  Bambridge  the  value ;  then 
Bambridge  came  to  me. 

L.  C.  J.  What  did  Mr.  Bambridge  say  ? 

Solas.  He  asked,  whether  I  was  sure  it.  was 
an  amethist ;  I  told  him  yes,  I  was  sure,  though 
it  was  paler  and  appeared  clumsy;  and  then 
Bambrid<;e  said  he  was  glad  of  it,  and  asked 
me  whether  it  was  not  worth  while  to  put  it  iu 

a  ring. 

L.  C.  J.    Did  you  tell  Mr.  Bambridge  of 

the  value  of  it  ? 

Solas.  1  cannot  be  certain  of  that. 

Mr.  Filmer.  Did  he  say  any  thing  of  the 
ring ;  whose  ring  did  he  say  it  was  ? 

Solas.  Captam  Douglas  said  if  was  sent 
from  a  mercliant. 

Mr.  Filmer.  But  did  Bambridge  ? 

Solas.  Not  at  that  time. 

Mr.  Filmer.  Did  he  any  time  after  say 
whose  ring  it  was  ? 

Solas.  Yee,  he  said  it  was  a  ring  of  Mrs. 
Berkley's. 

Sol.  Gen.  You  say  you  took  the  stone  out  ? 

Solas.  Yes. 

Sol.  Gen.  Did  you  set  it  in  again,  after  yon 
had  taken  it  out  ?— 5o/as.  Yes. 

Sol.  Gen.  Should  you  know  your  own  sett* 
iDg,  if  you  should  see  it  ? — Solas.  Yes. 

Then  the  ring  being  produced,  and  shewn  to 
him. 


1 


Sol.  Gen.  Look  open  it,  is  that  yoar  own 
setting  f'^Solas.  I  am  positive  it  is  my  seltinf 


«07] 


3  GEORGE  II. 


Trial  of  Thbntas  Bavibriclge^ 


Thtn  ftBOtberriog  wm  prodoced,  and  sbewn 
to  him. 

Sol.  Gen.  Do  you  lake  that  to  be  the  same 
tftone  yoa  then  set  r 

Sola$,  It  is  one  f  set  for  Mr.  Bambridge  in 
litis  ring,  but  nok  the  same  Ktooe  he  then 
brouffht,  or  I  suppose  it  might  he  new  polished. 

Sol.  Gen.  How  many  rings  did  you  set  for 
Mr.  Barohridge  ? — Sotag.  Two. 

Sol.  Gen.  nhat  were  the  value  of  them  ? 

Solas,  I  set  one  for  Mr.  Bambridge  worth 
fifty  shiUings,  and  another  worth  twenty  shil- 
lings. 

Sol.  Gen.  What  might  be  the  price  of  that 
you  set  for  him,  he  told  you  he  had  from  Mrs. 
heMeyf^Soliis.  About  twenty  sbillinjgs. 

Sol.  Gen.   Had  you  no  other  ring  brought 

you? 

Solas.    I  had  one  brought  from  Mr.  Bam- 
bridge by  doctor  Coltheart. 
^  Sol.  Gen.  What  was  it  ? 
*  Solas.  It  was  a  garnet,  with  a  brilliant  in  the 
middle. 

Sol.  Gen.  Whom  did  you  say  it  was  brought 
fromf 

Solas.  From  Bambridge,  by  doctor  Coltheart. 

Sol.  Gen.  How  do  you  know  that  ?- 

Solas.  He  sent  his  service.  Doctor  Col- 
theart and  one  Will  that  keeps  a  coffee-house 
came  to  me,  and  desired  to  know  the  value  of 
tL  ring  with  a  garnet,  and  a  brilliant  in  the  mid-, 
die.  I  sent  biro  word  it  was  worth  fourteen 
pounds ;  then  Bambridffe  sent  for  me  to  the 
coffee-room,  and  desir/^ato  know  the  value  of 
it ;  I  said  it  was  worth  tbiirtcen  pounds. 

Sol.  Gen.  What  did  he  say  ? 

Solas.  He  said,  be  thought  i  had  valued  it 
for  more  than  it  was  worth. 

Sol.  Gen.  Did  he  tell  you  whom  he  had  the 
ring  of? — Solas.  No. 

Sambridge.  My  lord,  I  am  so  unhappy, 
though  so  much  concerned  in  this  affair,  as  to 
be  at  so  great  a  distance,  that  I  don^t  know  one 
word  the  witness  has  said,  so  don't  know  what 
questions  to  ask  him. 

Solas.  If  you  have  any  questions  to  ask  me, 
I  am  ready  to  answer. 

Mr.  Kettleby.  You  need  not  ask  any. 

Bambridge.  Do  you  know  the  ring  that 
was  brought  to  you  by  doctor  Coltheart,  when 
you  see  it  P 

Solas.  Yes,  I  am  sure  I  should  know  it ;  I 
kave  had  it  three  times  in  my  hand  ;  one  time 
you  shewed  it  me,  with  Mr.  Burgess,  and  asked 
me  the  value. 

L.  C.  J.  You  say  that  Bambridge  had  the 
ring,  what  use  do  you  make  of  enquiring  into 
the  value  of  the  ring,  as  to  th«  one  of  them  be- 
ing worth  fourteen  pounds,  and  the  other 
twenty  shillings  f 

Att.  Gen.  The  statute  requires  a  particular 
▼alue ;  besides,  we  make  use  of  it  to  shew  that 
Bambridfe  was  endaaf oaripg  to  sell  then  by 
a  private  sale. 

Mr.  Just  Reynolds.  Were  these  offered  on 
AclwUlf •rfiambiidfita bt Mid, orlo  kftow 
^ miff 


Solas.  Only  to  know  the  value; 
know  the  value,  afterwards  he  a 
himself  to  value  them,  having  sen 
fore  by  Coltheart  and  Will  at  the  cc 

Mr.  Willes.  The  use  that  we  m 
is,  to  shew  that  the  ring  with  the 
the  middle  was  worth  fourteen  p 
only  valued  as  a  crystal,  and  not  m 
the  inveutory  at  all. 

L.  C.J.  I  thought  it  was ;  give 
inventory,  (Which  was  done ;)  a 
upon  the  inventory,  there  are  twi 
seals  set  in  gold,  a  crystal  stone,  a 
with  one  small  emerald,  and  anot 
small  garnet. 

Mr.  Just.  Reynolds.  This  is  the  ri 
crystal  ring,  which  Solas  says,  wh 
to  him,  he  thought  to  be  a  garnet. 

Turner  being  set  up  agaii 

L.  C.  J.  Was  that  small  garnet  n 
the  inventory  as  a  ring? 

Turner.  No,  my  lord,  it  was  a  1 
otherwise,  after  mentioning  tiiat  cr 
ring,  if  the  garnet  had  been  a  riu( 
have  said  ditto. 

Jacob  Mendez  Solas  being  set  up 

X.  C.  /.  This  garnet  was  broug 
Mr.  Solas,  set  in  a  ring,  with  a  bril 
middle.  Was  it  not  ? 

Solas.  Yes,  my  lord. 

L,  C.  J.  Was  therf  any  other  gvt 
diamond  in  the  middle? 

Turner,   My  lord,  1  saw  no  such 

Mr.  Howard  sworn. 

Att.  Gen.  Did  Bambridge  lod^ 
house? — Howard.  Yes. 

Att.  Gen.  Where  do  you  live  ? 

Harrard.  In  Bell  Savage  Yard. 

Att.  Gen.    What  do  you  call  the 

Howard.  WilPs  coffee-house. 

Ati.  Gen.  When  did  Bambri 
there? — Horvaid.  Twelve  mootlis  a 

Ait.  Gen.  How  long  before  the  s 
made? — Hozcard.  I  can't  tell. 

Att.  Gen.  How  long  did  he  lodji 
gcthcr? — Howard.  About  twelve  m 

Ail.  Gen.    Did  he  lodge  there 
1727  ?'^HoTtard.  Yes. 

Att.  Gen.  Do  you  remember  tl 
any  qroodsto  your  house  ? — Howarc 

'Att.  Gen.  What  were  they  f 

Howard.    1  can't  tell. 

Att.  Gen.  Were  they  houshold 
wearing-apparel  ? 

Howard.    I  do  not  know  any 
were  brought  in  but  his  own. 

Att.  Gen.  1  ask  vou  if  any  g 
brought  to  the  house  .^ 

Howard.  They  were. 

Att.  Gen.  Do  you  know  what  the 

Howard.    I  did  not  sea  thenii 
brought  in  trunks. 

Att.  Gen.  Did  you  know  of  any 
to  ona  Mr.  VieAf-^Homard.  Ym. 


609J 


Sor  Felony* 


Alt,  Gen.  Recolltct  what  they  were. 
H^mmrd,  There  wai  a  gown  aod  peldooat. 
Ait.Oem.  Wat  there  one  or  two? 
HtmanL  I  cannot  tell. 
Ati.  Gem,  What  were  they  made  of? 
Howard,  I  cannot  tell.  .  * 

Ait*  Gen.  •Did  yoa  see  them? 
Hcmard,  1  just  looked  at  them. 
Mt,  Gen.    Did  you    know  what   sort  of 
Mka  ? — Howard,  1  did  not  look  at  them. 
Alt,  Gen,  What  were  they  sold  for  ? 
Boward,    I  heard  Air.  West  say,  Mr.  Bam- 
Wi|e  bad  a  gold  watch  for  them. 
AH,  Gen,  Wliat  were  they  sold  for  ? 
Boward,  They  said  they  were  sold  for  four- 
IM  or  fiUeen  pounds. 

MU  Gen,    How  do  vou  know  they  were 
M? — Howard,  J  heard  West  say  so. 

Ah,  Gen.    Do  you  know  nothing  but  what 
Wot  told  you  ? — Howard.  No. 

Au.  Gen,  I  ask  you  if  yon  were  present 
Mr.  Bambridge,  or  any  body  for  him, 
any  bargain  as  to  the  selling  any  clothes? 

Btmard.  1  was  not  at  tlie  making  the  bar- 
pii. 

Mt,  Gen,  Were  you  present  at  the  time 
then  tfa^goods  were*deli?ered  to  Mr.  West  ? 

Homard,  I  know  nothing  further,  than  that 
1 9kw  Mr.  West  hare  them. 

Au,  Gen,  Have  you  heard  Mr.  Bamhridcpe 
telk  of  selling  the  goods,  and  what  he  had  tor 
them?— Hovoyc/.  No. 

Att.  Gen,  Do  you  know  of  any  gold  lace  ? 

&Kerd.   I  saw  some  gold  lace  that  Bam- 
»     Mre  bad. 

Att,  Gen.  At  what  time  was  this  ? 

Boward.  About  October,  1727. 

Att,  Gen.  Was  it  brought  into  your  house  ? 

Bmerd    Yes. 

Au,  Gen.  Vou  saw  Barobridge  have  it  ? 

Boward.    Yes. 

Att,  Gen,  Who  was  that  sold  to  ? 

Barnard,  To  one  Mr.  Harris. 

Atl.  Qtn,  Huw  much  was  tiiat  sold  for  ? 

Bcwiird,   1  donU  know. 

Alt.  Gen.  How  do  you  know  it  was  sold  ? 

BiOKard.  I  know  *]\Ir.  Harris  bought  it  by 
b'a bringing  money  and  paying  it  to  A]r.  Bam- 

Att.  Gen.  How  much  was  it  ? 
Btmard,  I  don't  know  the  sum. 
Att.  Gen.  Wliereabffuts  was  it  ? 
BowMrd.   I  don't  know. 
Att.  Gen.  Did  you  see  the  monpy  paid  ? 
BotPard,  I  saw  it  lie  on  the  table. 
Att.  Gen.  Was  it  {jold  or  silver  ? 
Bntard-  It  was  both. 
Att  Gt  n.  Was  it  ten  or  tw  enty  pounds  ? 
Boward,  1  don't  think  it  was  so  much  us  ten 
•twenty  pounds. 
Ait,  (ien.    You  saw  the  money  paid  ? 
Bowerd     Yes. 

Att.  Gen,  What  was  the  money  paid  fur  ? 
BcKord,    It  was  paid  for  the  lace. 
Ait,  Gen*  Why  did  you  sny  for  the  lace  ? 
Boward.  Because  Bambridge  sold  hiui  the 

VOL.  XVIL 


A.  D.  1729.  [610 

Att.  Gen.  Do  yon  know  from  whom  that 
lace  was  brought? — Howard.  I  don'^  know. 
.  Att.  Gen.  What  time  was  it,  was  it  about 
October  or  November  ? — Hoamrd.  Yes. 

Att.  Gen.  Did  you  see  any  tea-spoons? 

Howard.  Yes. 

Att,  Gen.  Were  they  gilt  ? — Howard,  Yes. 

Att.  Gen,  Whose  possession  did  you  see 
them  in  ? — Howard.  Bambridge's. 

Att.  Gen,  How  many  were  they? 

Howard.  Three  or  four. 

Att.  Gen.  Were  there  half  a  dozen  ? 

Howard,  There  were  not  so  many. 

Att.  Gen.  Do  you  remember  Mrs.  Corbett'f 
buying  any  thing? — Howard,  No. 

Mrs.  Howard  wrom. 

Sol.  Gen.  Are  yon  the  wife  of  the  last  wit- 
ness ? — Mrs.  Howard.  Yes, 

Sol.  Gen,  When  did  Mr.  Bambridge  Uto  at 
your  house  ? 

Mrs.  Howard.  1  can't  tell  directly. 

Sol,  Gen.  Was  it  in  October  1727 1' 

Mrs.  Howard,  ft  was  thereabouts. 

Sol.  Gen,  Do  vou  remember  any  women'a 
clothes  that  were  brought  to  your  house? 

Mrs.  Howard.  Yes. 

Sol.  Gen.  Do  you  know  whose  they  were? 

Mrs.  Howard.'  No. 

Sol,  Gen.  Who  brought  them  into  yoar 
house? — Mrs.  Howard.  I  don't  know. 

Sd.  Gen.  By  whose  order  were  they  brought  P 

Mrs.  Howard.  I  don't  know. 

X.  C.J,  Who  brought  (he  clothes  in^  to 
whose  use  were  thev  delivered  ? 

Mrs.  Hoomrd.  To  Bambridge's. 

L.  C.  J.  Who  were  they  sold  to? 

Mrs.  Howard.  They  were  sold  to  one  Tho- 
mas West,  by  Mr.  Bambridge. 

Sol  Gen.  What  was  paid  for  them  ? 

Mrs.  Howard.  I  can  t  tell  exactly  the  sum* 
but  a  gold  watch  was  given  for  them,  which 
Mr.  Bambridge  had. 

Sol.  Gen.  Do  you  know  the  goods,  can  you 
describe  tliem  ? 

MiS.  Howard.  Yes,  one  was  a  blue  and 
white  sattin  ^('wn,  made  up ;  another  was  a 
worke'l  govvh,  lined  with  a  cherry-coloured 
lining. 

Sol.  Gen.  What  was  it  worked  upon  ? 

Mrs.  Hoicard.  I  can't  say  whether  it  was 
holiandorsilk. 

6o/.  Gen.  Do  you  remember  any  other  par- 
ticulars ? 

Mr<i-  Hansard.  Tlirro  wrre  a  black  hocKl  and 
a  scarf,  with  black  lace  round  thini ;  there  was 
also  u  ui>p(.t. 

»SV>/.  Gtn.  What  was  the  tippet  ? 

M's.  Howfrd.  S:»M«'. 

Mi*  .Inst.  Rct/Ti)/Js,  'i'iicre  is  »ome  stitched 
enitipii  lir\  .  part  of  a  gown,  takru  notice  of  in 
the  in<l:("ni;  nt. 

S<u.  Gen.  Tbey  w^rp  all  sold  to  West,  were 
they  •"»'  •  —  V'^.  liutcurU.  V*  s. 

L  C  J.   linl  > '  ••  I***!*  'h»fin  sold  ? 

Mr;    Ilo,  ntd.    \^. 

L.  C.  J.  Did  \vcrfi  pay  for  themf 


611]  3  GEORGE  IL  ^  Trial  of  Thmas  Bambridge, 

IMn.^oward,  Yet,  be  gft?e  a  gold  watch        L.  C.  J.    What  the  king's  eounse 
for  them. 


L.  C.  J.    Was  there  anv  thiog  else,  had 
Bambiridse  anj  money  beside  ? 

Mrs.  Howard,  I  caonot  tell  of  any  thiog  bat 
the  gold  iratch. 

Sol,  Gtn,  Were  there  no  other  things  ? 

Mrs.  Howard.  There  were  tea  spoons. 

L,  C  J.  Had  thej  any  mark  opon  them  ? 

Mrs.  Howard.  I  can't  tell. 

Sol,  Gen.  Were  they  sold  ? 

Mrs.  Howard,  Bambridge  offered  to  sell 
them  to  me. 

tSol.  Gen.  Do  you  remember  any  gold  lacef 

Mrs.  Howard.  No,  bat  I  remember  some 
silf  er  lace  takth  oflfthe  blue  sattin. 

Sol,  Gen,  Was  that  sold  ? 

Mrs.  Howard.  Yes. 

Sol.  Gen,  For  hew  much  f 

Mrs.  Howard.  For  4/.  lOf. 

Sol.  Gen,  Who  receited  the  money  ? 

Mrs.  Howard,  Bambridge  received  the  money 
of  Harris. 

Sol,  Gen.  At  what  time  were  these  goods 
sold? 

Sirs.  Howard.  West  bought  them  all  at  one 
time. 

Sol.  Gen.  Do  you  know  the  time  f 

Mrs.  Howard.  1  cannot  justly  tell  the  time. 

Sol.  Gen.  Do  you  remember  the  month  or 
year? 

Mrs.  Howard:    I  do  not. 

J|f  r.  Willet.  Did  Bambridge  tell  you  whose 
the  Uce  was  ? 

Mrs.  Howard.  He  sold  them  as  his  wife's. 

Sol.  Gen.  We  must  submit  it  to  your  lord- 
ship here. 

L.  C.  J,  The  king's  counsel  hare  now  done, 
what  have  you  to  say  ? 

Bambridge,  I  did  not  hear  what  the  last  wit- 
ness said. 

L,  C.  J,  She  says,  you  sold  a  g^wn  of  blue 
sattin,  flowered,  to  one  West,  as  your  wife's ; 
she  says,  that  one  Harris  bought  the  silrer 
lace ;  that  the  tea  spoons  were  offered  to  be 
sold,  but  she  does  not  know  whose  they  were. 
Now  they  hare  done,  what  have  you  to  say  ? 

Bambridge,  As  to  my  def'ence7  I  shall  give 
3'our  lordship  but  little  trouble.  After  the 
general  accusation  brought  against  me;  and  the 
clamour  it  has  made  in  the  world,  1  don't  tind 
that  there  is  any  thing  answerable  to  it,  or  any 
thing  brought  to  the  point;  the  gentlemen 
have  not  proved  any  felonious  act  against  me, 
any  thing  fraudulent,  or  any  misbehaviour 
whatsoever.  If  there  was  any  thing  necessary 
to  justify  myself  it),  by  ffivint;  an  account  of 
my  conduct  in  ray  office,  1  might  do  it  fully  ;  I 
have  the  proper  officer  here  ready  to  do  it ;  but 
as  I  see  no  necessity  for  it,  I  will  not  trouble 
your  lordship,  but  submit  it  to  your  lordship 
and  the  jury. 

L.  C.  J.  Tlien  you  will  rest  it  here. — Gen- 
tlemen of  the  jury, — 

Bambridge,  J  must  desire  one  favour  of 
your  lordship,  that  if  any  matter  of  law  shoold 
arise,  you  wijl  let  that  be  reserred. 


▼ery  right,  whether  it  was  a  fair  dist 
whether  it  was  only  the  colour  of  a 
with  any  felonioas  intent :  the  attorney- 
has  stated  that  very  clearly,  that  a  m 
do  a  lawful  act  felonioasiy.  If  this  w 
with  a  felooious  iuteot,  then  this  will  be 
yet  if  it  was  not  done  with  a  felooious 
this  will  not  be  felony.  This  was  tli< 
point  laid  down  by  the  gentlemen,  i 
jury  are  to  judge  with  what  design  thes 
were  taken  away. 

Gentlemen,  the  first  witoe^  for  th 
who  was  John  Turner,  savs,  that  tlie 
taking  those  goods  was  wliilst  Bambrit 
warden,  and  that  Pindar  was.  chami 
and  ihat  Bambridge  ordered  this  Piuda 
train  the  goods  of  Mr?.  Berkley ;  and  i 
time  of  distraining  these  goods  was  1 
the  2Sd  and  27th  of  October,  1727.  t 
gentlemen,  that  Bambridge  was  not  the 
present;  and  that  she,  31  rs.  Berkley,  ' 
out  of  her  room.  After  this,  Bambiidg 
to  euquire  into  this  affair,  to  see  u  hat  w: 
Mra.  Berkley  being  then  on  the  comiui 
and  he  sent  down  somebody  to  caU  her 
having  locked  the  door.  The  goods, 
men,  were  as  much  under  her  key  as 
bridge's :  Bambridge,  I  must  tell  you, 
one  padlock,  and  she  locked  the  door, 
on  another ;  and  when  she  refused  to  o 
door,  he  caused  it  to  be  broke  open,  and 
the  room.  There  was,  gentlemen,  an 
tory  made  by  one  Turner,  who  had  f< 
inventoried  gcofls,  and  was  usually  sen 
such  purposes  :  he  says,  gentlemen,  he 
orders  to  undervalue  the  goods:  Tnn 
sent  for  by  Pintlar :  he  valued  all  the  pr 
the  bed,  bedding,  ^c.  and  as  to  the  box: 
were  not  then  0[>eued :  he  did  not  see  wh 
was  in  thera  ;  but  put  them  in  gross  in 
ventory .  Bambridge,  gentlemen,  cominii 
after  this  affair,  on  the  3d  or  4th  of  Xo^ 
sent  for  Mrs.  Berkley  to  come  up;  ai 
Berkley  came  up  accordingly  ;  and  Uvik 
have  the  use  of  her  key,  which  she  r 
and  said,  I  think  you  are  going  to  r 
Upon  that,  Bambridge,  before  her,  sent 
for  the  hammer,  to  have  it  to  open  tli 
but  it  would  not  do ;  and  then  he  sen 
for  the  poker,  and  Barnes  forced  open  tl 
and  in  they  went,  Mrs.  Berkley  alon 
them.  Bambridge  asked  her  for  the 
her  boxes:  she  said,  he  should  have  nc 
and  asked  him,  by  what  authority  he 
he  said  by  authority  of  warden  ;  and  Ban 
theu  ordered  the  boxes  to  be  broke  open, 
he  had  opened  the  boxes,  Turner  was  sc 
he  was  to  perfect  the  inventory,  that 
part  before  made.  1 1  w  as  opened  by  th 
sel  for  the  king,  that  it  was  a  fragdal 
ventory ;  and  they,  to  make  this  appea 
ly  to  be  fraudulent,  told  you  the  goo< 
set  down  otherwise  then  they  really 
There  was  put  down,  they  said,  dimity 
sufficient  for  a  gown,  or  what  it  was 
said,  there  was  a  flowered  blue  aAd  whiu 


^J 


far  Fftoni/. 


A.  D.  17::9. 


BW 


iliai  was  Bclnally  maile  U|i,  put  down  only  as 
■nfficiirol :  B*  to  ihe  dimity  ami  silk,  that  had 
tmitn  i>y«vl,  and  Tunii-r  saiil,  that  it  wa*  rolled 
up ;  for  lliese  bad  been  at  llie  dyer's,  and  were 
Dal  |nit  duH-n  M  a  fova ;  bJt  Ihat  lie  hnd  sat 
Ibeiu  doivn  iiroperly,  as  iie  thougfal :  but  ivben 
he  came  to  tlie  Dowered  gown,  vrliicli  wbb  made 
up,  be  niailc  loaie  difficulty  in  putting  lliat  in 
dnhiTEiiiory,  and  said,  that  It  was  not  luiial 
b  ^l  ttiem  in  diilreses ;  for  this  was  tvenriii^ 
■^el.  And  It  was  prored,  eentlemep,  by 
<■  of  the  iritnesies,  tbai  Mrs.  Berkley  said,  it 
m  feloDy  :  this,  ^eiiilemen,  raig;hl  caution 
Tnnicr;  be  said  it  was  tint  usual  to  put  such 
tbion  into  Ha  inventory  lor  a  dislreis.  Then 
BoBibridfif  said,  if  he  would  not  put  it  in  so, 
bemmi  ]>iit  itilo»n«o  many  yards  of  flowered 
idk,  lutlirlent  to  mahca  gown  and  pellicoat. 
The  ditli.ully  arose  from  him«eir,  and  nol 
ftT.iu  iIk  drfeodsBl.  He  should  not  liave  meo- 
U<ni-<!  it  silk  sufficient  fnr  a  gown;  be  was 
»iLL'dii%oor  three  times,  and  Mr.  Baiobridge 
•111),  It  inu9[  all  be  in  (be  inventnry 


o  this 
viil^nce  of  the  aflair: 


Thi! 


tr:  you 
r  wlietber  it  is  so  Or  not.  Tlieo 
llii  ■'  t|yiii;'i  were  all  looked  orer  i  and  Turner 
uj",  III.  V  "ere  all  put  into  the  inTenlory,  and 
lH)[irair>t  prl  piil  into  a  portmanteau  ;  but 
IbtR  ««re  some  few  tbin^,  as  tea-S|iooiis, 
Mb,  aod  rings,  that  were  put  into  Bam- 
Wgf's  poi'ket ;  hut  though  he  put  Ibetn  inl'i 
fail  |iiitki-t,  iJLey  were  in  llii:  inventory  ;  and 
lliri  ii,i,i.inr}',  in  ibe  whole,  came  to  30/,  and 
■'  '  1  "  ii  i-rougbl  down  to  371.  He  anys, 
•■:'  I  ■:.••:,,  iliat  there  was  a  brush  thatwas 
(.u^-iii,;,,!  ;  and  Bambridge,  upon  seeing  It, 
■U.  Surely  there  must  be  some  diainnnds; 
MJnbesearcbedfor  them,  and.  in  makio^ 
Uiearcb,  be  found  a  piece  ul'ps|«T:  the 
^owaiBjii,  gentlemen,  it  was  aoaie  decree, 
^T.:,  \,  n.jm)^ridee  took  in  his  hand.  She  said 
lliiii'.i  .i-i'.  You  won't  take  the  pajiers  too? 
'>  -  <  '  i,<  .  I  will;  and  il'  1  Rnd  anv  bonds 
'■■  i.il-..  i  "  Hi  make  bold  with  them.  He  says, 
iti,  that  Bambridge  took  tlie  bed  and 
t  away,  and  ulfured  lier  another  bed  ; 
w  aatd,  the  would  not  lie  on  it ;  then  she 
n  tolheoommonside.  He  says,  that 
d  Tcrj  much ;  that  she  was  disordered 
ai,  aod  talked  of  lord  Hareourt.  This 
»UDt  citen  of  her.  He  says,  genlle- 
t  Sifflbridge  sent  for  Iter  wben  the  in- 
t  wai  taken;  and  he  says,  that  she  was 
jMiiflnii'a)!  tbeiitne:  though  he  look  these 
ftlll]l»|^,  yet  she  could  uul  be  defrauded  in 
iiDer,1>eGiii8e  tbey  were  put  in  ibal  in- 
1  must  giie  you  an  account  of  the 
t  of  ilie  people,  as  tbey  are  examined. 
I^eutlecnen,  says,  ibal  Bambridge  ex- 
M  ritii  her  about  the  chamber  rent  that 
',  nhieh  was  sal.  and  said.  Why  do 
•  BM  p«yit?  I  am  informed  thai  you  are 
>trj  capaliUr:  lb«  woman  said,  the  house  was 
ll.c  kiug'i.  and  the  king  ali 
kmuc  ;  aiij  ItBtnbndi^  abid,  he  would  do  her 
'  «  |i«  could.    Gtmilemen,  " 


by  Turper,  that  be  did  appraise  llieee  gooda  ; 
tlial  he  did  appraise  them  tnirly  ;  and  tltat  he 
was  employed  by  Pindar,  who  was  iisetl  In  em- 
ploy bim.  Hesnid,  gentlemen,  thai  the  first 
time  a  real  oonslahle  was  (here ;  and  the  second 
time  the  constable  was  a  real  constable,  aurl 
be  swore  him  ;  now  thei*  was,  inileed,  Pindnr 
pressed  by  Bambridc;e  tn  assist  in  the  a|i]iraJao- 
mcnt,  who  did  not  at  all  understand  it:  lie  wai 
a  distiller,  of  a  quite  different  trade.  He  says, 
gentlemen,  that  Bambridge  did  desire  Airs. 
Berkley  to  send  to  her  friends  to  pay  the  rf  nt. 
This,  gentlemen,  is  the  evidence  given  by  tlii« 
man.  Another  wimess,  gentlemen,  is  ouc  Wil- 
kinson :  he  gives  an  account  that  he  knew  Mrs. 
Berkley,  and  where  she  lodged,  and  that  be  was 
a  prisoner  there  himself:  be  spoke  nf  Pindar  nnd 
Barnes,  who  were  there  the  last  time  of  tiia 
coming.  Hesajs,  that  (hedoor  was  broke  open, 
and  that  the  padlock  was  forced  off  by  Bain- 
bridge's  order :  he  says,  that  Pindar  fetched  the 
poker,  and  Bambridge  ordered  Barnes  to  break 
open  the  door.  He  says,'  gentlemen,  be  was 
sent  to  call  Mrs,  Berkley  from  the  common 
side  before  this  was  done ;  when  she  came  up, 
she  was  asked  lo  part  with  her  keys  ;  bul  she 
refused  ;  and  then  the  door  was  broken  open- 
He  says,  gentlemen,  there  weie  two  boxes 
locked,  and  one  nailed ;  and  Bambridge  ankpd 
her  for  the  keys  of  her  boxes ;  but  slii^  refused 
lo  deliver  tbem  lo  him ;  upon  which  Bmnbridgc  ' 
broke  them  open ;  and  ttiot  Mrs.  Berkley  was 
all  the  lime  there,  and  called  it  a  rubbery. 
He  says,  that  ihe  things  were  luken  away  by 
Bainliridge's  direciiotis;  and  that  she,  Mrs. 
Berkley,  said,  thai  the  taking  away  her  wear- 
ing apparel  was  lelony.  He  says,  gentlemen, 
be  was  ordered  In  Uike  the  bed  and  bedding, 
and  carry  it  ioio  the  lnniber-ro«m  ;  thai  aOer- 
wards  it  was  taken  front  thence,  and  carried  lo 
the  water-side,  to  be  sent  to  Wandsworth. 
There  were  several  sma)!  things,  bs  an  emeiatit 
and  garnet,  and  some  other  rings,  one  of  them 


las,  lo  see  that  be  put  them  into  hia  pocket,  f 
fear  they  should  be  lost.  Now,  getillcmcn,  he 
'jys  further,  Ihc  wearing  apparel  (whicli  was 
rich,}  and  such  things,  the  prisoner  put  into  the 
portmanteau,  and  ordered  il  In  be  carried  into 
the  lumber-room ;  and  other  things  ivere  car- 
ried lo  Will's  colTee-house;  aod  the  prisoner 
said,  he  seized  for  rent,  and  would  stand  by  il. 
What  he  says  farther,  in  relation  taMn.  Berk- 
ley, was,  that  she  was  tticre  all  the  lime,  anil 
frequently  complained  il  was  felony,  and  U 
rubbery ;  and  says,  (hat  the  gnuds  were  rc- 
movcif,  tome  at  one  time,  and  some  at  another, 
in  the  day  time,  not  roucealediy.  This,  gen- 
tlemen, is  the  substance  of  hia  evidence  .-  bul 
he  says  something  further,  ibal  her  bed  Iwing 
gone,  she  would  not  continue  in  the  room. 

Burvess,  be  says,  tbey  had  called  her  up  : 
he  siiulie  tn  the  last  time  of  ihcir  being  in  the 
room,  about  fourteen  days  aUer  the  33d  of 
October.    Ue  aayi,  b<  went  up  sooo  aflcr  tbt 


619] 


4  GEORGE  11. 


Proccedinfrs  relating  to  a  Charge 


[6S0 


488.  Minutes  of  the  Proceedings  of  the  Committee,  appointed  to 
enquire  into  the  State  of  the  Gaols  of  this  Kingdom,  touching 
a  Charge  against  Sir  Robert  Evre,  knt.  Lord  Chief  Justice 
of  his  Majesty's  Court  of  Common  Pleas,  for  personally  visit- 
ing Thomas  Bambridge^  late  Warden  of  the  Fleet,  whilst  be 
was  a  Prisoner  in  Newgate,  under  a  Commitment  of  the 
House  of  Commons,  &c.  &c.* :  4  George  II.  a.  d.  1730. 


At  the  Speaker^s  Chimber  it  the  House  of 
Commons,  at  the  Committee  appelated  to 
enquire  into  thcj  State  of  the  Gaols  of  this 
Kingdom. 

Edward  Hughes,  Esq.  in  the  Chair. 

Saturday/,  April  25,  1730. 

1  HE  Committee  having  received  several 
Letters  and  Informations  relating  to  the  fore- 
going Charge,  proceeded  to  examine  a  great 
number  of  witnesses  in  the  most  solemn  man- 
ner relating  thereto ;  when  the  several  follow- 
ing Letters  (except  No.  5,  directed  to  Francis 
Harbin,)  were  sent  under  cover  to  Edward 
Huglies,  esq.  and  being  produced  by  him  to 
the  Committee,  were  read ;  which  Letters,  as 
they  seem  intended  for  an  intrmluction  to  the 
Charge,  and  as  they  relate  to  some  of  the  fore- 
going Trials,  are  here  inserted.f 

The  several  followinor  Letters  (except  that 
directed  to  Francis  Harbin)  were  sent  under 
cover  to  Edward  Hughes,  esq.  and  produced 
by  him  to  the  Committee. 

N^  T. 

'<  Sir ;  my  supposed  attachment  to  the  inte- 
rest of  Mr.  Bambridge,  cannot,  I  am  sensible, 
but  have  prejudiced  me  in  the  opinion  of  all 
good  men,  and  therefore,  l>efore.  Sir,  1  offer  my 
senice  to  you,  and  to  my  country,  it  may  not 
be  amiss  to  say  something  of  the  motives  that 
at  first  induced  me  to  fall  in  with  his  party,  and 
also  of  those  which  have  since  determined  me 
to  quit  it. 

«*  After  the  Report  of  the  late  Committee,  1 
will  not  presume  to  say,  1  thought  Mr.  Bam- 
bridge innocent ;  but,  I  confess,  I  looked  upon 
him  to  be  far  less  cruilty,  than  since,  by  exa- 

*  See  the  preceding  Cases. 

f  "  These  Letters,  &c.  are  taken  ft-om  the 
Proceed inprs,  Sec.  in  this  affair,  as  drawn  up  by 
Mr.  Luke  Kenn,  to  be  laid  before  the  House  of 
Commons.  The  whole  proceedings  are  long, 
being  about  142  folio  pages,  wrote  close,  io  a 
small  round  hand  ;  so  we  have  taken  only  so 
much,  as  may  nve  some  light  into  the  Charge 
relating  to  the  foregoing  Trial,  &c."— fbmifr 
Edition. 


mining  his  own  aide  only  of  the  question,  I  fiii4 
be  is ;  the  atrociousness  of  bis  crimeB  took  off 
to  me  much  of  the  probability  of  his  oommittiog 
them  ;  and  it  was  nard  for  a  man  who  bad  any 
virtue  himself,  to  believe  there  was  another  it 
perfectly  abandoned. 

"  Mr.  Bambridge  took  all  the  opportunitiei 
he  could,  of  saining  those  he  thought  might 
be  of  use  to  ois  party  ;  amongst  the  rest,  be 
applied  himself  to  me.  I  confess,  at  first,  the 
art  with  which  he  palliated  his  offenoea,  de* 
ceived  me ;  1  went  heartily  into  hu  concenii, 
and  did  all  for  him  in  my  power,  as  for  a  man 
struggling  against  the  current  of  the  times; 
but  as  I jn^ew  into  his  confidence,  the  mask  was 
taken  ofl^and  1  found  the  use  he  intended  ts 
make  of  me,  was  not  to  assist  an  oppressed 
man  in  his  defence,  but  to  screen  a  guUty  per* 
son  from  his  just  punishment,  yls  to  the  per* 
sonal  injuries  I  have  received,  (and  surely  no- 
body has  received  more)  1  forbear  to  meotioa 
tliem,  since  my  private  pique  shall  never  add 
an  edge  to  any  informations  I  may  hereafter 
give  you.  1  am  weary  of  the  part,  Sir,  which 
hitberto  I  have  acted  in  this  affair ;    it  is  with 

fileasure  1  quit  the  side  of  artifice  and  dissimu- 
ation,  and  with  joy  I  enter  into  the  service  of 
truth,  and  of  my  country.  I  heartily  beg  par- 
don for  any  faults  1  may  already  have  com- 
mitted, and  assure  you.  Sir,  it  shall  always  bt 
my  study  for  the  future,  to  testify  by  my  ac- 
tions, as  well  as  words,  how  much  1  am,  SiCy 
your  faithful  and  devoted  humble  servant." 

N*.  II. 

<*  Sir ;  the  last  time  I  did  myself  the  honoor 
of  writing  to  you,  1  promised  to  give  yon  ail 
the  informaiions  in  my  power,  that  might  any 
ways  tend  towards  carrying  on,  with  effect, 
that  generous  enquiry  made  by  the  late  Com- 
mittee of  the  House  of  Commons.  In  pursu- 
ance of  which  promise,  give  me  leave.  Sir,  to 
lay  before  you  certain  observations,  which, 
though  at  present  little  more  than  conjectars, 
yet  are  such  as  I  despair  nut,  by  time  and  ap« 
plication,  to  produce  the  strongest  evidence  of 
their  truth. 

<*The  late  warden,  Mr.  Bambridge,  not- 
withstanding all  his  vanity  and  raabnesi,  eoul) 
never  have  been  capable  of  so  much  folly,  aa  In 
have  committed  so  many  notorioin  offences  in 


631] 


againtt  Lord  Chief  Justice  Eyre. 


A.  D.  1730. 


[6« 


offioe,  if  he  had  not  presiimeil  on  the  inte- 
rest of  lonie  superior  power,  which  (at  least  as 
he  fancied,)  might  ho  able  to  prevent  any  en- 
quiry into  his  conduct ;   or  if  that  hy  no  arts 
were  to  be  eraded,  vrould  at  last  screen  him 
from  punishment.    That  this  presumption  of 
his  was  but  too  well  founded,  1  am  apt  to  be- 
lieve is  pretty  apparent ;  the  behaviour  of  a 
eatain   Court,  when  complaints  were  made 
tfHMt  him  ;  the  difficulties  there  were  in  pro- 
caring  rules,  on  the  plainest  proofs  of  the  most 
i^pint  oppressions  ;   the  ambiffuous  terms  in 
vUch  such  rules  were  generally  drawn  up; 
ifae  little  regard  he  paid  those  onlers,  when 
KTvcd  upon  him,  and  his  impunity,  notwith- 
ftaadiog  such  disrespect,  are  arguments  which 
aiDOont  almost  to  a  demonstration  of  his  being 
ia  oonfederacy  with  a  certain  person,  who,  no 
Mbc,  took  care  to  receive  from  him  an  ade- 
fMle  ntiaiaction  for  such  favours. 

**Bot  as  a  correspondence  of  this  nature  was 
•fiaUj  criminal  in  the  receiver  and  giver,  it 
CMMOt  but  be  supposed,  that  the  utmost  cau- 
tin  was  used,  in  order  to  the  carrying  it  on 
with  inpenetrahle  secrecy.  But  when  the 
Hwse  of  Commons  thought  fit  to  imprison 
Bmbridge,  a  third  hand  necame  absolutely 
HMsnry  towards  that  purpose;  and  from 
iW&ea  so  much  light  has  been  let  into  that  dark 
ifiir,  that  by  degrees  I  no  way  doubt,  but  that 
t  Krftet  discovery  may  be  effected.  I  will 
wy  beg  leave  to  add  one  tiling  to  this  long 
mr,  aad  that  is,  that  although  vice  be  conta- 
giBM  io  its  nature,  aud  that  I  have  long  con- 
vened in  intimacy  with  Mr.  lUmbridge,  yet,  if 
1  kaoir  my  own  heart,  I  will  venture,  Sir,  to 
Mre  you,  there  is  nothing  I  so  much  hate  as 
^isioi^enuity  ;  and  that,  for  the  future,  I  shall 
kt  idp  no  (Opportunity  of  shewing  ivitli  how 
oioeb  tincerity,  I  am,  Sir,  your  faithful  aud 
devoted  bumble  servant.'* 
"AW.  1«,  17^9." 

V.  111. 

'*S!r ;  having,  in  my  former,  luitl  before  you 
lliose  reasons  which  induced  me  to  believe  a 
^rretpondence  between  Bunihrid<):e  and  a  cer- 
Uin  pfreat  man,  at  whom  I  have  already  point- 
ed ;  I  now  beg  leave  to  add  such  facts,  as  have 
^  III)'  time  come  tu  my  knowle<1^e,  and  which 
tttm  to  confirm  it.  I*irst,  Sir,  give  uie  leave 
to  observe,  that  Han)*)rid;j|;e,  in  regard  to  his 
*spfooes  in  private  life,  has,  bince  his  iuipri- 
Mnentf  been  very  much  straiteLed ;  but 
*bere  omnsel,  or  any  thing  elac  that  was  ne- 
ccinry  towarJ^  his  defence,  was  wautiii^^,  mo- 
^  has  not  only  been  expended,  but  lavisheil. 
I  uy  the  more  stress  oti  this,  bt>causc  in  some 
ivipect,  it  fails  within  the  circle  of  your  own 
ewervance.  When  Mr.  Bumbridge  attended 
^  at  the  House  of  Commons,  his  counsel  was 
Haied  to  say  for  him,  that  the  present  nar- 
iMiBiBS  of  bis  circumstances  obliged  hiin  to 
i^iearwiUi  bat  one  counsel;  but  since  that 
Inatleas  negociatioo,  in  which  through  his  aits 
IvMwuDliicky  to  become  an  agent,  we  have 
"^^  a  Tcry  different  turn.     The  Courts  of 


Chancery,  King*s-bench,  Common  Pleas,  and 
Old  Bailey,  have  all  in  their  turns  been  crowd* 
ed  with  orators  in  his  favour. 

"  The  lowness  of  his  fortune  at  the  time  of 
his  coming  to  his  office  at  the  Fleet,  is  notori- 
ous to  the  world  ;  and  though  I  believe,  as  to 
getting  of  money,  he  can  by  no  means  be 
charged  with  being  idle ;  yet,  (if  even  the  most 
extravagant  calculation  shouhl  be  admitted)  the 
shortness  of  his  stay  there  could  not  but  prevent 
his  acquiring  half  that  sum  of  money,  which 
has  been  already  expended  in  defence  of  these 
prosecutions ;  add  to  this,  that  his  own  crea- 
tures have  imprudence  enough  to  mention  this, 
as  the  strongest  part  of  what  they  call  a  fbrmi* 
dable  interest,  and  that  I  myself''^ have  seen  his 
clerk  deliver  a  letter  to  that  great  man,  io 
Westminster- hall ;  to  which  his  lordship  said, 
I  thank  you.  Sir,  I  am  obliged  to  you,  Sir,  or 
words  to  that  purpose. 

"  But  that  which  has  given  me  the  strongest 
assurances,  and  such  as  I  littpe^  will  one  day 
terminate  in  the  clearest  evidence,  is  the  con- 
versation 1  have  had  with  one  Mr.  B.  who  is 
himself  perfectly  intimate  with  Bambridge, 
and  whose  wife  has  given  very  extraordinary 
instances  of  her  attachment  to  his  interest. 
This  gentleman,  though  he  still  owns  the 
greatest  friendship  to  him,  yet  has  confessed 
to  me,  that  to  his  own  knowledge,  Bambridge 

had  it  in  his  power  to  that  great  man, 

(that  was  his  expression,)  not  only  in  res|>ect 
to  things  done  as  to  the  office  of  the  Fleet,  but 
in  other  respects  also ;  and  that  he  was  sorry 
Bambridge  was  not  to  be  persuaded  to  give 
him  up  to  justice,  which  might  be  a  means, 
not  only  of  saving  himself,  but  would  also  make 
some  atonement  for  his  faults.  He  promised 
me  also  to  make  so  strict  an  enquiry  into  this 
affair,  as  to  furnish  me  with  a  clue,  by  which 
might  be  unravelled  this  whole  work  of  darkness. 
For  this  purpose  I  was  to  have  met  on  Friday, 
but  something  havini;  intervened,  he  has  put  it 
off  till  Tuesday  next,  till  when  1  should  have 
delayed  this  letter,  but  that  I  was  impatient  of 
giving  you  some  further  proof  of  that  sincerity 
with  which,  I  am,  Sir,  your  faithful  aud  de- 
voted humble  servant.'' 
"  Nov,  13,  17Jl>." 

N"  IV. 

»*Sir;— Mr.  Harbin  having  aceuaintcd  me, 
that  he  intended  to  make  ^<»u  a  visit,  1  wa.'> 
uuwiliing  he  should  go  without  carrying  with 
him  this,  as  a  mark  of  uiy  duty  and  respect, 
especially  so  reinarUahie  uu  evfiit  (I  s;M*:ik  with 
regard  to  the  prosecution)  as  the  acquittal  of 
Mr.  Bambridge  havini^  happeiu-d  since  your 
going  down  into  the  country.  I  do  not  pn*- 
tend,  Sir,  to  give  you  an  exact  detail  of  that 
extraordinary  alfuir,  the  public  prints  havini; 
doubtlt^Ks,  and  probably  a  munuscript  copy  of 
his  trial,  may  loii«;  ere  i:ow  have  reache«l  your 
haiid.>;  all  I  kIiuII  endeavour,  will  be  by  a 
short  otiservatioii  ur  two  upon  it,  to  give  yiMi 
some  light  into  the  means  by  which  that  uu<'\- 
pcrted  event  was  brought  about. 


623] 


4  GEORGE  II.  Proceedings  relatiig  to  a  Charge,  S,c.  [6U 


"  It  is  tvreed,  on  all  band*,  thai  a  legal  dis- 
tress for  nrrnt  is  a  very  innoceat  as  \\  t\\  as  a 
law  fill  action;  bat  ir,  under  cdour  of  such 
distress  a  person  comcn,  and,  with  a  felonious 
intent,  sttuls  and  carries  away  (roods,  the  pre- 
tence of  adistiefes  viiil  be  so  far  from  exteouat- 
injc,  tliatit  uiil  heighten  the  uflTeiice,  since  it 
it  done  infiaudrm  Ituit :  iiud  the  laiv,  vrhicb 
i»  intended  to  preserve  and  to  protect  the  pro- 
perty of  the  subject,  is  thereby  luaie  a  means 
tu  destroy  it. 

*'  A  feionious  intent  is  only  to  be  proved  from 
the  actions  of  hiin  uho  commits  the  fact ;  and 


the  first  indictment,  for  the  murder.  I  do 
not  find,  from  Codnor,  that  he  has  any  affi- 
davits to  sapport  this  motion  ;  or  at  lust,  if 
he  has  .?nv,  he  has  not  trusted  him  with 
them :  However,  am  to  see  Coflnor  t!ils  even- 
ings ;  and  if  any  thin;;  material  shoald  oocvr, 
shall  leave  a  line,  «u  that  voa  may  have  it  veiy 
early  in  the  uior!;in:^.  f  find  he  and  all  ks 
party  are  very  ulert  at  present ;  and  are  so  Ux 
from  being*  apprehen^ii  e.  from  the  present  tem- 
per of  the  House  of  Commons,  that  they,  on 
all  occasions,  treat  the  late  Committee  with  tba 
utmost  in<:o!cnce  and  contempt.     However, 


that  such  an  intention  nctiiated  Mr.  Bambridge  j  there  is  little  likelihood  that  his  assurance  will 
in  this  extraoidi  nary  seizure,is  pretty  apparent,  |  be  able  to  defeat  the  united  endeavours  of  those 


from  the  two  following  circumstances  which 
attend  it. 

"  Turner,  the  person  employed  by  Blr.  Barn- 
bridge  as  an  aiipraiser  (ihou^^h  a  prisoner  and 
a  creature  of  ins  own),  yet  thought  fit  bambly 
to  represent  to  him,  that  be  bad  never  seen  ne- 
cessary wearing  apparel  distrained  before  (as 
indeed  by  law  it  cannot) ;  upon  which  jir. 
Bambridge  ordered  him,  in  talcing  the  inven- 
tory, instead  of  settinpf  down  a  gown  and  pet- 
ticoat, as  the  thing  really  was,  to  set  down  silk 
■nfficicnt  for  a  gown  and  |>etticoat ;  and  made 
iise,  in  several  instances,  of  the  same  ailifice  : 
A  thing  in  itself  so  plain  and  flagrant,  that 
even  Mr.  Bambrid^e  could  not  find  out  an  eva- 
sion ;  but  in  that  he  was  kindly  helped  out  by 
the  bench ;  from  whence  in  summing  up  the 
evidence,  it  wvl^  declared  thai  the  appraiser's 
was  only  an  iillc  objection,  to  which  Mr.  Bam- 
bridge  gave  way,  merely  because  he  would 
have  nothiii'/  left  out  of  the  inventory. 

•*  Tlip  orlKT  was  this  :  ]t  was  fully  proved, 
that  Mr.  I):iinlirirl*^e  carrird  away  four  rings 
in  his  )if»rk<'t,  though  but  one  is  mrntiuned  in 
the  inventory,  and  that  too  is  called  a  crvsta/, 
though  it  was  indeed  an  arnethyst.  To  us, 
who  were  spectators,  this  appeared  to  have 
a  very  great  weight ;  hut  it  seems  it  appeared 
in  a  very  difrf-renl  h^'ht  to  the  geniii>innn  \\\\o 
tried  him,  sincx*  it  escaped  both  his  memory 
and  his  noirs. 

"  llaufig  twire  mentioned  that  gentleman, 
J  cannot  help  doing  him  justice,  (in  this  oc- 
casion, by  observing,  that  (however  in  other 
resp.?tis  hi«i  enoniies  may  asperse  his  character) 
there  is  one  part  of  i\\p  judire,  in  which  1 
l>elicvc  no  man  ever  came  up  tu  him  ;  1  mean, 
in  iNfiiig  counsel  for  the  prisoner.  I  am 
afraid  I  have  lu-en  already  too  prolix,  and  will 
therefore  lengtiiin  this  letter  n(»  further,  than 
to  assure  you,  Sir,  of  my  being,  with  the 
utmost  deference  and  respi-ct,  your  obedient 
and  devoted  himihle  servant." 
"  Dec,  20, 1729." 

N"V. 

*•  Dear  Frank  ;— 1  find  that  Mr.  Bamhridge, 
howev(!r  unlikely  he  is  in  succiH'ding,  will  un- 
doubtedly move  the  Court  of  King^s  bench  for 
judgment  and  damages  ujHm  the  writ  of  ap- 
|)eal ;  and  hopes  great  advantages  from  the 
favour  of  the  gcutlcmfto  who  tried  him,  or 


gentlemen  for  the  relief  of  the  unbappy,  I 
please  myself  with  hoping  that  all  ww  at 
last  go  right, — I  am,  yours,  5cc. 

"  Feb,  si  1720-30." 
«  To  Mr.  Harbin." 

N^  VI. 

"  Sir ;  Mr.  Harbin  having  informed  me,  that 
3'ou  have  been  so  good  as  to  enquire  after  me,  I 
thought  it  necessary  for  me  to  excose  myself 
for  not  attending  you,  by  acquainting  yon  with 
the  reason ;  whicli  is,  that  my  bein^  seen  at 
the  Horse-guards,  as  things  stand  at  premt, 
might  be  some  hindrance  to  my  entenng*  uito 
the  knowledge  of  some  tilings,  about  which  it 
is  at  present  my  duty  to  enquire. 

'*  There  is  'another  motive  which  indnced 
me  to  give  you  this  trouble ;  and  that  is,  that 
you  would  be  so  good  as  to  mention  it  to  the 
chairman,  that  as  my  time  (the  only  thing  va* 
luable  that  is  left  me  in  my  inisfortunes)  is  al- 
most wholly'  taken  up  in  endeavouring  to  do  ser- 
vice to  the  present  enquir}- ;  and  as  it  has  in- 
volved me  in  the  hatred  ot  a  party  of  the  worst 
of  men,  who  let  slip  no  opportunity  of  making 
me  unease* ;  I  hope  it  may  not  l>c  thought  un- 
reasonable to  give  some  directions  for  my  re- 
ceiving a  mo(!erate  subsistence. 

'*  I  confess  Mr.  Harbin  has  been,  in  this  re- 
spect, very  kind  ;  but  as  1  have  been  hitherto 
unused  to  ask  any  l>«)dy  for  every  shilling  and 
sixpence  that  is  necessary  to^be  laid  out,  1  con- 
ceive it  would  be  for  both  our  advantages  to 
have  it  put  into  another  chnnnel. 

"  Before  my  e urging  in  this  aflfair,  1  con- 
fess, I  used  sometuncs  to  prepare  some  little 
labours  for  the  presii ;  but  as  these  are  the  em- 
ployments of  a  mind  at  ease,  in  my  present  cir- 
cumstances, it  is  no  way  in  my  power  to  com- 
pose them.  As  this  is  a  subject  on  which  I 
should  ucver  have  prevailed  on  py  self  to  s|>eak, 
and  on  t\hich  I  write  tvith  the  greatest  reinc* 
tancy,  1  ho|>e  you  will  forgive  this  troubia 
from  your  obliged  and  obedient  servant." 
"  Thurtdtii/  Morning,^* 

Tlie  Committee  thought  it  their  duty  to  exa- 
mine strictiv  into  an  affair  of  so  extraordinary 
a  nature,  %vhen  several  persons  appeared  betbra 
them,  and  endeavoured  to  make  good  their  w* 
veral  informations. 

Which  persous,  having^  been  ezamincd  be- 


6SS] 


Trial  ofRiehltrd  trandMiu 


A.  t).  1?S1. 


im 


Ibte  the  Committee  in  the  most  lolemn  manuer, 
nlatiiiff  to  the  foregoing  cberge,  grossly  preva- 
ricatadio  Uieir  examinations,  cootradicted  one 
••otber  io  eeveral  material  circumstances,  and, 
as  to  the  fiustSy  were  falsified  by  |>enons  tu 
whom  they  referred  for  the  truth  of  what  they 
had  declared* 

It  likewise  appeared  to  the  Committee,  that 
dwcraof  the  iiaid  persons  were  prisoners  in  New- 
fMa,or  the  Fleet ;  some  of  them  of  ?ileand  infa- 
warn  characters ;  others  actuated  by  a  spirit  of 
RKBtmeiity  on  account  of  causes  determined 
apinetthem  before  the  said  Lord  Chief  Justice ; 
md  all  of  them  tampered  with,  and  influenced. 
It  farther  appeared  to  the  Committee,  that  se- 
feral  of  the  said' persons  had  had  meetioy^s  and 
emsnltations  amon^themselves;  and  had  been 
foilty  of  divers  evil  practices,  in  order  to  set 
sa  foot  and  support  the  said  charge  against  the 
■id  Lord  Chief  Justice,  and  the  matters  con- 
lued  in  then*  said  informations. 

After  the  Committee  had  spent  several  davs 

■BSD  the  said  enquiry,  and  hao  examined  all  the 

waacases  that  appeared  before  them,  the  prin- 

d|Ml  persons  concerned  in  the  conspiracy  having 

imsaa  to  apprehend,  that  the  evidence  ^iven 

bj  them  to  support  the  said  charge,  would  not 

bisaflfeient  to  impose  upon  tlie  Committee,  and 

li  sbtain  credit  to  the  said  informations,  did 

fMsoh  with  a  person  to  fix  a  new  charge  ufion 

tbsmid  Lord  Chief  Justice,  not  mentioned  be- 

fim  u  any  of  their  examinations,  by  giving 

•tifaoe  of  certain  circumstances,  tu  induce  a 

Mrf,  that  about  three  days  before  the  time  ap- 

MBted  for  the  trial  of  the  said  Thonus  JBam- 

mkfjt  for  felony,  in  the  last  long  vacation,  the 


Thomis  Bamhridge  did  aend  a  letter  to  the 
said  Lord  Chief  Justice  for  money  ;  and  that, 
io  consequence  thereof,  he  received  one  hun- 
dred guineas. 

Whereapon  the  Committee  thought  fit  to  re* 
examine  the  said  principal  persons,  who  liefore 
had  been  examined  as  to  the  former  charge, 
who  were  not  able  to  give  the  least  colour  of 
evidence  to  support  the  said  new  charge,  and 
were  flatly  contradicted  by  the  evidence  to 
whooi/thev  referred;  and  on  their  examina- 
tions the  Committee,  being  convinced  that  tiie 
said  new  charge  was  only  a  continuation  of  the 
former  conspiracy,  on  considering  the  whole 
matter  came  to  the  follo\%ing  Resolutions  : 

Resolved,  That  it  appears  to  the  Committee, 
That  there  bath  been  a  wicked  conspiracy  car- 
ried  on  by  certain  infamous  and  pitinigate  per- 
sons, to  vilify  and  asperse  the  character  of  the 
riff ht  honourable  sir  Robert  Eyre,  knight.  Lord 
Chief  Justice  of  his  majesty's  court  of  Com* 
mon  Pleas ; 

Resolved,  That  it  appears  to  this  Committee, 
That  the  informations  given  to  this  Committee 
against  the  said  Lord  Chief  Justice  Eyre,  are 
false,  malicious,  scandalous,  and  utterly  ground- 
less. 

Th'jn  resolved.  That  Roger  Johnson,  and  a 
great  number  of  low,  oiSinary  people  (there 
named),  were  the  persons  concerned  in  the  said 
conspiracy. — ^To  which  the  House  agreed. 

Thus  this  great  man  had  justice  done  him, 
in  as  honourable  a  manner  as  possibly  could 
be,  and  was  cleared  of  so  scandalous  and  in- 
famous a  charge.    Former  Edition. 


489.  The  Trial*  of  Mr.  Richard  Francklin,-!"  for  printing  and 
publishing  "  A  Letter  from  the  Hague,"  in  the  Country- 
Journal,  or  Craftsman,  of  Saturday,  the  2d  of  January,  1731, 
at  the  Sittings  of  the  Court  of  King's-Bench,  Westminster, 
on  Friday,  December  the  3d,  before  the  Right  Hon.  Lord 
Chief-Justice  Raymond :']:  SGeougeH.  a,  d.  1731. 


JURT. 

ho.  Miber,  esq.  Wm .  Tilliard,  esq. 


Tho.  Moore,  esq. 
Philip  Baker,  esq. 
Joshua  Jackson,  esq. 
William  Turner,  esq. 
John  Wilson,  esq. 


Gio.  Short,  esq. 
1W.  Allen,  esq. 
Jacob  Harvy^^sq. 
Bee.  Norria,  esq. 
Innel  Tyasou,  esq. 

Mr.  Tarker.  My  lord,  in  this  canse,  his 
ftsjesty  is  plaintiflf,  and  Richard  Francklin, 

*  **  Taken  down  in  short  hand,  and  tran- 
aerihed  into  long  hand,  by  Mr.  J.  Weston."— 
Arawr  Edition. 

t  See  Fltz-Gih.  5. 

t  That  grcAt  aDiiely  waa  excited  bv  the  pro- 
iseetioo  of  Francklu,  may  be  interred  from  the 

VOL.  XYII. 


defendant.  The  in  formation  sets  forth,  that 
before  the  demise  of  the  late  kin(>,  divers  dif« 
ferences  and  controversies  arose  between  his 
said  late  msjesty  nnd  divers  princes  anil  forei^pi 
states,  bring  bis'  allies,  and  the  king  of  Spain, 
concerning  the  public  safety  and  commerce  of 
this  kingdom,  and  the  peace  and  tranquillity  of 
Europe;  and  that,  pending  such  dinerenceis 
to  wit,  the  30th  September,  1725,  a  certain 
treaty,  betwixt  the  said  late  king,  Lewis  the 

following  passage  in  Boyer's  Political  State  of 
Europe: 

"July  IS,  173 1,  was  to  have  come  on  the 
trial  of  Mr.  Francklin,  the  bookseller,  for  print- 
ing  the  Craftsman  of  the  29nd  of  Jan.  hist.  A 
Test  crowd  of  spectators  of  all  ranks  and  condi- 

98 


"827] 


5  GEORGE  ir. 


Trial  o/Rklmrd  FrancM'm, 


French  king,  oud  the  king;  of  Prasiia,  was 
concluded  and  made  at  HnnaTcr  ;  anil  that 
■fterwanht,  lo  wii,  the  9ili  of  November, 
1790,  io  order  Id  compromiBe  such  difiereiices, 
■Dd  \a  establish  peace  in  Eurujie,  a  certain 
treaty  of  [leace,  iimon,  amily,  and  mutual  de- 
fence, mil  concUided  and  made,  betwixi  his 
RiajeHiy  king;  Oeurge  the  Slid,  and  the  snid 
[Lewis  the  French  king,  ODd  Philip  V\d\(  of 

e  salhered  about  the  cnurl  to  lieur 
Ihv  said  (rial,  and  the  court  W8«  crowded  wilh 
noblemen  and  gentlemen,  particiilarlr  my  lord 
*VlDchiH«ea,  my  lord  Balhursl.  Mr.  Pulteppy, 
ir  Uiilism  Wyndliaro.sir  William  Young,  ><cc. 
tal  nhvn  the  Jury  came  to  be  called,  there 
'  n»re  but  1 1  of  ihe  Qi  ajipcared  ;  whereujiou 
Hme  debates  ensuetl  about  adding  one  to  tlic 
jury,  or  calling  a  new  jury  ;  [Sec  Perry  and 
Latnberl'a  Caiie,  *.  d.  17!)».1  at  Insl  the  trial 
iraa  put  olTtill  iieal  term,  ft  was  remurknliie 
that  Mr.  Pulleney,  who  i«  presumed  to  be  one 
orthe|)atronaof  (hat  weekly  paper,  was  loudly 
luiKKa'd  by  the  populace  as  he  went  out  af 
,  Weslminslnr-bill.     Which  ahewa  the  fondness 

k of  the  people  of  England  fur  ibe  liberty  of  the 
The  prosecution  gave  rise  to  much  eonlra- 
twrsy  in  Ihe  periodical  publicalinus  of  the  lime, 
Ud  111  occasional  pamplilcts.  The  publications 
Vf  Franckliu  on  uther  occasions  involred  him 
ntroohles.  In  the  year  1729,  he  nas  trieil 
Ibr  publishing  "The  Alcayde  of  ttetillp's 
Speech :"  but  upon  ihat  trial  be  was  acquitted. 
In  Ibe  Commons'  Journal  of  February  10, 
1783-3,  is  the  fallowing  entry  : 

Mr.  Youge,  from  the  Coinmiltee  appoinl- 
0  enquire  ililu  the  printer  and  publishem  of 
primed  |>amjih1et,  entitled,  '  The  Re|>ort  of 
the  Commiitec  apiwinted  to  exuiniuc  into  Ibe 
Project,  coinroouly  called  ihe  llaKiurg  Lot* 
tery,'  acijuabt«d  the  House,  That  Ricliurd 
Francklin,  bonkseller,  iu  Fleet-street,  who,  in 
Ilia  exniuinaliou  before  the  said  Committee  on 
Vaturday  Itut,  hod  owned,  that  the  said  Itvport 
tvas  phuted  by  his  direction,  bating  been  since 
•unimoncd  lo  attend  the  said    Commitlee,  in 
his  being  further  examined  this  mom- 
ill^,  had  sent  a  Icller  to  ibe  cbainiinn  nl'  ihe 
flUdCoDUiiiltea,  acquainting  bira,  that  he  would 
not  olwy  the  said  summons. 

"  Resolved,  That  Richard  Francklin,  bouk- 
r,  hatiog  refiiBed,  when  duly  summoned, 
itoattend  aCominiltee  of  this  House,  is  guilty 
'""  •  notorious  uuntcmnt  of  llie  aulhonly,  and 
a  breach  of  the  privilege  nfihis  House, 
"  Ordered,  That  the  tiaid  Itichanl  Franck- 
be,  Ibr  his  said  contempt,  and  brcarh  of 
lirivile^,  taken  into  the  custody  ol'  the  lerjiniit 
arras  attending  this  House," 
From  what  occurs  in  the  Journal,  1  uoiyec- 
re  tbtt  this  Richard  Francklin  was  accord- 
token  into  custody  on  or  before  the  3Srd 

ih,  and  ibat  he  remained  io  such 

jitorogued  on 


1  tbe  uid  Vinfi 
>n  also  sets  fom 
II  hnowiDg  ilw  pc«, 
ouH,  seditious,  ul 


this  kiagdoa 
stersufuat^ 
and  miDMIM 


lhat  Uicba'd  Francklin,  w 
misses,  but  being  a  malii 
ill'dispoteil  person,  and  a  prrpelual  aiii)  i 
gent  publisher  and  seller  of  sedtiii 
dalous   libels,    and   disalfrcted  t 
majesty  and  his  government ;  a 
malicioualy,  and  seditiously  contriving  ■ 
lending  to  disturb  and  disifuiet  tb«  linppy  il 
of   the  public  jieace  and  trenquillily  uf  |] 
kingdom;  and  lo  bring  his  present  inMMh  , 
treaty  of  peace  (which,  with  great  afiecuoa  M 
wards  his   subjecls,  and  fur  theailvaatagv  j 
Ibis  kingdom,  was  uunoluded)  into  conlond 
and   disgrace  among  all  bis  hege  sulijectta 
ibis  kingdom;  and  also  to  detract,  scsudaliu 
traduce,  and  vilify  tbe  adminislraljtui  of  h^ 
present  majesty's  gnvernmeot  of  this  ' '"  "' — 
and  bis  principal  olhcersaod  n 
and  10  represent  his  said  officers  a 
of  stale  as  persons  of  no  integrity  and  ■! 
ntid  as  enemies  to  tbe  public  good  of'tliiabiai 
dum ;  and  to  cause  it  tu  be  believed,  ibot  b 
said  present  majesty,  by  the  ailviM  oThiiM 

trincipal  officers  and  ministers,  inleadad  M 
reak  and  violate  the  said  treaty  la  " 
lioned  ;  and  thereby  to  raise  and  i 
lierences  and  discords  betwixt  his  said  pmol 
majealy  and  the  said  French  king.ond  kiogtl 
Spain ;  and  also  to  spread  false  news  and  rtt^ 
mouTS  coacerning  the  state  of  the  public  tAiit 
oftliiskingdom;andtobringbissaidpre9eutnK 
jesiy  and  bis  admiiiistrelioo  of  the  govenmni 
of  this  kingduin,  into  suspicion  and  ill  opntaJB 
of  his  aud  fiege  snbjeclf,  on  the  Sd  of  JanutiH 
III  the  4lh  year  of  his  present  in^esiy's  rd|>S 
at  ihe  parish  of  Si.  Paul's,  Covent-gardeiwi^ 
ihccouuty  of  Middlesex,  a  certain  fdse,  iOM 
dalous,  and  sediiious  libel,  [intitled.  No.  SSU 
Tbe  Cuuulry- Journal  ;  or,  Ihe  CraftiiBil? 
By  Caleb  DUnters,  of  Gray's  inn,  nq.  Sbj 
turday,  January  9d,  1730,^  wickedly  and  bm^ 
liciously  did  print  and  puhlisb,  and  caused  laM 
printed  and  published.  In  which  libel,  of  ut 
ctncerning  his  said  present  ra^esty  kiBf 
fieorge  Ihe  Snd,  now-  king  of  Great- BnUiaiJ 
lice,  and  his  administration  ot  tbe  govemaMif 
lit* this  kingdom,  and  stale  of  Ibe  puUic  afiifl 
of  ihis  kingdom  ;  and  of  and  couceruing  bi| 
said  principal  officers  and  ministers  at  tlaw; 
and  of  and  concerning  tbe  said  irealy,  modi 
lietwixt  his  said  present  nia^aiy  and  IIm  «■ 
French  king,  and  ibe  said  king  of  tipaio ;  ud 
alsouf  and  coacerning  the  said  Freocb  Idogi 
the  said  king  of  Spain,  and  the  most  aaciM 
prince  Charles,  cmpemr  of  Germany;  M 
contained  (among  other  things)  diier*  liaU^ 
feigned,  scandalous,  sediiious,  and  nialieioM 
matters,  according  to  tbe  teuor  followuigi  H 
wit;  "  Extract  of  a  private  lelter  from  llw 
Hague.  A  rumour  Lntli  been  for  some  lill^ 
privately  spread  abuul,  and  begins  to  gii| 
credit  here,  ibat  a  m is unders landing  will  aool 
discover  itself  between  the  allies  vl  Seville ;' 
(meaning  bis  ssid  present  majesiy,  tit*  a 
French  king,  anil  (lie  Mid  king  of  ^^)  « 


"  l&cit 


tm"  (raeBniuK  thi>  niiij  |irin- 
<)  minuletv  ol'  Lit  suil  niBJesty. 
d  tdUuslMl  in  ihril^aiculi  affuirit 
it  l«n)ith  Ifiund  out,  Ibut 
tinioii  with  l^'tBiirc,  tiiil  »  war 
hp  fuot  of  the  ireoly  nr  Suvillc.  ■«  ijuiie 
IgaioM  Ihr  grain  of  tile  proptf.  are  enilenvour- 
torin  brinp  About  nn  nccommorlstian  with  ll>e 
(uperor,  on*!  to  uniln  ttvpry  thin);  (bey  liitce 
m  ftuiiii;  Tor  tbcsp  lirB  yenni  past.  If  tliis 
riMili)  proTi?  true,  ii  will  cprminly  redound  »ery 
nadi  to  ili«  honatir  of  lliose  |<«iiilern«o,  irbo 
ton  M>  TiifornuHly  oppoaeil  tb«  Inlc  roeanurd  ; 
wjllit  tniiii»tet'i,  ifba  have  not  only  conorleii 
mJ  panmn)  thvte  inmureE,  lull  tnaifed  all 
mmUIud  to  IbeQi  w  illi  the  TouIfsI  imiititiilians, 
ttt  be  ohhv'ed  la  l^kea  i;reat  dealof  shniiie  to 
llMMches;  Tor  what  L-an  be  h  Mroti^er  lOn- 
n  of  their  own  past  conduct,  or  Ihe 
gt  of  thoM  whuni  ihey  bavp  employed  In 
"^n  thair  cause,  ihaa  lo  see  thetn  wheel 
11  Od  •  BuJdcii,  and  p jraue  measurea  dr- 
Uponte,  iFhich  have  been  [loiiileil  oul  lo 
reral  yesra  tiig^tlier,  liy  ilieii'  ad- 
idfbr  which  they  hare  representeil 
imen,  in  the  most  opprohrious 
Cm  factious  iijcenji«rje8,  Gernimiizeil 
id  EOeiniea  tu  Ihetr  comilry  P  VVhal 
i  ridiculoiu  than  in  aee  them  desert 
riWhw«e|;ond  I'aitb,  ain eerily,  and  even 
Ky  of  I'riendahip,  ihey  hate  ao  olUn  ex- 
~~'»t  last  run  intolliearma  ol'  another, 
IP  tiaie  so  industriously  set  furlh  aa 
lithonourable,  iiui-raiet'ul,  aod  per- 
il prioceP  They  must  have  altered  their 
~'  ""'  is  priuee  rery  much  (it*  lliia  report 
d  seem  lo  rely  ii|i"n  his  good- 
tg  lhea)«e)ie«  ihus  absiiliilely  in 
ir  if  tie  sboahl  reluse  lo  deal  witli 
m  nngt  he  hath  received  they  will 
ball  the  courts  uf  Europe;  anil 
~  )  InSeiiaible  of  their  perfidy  to 
:  time  ihat  he  is  Irpalintr 
ivill  they  be  able  Injiulify 
1  cxpetices  which  il.cy  have  alreaily 
"         ~'    '  '     ,  by  an  ubatiante 

res,  till  the  last 
Wly,  a«  well  as  tlinse  fartlier  expcDces 

'-  =-  which  such  a  precipiiale  alte- 

Is,  in  Iha  preteitt  ciruumstances 
II    ciTlaioly    inrulve   it?    Fur 
I,  which  isnuwanjd  lobe 
,  .     ,       .  certainly  llie  most 

lie,  whiUt  ihfy  remaiiu'd  uiieinbarraise'l 
n  eii|ra([eiiiciii»  cil'imolher  kind  ;andlhaiigli 
il  b«  cnijlL'»rd  10  tie  triy  d«airnbli:  at 
*■,  pMaDti  y'  il  sctiiis  lo  he  ftlleudi'd  with  »cry 
***-  nal  tonacti  ucni'i-t,  and  almost  insuperable  ilil- 
^  fnrilHs.  I'be  pf  uple,  uf  whom  I  am  »peak- 
\  4g,  bad  their  hauiU  al  liherlylite  years  uf^, 
*  ttd  nijbl  hare  eulered  ioio  what  iiieusures 
''  kn  pUaacd  with  ihe  eiDperor,  wiihoulciiing 
''  Mun^,  or  Bay  jusi  reuuo  of  coinplaini,  to 
'\  i^Beatirta;  bitt  at  present  iJiey  i-anoot  dojt, 
/  ■fekxHan  uiliAciiuo  of  solemn  treaties,  and 
I         ira«W  apou   thair  couutry  tlie  reseiilmeovt 


inlerruptioD  of  trade  and  the  at 
pledt!'*,  whith  Spain  hnili  at  this  time  in  her 
liaod- ;  so  thM  the  unly  prelrndid  ao"d  ''ffuct 
of  ihcir  former  eunducl,  inny  he  absolutely  tlft- 
li-Blnl  bv  (heir  preMul  seheiiie.  Anulher  ne- 
oeswu-y  effect  (tiar  so  I  think  I  may  call  il)  of 
Inch  a  meJiiure.  at  pre<ceii\,  will  be  a  cotijiinc* 
linn  of  Prance  and  8|min;  ami  a  certain  court 
may  hare  the  morliflcalion  to  see  those  two 
crowns  united  against  tfaem  more  sttouftj 
Ihan  erer,  by  Iheir  extraordinary  maiiagemeul, 
alWlbey  haveipeni  so  many  mil liuut  In  pre- 
vent il.  I  am  far  from  designing  to  iDsiujila 
finm  hence,  (hat  an  accommudation  tritb  tha 
emtteror  is  a  wroDg' measure ;  ODibecuatrarya 
I  wish  it  bail  been  thought  a  right  ineasura 
Inoir  ago.  My  own  intemiou  is  to  shew  huir 
difBcuil,  ill  my  anprehenainn,  the  conduct  of 
■ome  ministers  halh  rendered  il  lo  their  country, 
Ds  well  as  dishonourable  to  tfaemaeires,  by  car- 
rying along  with  il  the  ceTerestcfnsureni' their 
oun  conduct,  and  ihe  strongest  jusli&catioa  op 
llieir  adveraarie*,  agaiiial  all  ihe  aspersions 
which  have  been  cost  upon  them."  in  uun- 
lempl  ol' his  said  present  nifljesly,  and  bi«  laws; 
Hod  10  the  great  disgraue,  scainlsl,  and  in- 
famy of  bis  Bait)  present  mnjesty,  and  liis  ad- 
niiniitraiion  of  the  gorerDmciil  of  this  king- 
dom; tu  tlie  disturbance  uf  Ihe  publiu  prac* 
and  traui{uillity  of  this  kini;dora  -,  to  Iha  eiil 
example  uf  nil  olliers,  ofTcDdiDg  in  the  Ilka 
case  ;  and  against  Ihe  peace  nl'  our  said  luiJ 
the  iciug,  his  ci'onn  and  dignity. 

Aitoraes  Gtiural.  (Sir  Philip  Vorke.)  My 
lord,  uuil  genllemeo  of  the  jury,  I  am  counsel 
for  Ihe  king.  This  b  ■  piosecuiion  against  tha 
ilefi?ndaol.  Air.  Franeklin,  <or  printing  and  pub- 
lishing a  scandaloua  niid  stditious  libel  ;  an 
offence  (liuwevet  il  hath  b<;eu  treated  of  late 
days)  which  ibe  law  cuntiders  as  a  very  hein- 
oils  crime,  as  it  tends  to  disturb  the  peace  uf 
the  kingdom,  and  lo  bring  into  contempt  tha 
king's  ad  mini  itrntion  ul'  the  government ;  aod 
111  it  tendi  to  create  great  jealousy  and  dinaiii' 
taction  in  ihe  miods  of  his  maJestv'R  subjects 
•gainst  his  gnienmient;  and,  indeed,  this  is 
the  use  you  find  made  of  it.  The  present  libel, 
for  and  upon  which  the  defendant  is  ii>  bellied, 
will  appeir  to  be  a  libel  of  that  nature,  and  aU 
tended  Willi  Ihe  most  aggravating  circum- 
alances  nf  any  ever  yet  pubiiilied. 

To  ciptam'  Ihu  nalure  of  Ihis  prosecution  and 
liliel,  End  to  shew  the  connexion  and  tendency 
(hereof,  it  is  necensHry  lo  open  a  lillle  (o  you 
tite  seteral  parts  of  il,  in  order  to  apply  it  to 
the  description  of  the  persons  and  thinga 
Rpokon  of.  It  is  described  lo  be  a  libel  con- 
cerning  his  present  majesty,  and  bit  majesly's 
goiernmeol  of  Ihe  kingibim,  and  conccmio^ 
■he  public  oSaiis  thereof,  and  iMiocerDiDg  his 
ministers;  and  il  is  expreaaed  to  reUle  to  ft 
treaiy  concludeil  betwict  bis  present  majesty, 
and  the  French  king,  and  the  kiug  of  .Spam,  at 
tieville,  lo  Notember,  1739.     The  liberty  that 


eSl]  5  GEORGE  \L 

from  diingfs  done  by  the  prinoes  in  that  treaty, 
upon  a  pretension,  that  it  is  an  extract  of  a 
private  letter  from  the  Ha^ne  :  he  says,  *'  A 
rumour  hath  been  for  tome  time  privately 
f  Dread  about,  nnd  be^irjns  to  f^in  credit  here, 
tnat  a  misunderstanding  will  soon  diaoover  it- 
self between  the  allies  of  Serille.'*  Now  the 
allies  of  Seville  are  tvell  known  to  be  his  present 
majesty,  the  kinv  of  Prance,  and  the  kmg  of 
Spain.  Apfain,  the  writer  soea  on  to  aay, 
**  That  certain  ministers*'  (whom  the  infbrma- 
lion  explains  to  be  the  ministers  of  his  present 
majesty)  *'  having  at  length  found  out,  that 
too  close  an  union  with  Prance,  and  a  war  upon 
the  foot  of  the  treaty  of  Seville,  is  quite  against 
the  grain  of  the  people,  are  endeavouring  to 
bring  about  an  accommodation  with  the  em- 
peror, and  to  undo  every  thing  they  have  been 
doing  for  these  five  rears  past,"  which  will 
carry  the  calculation  back  to  the  SOth  Septem- 
ber 17  S5,  when  the  treaty  of  Hanover  was 
made.  And  then  afterwards  he  says,  "  If  this 
fhoiild  prove  true,  it  will  certainly  redound 
Tery  much  to  the  honour  of  those  gentlemen, 
who  have  so  vigorously  opposed  the  late  mea- 
sures; and  the  ministers,  who  have  not  only 
concerted  and  pursued  these  mrasures^butloaded 
all  opposition  to  them  with  the  foulest  impu- 
tations, will  be  obliged  to  take  a  great  deal  of 
shame  to  themselves."    And  then  he  asks  the 

3uestion,  '<  For  what  can  be  a  stronger  con - 
emnatioo  of  their  own  past  conduct,  than  to 
see  them  wheel  about  all  on  a  sudden,  and 
pursue  measures  directly  opposite  ?  And  what 
can  be  more  ridiculous  than  to  see  them  desert 
one  ally,  whose  good  faith,  sincerity,  and  even 
conlinhty  of  friendship,  they  have  so  often  ex- 
tolled ?"  Here  is  a  plain  charge  of  perfidy,  or 
breaking  of  faith.  ^  A|^in,  the  mini&ters  are 
represented  as  ninning  mto  the  arras  of  another 
ally,  whom  those  ministers  have  set  forth  as 
the  most  dishonourable,  ungrateful,  and  perfi- 
dious prince.  Next,  these  ministers  are  repre- 
sented as  putting  themselves  in  the  ]M)wer  of 
that  prince ;  and  says,  «  If  this  prince  should 
refuse  to  deal  with  them,  after  the  usage  he 
hath  received,  they  will  be  broke  with  all  the 
courts  of  Europe ;  and  he  cannot  be  insensible 
of  their  perfidy  to  others,"  (that  is  to  say,  the 
former  allie:«}  **  at  the  same  time  that  he  is 
treating  with  them."  Gentlemen,  you  may 
plainly  observe  here,  that  thin  is  a  |)Ositive 
charge  of  perfidy  and  breach  of  faith  on  these 
ministers.  Again,  the  libel,  or  pretended  letter, 
charges  them  with  bringing  on  their  country 
vast  expenoes,  not  to  be  juinified,  and  a  further 
•xpence  and  hazard,  which  their  precipitate  al- 
teration of  counsels  will  certainly  involve  it  in. 
And  then  he  proceeds  to  represent,  that  they 
caanot,  at  present,  treat  with  the  emperor,  with- 
out infraction  of  solemn  treaties,  anil  violation 
of  faith.  Gentlemen,  this  is  a  direct  charge 
of  perfidy,  in  the  strongest  terms.  In  tlie  next 
place,  he  represents  the  eflects  of  the  resent- 
mrat  that  they  will  draw  on  their  cfiontry  b\ 
their  violation  of  faith :  one  immediate  effect, 
he  laysi  **  may  be  the  interraption  of  tr«de, 


Trial  of  Richard  FranckUttt 


[0S 


and  the  seizure  of  that  vast  pledge  wbich  Spa* 
hath  at  this  time  in  her  hands."  AnoClier  bc 
cessary  effect  (for  so  he  thinks  he  may  cell  it 
will  be  a  conjunction  of  France  and  Spaio ;  an 
a  certain  court  (these  are  bis  worda)  may  has 
the  mortification  to  t>ee  those  two  crowns  unile 
against  them  more  strongly  than  erer,  by  thd 
extraordinary  management,  after  tbey  baa 
spent  BO  many  millions  to  prevent  it.  Gcniis 
men,  this  is  the  nature  and  import  of  the  libd 
and  whoever  it  is  that  is  charged  with  tfaes 
things,  it  is  plain,  that  there  cannot  be  a  msv 
evident  charge  of  perfidiousness,  and  pmsnim 
measures  d^tmctive  to  their  coantrv.  Th 
reason  of  my  opening  tbos,  is  to  sihew  am 
make  way  for  the  application  of  the  libel  I 
the  persons  and  thinga  mentioned  in  it.  An 
in  order  to  shew  that  the  libel  is  applied  te  hi 
present  majesty  and  his  ministers,  and  the  ad 
ministration  of  the  government  of  thb  king 
dom,  and  cannot  be  applied  to  any  other,  it  wil 
be  necessary  fi)r  you,  gentlemen,  to  oonside 
who  are  the  ministers  thus  charged.  The  de 
scription  is,  that  a  misunderstanding  will  sooi 
discover  itself  between  the  allies  of  Seville* 
and  that  certain  ministers  having  at  leafttl 
found  out,  that  too  close  an  union  with  Fraees 
and  so  on.  Gentlemen,  who  are  the  allies  e 
Seville?  They. are  the  king  of  Great  Britaii 
the  French  king,  and  the  king  of  Spain.  Now 
the  ministers  here  spoken  of  are  charged  will 
perfidionsncss  in  breaking  that  treaty,  who,  ft 
be  sure,  must  be  meant  of  those  ministefs  dm 
were  empowered  to  make  that  treaty ;  for  ■ 
other  could  be  guilty  of  breaking  it :  and,  ii 
deed,  the  author  himself  hath,  in  this  vcr 
prelcnded  Hague  letter,  fully  explained  hi 
meaning ;  and  that  it  is  not  France  or  S|iain,  q 
their  ministers,  that  he  thus  charges  with  per 
fidy  ;  for  he  tells  us,  that  one  necessary  eflcc 
of 'such  violation  of  faith,  will  be  the  conjunc 
tion  of  France  and  Spain  ;  and  that  a  oertai 
court  would  have  the  mortification  to  ac 
those  two  crowus  onited  against  them  mor 
strongly  than  ever.  This  amounts  to  a  de 
monstration,  that  neither  Franee  nor  Soaii 
nor  their  ministers,  are  charged  witth  brcHkii^ 
this  treaty  ;  for  they  are  plainly  excluded  :  i 
so,  then  there  is  hut  one  party  (eft,  to  wii,  th 
king  of  Great  Britain  and  his  ministers ;  an 
it  is  plain,  as  if  the  ministers  of  Great  Britai 
had  been  in  ex|)ress  words.  I  am  almsi 
ashamed  to  explain  what  is  so  plain ;  thoogh 
thought  it  proper  to  set  f«»rth  thus  at  ore 
And,  gentlemen,  if  more  circumstanoes  if 
wanting  to  confirm  this  further,  they  mey  I 
added  afterwards ;  such  as  these,  to  wit,  tb 
persons  who  opposed  them  were  stiled  Gei 
manized  patriots!  another  expreaskm  is,  tk 
seizure  of^  that  vast  plcdfre,  which  Spain  bat 
at  this  time  in  her  hands.  Besidm,  it  is  ii 
cumbent  on  them  to  shew  what  other  ooort  i 
ministers  these  things  can  be  applied  lo.  Ito 
is  another  obfcer^ation,  which  I  hinted  ntMbfl 
wliich  is,  that  these  ministers  are  endeaseiili| 
to  undo  every  thing  tbey  have  he«»  ieiogw 
these  five  years  pest ;  wbioh  otiriei  H  biBKl 


/ur  c  Libel. 
tUe  lUne  of  racnnletin^  the  trealy  of  Hanorer, 
wbicb  «u  in  Keplember,  t7!&-  GenlUnien, 
>t  a  hr  fmm  our  (JMire,  tliat  >  tarc«d  con^truc- 
liou  iJifluM  be  (Hide  or  dnwn  from  tliis  paper ; 
bol  Micli  a  line  only,  as  every  underaIandiD(; 
frtmo,  ifaal  takn  il  up  and  reaita  it,  would  put 
upon  it  1  liui  I  would  uiiI  be  ilitiugbt  to  raeau, 
ttel  cv«ry  reader  UDderslanda  it  as  a  libel, 
■<r  a  acaiKlnloun  libel,  aa  courta  and  juries  do : 
Nftithc  liii*'  U  Qui  10  absurd  to  suppose  luch  ft 
Ibac.  B«!Hil««,  ii  is  *ery  well  Vdowii,  that 
tlsi  bate  been  Hverul  cases  ol'  tiiis  nature, 
iktt  kmte  bten  undtrslood  by  (be  Court  and 
;Diy  as  snrli,  I  meau  ai  a  libel,  before  Ihn 
■DM',  and  it  is  Dcccssary  to  meDlion  to  yoti, 
Ihtl  a  picture  may  be  drawn  very  lively,  and 
MMtrued  ao ;  and  tbat  a  libel  may  be  written 
mhi  frigned  Dame*,  soil  yel  plainly  under- 
■Md;  aa  in  tlier^eof  Mr.  Mist's  journal  in 
aO.  wherein  ilu-  fictitious  mines  of  Eireff 
iiSaphf  vl  Persia  iiere  inserted  ;  yet,  not- 
"  "  idin|[  tliese  asiuioed  names,  when  il 
be  tried  by  a  jury,  tbey  understood  it, 

nboneit  man  wuold,  to  be  a  scandaluiis 
■ball  not  lake  up  Don  any  more  time 
Ikt*  bead.    Tbe  next  tbine  is,  whelber 
dlndanl.  Mr.  Francklin.  it^iltyortiot  of 
beta  cliarj^d   in  Ibe  iaforiaalion  ?     And 
IWleineD,  ne  sliall  (cire  you  the  alrong;- 
clesrrcl  pioof  in  the  world:  we  shall 
i.t^Kwilnnis  who   bouffbt  six  of  theie 
'  1,  wlirr<:in  ihe  nreteiided  Hatrue  letter  is 
I,  uf  Ibe  (leleMBot  himself,  at  his  abop ; 
that  tbe  defradani  ordered  bis  serraut  to 
giif  kiui  ilivni ;  and  il  will  apptar  to  you,  thai 
ii»|in»'^n  wtiu  bouifbt  ihtm,  kuld  liiem  also 
haurlf  i  and,  if  that  waats  I'lirlher  aofibnua- 
«■  can  prove,  that  Ihe  defendant  pub- 
BCditioUK  papers  or  joumnli' erery  week. 
I  dting*  beiiig  laid  Mure  yOu,  we  expect 
*iU  do  juatieu  betwixl  Ihe  king;  and  tbe 


I'd',  (Cbarlea  Talbot,  e*(|.)  My 
■Md  fCRllenteit,  1  am  on  Ihe  Mine  side  ; 
NtbacaM  i*  so  plain,  I  would  not  Uk«  up 
k  *t  your  lime.  Ttie  liliel  is  a^inst  hia 
---  —-*  his  piiQci|«l  officers  and  ministers 
cribe  colour  of  "  An  Extract  of  a 
*  LcUerftam  IbcHaifue;"  and  though 
•  iiMid  su,  yel  wbuever  vonHidera  it,  aod  at- 
Ms  10  Ibe  I'nmf  and  stite  of  it,  and  tendency 
n  >  •(lb*  •Itolc,  will  plaintv  be  omvinced,  that  it 
v  arf  SB  Eat(l»h  liretil  i  but  lei  il  be  real  ur  lie- 
s' Ba«,  it  u  tbe  same  ihinK,  if  it  is  a  libel,  and 
W       Ikew4iji.-cl-tuatl«r  thereof  is  Bgaiust  ihe  go- 

W  Mivt^^  published  titereio  are  either  true 
iCrr  kMsu,  if  ihr|iuiilicslian  thereof  isdi'lriuieittal 
•  klfc*  gnvarnmott,  and  of  a  maiicioDH,  i«;iiri- 
'  «:,iad  anltUVUB  deaign,  to  ciwale  A  uiisun- 
■  '  t^MiidiiiK  and  discord  between  hit  nujetly 
MikiaallKa-,  attd  to  raiae  ^uluiiities  iu  the 
■  af  iMaubjecU:  aud,  indeed,  t<<r  what 
■  can  It  beanpposed  to  bnve  beuii 
'Viltaa  wf  tiling*,  irfMwioK 


A.  D.  1791. 

■edition  and  jealouiy,  and  dialurbinf  Ibe  public  * 
peace?  A^ain,  the  libel  isnolonly  againet  hi* 
present  majeaiy,  but  also  asainsl  his  uiiniUers  ; 
thai  they  were  about  lo  mute  a  inaiy  wiih  th« 
emperor,  wbicb  woHld  be  undoing  every  tbin^ 
thai  they  bad  been  doing  for  these  five  yeara 
paal,  which  would  occasion  them  to  take  a 
greut  deal  urshame  to  themselves.  The  next 
thing  be  charges  t)ie  miniaters  with  is  tlie  de* 
serting  ol' one  ally,  and  inconsequence  of  that, 
Ihe  flying  into  the  arma  of  anotlier ;  aud  that, 
if  he  thoughl  fit  not  to  deal  with  them,  iheu 
tbey  would  be  broke  with  all  thecourtsof  Eu> 
rope;  and  that  be  could  not  be  insensible  of 
their  perfidy  to  others,  at  tbe  ume  time  that 
he  was  treating  with  them.  In  the  next  partof 
the  libel,  heaccuset  tbem  of  baiinff  brought  n 
vast  expence  on  their  country  by  ilu-ir  furmer 
measures  i  and  thai  their  present  iiieuau'cs  will 
certalitly  involve  il  jo  a  turlher  expence  and 
hazard.  In  the  otXt  place,  be  points  out  to  th* 
people  tbe  consequpui-et  and  diSiciiities  aiteod- 
mi;  these  measures;  tbe  first  of  which,  he  says, 
to  his  apprehension,  are  very  fatal  i  aud  iha 
second,  almoit  ia«<iperaUle  i  he  says,  thai  od« 
of  tbe  conaeqiiencm  will  be  the  iulraction  uf  ■«• 
lenin  Ireatiet,  and  drawing  on  their  cuiinlry  the 
resentmfnla  which  uaiially  attrud  violation  of 
faith  :  Bonlhi-r  Gc-ii!>rqi>eui*e,  he  says,  will  ba 
Ihe  inlemiplioo  ol  trad.-;  imil  that  another  n)ii> 
sequence  wdl  be  the  neizure  of  Ihul  vast  iiledga 
which  Spam  bath  in  b^r  bauds;  aud  ll>e  last 
consequence,  which  bi'  meuii'iuv,  uf  such  oiea- 
sor^,  (and  which  be  tliiiika  h^  may  call  a  ue- 
cessary  conseqaeoce)  is  tbe  coojunciioD  »F 
Francp  and  Siioia  ;  aud  Ibit  •  certain  court 
(whirb,  as  hulii  breo  alrrady  mentioocd,  can 
oolv  be  applied  lo  Great  Urilain)  may  have  tbe 
mu'tlifii^aUoD  tu  aee  these  two  crowns  united, 
SKainit  ihrm  more  stiougly  than  ever,  alter 
tbey  hate  spent  so  nieiiy  millions  to  preieut  it. 
Gentlemeu,  1  hope  il  uow  plainly  appears  to 
you,  Ibal  this  pretendeil  Uague  Li'tler  i^  a  li- 
m),  and,  I  may  say,  a  very  muhciuus  aud  aedi* 
liouB  one  loo.  If  any  tbing  may  be  called  a 
libel,  surely  miniaters  of  stale  unduiog  what 
they  have  been  doing  for  five  yeara  publ,  and 
desei'tiDg  alhes,  perfidiously  exposing  their 
country  lo  basardii  aud  vaiilfxpeoces,  seizing 
ibttir  effects,  and  ocmsioning  oilier  caurts  lo  bo 
united  agninst  their  own  country,  may  wdl  be 
called  a  libnl ;  especially  wlieu  the  libel  also 
curries  in  il  the  higbeht  charj^e  aKaiust  bis  Eoa- 
jesly '■  goverument,  and  lending  tu  sow  seditiou, 
and  jealousy,  and  discords,  betneen  his  luajei- 
ly  and  bis  olbes,  as  wdl  as  between  hia  own 
siihjecis,  and  thereby  disturbing  tbe  juiblio 
peace.  That  which  temaius  is,  of  whom  arc 
these  defamatory  Ihini^s  said,  aud  what  court 
uid  ministera  are  tneiM,  or  tu  whan  tlwue  es- 
preiMons  are  applicable  r  Tbe  espre^uHua  ve, 
'-  Cerlaiu  miiiuters  ntu  eudeavoui mtt.  aixl  * 
certaiocoarlQiDy  baTethammiifi<»liun  i»i>i'i-," 
ice,  I  tbink  every  comiuou  read<-i  mil  t'le- 
■eotly  undersiBud  them  lobe  iIk  umrisn  i  ini- 
niilursot'  Great  UriUio :  and  1  1hIi'«  1  o'^y 
renture  to*ay,lliUtlwg«tfwueQwltwf>h(« 


635J 


5  GEOUGE  XL 


Trial  of  Richard  Francklin, 


[636 


■Ide  citinot  point  out  what  coart  ind  miaMtcra 
•re  meant  bjr  these  expressions,  if  it  is  not  the 
court  and  ministers  of  Great  Britain.  Gentle- 
men, the  whole  connection  of  the  pretended 
Ha((ue  Letter,  taking  it  all  too^ether,  plainly 
points  out  to  be  meant  of  his  present  majesty 
and  his  ministers ;  and  there  is  no  part  thereof 
that  can  l)e  applied,  with  any  propriety,  to  any 
other  court  or  person  whatsoever.  In  the  be- 
Hfinningof  the  libel,  we  are  told,  that  a  misun- 
derstanding will  soon  discover  itself  between  the 
allies  of  Seville;  and  then  immediately  follows 
the  charge  on  certain  ministers,  that  th^  were 
undoing  every  thinpr  that  they  had  been  doing 
five  years  past  These  words  «  Certain  mi- 
nisters," roust  have  a  reference  either  to  the 
ininiiters  of  Spain,  France,  or  Great  Britain. 
With  regard  to  Spain,  you  have  been  already 
told,  that  it  cannot  have  an  v  reference  to  them, 
because  one  effect  of  this  alteration  of  aflfairs  or 
measures,  is,  that  Spain  would  seise  that  vast 
pledge  which  she  hath  at  this  time  in  her  hands : 
IS  this  a  libel  on  the  ministers  of  Spain,  and  can 
this  give  an  occasion  to  Spain  to  lay  hold  on 
their  own  eiiiects,  and  seize  their  own  treasure? 
No,  it  is  nonsense ;  so  that  the  ministers  of 
Spain  cannot  be  meant ;  besides,  it  is  notorious 
to  every  bo<ly  that  knows  any  thing  of  the 
South  Sea  Conipanv,  that  that  Company  al- 
ways have,  and  will  have,  while  it  is  a  Com- 
pany, efiects  and  treasures  in  their  hands  liable 
to  be  laid  hold  on  and  seized ;  so  that  as  the 
ministers  of  Spain  are  not  the  ministers  here 
meant,  so  likewise  it  shews  that  it  cannot  be 
meant  of  the  ministers  of  France ;  for  they  are 
plainly  excluded  as  well  as  the  ministers  of 
Spain:  the  words  are,  "That  certain  ministers 
having  at  length  found  out,  that  too  close  an 
union  with  France,  and  a  war  upon  the  foot  of 
the  treaty  of  Seville,  is  quite  against  the  grain 
of  the  people.*'  Is  this  applicable  to  ministers 
of  France  ?  No  ;  it  is  not  sense  to  apply  it  to 
the  ministers  of  any  other  court  than  Great 
Britain;  but  applying  it  so,  it  is  good  sense, 
and  very  proper :  so  that  as  the  ministers  of 
Spain  and  France  are  both  excluded,  it  is  plain 
to  a  demonstration,  that  it  must  be  meant  of  the 
ministers  of  Great  Britain  :  and  seeing  every 
part  of  the  libel  is  applicable  thereto,  and  can- 
not agree  with  any  other  court  than  the  court 
of  Great  Britain,  I  apprehend,  it  will  appear 
plain  to  you  to  be  a  libel,  and  that  the  expres- 
sions are  meant  of  his  majpsty  and  his  minis- 
ters ;  and  if  so,  then  there  remains  only  one 
thing,  and  that  is,  to  fix  it  on  the  defendant ; 
and  this  we  will  make  appear  beyond  all  con- 
tradiction, not  only  as  bem^  the  printer  of  that 
weekly  paper,  but  as  havmg  sold  them  him- 
self. And,  gentlemen,  when  this  appears  plain 
to  you,  after  the  Attorney  General  hath  done 
hb  duty,  by  laying  a  full  proof  before  you,  it  is 
hoped  you  will  do  yours. 

Att.  Gen.  I  do'oot  know  whether  they  will 
deny  the  defendant  to  be  the  aathor  or  piib- 
lithcr  of  the  paper ;  if  they  do,  I  shall  prove  it. 

Mr.  Fait^erUy.  We  do  deny  it. 

Jit  Gin.  CauMr.Jcnkiiii. 


Mr.  Jenkins  appeared. 

Att.  Gen,  Mr.  Jenkins,  look  out  the  copies  of 
his  majesty V Speech,  the  20th  of  January, 
1725. 

Here  it  was  produced. 

Att,  Gen.  Did  yon  examine  it  ? 

Jenkins,  Yes. 

Att.  Gen,  Where? 

Jenkins.  At  the  parliament  office. 

Mr.  Jenkins  cross-examined. 

Mr.  Ftuakerley.  Hath  it  been  in  yoar  cai- 
tody  ever  since  ? — Jenkins.  No. 

Mr.  Fazakerley.  How  know  you  that  to  be 
the  very  same  that  you  examinea  P 

Jenkins.    Because  1  marked  it. 

Mr.  Fasaherle^.  When,  before  or  after  yoi 
first  parted  with  it  ? — Jenkins.  Before. 

Mr.  Fiuakerley.  What  mark  ?  Did  yon  pot 
your  name  to  it  i* 

Jenkins.  I  put  the  two  initial  letters  of  aiy 
name,  which  1  will  shew  you. 

Mr.  Faxakerlejf.  Are  you  sure  that  it  iMth 
not  been  altered  since  P 

Jenkins,  Yes,  I  am  very  sure. 

Here  his  majesty's  Speech  to  the  Home  ef 
Lords  was  read,  bieginamg  thus :  "  My  lordi 
and  gentlemen,  1  have  had  such  frequent  ei- 
perience,"  &c.  Also  his  majesty's  Speech  to 
the  House  of  Commons. 

Att,  Gen.  This  Speech  of  the  king  is  gene- 
ral ;  hut  I  shall  be  more  uarticular,  and  ihitt 
shew  you  a  copy  of  the  Address  of  the  HoBse 
of  Lords,  when  the  treaty  of  Hanover  was  lai^ 
before  them,  wherein  they  express  their  satif* 
faction,  and  mention  the  lling  of  Spain  particu- 
larly. 

Mr.  Fazakericy,  Though  I  have  all  the  ho- 
nour imaginable  Tor  the  House  of  Lords,  yet  I 
question  whether  their  addresses  are  to  betakes 
as  evidpuce. 

Att,  Gen,  We  shall  read  a  copy  of  tlie#our- 
nal  of  the  House  of  Lords. 

Mr.  Fazakerleif.  Originals  are  the  best  eri- 
dence  of  fact ;  and  whatever  addresses  or  pro- 
ceedings might  have  been  made  in  the  HooM 
of  Lonis,  1  think  they  cannot  be  proper  eri* 
dence  here.* 

Att,  Gen.  What  I  produce  is  a  copy  of  the 
Lords'  Journal  concerning  the  treaty  of  Vi- 
enna, that  the  secretaries  of  state  laid  before 
them. 

Mr.  Faiakerley.  I  own  it  is  a  Journal  of  the 
House  of  Lords,  but  it  is  not  a  proper  evidence 
of  the  facts  therein  mentioned. 

Mr.  Bootle,  My  lord,  1  apprehend,  that  the 
evidence  Mr.  Attorney  General  is  now  purso- 
iiig,  in  the  course  of  evidence,  is  irregular,  and 
on  that  the  objection  doth  arise.  He  says,  hs 
will  prove  the  facts  by  the  Journal  oif  the 
House  of  Lords :  suppose  the  secietariei  sT 
state  have  failed  in  the  copy  laid  before  thcms 
I  offier  this  to  your  lordship's  consideratioD. 

*  See  5  Term  Rep.  Ui. 


for  a  Libel. 

r.  I  find,  Mr.  Bootle,  that  all  maoDer 
MIS  will  be  raised  to  aerTe  vour  client ; 
il  not  pass  awa  J  the  time,  becauae  you 
ess  another  way ;  you  shall  hare  niy 
N>at  it. 

'Yinge.  Will  you  produce  that  copy  ? 
tn.  We  will  do  it.    Mr.  Jenkins,  pro- 
orders  of  the  House  of  Lords,  the 
February,  1725.    (Here  it  was  pro- 

^an^e.   Is  it  a  true  copy  f 

\,  Yes. 

range.  Have  you  had  it  ever  since  it 

I  in? — Jenkins.  Yes.  ^ 

le  copy  of  the  Journal  was  read ;  the 
vas  a  copy  of  the  Treaty  of  Peace 
Vienna,  dd  April,  1725,  a  copy  of  the 
'  Commerce  made  at  Vienna,  1st  of 
5,  and  a  copy  of  the  Treaty  of  Han  - 
I  of  September,  1725. 

en.  It  is  proper  to  see  these  conies* 
range,  Mr.  Jenkins,  What  is  tnis  ? 
r.   1  he  Treaty  of  Peace, 
''oi^e.  Where  had  you  it? 
r.  From  the  parliament  office. 
'onge.  Have  you  the  Treaty  of  Coro- 
de  at  Vienna? 

I.  Yes,  (Here  the  title  of  it  was  read 
eaty  between  Charlesfemperor  of  Ger- 
%  and  Philip  the  5tb,  &c.  dated  Ist 

5.) 

en.    Read  the  2d   and   3d    Articles 

(Here  they  were  read.) 

be  S6th  Article.    (Here  it  was  read.) 

he  47th  Article.    (Here  it  was  read.) 

purport  of  these  Articles  was,  (as  I 

that  they  were  of  great  prejudice  to 

(ty's  subjects,  and  consequently  was 

»n  of  diflference." 

hat  the  Address  of  the  House  of  I^rds 

jesty  may  be  read,  and  his  majesty's 

ti  the  17th  of  February,  1725. 

uakerley.    For  what  purpose  would 

them? 

en.   You  will  understand  that  immc- 

the  Address  was  first  read,  and  then 
sty^s  Answer;  the  purport  was  to 
I  there  were  difierences  between  his 
rty  and  the  king  of  Spain,  &c.] 

itakerley.  Mr.  Jenkins,  by  what  did 
line  these  ? 

t.  By  the  original  Journal. 
en.   1  shall  prove  in  the  next  place, 
kionf  of  Spain,  15th  July,    1725, 
as  about  two  months  before  the  treaty 
er)  made  an  express  demand  of  Gih- 

uzakerley.      I    do    not   rightly    see 
or  understand  this  evidence ;  1  sup- 
to  make  up  some  defects. 
wm.   Call  Mr.  Tilson.     Mr.  Tilson, 
any  papers  with  you  ? 
Yoi,  a  letter. 

M.  Be  pleased  to  give  my  lord  and 
eeMBt  how  you  received  that  latter. 


A.D.  1731. 


[6S8 


,  TikoH.  My  lord,,  this  is  a  letter  from  the 
mari)uis  of  Gframeldo,  secretary  to  the  king  of 
Spain. 

L.  C.  J.  Where  received  yon  this  letter  f 

TiUon.  1  received  it  at  Hanover. 

X.  C.  /.    When  received  you  it? 

I'ihon.  On  the  1st  of  August  New  Stile, 
1725. 

JiU.  Gen.  From  whom  received  you  it,  and 
in  what  manner? 

TiUan.  By  a  messenger  that  came  from 
Sycovy  fromllr.  Stanhope. 

Att.  Gen.  What  was  tne  messenger's  name? 

TiUon.   One  Walton,  the  king's  messenger. 

Att.  Gen.   How  received  you  it  ? 

Tilson.  In  a  packet  made  up  with  his  dis- 
patches. 

Att.  Gen.  Where  hath  the  letter  been  kept 
ever  since? 

Tilson.  In  the  secretary  of  state's  office  of 
the  lord  Townshend. 

Ait.  Gen.  Where  took  yon  it  from  ? 

TUson.  From  the  book. 

Att.  Gen.  What  were  yoo  ? 

TiUan,  Under-secretary  to  my  lord  Towns- 
hend. 

Att.  Gen.  Can  yon  interpret  it  immediately  f 

[No  answer  was  given.} 

Mr.  Taylor.  I  object  against  this  evidence, 
by  reason  it  is  not  the  bert  evidence,  because 
my  lord  Harrington  is  here  in  England  bim« 
self. 

Att.  Gen.  I  apprehend  it  is  sufficient,  and  it 
is  impossible  to  prove  it  otherwise ;  the  bnl 
Harruufton  transmits  it  to  bis  master. 

Mr.  Taylor.  If  my  lord  Harrington  wei« 
here,  he  could  give  evidence  himself. 

Att.  Gen.  My  lord,  we  have  found  an  in- 
terpreter, and  he  will  interpret  the  Spanish. 
Call  Mr.  Becking. 

L.C.J.   What  read  yon  it  for  ? 

Att.  Gen.  For  a  proof  of  the  demand  of 
Gibraltar,  by  virtue  of  the  treaty  at  Vienna. 

Here  Mr.  Backing  was  called. 

Att.  Gen.  Mr.  Booking,  Do  you  understand 
the  Spanish  tongue  ? — BocAing.  Yes. 

Att.  Gen.  Have  you  compared  it  with  the 
original  letter  ? — Backing,  Yes. 

Att.  Gen.  Is  it  truly  translated  ? 

Backing,  Yes. 

[Here  the  Letter  was  read  subscribed  Ora- 
meldo.]  The  purport  of  it  was  demanding  up 
Gibraltar. 

Att.  Gen.  The  next  thing  is  the  treaty  of 
Hanover,  which  we  have  upon  record. 

Mr.  Fazokerley.  I  do  not  think  this  evidence 
fall ;  for  the  allegation  is,  that  there  were  cer- 
tain differences  and  controversii^s  between  his 
late  majesty  and  divers  princes  and  foreign 
states,  being  his  allies,  and  the  king  of  Spam. 
I  do  not  tind  that  this  evidence  shews  any 
thing  of  it;  the  difference  that  the  evidence 
shews,  is  only  between  the  late  king  and  the 
king  of  Spain.  I  apprehend  they  ought  to 
make  the  evidence  agree  with  the  informatiMi ; 


fcp^iJl  5  GEORGE  n. 

^^f    it    *'i^M  from  lliM,  it  is  u  do  eridence 

f**  %t.  Gen.    1  .ppreheod  thi,  «  „„  otjeclion 

•  Mr-  -Foiflto-ify.  The  informalion  is,  tb.t 
t^fore  Ihe  jlemise  of  ihe  laie  king-.  ^1,^^  jlf. 
fereoces  md  co(itrorerai«  fir.,ae  hetween  bu 
.aid  lat^  majKty  and  di„r.  prinp^s  and  foreiim 
,  stfttes,  beiOK  liw  hIIim,  and  the  king  of  Spain 
jjow,  the  nbjection  ig,  i|,a|  tbe  efidence  tbpv 
J,B*e  produced,  sheffs  that  Ihere  w^reonly  dif- 

»fereiice«  between  Spam  inil  Great  Britain. 
'^",'^?!-.  "'■*■'*  '"  "»  •'•■"Clit  in  that  obiec. 
tioo  ;  f^'f  ",were  so.  „  they  ,„ppm,e.  lop. 
prchend  this  is  nolraalenal  to  ihe  inftrraation  ; 
for  il  IS  well  IcnowD,  that  lliere  is  a  distinelion 
betweep  an  aciion  and  an  iadicimeni.  E»ery 
lliinif  Id  an  aciion,  in  cane  of  con  trad  Ictioo 
ougrht  10  be  proved ;  but  if  tiisre  be  an  alleea- 
tion  in  an  indicimenl.  and  ihai  the  crime  may 
remain  without  it,  it  a  well  Itnnwn  that  that  »l- 
leSTft''""  *«  •""  (ifCeBMry  lu  be  profisl ;  and  il 
is  suflicient  i-nnu^h  to  pmire  him  tfiiilly  of  the 
crime  that  he  is  indlclpd  for.     Out  wFial  t  han 

Iprnved,  them  Ihe  difference  ainl  disputes  be 
twoen  hi«  i«le  majesty  and  his  allies, 


the  Ostend  company;  parljenlarly  by  ihe  36lh 
Article ,  is,  that  all  the  snhjecis  of  the  emperor 
sltall  enjoy  ihe  same  priTili^es  kk  the  Uniii-d 
Province*.  Sec.  bo  likewise  by  the  471  li  Anicle. 


I 


tain;  nnd  that  ii  the  expren declaration  oiide 
to  Ihe  House  of  Lords,  and  was  ibe  foundation 
of  the  troublea  in  Enmpe,  which  obtiffeil  the 
lale  Ving.  wiibout  loss  of  time.  In  enter  into  Ihe 
treaty  of  Hannier ;  namely,  wiih  Ihe  ennude- 
ration  to  the  trade  and  commerce  of  Vienna. 
And  now,  all  iheae  taken  Inifether,  I  snbinit  it 
In  your  lordship,  whether  there  is  not  asuffi- 
oiont  prooi;  tlial  lliere  were  fliRerencct  subsi«l- 
tng  between  his  [0!\testy  aud  his  allies,  and  the 
Unif  of  Spain. 

Sol.  (in.  This  alleg^linn  is  not  material ; 
for  whether  there  were  differeucea  or  not  »oh- 
siatin([,  we  Bhnll  fix  it  by  evidence  that  Mr. 
Fraiicklin  is  equally  guiltv,  aod  tbut  il  will  nnl 
•Her  the  nature  of  the  ofTenee :  besides,  it  is 
•dmllted  bv  the  renllemnn  that  made  the  objec- 
tion, that  the  etidence  nmnunled  so  tar  as  to 
proM  ihal  there  were  differences  between  Ihe 
lata  hin^  and  the  kinn  ofSnain  ;  ami  we  have 
Jjoiotctl  out  two  tiling  which  shew  there  were 
difference* ;  the  oue  rclatinff  to  Ihe  Osiend 
onnipany,  snd  Ihe  other  to  Ihe  demand  of 
Uibrallar.  I  ftgree  with  that  gentleman,  that 
<9re.it  Urilain  was  concerned  in  it;  but  to  say 
(hat  they  were  slone  coueenied  in  it,  and  that 
■iv  the  Addrnia  of  ihe  Han>e  of  Lords  Ihe 
JJnIch  were  not  concerned,  is  a  plain  mistake, 
for  tbey  claimed  ■  ri^it  to  traile  also ;  yea, 
Ihey  wera  more  tmmedialel)'  concerned  thnn 
Great  Britain;  and  Iherelivc  il  i«  rightly 
•tated  by  Ihe  House  ofLords  Address ;  lhou);h, 
U  I  taid  before,  it  is  not  maieiial  whether  there 
were  differeuoes  (ubsitiingr  or  not. 
Mr.  IktaitrUy.   1  IhotigUt,  while  ibe  thing 


TrinI  ^fltichard  PrancklU,       ^B 

was  fi-eih  ia  memory,  it  woahl  Iwte  be 

plaineil ;   but  since  they  have  gone  so 

will  be  better  lo  make  an  end.  I  sha 
say,  tliat  as  to  what  thoy  say  is  immab 
Ihey  are  willing  to  have  that  tiisller  iiuia 

I  am  willinfc  it  should  be  struck  oul ; 
Ihpre  \i  n  crime  described  in  Ihe  indictn 
infnrniaiion,  I  agree  ii  is  not  necensnry  u 
every  allegation,  if  the  crime  remaiiis  * 
Il ;  so  that,  if  they  will  irate  it,  I  bid  sal 
|et  me  get  rid  of  one  tliiug  at  a  time. 
if  there  l»e  enough  Jell,  properly  ohan 
llie  detendani,  then,  my  lord,  this  ou^fhi 
dropi ;  for  they  have  pruduced  nolhin 
pruveslhat  allegation :  and  whatever diSi 
there  might  be  between  the  late  king  and 
or  any  power*  whatsoever,  not  proper 
scril>e(l  in  this  ioforinaiion,  I  apprehend 
are  not  to  be  taken  as  a  part  of  the  chai 
thisinlbrmiiiuu.  Nowihe  main  Ihiogis, 
Iher  ihey  hare  laid  it  so,  and  made  oul 
differences.  They  say,  that  the  difle 
were  betwi^n  ilie  late  liing,  and  divers  B 
aud  foreign  slates,  being  his  allies,  an 
king  uf  Spain.  1  think  the  letter  pm 
from  the  marquisof  Gr&meldo,  or  takeli 
way  you  please,  it  only  refers  to  didei 
betiveeii  the  king  of  Great  Britain  and  I 
Town  there  weie  grants  of  coromerco  | 
emperor,  which  might  he  of  injury  » 
Elates ;  but  though  they  think  that  ibet 
fbundation  for  differences,  yet,  if  then:  is 
there  is  no  reason  to  say  that  there  was  I 
tusl  differeace;  tbey  have  laid  it  aa,  m« 
and  OS  for  that  other  part  of  ihe  evidenea  t 
House  uf  Lords,  that  is  not  nuScient,  fo 
mcnlionediheieasan  infraetion  of  their  tr 
but  whatever  infraclion  it  is,  yet,  I  humbi 
prehend,  Ihat  is  not  a  reason  that  lliet« 
diOcrenceaon  that  account,  liir  if  olbcri 
think  otherivise,  or  aogulcsce  to  it,  then  i| 
not  be  called  a  difference ;  besides,  that  Ad 
of  Ihe  House  of  Lords  was  only  the  swtic 
of  thai  great  body  ;  and  lhou4;b  a  regardt 
lo  be  bad  to  them,  yet  it  is  nut  any  eviiJen 
the  fact,  unless  Irausacied  in  a  judicial 
They  Diude  a  collection  or  coustructktn  fh 
hut  I  tliink,  in  my  opinion,  it  is  pnaaibln 
might  make  a  mistake ;  we  are  now  npon 
deuce,  and  it  ought  In  he  cstabliahed  by  > 
per  legal  evidence;  for  that  [as  I  aaiif  b« 
IS  unly  an  evidence  that  thereby  their  « 
was  broken,  hut  no  e\idenre  tbatthmi 
difference  arising  from  it. 

Mr.  Buolle.  Mr.  Attorney  is  pleased  to  1 
that  a  criminal  inlormatiou,  of  which  ■ 
may  be  evidi'uced,  and  a  part  overlooktit, 

L,  C.  J.  Is  this  eseeuiiat  or  not  t 

Alt.  Gen.  No. 

L.C.J.  Why  hath  there  been  lli«at! 
two  hours  spent  aboniit? 

All. Cm.  Thisis.nolbeIweennrettBi 
and  Spain,  but  other  stales;  and  it  is  Iff  I 
iliul  by  the  Articles  of  the  Treaty  cfTii 
there  were  someof  them  iucaiiM»lentlritt1 
relstingto  ibc  foreign  powers. 

Mr,  Notl.  As  they  canuol  proreJ 


1 


for  a  LiUl* 

nkerky.  Did  not  she  send  her  for  tbe 

I? — Goram.  No. 

PH.  Call  John  Smith  (aforesaid)  who 

Look  OQ  that  paper.     [Here  another 
iflsroan,  of  the  2d  of  January,  was 
3     Where  bougfbt  you  tiiat  paper? 
At  Mrs.  Smith's  under  tbe  piazzas, 
yal  Exchange. 
!ra.  Do  you  remeoiber  when? 

The  9tb  of  January,  the  same  mom- 

bouf(ht  at  iMr.  Francklin's. 
?M.  Of  whom  bouj^ht  you  it  ? 
Of  herser?ant. 
en.  What  is  her  name  ? 
I  know  not. 

en.    Are  you  sure  that  is  tbe  same 
Smith,  Yes. 

tn.    Did  you  mark  it? — Smith,   Yes. 
ten.   Call  Mrs.  Ann  Pierce.    (Who 

Did  you  keep  a  shop  formerly  ? 
ierce.   Yes,  though  not  now. 
en.    How  long  ago  is  it  since  you 

ierce.  About  three  or  four  months. 

en.  During  the  time  of  your  keeping 

id  you  sell  the  Country  Journal? 

^Urce.  Yes. 

en.  Where  bought  you  them  ? 

^Urce.  I  ne?er  went  myself. 

en.  Whom  scot  you  ? 

^Urce.  One  David  Da  vies. 

en.  To  whom  sent  you  for  them  ? 

^ierce,  ToMr.  Francklin. 

en.  Can  you  remember  you  had  any 

0  of  the  2d  of  January  last? 

^ierce.  To  be  sure  1  liad. 

en.  Who  wtnl  for  them  ? 

^ierce.  JVIy.man. 

en.  Did  you  ever  send  any  body  else  ? 

Hcrce    1  cannot  tell. 

}en,  I  would  desire  you  to  recollect 

bed  tlm^e  of  the  2d  of  January. 

''ierce.  He  always  fetched  ihem. 

en.   What  number  had  you  the  2d  of 

^ierce.   I  cannot  tell  e;cactly  the  num- 
I  have  generally  about  7/.  a  week  to 
be  CrafUmau. 
en.  Did  you  pay  for  them  of  the  2d  of 

• 

Pierce.  He  had  always  about  7/.  a 
upwards. 

en.    But  do  you  remember  that  you 
hem  of  the  2d  of  January  ? 
*ierce.    1  do  not  remember  that  in  par- 
i'oT   it  was  about  that  time  I  was 

ren.  Did  you  pay  for  them  yourself? 
Pierce,  No:  but  my  servant,  David 
lid. 

[Cross-examined.] 

9oik,   You  said,  you  did  not  always 
r  oiao,  David  Davies,  for  them  ? 
Heru,  You  are  mistaken ;  for  I  said  1 

mil€^    Cfto  you  sayi  on  your  oath, 


A.  D.  17SI. 


l^m 


mistress,  that  yon  paid  for  these  CraAsouin  tbe 
Sod  of  January  in  particular  ? 

Mrs.  Pierce.  I  shall  not  answer  yoo. 

Mr.  Beetle.  Who  bid  you  not  to  answer  me  ? 
You  shall' do  it.     -~ 

Mrs.  Pierce.  I  don't  know  yoo.     [Here  tlie- 
Judges  reprimanded  her,  and  desired  her  to 
ffive  an  answer,  which  she  did  thus.]     I  be- 
lief e  I  paid  him  the  money  for  the  Craftsman 
ef  that  day,  as  well  as  for  those  of  other  days. 

Mr.  Bootle.  Don't  these  papers  pay  duty  ? 

Mrs.  Pierce.  I  do  not  know. 

Mr.  WilLs.  Call  David  Davies.  (Who  ap- 
pears.) Were  yon  employed  by  Mrs.  Pierce, 
before  January  the  2d,  to  fetch  in  her  Journals  ? 

Davies.  Yes. 

Mr.  Wilfet,  Did  vou  fetch  in  the  Craftsman 
among  the  rest? — iJavies.  Yea.  ■ 

Mr.  Willes.  Where  did  you  go  for  these 
Craftsmen  ? — Davies.  To  Mr.-Francklin's. 

Mr.  Willes.  Did  you  go  any  where  else  for 
them  ?^Davief.   No. 

Mr.  Willes.  Can  you  remember  that  you 
fetched  the  Craftsman  the  2d  of  January  last? 

Davies.  Yes. 

Mr.'  Willes.  You  did  bny  all  tbe  Craftsmen  of 
that  'month  at  Mr.  Francklin's — I  mean,  all 
that  you  bought  ? 

Davies.  Yes. 

Mr.  Willes,  When  you  carried  the  money 
for  them,  to  whom  paid  yon  it  ? 

Davies,  Sometimes  to  Mr.  Francklin,  and 
sometimes  to  his  servants. 

Mr.  Willes.  Can  you  say,  particularly  for 
the  month  of  January  last,  that  you  paid  tbe 
money  to  his  servants  ? — Davies.  Yes. 

Mr.  Willes.  Did  you  continue  to  pay 
weekly,  all  the  month  of  January  last,  fur  what 
you  boutrht  of  these  papers? — Davies,  Yes. 

Mr.  Willes.  Had  you  any  of  thtse  Crafts- 
man any  where  else  that  month  ? 

Davies,   No. 

Mr.  Willes.  Can  you  rememlier  liow  many 
you  bought  of  the  2d  of  January  last? 

David.  No.  , 

Mr.  Willes.   How  much  paid  you  a  week  ? 

Davies.  About  7/.  a  week  ;  because  I  fetch- 
ed between  40  and  50  quires  weekly. 

[Cross-examined.] 

Mr.  Strange,  Can  you  recollect  so  exactly, 
as  to  tell  that  you  fetched  and  paid  for  the 
Craftsman  the  2d  of  January,  and  for  all  that 
month  ? — Davies.   Yes. 

Mr.  Strange.  How  can  you  be  so  particular 
as  to  that  month  ? 

Davies.  Because  I  did  it  weekly  before  that 
time. 

Att.  Gen,  There  is  another  thing,  which  I 
shall  name,  which  will  likewise  prove,  thai  the 
defendant  published  the  Craftsman  of  thai  day  ; 
and  that  is  the  stamp-duty,  which  is  one  shil- 
ling, paid  for  every  advertisement ;  and  here  I 
shall  shew  to  your  lordship,  that  he  paid  for 
the  duties  of  that  day,  and  for  3tt  advertisements 
of  the  same  day,  which  is  exactly  the  number 
contained  in  tbat  day'a  Crafiaman.    Call  Mr* 


647] 


5  GBOBfiE  11. 


LuDDif.  (Who  appears.)  What  officer  are  you? 

Lunnis.  Ao  assiitaot  to  the  Regiater  ol  the 
StaiujMiffice. 

.  Ati.  Gen.    Da  you  koovr  aoy  things  of  the 
account  of  the  stamp-duties  at  the  offiM  f 

Lunnis.  Yes. 

Ati.Gen.  Hare  you  the  book? 

JLunnis.  Yes. 

Att.  Gen,  Produce  it.  (Hera  it  was  pro* 
duced.)  What  is  that  book  ? 

Lunnis.  Ao  acoouot  of  the  adrertiBelkientsiD 
every  paper. 

AU.  Gen.  is  that  the  original  of  the  Stamp- 
offifle^book? — Lunnis.    Yes. 

.  Alt.  Gen.  You  kii«w  what  entries  there  are 
in  it  conoeruing  Mr.  Francklin? 

Lunnis,  Yen. 

Att. Gen.  What  are  these  entries? 

Lunnis.  They  are  from  about  Idth  of  May, 
1727,  to  this  time,  weekly  and  monthly. 

Att.  Gen.   Who  paid  tor  them? 

Lunnis.  Sometimes  Mr.  Francklin,  and 
sometimes  his  serrants. 

Att.  Gen.  Was  the  payiaent  made  in  hb 
own  name  always? 

Lunnis,  Yes,  in  h*s  own  name. 

Att.  Gen*  Are  there  any  adreitisememls  that 
relate  to  the  3d  of  January  last  ? 

Lunnis.  Yes,  38. 

Ati.  Gen.  Were  they  paid  for  ? 

Lunnis.  Yes,  in  Mr.  Francklin's  name. 

Att.  Gen.  Read  the  entry.  [Here  it  was 
read.  The  purport  was,  Hecetred  the  80th  of 
July,  for  the  duty  of  38  adfertisemeots,  &c. 
for  the  Sd  of  January  last.] 

Att.  Gen.  That  is  the  exact  number  in  the 
Craftsman  of  that  day. 


[Cross-examined.] 

Mr.  Strange.  Do  you  receive  the  money  ? 

Lunnis,  No*  ^ 

Mr.  Strange.  How  can  you  tell  that  he  pays 
it  then  ? 

Lunnis.  Because  I  make  it  op  to  his  ac- 
count 

Mr.  Strange.  Do  you  know  it  yourself? 
'   Lunnis.  No. 

Mr.  Strange.  Are  the  papers  brought  to  the 
office,  and  are  you  the  person  that  receives 
them? 

Lunnis.  I  am  the  person  that  takes  in  and 
registers  the  number  of  the  advertisements,  and 
gives  a  note  or  an  account  thereof,  to  himself, 
or  the  person  that  brings  the  |>apers. 

Mr.  Strange.  What  time  does  the  act  relate 
to  theaclvertist'mcnts  being  paid  ? 

Lunnia.  i  don*t  know. 

Mr.  Strange.  As  you  make  out  tlio  warrants, 
and  keep  account  of  the  advertisements,  ex- 
plain it ;  what  is  its  nature?  Does  your  war- 
rant express  thennmherof  the  advertisements, 
and  the  sum  to  be  paid  for  them? 

Lunnis.  Yes. 

Mr.  Strange.    For  what  purpose   do   you 
it  out? 

Lunnie.  After  1  hare  nade  It  out,  I  give  it 
ialt  Ihr  Boeanr'a  tflkc^  md  then  mm  the 


Trial  of  Richard  FrancUin^ 

Comptroller's,  which  is  a  cheek  ma  tf 
ceirer's  office ;  and  then  Mr.  Fraacklin 
receipt  for  it. 

Mr.  Strange.  Who  recaivea  die  asoi 
these  advertisements,  which  you  OMke  i 
warrant  for? 

Lunnis.  T)iey  at  the  Reeeirer's  ofio 

Att.  Gen.  Call  Mr.  Wehh.  (Who  ai 
What  place  are  yon  in,  in  the  Siamp-eti 

Webb.  A  clerk  in  the  Reee'wer's  office 

Att.  Gen.  Are  yon  a  sworn  clerk  ? 

Webb..  Yes. 

Att.  Gen.  Can  vou  give  an  aeceont 
receipts  had  of  Mr.Franckliov  oo  accoiin 
advertisements  the  Sd  of  January  last  ? 

Webb.  He  had  one  in  July  last. 

Att.  Gen.  Do  vou  know  if  the  adv 
ments  of  the  9d  of  January  were  indu 
the  money  ?—  Webb.   I  cannot  tell. 

Att.  Gen.    In  whose  name  receiveil  3 

Webb.   In  the  name  of  Mr.  Fraijcklia 

Att.  Gen.  Whether  or  not  did  you  1 
any  motiev,  on  the  account  of  his  adv 
ments,  before  that  tiose  ? 

Webb.  Yes,  I  received  something  0 
account. 

Ait.  Gen.    Was  it  a  long  time  before 

Webb.   I  cannot  justly  rpmeniber. 

Att.  Gen.  How  ranch  was  it  yon  n 
the  401I1  July  f—Webb,  About  10/.  ISt. 

Att.  Gen.   Where  gcHfS  that  receipt? 

Webb.  To  the  Com ;ii roller's  office. 

Att,  Gen.  Call  Mr.  8cot.  (Who  ap 
What  is  vonr  office? 

Scot.  I  am  in  the  Comptroller's  office 

Att.  Gen.  Have  you  au  account  of  sr 
ney  paid  on  account  uf  advertispii>eut» 
CratUman  the  2nd  January  last  ? 

Scot.  I  have  them  for  the  whole  montl 
not  the  day. 

Att.  Gen.  What  come  they  to? 

Scot.   Ten  pounds  eighteen  shillings. 

Att.  Gen.  In  whose  nsme  wat;  it  paid 

Sr4)t.  In  the  name  of  Mr.  FranckNn. 

Att.  Gen.  Were  there  any  more  paj 
befere? — Scot.  Yes. 

Att.  Gen.     Who  paid\hera  ? 

Scot.    1  cannot  tell. 

Att.  Gen.  On  whose  acoonnt  wer 
paid  ? — Scot.   On  Mr.  Francklin's. 

Att.  Gen.  Have  you  got  any  warrani 

Scot.  Yes. 

All.  Gen.  Have  you  got  a  particuh 
rant  for  every  mouth  ? — Scot.  Yes 

Att.  Gen.  Look  oat  the  warrant  I 
month  of  January. 


Here  it  was  read.  The  purport  was 
there  was  received  lOL  18s.  on  Mr.  Frai 
account. 

L.  C.  J.  What  is  the  nature  of  tha 
rant? 

Scot.  It  is  a  warrant  given  from  am 
to  another,  containing  the  number  of  t 
vertisemenlsi  sml  sum  for  the  duty. 

Alt.  Gen.  My  lord,  the  other  aid 
owaed^  lint  lltera.  wete  difltaredoei  iil» 


for  a  Libel. 

bind  lb«king^  of  Spain,  tiecame  ire 

'  )  but  tlii'^  my  we  btie 

nideace  of  aaj  difiereuce  between 

V  tiul  fail  M'na,  uit  the  kinf  of 

rtnob  1  upprebenil  wc  hare ;   thoui^li, 

I  bcAre,  il  is  not  motrnal :  but,  it  ibe^ 

I  •Ml  rsll  niher  wiinestes  lo  ptovc  it 


izclaaira  of  all  the  lubjecii  nf  ihe  «m- 
«.  anil  VM.  my  lord,  by  Ihe  36th  Aru- 
l«  iltjiHUlea  )a  let  all  the  aiil^)rcla  of 
the  laine  prniie^et  u  Ibc 
.  which  IB  an  iBtrautiiiD  at' 
r  HuBsier,  lOM.     Call  Mr.  Pay- 

Blr.  Faytant  ippeara. 
I.  Mr.  i>aysjni,  g-ira  aa  account  of 
Ift  I  bn«|th1  Ibeiu  frotn  my  lord  Har- 

Um^  What  ia  tWir  import  ? 

tm.  They  cuntain  thv  nccenion  of  lbs 

toirani  lu  Ihe  llt^aly  ut  [Innoier. 

Btn.  Arelbvy  kepttbere^ 

laf.  Yea. 

(ha.  I«  iba  Aet  of  Acaestinn  vnrolled? 

•W.  Vfa  ;  bat  Iliia  is  the  original  one. 

f^ak«rtey.    My  ioril,   I  apprehend  Ibn 

M  la  a  prujier  erl(lenc«. 

fhit  part  of  it  was  read  anil  ialerprpled, 

^^  Frendi)  vrhich  eomiiUlaed  of  ib« 

^M  liie  ircaly  of  Muiislcr,  made  in 

Hb  By  tbi*  Aot  of  Acecision,  whkli 
ft  •  tiiir  maalha  alter  the  treaty,  the 
MfM,  llial  il  i*  nhnlly  their  right  lo  ei>- 
mIc  pridliva  of  trailing  to  the  En»l 
nchiaivvuf  all  the  aubjectsol'ihe  cm- 
te.  aixl  amnrdlnclv  they  enter  inio,  or 
M  IliP  tieaty  of  Hanoier  ;  which,  i 
•  a  milBeieM  eTJilrace  of  iliDereaccs 
If  bvtween  hit  l«t>i  inajeMy  atiJ  hia  al- 
I  the  biar  ot  H^iai"  We  ihall  aot  lake 
!iMr«iiiiiriD(-xaiiiimn(;(4herwiiiretfleii, 
rllifT  priiol  if  the  iiilhrniatioD  B<;Bin«t 
Mtanl ;  ludn^,  ai  w«  apprehend,  auF- 
pro*"lilalmdy. 

faankvrity.     My  Iwd,  and  cenllpmen 

iry,  lB«icmtiMelf'>r  lliedelemlam.    As 

r'"  irawttiel  W*»e  been  tery  long,  and 

..atiiT,.'  xiineiresaart  ;    and,  indeed,  I 

|>>XI  I  (hli>ks|ri^tilralor 

'  i)i;«it  madou»eof,iosh*w 

i.'i>tlly  of  the  facl  nf  pub- 

•licte  11  WB«  only  t«  (ri'e  a 

.>r  ^inij>i<»ni  (hereof,  liecanseil  vras  not 

Ahr   |irD>*it  by  the  tint  witnp>^«,  and 

loapMlaluiatMiebonrandahaifitince, 

TIHWI :   an,  i;pmlelnen,   J  hope  that 

ibik  thai  Ihej  hnTe  auffidently 

in  ]    and  that  you  iriU  not 

il  ihe  Aist  wilnV'M  »»v*  BO  a  fnll 

•  la  a  proMsfiitai)  u  ibe 


A.  D.  17SI.  [C5a  1 

defendant.  Bat  I  amrebcad,  thai  of  ■  prioler 
iadiffereutftomapubbsber ;  andlhataprioter'a 
bnainesi  relates  lo  all  Ihe  subjecU  of  Ihe  king- 
itom,  nad  he  nay  eeiily  be  imposed  ppou.  At 
lu  their  e*id«ice,  you  will  ftnd  that  they  ei»- 
lirelyseein  lo  rely  on  the  hrst  wilnaw,  whv 
saya,  be  neat  to  Mr.  Fraochlin'a  Bh«|i,  and 
that  he  was  busy,  and  that  he  interrDpteil  hint 
by  iskinir  him  tbraomeof  the  Joumalaof  that 
day,  and  ibat  he  did  not  dehinr  tbem  hinwelf. 
Now,  ■•  Ik  asked  <i>r  Juuraals  in  ^eacral,  aarf 
did  not  tell  whose ;  and  that  he  tras  busy,  and 
i\A  not  deliver  auy  to  thai  witness,  niir  reeeiva 
aoy  Bioney  from  him  ;  and  bow  be  cain«  by 
iIhsc  Journal*,  it  is  not  kiiowa  ;  he  might  hare 
some  in  hia  pocket  that  he  ^1  elsewhere,  odcI 
by  miatake  put  bis  mark  lo  ifaem ;  besides, 
there  wercunly  ttfouf  Ihese  Jonrnats  prtxluced. 
As  to  the  rest  of  Iha  witnesses,  they  are  only 
bruBi;ht  in,  in  order  lo  endearour  tu  sappnrt 
thi«  lir>4  witness's  etidenee.  and  tonrote  Uiat 
they  ruceired  Jouritnls  from  (he  dffenduni'a 
scrraiita  only,  and  paid  the  mciory  lolheii).  Aa 
lo  Ihe  Biiinip-oiira  accounts  or  books,  I  sup- 
jnse  ihey  only  show  wImI  money  is  raiwd  1» 
llie  cniiwu :  so.  genlletnen,  1  believe  it  will  de- 
lieod  chwHy  an  ibe  evidenea  of  llie  first  wit- 
ness ;  nnd  Ihv  defemlant  ia  imnishablc  for  dod« 
but  tbme  IWD  Jnnrnals  produced  (if  be  is  gailtr 
of  that ;)  fur  if  lie  had  snM  alhounnd  mare,  i> 
siffiiilies  Dalhin«to  this  infurmaiHin.  I  shall  not 
Irauble  yoii  witb  otiier  ohserTatioos  on  il ;  but 
only  take  ncilice  of  Ihe  ^reai  canveniency  nf 
pilMiihiof  tellers  of  lliis  kind,  and  utlier  netva. 
Gendcmen,  it  is  well  known  Ibat  newspa|>fra 
lire  allowed  not  only  in  lliix,  but  \a  othrr  na- 
tions ;  and.  Indeed,  it  i*  reasonable  ibat  privaM 
people  shnnlil  hnow  these  news  as  welt  aa 
oibers:  nod  therefore,  when  we  are  nnder  m 
ensE  of  Ibis  kind,  we  ought  not  to  be  strict  in 
scanning^  Ihinf  s  Ibat  eonie  from  foreign  parts  { 
for  to  do  aa.  msT  pot  m^nr  umler  great  did]- 
cullies  ;  and,  indeed,  if  mea  were  to  be  pu- 
nished Iherefore,  it  won  Id  be  a  great  means  i« 
have  no  new^  at  all  poMished  ;  fnrit  is  an  easy 
thinfT  toaran  Ihera  biuIs<i:  anil  Iherel'ure,  fen* 
llemei),  when  yuu  are  in  s  esse  of  this  kind, 
oonsidcT  how  tnany  Htlnesses  they  have  pm- 
dnred  nipiiiist  ibe  drfendant,  and  thnt  none  oF 
tbem  proves  any  thing  bat  Ihe  firsl,  on  whom 
(as  I  said  bsforv)  (hey  tveln  entirely  lo  rely  :  [ 
hope  tlipy  are  pcrKirtis  of  veracily.nr  else  ihey 
wiHild  out  liate produced  them.  Next,  do  ymt 
think  ibat  the  defrndanldid  it  oul  of  a  criminal 
drsign  r  And  I  think  it  is  prelly  hard,  an  less 
this  seera  extremely  plain,  ami  nnleis  he  waa 
oireiidinff  in  his  mind,  aa  Ibecoun.wl  on  tha 
oriier  aide  have  alleged,  and  endeavoured  lo 
maka  ont  (ihoti^h.  I  tidnb.  ihey  have  no* 
psoved  h.)  Next,  I  would  bare  you  lake  m- 
iiee  of  fbis  information  in  the  genrrsl :  he  Is  in- 
dieled  «f  two  offences ;  tlie  ane  is  only  lo  snp- 
port  the  olher :  the  second  be  is  not  guilty  of, 
hircNUae  lh«7  have  prifliiced  imi  cridenoe. 
Again,  the  nexl  thinu  they  have  proved  i«  only, 
Ihat  lit;  is  gadly  of  the  publicafioii  (let  ine  get 
free  (rf'  0*  mneh  m  1  en,)  tbooKh  1  ihmk  be  it 


C5l] 


5  GEORGE  II. 


innocent.  Gentlemen,  jou  cannot  but  cobbI- 
dcr  the  evidence  that  hath  been  given  you ; 
and  therefore  I  hope  you  will  not  think  that  he 
is  (guilty  of  any  thing  further,  1  mean  the  act 
of  publication.  Next,  take  notice,  that  there 
are  a  great  many  aggravations  in  the  informa- 
tion ;  so  that  it  you  find  the  verdict  general, 
then  these  aggravations  must  be  published  on 
reconl,  and  be  punished  for  them.  For,  lii-st, 
in  the  information  it  is  laid,  *<  That  there  were 
aeveral  differences  and  controversies  between 
his  late  majesty  and  divers  princes  and  foreign 
states,  being  his  allies,  and  the  king  of  Spain." 
I  shall  not  trouble  you  w  iih  any  thing  con- 
cerning this ;  but  only  name  the  last,  to  wit, 
the  accession  of  the  Dutch,  which  leaves  it 
where  we  found  it ;  for  the  time  laid  in  the  in- 
formation was,  thai  the  diflcrences  were  ante- 
cedent to  the  treaty  of  Hanover,  which  was 
made  the  30th  of  September,  17S6.  But  the 
€\  idence  they  have  produced  is  about  a  year 
'  alter  that,  to  wit,  about  August,  1726 ;  and 
probably  there  miQ:ht  have  been  no  diflerence 
at  all  then.  I  shall  go  on  to  make  a  few  ob- 
servations on  the  rest  of  the  matter  charged  ; 
to  wit,  "  That  he  intended  to  disturb  and  dis- 
quiet the  happy  state  of  the  public  peace  and 
tranquillity  of  this  kingdom,  aud  likewise  to 
traduce  and  %ility  the  administration,  and  his 
preaent  majesty's  principal  officers  and  minis- 
ters of  state ;  aud  to  represent  them  as  persons 
of  no  integrity  and  ability,  and  as  enemies  to 
the  public  good  of  this  kingdom  ;  and  likewise 
to  reflect  ou  the  king :"  Far  be  it  from  me  to 
tliink  that  his  majesty  ono^ht,  in  any  wise,  to  be 
refl'jcteil  on ;  and  1  ti'.ink  my  client  is  of  the 
same  opinion,  and  that  he  would  abhor  any 
tiling  to  I'mc  contrary  ;  and  tliercfore  I  appre- 
hend, that  there  is  nothing  iu  this  paper 
(lake  it  in  tlie  stronge-i^t  sense)  that  shews 
any  dcsi^^n  of  reflecting  on  his  majoty ;  and 
suppose  it  doeij  on  his  ministers,  \ftnot  one 
of  his  ministers  have  b^.rn  yet  mentioned,  on 
whom  the  rcHcciion  is  said  to  be  made.  Some- 
times it  is  said,  that  a  reflection  a^^ainst  the 
niiuistcis  is  one  against  the  king :  but,  with 
submisbiou,  1  think  it  is  not ;  for  princes  may 
sometimes  have  the  misfortune  of  bad  ministers, 
as  well  as  private  pei'sons  have  the  misfortune 
of  bad  servants;  but  1  believe  tiiat  nobody  can 
imagine,  that  his  ronjcsty  hath  any  such  mi- 
nisters. And  tlien  obstTve,  what  have  the 
king's  counsel  opened,  with  respect  to  the  pre- 
sent ministers  of  his  msjesty  ?  What  evidence 
have  they  given  of  the  dil'endant^s  reflecting 
on  these  ministers  in  the  Hague  letter?  I  ap- 
prehend, there  bath  none  at  all  been  given,  but 
what  intirely  depends  upon  the  construction  of 
that  paper  itself;  and  therefore,  in  cases  of  iliis 
kind,  tlie  question  is,  flow  you  are  to  construe 
that  paper,  especially  when  there  is  an  infor- 
mation therecn  against  any  person  supposed  to 
be  the  publisher  thereof  ?  The  gentlcmeu  of  the 
other  side  have  told  you,  that  you  are  to  un- 
derstand it  in  the  same  souse  as  any  other  per- 
son  does 


Trial  ofRidtard  FrahMin^  [652 

a  person,  wherein  facts  are  undertaken  to  be 
proved,  which  if  done,  will  subject  the  penoo 
to  punishment ;  and  that  you  are  to  find  a  ver- 
dict according  to  the  evidence  laid  before  you; 
for  there  is  a  great  difference  between  one  pe^ 
son's  reading,  understanding,  and  judging  of  jl; 
for  his  own  information,  and  anotber**  doin^jc, 
on  a  prosecution,  in  order  to  convict  or  aoqnt 
the  person  charged  :  so  that  the  question  bat 
is.  Whether  yoii  think  that  the  defendant  ii 
guilty  of  reflecting  u])on  the  present  ministos 
of  Great  Britain,  or  not,  upon  the  constructios 
of  that  paper,  and  unon  due  consideration  of 
what  follows  ?  Though  1  think  be  is  not :  for 
you  have  heard  mentioned  to  you,  from  ibe 
stveral  treaties  oueih-d,  as  well  as  from  .the 


judge  BO,  becaose 


but  1  apprehend  you  are  not  to  | 
aase  h«re  is  a  prosecution  airaiost  ! 


Hague  letter  itself,  that  there  are  several  coorti 
mentioned  as  well  as  Great  Britain  ;    to  wit, 
Prussia,  France,  Spain,  and  Germany;  and 
that  the  words  *'  certain  ministers"  may  liave  t 
reference  to  the  ministers  of  one  of  those  coorti, 
and  not  to  the  court  of  Great  Britain  :  and  I. 
hope  you  have  a  better  opinion  of  his  msiestv'f 
present  ministers  of  state,  than  to  think  tut 
the  expressions  nre  applicable  to  them;  tod, 
indeed,  when  you  are  to  make  a  construolios 
on  that  paper,  you  must  consider,  and  jiufee 
for   yourselves,  Whether  these  ministen  de>  . 
serve  such  things  to  be  said  of  them,  or  not F 
And  I  hope  you  will  be  of  the  same  opiniop  ii 
I  am  of ;  which  is,  that  they  deserve  thein  HoL 
In  the   beginning  of  that  Hague  letter  ibe 
words  are,   "  A  rumour  hath  been  for  sane 
time  privately  spread  about,  that  a  misuorfer- 
standing  will  soon  discover  itself  between  tlie 
allies  of  Seville  ;  and  that  certain  ministers  are 
I  endeavouring,"^:c.  The  gentlemen  on  the  other 
side  are  pleased  to  say,  that  these  words  "  cf:\*M 
ministers"  must  be  understood  of  the  mioisien 
either  of  Great  Britain,  or  France,  or  Spain;  but 
1  beg  leave  to  say,  that  no  such  inference  cut 
be  naturally  drawn,  or  that  no  other  mioisterf 
of  any  other  court  can  be  intended  but  one  of 
these  three.      1'heu  the  letter  goes  on,  and 
says,  "  that  certain  ministers  liaviug  at  length 
found  out,  that  too  close  an  union  with  Fraoee, 
and  a  war  upon  the  foot  of  the  ti-eaty  of  Seiillei 
is  quite  against  the  grain  of  the  people,  are 
endeavouring  to  bring  about  an  accommodatioa 
with  the  emperor."    The  gentlemen  saj*,  that, 
this  must  be  applied  to  the  ministers  of*^ Great 
Britain  only.    Gentlemen,  I  beHeve  any  ini* 
nister  of  any  court  whatsoever  must  be  of  that 
opinion,  and  that  it  is  not  fitting  that  there 
should  be  a  war  on  the  foot  of  any  treaty;  and 
I  hope  that  all  the  miuisters  of  these  thrci 
courts  are  of  the  same  opinion ;    though  lbs 
gentlemen  would  fix  it  only  upon  the  minister! 
of  Great  Britain :  nor  can  1  see  bow  it  can  bi 
said  or  applied  to  our  ministers,  when  the  fid* 
lowing   words  are  mentioned,  to  wit,  '*  that 
certain  ministers  having  at  length  found  out* 
that  tot>  close  an  union  with  France."    Why 
should  this  l>e  mentioned  us  i|  reason  of  ilf 
being  applicable  to  the  ministers  of  Great  Bri- 
tain 'i    Hare  not  we  bad  all  this  time  an  sU 


prosecution  against  j  liance,  a  dose  alliance,  with  France?  Aud  ctt 


Jut  a  Lihd. 

DiCtbeoeil  bv  &  riirtber  or  clocer  a1- 
Sn  thai,  1  uiink,  it  ii  more  applicable 
pislen  of  Dlher  cnnrta.  Genllemeo,  I 
a  Utile  notice  or  what  the  king's  coua- 
nitb  mpect  to  time  wurili  "  certain 
."  Ther  told  ^nu,  that  they  coiiM 
DdersUNKl  to  ntei  to  tlie  minislenof 
became  tbat  tlie«e  words  '■  certain 
having'  at  1en(rth  found  oul,  that  too 
union  frith  France,  and  a  war,"  fK.  ' 
Itie  minjatcni  ol'  France ;  thontcb  I 
tl,  a*  1  hare  aaiU  alreail  j,  that,  t'rom 
bey  are  more  applicable  lo  the  minis- 
itlier  court*  than  onr's.  Then  thej 
that  these  worda  "  certain  miniitera" 
I  refer  to  tbe  ministers  of  H|Hiin,  be- 
the  ill  effects  wliich,  the  letter  nien- 
ulij  fallow,  on  enileavonrin^  to  bring' 
accommmlation  with  the  emperor,  one 
[.is  called  a  nrcemsry  effect :  "  Ano- 
estarj'  effect  (fur  to  1  think  1  may  call 
h  a  measure,  at  iirescnt,  will  be  a  con- 
of  France  and  Kpain  ;  and  a  certain 
ly  hail-  the  mortification  to  see  those 
Is  united  against  them  more  strongly 


I*  an  alliance  or  treaty  entered  into  he-  , 
reat  Urilain,  France,  and  Spain  P  Was  ' 
ij  likelihood  for  iis  to  see  such  a  con- 
r  Agvin,  the  kJDjt'a  counsel  said,  that 
be  hard  for  us  to  tell  what  ministcm 
eant  by  these  expressions;  to  Itiis  I 
igwer,  that  I  think  i:  will  be  very  hard, 

0  moke  a  publisher  liable  tn  he  punUh- 
use  he  cannot  explain  or  make  o»l  a 
f  foreign  news  sent  him  ;  especially 
e  other  side  bath  got  nil  IIk!  treaties  of 
ic  affairs  in  ihcir  oivn  custody  ;  for  toy 
know  nothing  about  ihcin,  and  I  am 
t  my  client  knows  as  little ;  and  Ihcre- 
Hi't  think  that  this  piece  of  news  is  any 
n  on  our  present  ministers,  especially 
gm|iare  it  with  their  actions  imd  inerils'i 
teriuently  you  wonhl  not,  I  hope,  maho 

1  ifnilly  nf  that,  when  yuu  rnnuut  sny, 
t  char^  is  the  kust  applicable  to  them  ;, 
npe  that  you,  and  evciy  jiei'son  here, 
better  npinion  of  our  present  luinislers ', 
refore  hope,  that  yoa  tvill  ]iiit  such  a 
ziiOB  on  it,  as  that  it  is  not  a  reflecliob 
n,  and  consequently  that  you  will  not 
e  defendant  (ruilly  of  piibli>iliing  any 
'arnsi  Ibem,  tllnu^h  Im  cannot  explain 
ce  of  fareijrn  uen<^.  'j'lie  gcntlcmea  of 
tr  side  say,  that  there  are  other  parts  or 
ions  in  the  paper  that  (.rive  a  li^httoit. 

Germauizrd  patrinlH :  I  iloii't  jircteni) 
ntand  tbe  mcanin^r  thereof,  and  I  hope 
U  as  iilile  pretend  thereto :  they  said, 
ho  were' enemies  lo  the  ministry  ivcre 
10;  but  as  Uipy  hnve  (jircii  nn  cvidtnci.' 
iyou  arc  not  to  tnke  notice  ul'it.  A'^jin. 
■;,  Um these  words;  "000  immediate 


A.  D.  1731-  [65* 

elTeet  may  be  tbe  seixure  of  that  vast  pleilere 
which  Spain  hath  at  this  time  b  faer  hands" 
serve  to  explain  and  refer  to  Ibe  court  uf  Great 
Kritain,  though  they  have  given  no  eridenco 
thereof;  nor  dot  see  why  this  should  be  ap* 
ptieil  to  Great-Britain  only,  because  there  are 
other  courts  or  slalea  that  have  consideraU* 
stock*  anil  effects,  that  may  be  applicable 
thereto.  And  then  they  mentioned  another 
thin^,  which  they  wanted  to  make  tbe  ex- 
preaaion  refer  (o  Great  Britain,  wliich  is,  "  that 
the  ministera  had  been  undoing  wliat  they  had 
been  doing  for  tire  years  past;"  which  ihej 
say  carries  it  back  ro  tlie  treaty  of  Hanorer, 
entered  into  in  September,  17SS:  but  I  think  it 
proprr  to  remark  to  you,  that  the  ifenllemen 
iheraaeUe*  bate  acquainted  you,  that,  about 
tbat  time,  the  Dutch  were  a*  much  dissatisfied 
as  we  were;  and  therefore  I  think  it  is  hard 
to  conjecture  whose  ministers  are  meant  by 
thai  expression.  Gentlemen,  i  sliall  not  trou' 
hie  you  with  futiherobnerTations  on  tbat  paper; 
hut  leare  it  lo  your  own  miisiileraljon  :  only 
observe,  though  the  Linir's  counsel  were 
pleased  to  say,  that  tbe  Hague  letter  was  of  an 
English  growth,  yet  they  have  not  proved  it 
lo  be  BO,  nor  have  Ibev  told  you  wlin  is  the 
author  of  it;  though  I  think,  from  the  imgrart 
of  it,  it  plainly  appears  to  be  of  a  fbreini 
growth,  and  is  placed  under  the  article  of  to- 
reign  new* :  and  we  con  prove,  that  (if  we  had 
not  been  deprived  of  the  means  of  doing  it)  the 
letter  came  ffom  abroad  a*  a  piece  of  f(irei>,rn 
news :  for  yoa  are  to  ooiiiider,  that  when  the 
deleoilant  was  sriietf  upon  thai  account,  the 
pereons  employed  tlierein  broke  open  his  sera- 
lore,  and  aearched  his  pockeU,  and  took  awey, 
in  a'  most  uawarraatable  manner,  his  papen 
and  letters,  and  other  things,  which  Ihey  still 
retain  ;  and  ainougiit  the  rest,  this  Hng'iie  let* 
tpr,  which  has  deprived  him  of  some  [isrt  of  his 
defence,  by  disabling  hiro  lo  produce  that  let- 
ter, though  he  is  cxpectEd  lo  produce  that  ori- 
Rinul  letter  still,  wliich  is  impossible  to  be  done 
now ;  therefore  we  expect,  when  you  coniider 
these  circumstances,  tbat  you  will,  in  point  of 
eridcnce,  cxjiect  lesa  from  us,  and  more  from 
them.  1  shall  not  trouble  you,  at  present,  any 
further.  Aly  lord,  1  apprehend  Ihcy  have 
liiilcd  in  the  descriptinn  uf  their  pretended 
libel ;  they  hare  iitiled  it  a  certain  false,  scan- 
dalous, and  seilitiuus  libel,  {intituled,  S'  335, 
The  Country  Journal ;  or,  ihc  Crali-imaii,  by 
Caleb  D'Anvers,  Sec.)  I  apprehend  thai  Ibis 
number  935,  being  at  the  cml  of  the  paper, 
cannot  be  the  title,  or  any  part  of  it ;  ]  believe 
there  have  been  some  precedents  to  the  con- 

L.  C.  J.  J  don't  know  how  you,  nr  any 
olher  person,  can  distinguish  one  Journal  from 
another  after  a  belter  manner ;   I  shall  not  go 

ihcopiuiun  of^those  before  me;    if  you  think 
otherwise,  you  know  where  to  apply  io. 


655] 


5  GEORGE  IL 


Trial  qfRie^rd  FranckUn^ 


is  the  perpon  that  iinow  mere  immediately 
atandiDg  before  vou,  and  ooocerned  iu  this  pro- 
aecutiou  ;  ^et  I  thiokit  is  ootcoufined  to  him 
ooly,  hut  will  extend  to  tbioga  of  a  more  public 
nature,  and   consequently  to    tlie  public   in 
geoersj  ;  1  mean  the  suppretsion  ot'the  liberty 
of  the  press,  which  liberty  balh  been  always 
esteemed  as  a  great  privilege*  and  of  great  ad- 
vantage to  this  aation  :  that  this  prosecntiuo  is 
of  sudi  extent,  will  appear  from  the  paper  itself 
complained    of,    anu    the  evidence   relating 
thereto.    The  case  hath  been  fully  opened  by 
the  gentlemen  on  the  other  side,  with  many 
aggravations  pretended  to  be  attending  it ;  and 
toMe  aggravations  are  not  confined  to  this 
|»aper  only,  but  extend  to  all  the  other  news- 
papers in  general:    and  should  I  have  the 
liberty  to  mention  the  common  opinion  of  man- 
kindi  with  relation  to  this  weekly  Journal,  I 
believe  that  assertion  of  its  being  a  false,  scan- 
dalous, and  seditious  paper,  would  be  thought 
groundless ;  but  that  it  nath  tended  rery  much 
to  their  satisfaction,  in  foreign  and  home  af- 
fairs.   But  we  are  now  oonniied  to  this  paper, 
which  is  dated   the  9d    of  January,    1780. 
Gentlemen,  this  paper  contains  a  paragraph  of 
foreign  news,  or  intelligence;    lor  such  are 
oftentiflMS  of  use  to  those  who  deal  in  foreign 
trade :  now,  this  fiireign  intelligence  complained 
of,  and  for  which  the  defendant  is  prosecuted, 
u  not  positively  aiiserted  as  a  truth,  out  only  as 
a  saying ;    '*  A  rumour  hath  been  for  aome 
time  spread  about  privately,*'  &c.    Besides, 
it  is  added  in  the  conclusion  thereof,  **  I  cannot 
take  upon  me  to  justify  the  truth  of  this  report : 
but,  as  it  hath  been  pretty  confidently  buzseU 
about,  J  thoujfht  proper  to  let  you  know  what 
is  said  ution  it ;  and  if  it  should  appear  to  have 
any  foundation,  you  may  expect  to  hear  further 
from  me  on  the  subject.*'  Gentlemen,  the  in- 
formation contains  two  charges,  with  regard  to 
this  paper :    the  first  is,   for  spreading  false 
news ;  and  the  second  is,  for  publisliing  a  false, 
scandalous  aud  seditious  libel  against  his  ma- 
jesty's administnition  of  the  government,  and 
against  his  principal  ofiicers  and  miniss'ters  of 
state,  and  also  against  the  Treaty  of  (Seville. 
Gentlemen,  as  these  things  are  only  asserted 
and  averred  in  the  information,  by  innuendoes, 
it  is  incumbent  on  them  to  prove  them  :  rud, 
in  order  to  this,  they  have  produced  this  news- 
|Niper,  which  is  published  for  the  entertainment 
and  use  of  tlie  public,  containing  foreign  and 
iioine  news,  or  atTairs ;  among  which  there  is  a 
paragraph  which  says,  (as  from  the  Hague) 
**  A  rumour  hath  been  for  some  time  privately 
spread  about,  and  begins  to  gain  credit  here, 
that  a  misunderstanding  will  soon  discover  itself 
between  the  allies  of  Seville  ;  and  that  certain 
ministers  are  endeavouring  to  bring  about  an 
accommodation  with  the  emperor.*'    This  is 
all  that  is  asserted  ;  for  all  the  rest  of  the  letter 
are  only  as  an  induction,  or  inferences  drawn 
from  the  supposition  that  such*a  piece  of  intelli- 
gence  is  true ;  and  if  so,  then  it  says,  that  the 
conduct  of  these  certain  ministers  hath  been 
wrong  bdbre,  and  hath  occatioMd  mineccsaary 


expeaces  to  be  laid  out,  and  will  oocaaii 

ther  expencea  to  be  laid  ont ;   and  ad« 

am  far  from  designing  to  insiDuate  from 

that  an  aocomnodation  with  the  em(>er 

wrong  measure ;  on  the  Gootrary^  1  wial 

been    thought   a    right  measure  long 

And  in  another  part  of  it  be  says,  ■*  and  \ 

it  must  be  confessed  to  be  very  desirable 

sent ;    yet  it  seems  to  be  attended  wit 

fatal  consequences,  and  almost  insuperal 

ficolties."    And  then  he  mentions  the 

queoces ;  as  the  interruption  of  trade,  a 

coiyunction  of  France  and  Spain  ag^nst 

tain  court,  in  general,  withotit  naming  il 

adds  some  other  efiects  or  consequeiioei 

then  these  effects  or  consequencea  are  al 

this  supposition,  that  these  certain  minisi 

bring  about  an  accommodation  with  tin 

peror ;    though  he  adds,  at  the  condw 

the  letter  (as  1  said  before)  **  that  J  cannii 

upon  me  to  justify  the  truth  of  this  report 

as  it  hath  been  pretty  confidently  buzzed  i 

1  thought  proper  to  let  you  know  what  ii 

upon  it ;  and  if  it  should  appear  to  ban 

foundation,  you  msjf  expect  to  hear  ft 

from  me  on  the  suljgect."    Now,  gentk 

tba  question  is,  who  are  meant  by  these ' 

<*  certain  ministers  f ''  And  by  the  way,  tli 

it  is  said  in  the  information,  that  this  pic 

foreign  news  was  a  high  reflection  on  hii 

sent  majesty,  yet  I  cannot  see  any  thing  tl: 

that  hath  the  least  tendency  to  such  a  r 

tion  ;  nor  is  there  indeed  so  much  as  tbe 

**  majesty",  or  "  kin^  of  Great-Britain 

even  the  word  <*  Britam"  itself,  in  any  pi 

that  letter  ;   nor  hath  there  been  the  less 

dence  offered  to  you,  that  it  docs  smy  wsj 

fleet  on  his  majesty ;  so  that  ibis  does  d< 

under  your  consideration :    and  this  beinj 

aside,  the  next  thing  to  be  known  is, 

ministers  these  are  that  are  meant  by 

words,   *'  and  that  certain  ministers   b( 

at  length  found  out,  that  too  close  an  i 

with  France,  and  a  war  upon  the  foot  o 

Treaty  of  Seville,  is  quite  agaiuKt  the  : 

of  tbe    people,    are    endeavouring   to  1 

nbout  an  accomn^odation  with  the  empc 

The  information  hath  averred,  that  by 

words,  <*  certain  tninislers,"  are  iroplieil 

meant,  the  principal  olRcers  and  miniiiiters 

ployed  and  entrusted  by  his  present  \m)\ 

but  who  are  they  then  .'   To  be  sure  it  wil 

be  said,  that  the  paper  does  in  the  least  me 

them  to  be  our  present  ministers  ;  or  tbai 

of  you,  I  hope,  hath  such  thoughts  concei 

them,  as  to  believe  that  they  arc  guilty  of 

which  is  charged  on  them  by  the  inforroa 

nor  do  I  think  that  they  ore  meant  by  < 

parts  of  the  paper ;    because  vou  have  I 

already,  that  these  things  may  be  applied  t 

ministers  of  oilier  courts  and  countries,  as 

as  England  or  Great-Britain.    Tlie  ]Miper 

left  the  menniug  very  much  in  the  dark, 

to  a  conjecture  only  ;    for  it  may  refer  U 

set  of  ministers  as  well  as  another.     I 

Sentlemen,  that  tho  pretending  to  aaccrti 
etermine  whose  ministcra  are  mcanl  by  i 


Jbr  a  LibeL 

•nd  indeiiDite  words,  is  at  the  best 
onjpcturc.  And  \%ilh  submission  to  uiy 
rectiuns  •ndjudpueut,  1  mustt«*ll  yon, 
h  relation  to  scandal  or  slander,  the 
it  duwu  as  a  rule  to  be  obseri'ed,  that 
s  two  tilings  necessary  :  tUe  first  is, 
person  of  wiiuni  Uie  blander  is  used  or 
u^lit  to  be  certain,  and  on^bt  not  to  be 
•opie's  imagination  or  conjeciure  :  and 
thioif  is,  that  the  slander  shall  be  evi- 
I  plain  from  the  words  themselfes,  and 
lorted  by  any  innuendo ;  I  say,  they 
plain,  positive,  and  direct  You  have 
Ui,  that  ^ou  are  to  understand  this 
a  every  common  reader  in  a  cofifee< 
but  I  btf^  leave  to  ssy  that  you  are 
r  when  you  are  in  a  coffee- house,  you 
» liberty  to  conjecture  and  i^uess  at  the 
;  of  a  piece  of  news,  as  well  as  any 
nvoD  there ;  and  nobody  can  be  sub- 
I  aoy  panishment,  if  you  are  mifitakcn 
but  when  you  are  here,  in  a  court  of 
re,  you  must  consider  tliat  you  are 
Nir  oath,  and  that  you  are  not  to  take 
lerty  to  conjecture  or  guess  at  the 
1^  of  things  ;  because  if  you  happen  to 
akeo  in  your  conjecture,  you  will 
itm  gtiilty  of  the  criminal  charge 
ie*is  accused  of,  and  subject  him  to  the 
WDt  inflicted  thereon  ;  and  you  arelike- 
consider,  as  I  hinted  before,  that,  in 
,  the  law  requires  that  botli  the  person 
id,  and  the  scandalous  words  thcm- 
ought  to  be  certain,  and  not  want  in- 
*■  to  make  them  out ;  and  that  an  in- 
oiigbt  neither  to  alter,  eiilart^e,  or  supply 
le  of  the  words,  when  doubtful  or  de- 
Kiecause  it  would  be  unjust :  And,  in- 
rhenercr  an  innuendo  is  allowed,  in 
ises,  to  explain  a  doubtful  matter,  it 
be  rather  in  favour  of  the  person  ac> 
lan  against  him.  especiully  where  the 
ipokon  m»y  be  applied  and  referred 
rays  than  one :  80  here  in  fixing  a 
f 'on  the  words  *' certdn  mini:;lcrs,'' 
tlie  information,  by  an  innuendo,  ex- 
>  be  the  principal  oiiiccrs  and  ministers 
ed  by  his  present  majesty,  you  are  to 
:  tihethcr  the^e  wonis  may  not  be  ap- 
ibe  minihters  of  other  courts  and  coun- 
ind  likewise  to  consider,  whether  these 
"  certain  ministers,*'  (so  understood  by 
noation  to  be  his  mujestv's)  are  to  be 
Dod  ur  meant  by  ihostt  otfiecrs  or  mi- 
*naployed  by  hin  majesty  at  sea  or  land  ? 
they  Ilia  ministers  at  home  or  abroad  ; 
tiller  they  are  his  oflicers  civil  or  mili- 
Vow«  I  say,  suppose  you  should  find 
"airraph  of  foreign  news  to  be  a  libel,  or 
at  tlirowo  UjKHi  his  m-^jcsty's  otTiccrs 
ntiterfi  (as  1  hope  ydu  will  not),  can 
'  or  declare  ou  oath,  who  are  the  par- 
peraons  thus  slandered  or  defamed  ? 
ou  any  certain  rule,  by  this  paper  to 
oor  judgmeDts  ?  Can  you  say,  on  voiir 
Ih  aoy  certainty,  whctlier  these  officers 
Mera.  so  defamed,  ara  tliosa  at  hoiaa 
.  XVIf. 


A.  D.  17SL  [658 

or  abroad,  or  civil  or  military  ?  Again,  I  rap- 
pose,  for  argument  sake,  that  though  yoa 
should  be  of  opinion,  that  this  piece  of  foreign 
news  is  a  libel  or  scandal  upon  his  maje»ity'a 
officers  or  ministers ;  yet  J  submit  it  to  you, 
whether  you  can  say,  on  your  oaihs,  that  that 
piece  of  news,  contained  m  this  Journal,  does 
amount  to  a  false,  scandalous,  and  seditious 
libel,  as  it  is  asserted  and  averred,  by  an  in- 
nuendo's in  the  information  ?  And  I  submit  it  to 
yon,  with  all  deference  to  my  lord's  judgment 
and  directions,  whether  it  is  not  incumbent  on 
them  to  prove,  that  that  piece  of  foreign  news 
is  false,  scandalous,  and  seditious,  beibre  yoi< 
can  find  it,  by  your  verdict,  to  be  so?  And, 
indeed,  the  chief  thing  in  this  paper,  or 
letter,  that  the  defendant  is  charged  with  in 
the  information,  is,  "  That  a  rumour  hath  been 
for  some  time  privately  spread  about,  that  cer- 
tain ministers  are  endeavouring  to  bring  about 
an  ac(:ommo<lation  with  the  emperor."  I  say, 
this  is  the  chief  thing  that  is  mentioned  in  the 
Hague  letter ;  though,  in  the  conclusion  of  it, 
it  is  said,  ^<  I  cannot  take  upon  me  to  justify 
the  truth  of  this  report.''  For  all  the  rest  of 
that  letter  (as  I  said  before)  are  mentioned,  or 
set  down,  only  by  way  of  conclubion  or  infer- 
ence, that  such  and  such  things  will  be  the 
effect  or  consequence,  if  these  **  certain  mi- 
nistera"  can  bring  about  that  accommodation 
with  the  emperor.  Now,  let  us  take  it  either 
way ;  suppose  that,  at  the  time  of  the  publi- 
cation of  this  Hague  letter,  that  this  accom- 
modation or  treaty  with  the  emprror  had  not 
been  bronf<;ht  about ;  how  can  it  be  said  to 
be  false,  and  so  on,  when  the  Ifttter  does  not 
affirm  it  for  a  truth  ;  but  only  snj's,  **  that  a 
rumour  hath  been  for  some  time  privately 
spread  about,  that  certain  miuisters  are  endea- 
vouring to  bring  about  an  accommodation  with 
the  emperor;"  and  adds,  in  thc»  rcjijclasion  of 
it,  **  that  he  cannot  take  upon  him  to  justify 
the  trurh  of  this  report."  And  then  let 'us  sup- 
post',  that  they  were  endeavouring  to  bring 
ab{)ut  tiiat  accommodation  or  trtaty  with  the 
f'lnperor ;  and  that  it  was  actually  brought 
about  and  concluded  about  the  time  ol  the 
publication  of  that  letter,  which  was  in  tlie 
year  1730;  thin,  to  be  sure,  the  allegation  wvs 
true,  and  therefore  could  not  be  faUt*  anil  scan* 
dalous,  or  seditious.  As  to  that  nccoinmoda- 
tion  or  treaty  with  the  emi)eror's  Iwing  true,  I 
hope  we  shall  give  you  full  satisfaction,  not- 
wiihstandiiig  the  great  difficult ies  that  the  de- 
fendant at  present  labours  undLT'  We  shall 
give  you  the  f>est  evidence  that  the  nature  of 
things  w  ill  a'lniit  of,  and  which  is  always  al- 
lowed to  h(*  SMtlii'ient ;  for  there  are  some  things 
which  are  self  rvid»nt.  and  tlu-re  arc  some  things 
that  carry  in  them  what  every  body  knows. 

L.  C.  J.  I  don't  altoflrether  know  w!»at  you 
aim  at :  I  should  be  glad  to  kno\v  how  you 
would  really  understand  these  expressions. 
And  as  for  your  saying,  th^t  ym%  can  prove 
what  is  charged  on'the  dcfendnnt  to  be  true, 
it  is  iny  opinion,  that  it  in  not  material  wbttkior 


W9] 


5  GEORGE  II. 


Trial  of  Richard  FranelBti, 


im 


the  facts  charged  in  a  libel  be  tnie  or  false,  if 
the  prosecution  is  by  indictment  or  inforaiation ; 
and  that  writing  or  printing  may  be  libellous, 
though  the  scandal  is  not  chara^l  in  direct 
terms,  but  only  ironically ;  or  ahliough  there 
be  onl^  the  initial  letters  of  the  name,  or  even 
a  fictitious  name,  if  the  jury  plainly  perceives 
it  to  point  at  a  particular  person ;  and  that 
not  only  the  contriver  and  procurer,  but  even 
the  publisher  of  a  a  libel,  are  punishable ;  and 
that  even  a  private  man's  character  is  not  to  be 

-  scanilalized,  either  directly  or  indirectly ;  be- 
cause there  are  remedies  appointed  by  the  law 
in  case  he  has  injured  any  person,  witiiuut  ma- 
liciously scandalizing  him  in  his  character : 
And  much  less  i^  a  magistrate's,  minister  of 
state,  or  other  public  person's  character  to  be 
stained  either  directly  or  indirectly  ;  because 
the  law  hath  pointed  out  another  remedy  than 
publishing  libels,  if  they  have  injured  any  per- 
son, either  in  a  public  or  private  capacity ;  and 
the  law  always  punishes  libels,  even  among 
private  persons,  because  they  flow  from  ma- 
lice, and  tend  to  create  disturbance,  (juarrels, 
and  revenge  between  them,  their  famdies  and 
Icindred,  and  disturb  the  public  peace :  And  the 
Jaw  reckons  it  a  greater  offence  when  the  libel 

^is  pointed  at  persons  in  a  public  capacity,  as  it 
is  a  reproach  to  the  government  to  have  cor- 
rupt magistrates,  &c.  substituted  by  bis  ma- 
jesty, and  tends  to  sow  sedition,  and  disturb 
the  peace  of  the  kingdom :  Therefore,  I  shall 
not  here  allow  of  any  evidence  to  prove  that 
the  matters  charged  in  the  libel  are  true ;  for  f 
am  only  abiding  bj^  what  have  been  formerly 
done,  in  other  cases  of  the  like  nature.  If  you 
think  it  wrong,  apply  to  the  Court,  and  tJiey 
will  do  you  justice. 

Mr.  Booile.  My  lord,  then  I  must  submit  it 
to  your  lordship,  \vhctlier  this  will  not  tend  to 
the  utter  suppression  of  the  liberty  of  the  press, 
which  hath  been  so  bcncticial  to  the  nation  in 
general.  And,  my  lorl,  1  humbly  apprehend, 
though  a  publisher  of  news  happens  to  be  mis- 
taken in  what  he  publishes,  it  cannot  be  called 
malicious  nor  seditious,  especially  when  no 
purticular  person  is  mentioned ;  hut  only  an 
4:rror,  committed  through  ii^norance,  or  misre- 

1  Presentation  of  his  corrcspomlents.  Aofciin,  my 
ord,  if  the  defendant  is  not  allon'cd  to  bring 
in  his  evidence  that  some  parts  of  his  news  are 
Iruo ;  then,  if  he  is  found  pfnilty,  he  is  lound 
guill\  of  all  that  is  charged  i>n  bini  in  the  in- 
formation, thotit^h  he  is  only  guilty  of  part 
th«  reof.  I  think  this  evidence  will  be  allowcil 
between  particular  persons,  with  relation  to 
their  private  affairs ;  for  thoy  will  not  be  found 
guilty  of  the  whole,  when  they  are  only  guilty 
of  a  part ;  and  why  should  not  the  saniti  be  al- 
iened wiih  respect  to  puolic  atfuirs?  As  the 
Star  Chamber  is  now  abolished,  I  don't  know 
bow  tar  that  doctrine  may  be  adhered  to.  I 
■hoold  be  clad  to  have  one  instance  or  autho- 
rity of  this,  and  of  there  being  no  need  to  prove 
■ewstobe  true:  and  also  where  a  publisher 
•r  Bcws  it  not  allowed  to  ny  that  thU  piece  of 


news  is  true,  becaose  it  relatee  to  the  paUic  af 
fairs  of  the  nation.  Is  there  no  diatmctioo  K 
be  made  between  false  news  and  true  news; 
and  cannot  we  now  animadvert,  or  take  notin 
of  public  affairs,  and  insert  them  in  the  papain 
as  well  aa  formerly  7  If  thiK  is  the  case,  it  nV 
be  of  dangerous  and  fatal  coneequence  iisM, 
if  matters  of  state,  or  public  affairs,  are  Btlti 
be  meddled  with,  or  inserted  in  the  Dewa-napoi, 
notwithstanding  they  are  tme,  but  at  toe  pail 
of  him  that  docs  it  ?  They  may  as  well,  it 
once,  take  away  the  liberty  of  the  press ;  Hid 
then  we  shall  all  live  in  darkness  and  ignoraec^ 
which  may  occasion  disord^  enough  in  thi 
nation.  Therefore,  I  submit  it  to  yonr  knl- 
sliip,  whether  this  will  not  be^f  daoniMi 
consequence,  to  punish  a  person  for  pobushi^ 
true  news  as  well  as  false  ;  and  whether  it  cm 
be  justly  said  in  the  information,  that  the  li> 
fendant  mtended  to  publish  false  news? 

Mr.  Strange.  My  lord,  1  beg  leave  to  CiR  a 
witness  or  two.  It  was  insinuated,  by  ik 
gentlemen  on  the  other  side,  that  the  eztnctif 
the  Hague  letter  was  of  the  growth  of  ov 
own  country ;  and  put  it  upon  us  to  prove  tkit 
it  came  from  the  Hague,  by  producing  Um 
letter  itself.  My  lord,  in  order  to  take  offtbt 
imputation,  it  will  be  necessary  to  shew,  tfaH 
they  have  put  it  out  of  onr  power  to  do «; 
therefore  our  evidence  will  be,  m  the  first  plMS^ 
to  shew,  tliat  when  the  defendant,  Mr.  Fraodt- 
lin,  was  taken  into  cn^ttody  by  the  messengm, 
they  broke  open  the  defendant's  scnitoire; 
and,  I  think,  they  also  searcheil  his  podcfti, 
and  took  away  his  papers,  and  among  whidi 
were  letters,  and  this  amongst  the  rest.  Tb» 
next  part  of  our  evidence  shall  be  to  prove,  tt 
have  btien  oi>ened,  that  we  have  poblished  trot 
news,  and  not  false,  as  is  charged  in  tlie  info^ 
mation;  and,  indeed,  the  information  o«|?lrt 
rather  to  have  been  for  forestalling  true  oeAii 
and  not  for  publishio>;  false  news;  for  the  en- 
deavouring to  brnig  about  that  accommodatiM 
with  the  emperor  took  effect :  for,  my  lord,  Vt 
will  sheW)  that  we  applied  in  a  public  mannert 
that  the  defendant  might  be  at  libert}'  to  take 
copies  of  the  treaties  of  Hanover,  Seville,  aiid 
Vienna,  in  order  to  make  use  of  them  at  bil 
trial;  and  when  we  had  taken  all  proper mt* 
tbmis  to  have  copies  of  them,  we  were  toldtbit 
the  treaty  of  Vienna  was  a  secret  one,  andmC 
yot  made  public,  and  consequently  notentvllei 
in  any  of  the  public  offices ;  and  that  no  copy 
could  be  given  of  it,  to  produce  in  court: 
when  we  have  proved  this,  we  hope  it  willbl 
sufficient  to  shew,  tliat  we  have  not  published 
false  news,  as  charged  in  the  information ;  M* 
peri&lly  as  we  have  doiie  all  that  can  be  dmMji 
in  order  to  produce  a  copy  thereof. 

Call  William  Ayers,    (\^'ho  appears.) 

Air.  Strange.  Do  j'ou  know  the  defaMfan^ 
Mr.  Frnnckhn? — Ay:rs.  Yes. 

!^lr.  Strange,  Were  you  present  when  be  mi 
taken  into  custody,  for  publishing  the  CraRl 
man  th«  ^  of  January,  17S0  ?         , 

Jyen,    Yei. 


tei2 


JbraUleL 


A.  D.  17SL 


[6G1 


Mr.  Sirtmge^  Will  yoa  gm  an  accoant  of 
what  happened  P 

Jwen.   The  meaaengen  came  to  my  hooae, 
§m  i  was  a  oooataUe,  and  desired  my  aasis- 
taaea,   to  so  with  Ihem  to  Mr.  Francklin'a,> 
which  1  did ;  and  they  aearched  for  papers  in 
lii  hpwae  and  ahop,  and  they  broke  open  bis 
■Btoire,  and  took  away  what  papers  they  could 
' ;  and  Mr.  Franokfio  deaired  them  to  leave 
t  •f  the  papers,  because  they  would  be  of 
"1  to  him,  but  not  to  them;  but  they 
not,  bot  took  them  away. 
Mr.  Strange,   Did  he  endearour  to  save  his 
fera  aa  much  as  he  could  ? 
Jlpcrs,  He  did  not ;  but  his  wife  endeaTOur- 
do  it,  by  snatching  at  them,  though  to  no 


Siran^e.  Did  they  search  bis  pockets? 
-  ^cn.  I  did  not  obserye  ihem  do  that. 

lu.  Strange,  Did  they  suffer  him  to  take  an 
iMMBt  of  these  papers,  in  order  to  know  what 
Iknvere? — Ayers.  No. 

m.  Strange,  Do  you  know  what  they  did 
Wlh  these  papers? — Ayers,  No. 

Mr.  Strange,  Did  you  go  along  with  them  ? 

Jof€r$,   Yea* 

|fr.  Strange,  Did  you  know  they  were  mea- 

^  Jjftri,  Yea  ;  he  shewed  me  his  authority, 
■dtoU  me  that  he  was  the  kinp^'s  messenger. 

Mr.  Sirange,  Hath  Blr.  Francklin  had 
im  ipin  ? — Avers,  1  believe  not. 

Mb  Strange.  Hath  he  asked  for  them  ? 

4wMi  1  know  not. 
■  Hr.&roiiige.  Were  they  sealed  up  or  not  ? 

Am-  I  cannot  remember  that. 

wu  Strange,  Was  Mr.  Francklin  desired  to 
9Alk  aeal  to  them  ? 

Jfin.  i  cannot  he  sure ;  but  1  believe  he 
taait  deaired  to  do  so. 

Mr.  Strange,  Where  were  these  papers 
kmdt 

Ayert.  I  think  they  were  in  the  one  end  of 
Atahop;  they  were  wrapped  up  in  a  bundle. 

Mb*  Strange,  Was  the  inside  of  them  print- 
^t'^yen,  1  know  not. 

Mr.  Strange.  Call  Thomas  Rawliua.    (Who 

Att,  Gen,  My  lord,  I  find  tliat  they  are  to 
ol  this  witness  to  prove  that  they*  desired 
Mpwa  of  the  Treaties ;  which  is  to  no  purpose, 
IM  eannot  be  allowed. 

L,C.J.  1  am  very  well  satisfied,  that  I  can- 
M  admit  it. 

Mr.  Strange,  My  lord,  it  is  only  to  shew, 
tetbe  Hague  letter  was  not  a  piece  of  false 


Att,  Gen,  BIy  lord,  did  ever  any  roan  think 
t  aecsBsary  to  prove  every  part  of  the  libel, 
vboi  it  is  not  material  whether  the  matter,  or 
mdahms  words,  or  news  in  the  libel,  be  true 
•  Use,  or  charged  in  direct  terms  or  not ;  or 
vktther  the  persoiw  be  named  or  only  pointed 
i^ia  have  been  aheady  hinted ;  though  Mr. 
Bnila  h«a  called  on  roe  to  shew  some  autho- 

Sf  ar  piceedent  for  some  of  these  things  ?    I 
■grithal  on tha cases  mentioned  iu  the  5th 


of  Coke's  Reports,  p.  125,  and  also  in  Ho- 
hart's  Iteports,  p.  815,  and  5th  of  Modem  Re- 
ports, p.  167,  and  Qth  of  Coke's  Reports,  p.  59. 
The  first  says.  That  every  libel  is  made  either 
against  a  private  roan  or  against  a  magistrate,  or 
public  peraon :  if  it  be  made  against  a  private  per- 
son, it  deserves  a  severe  punishment ;  and  it  it  be 
made  against  a  magistrate,  or  other  public  per- 
son, that  h  still  a  greater  offence,  and  dncrvea 
a  greater  punishment ;  because  this  concerns 
not  only  the  breach  of  the  peace,  but  is  a  scan- 
dal to  the  government.  The  other  Reports 
take  notice  of  the  other  points  which  1  hava 
mentioned  :  and  1  must  say,  that  it  would  ba 
the  most  absurd  thing  in  the  world  to  imagine, 
that  the  law  had  taken  a  better  care  of  the  cha- 
racter of  a  private  person,  than  ofa  magistrate, 
or  public  person,  employed  and  entrusted  by 
bis  majesty  in  the  affairs  of  state.  Therefore, 
I  submit  it  to  your  lordship,  whether  such  an 
evidence,  to  prove  that  the  news  published  is 
true,  ought  to  be  admitted. 

L,  C.J.  I  have  given  Mr.  Bootle  my  opi- 
nion already  about  it ;  and  if  it  is  not  accordinip 
to  their  liking,  they  know  where  to  apply  to 
have  it  rectified. 

Air.  Bootle,  My  lord,  in  effect  it  hath  been 
called  an  absurdity  to  think,  that  speaking  the 
truth  of  any  magistrate,  or  other  public  person, 
in  the  news,  can  go  unpunislie<l ;  because  if 
that  magistrate  or  public  person  have  done  any 
injury,  then  it  waa  said,  that  there  is  a  remedy 
provided  another  way  than  by  publicly  expos- 
ing him,  and  defaming  his  character ;  as  well 
as  there  is  a  remedy  provided  for  having  aatis- 
faction  of  a  private  person  for  any  injury  dona 
by  him,  without  scandalizing  him,  directly  or 
indirectly,  in  any  public  paper.  But  I  should 
be  glad  to  know  how  it  muU  be  gone  about : 
for  example,  here  is  a  piincipal  minister  of 
state,  that  hath  injured  a  person  that  is  a  pub- 
lisher of  a  paper ;  where  can  he  have  redress, 
supposing  the  parliament  not  sitting  ? 

L.  C.  J.  I  am  of  the  same  opinion  as  before. 

SoL  Gen,  I  thought,  that  reallv  such  a  thing 
as  that  would  nut  nave  been  taken  notice  of; 
because  it  is  plain  to  every  person,  that  we 
have  a  remedy  against  a  minister  of  state,  aa 
well  as  against  any  other  man,  without  det'am« 
ing  him  publicly ;  and  likewise  any  author, 
printer,  or  publi&her,  or  other  person,  may  ap- 
ply to  a  proper  place  for  a  remeily  against  him, 
if  they  think,  that  any  court  or  jury,  have  noi 
done  them  justice. 

Mr.  HocL  My  lord,  1  beg  leave  to  sajr  a  fevr 
words  on  the  defendant*8  behalf.  It  is  well 
known,  that  the  design  of  this  paper  of  tha 
Craftsman,  which  is  publisted  weekly,  is  to 
entertain  and  benefit  the  public,  and  I  believe  il 
has  answered  these  ends:  And  I  hope  the  jury 
will  consider  the  intention  thereof,  with  the  cir- 
cumstances and  inconveniences  that  the  printer 
or  publisher  of  newspapers  lie  under ;  and  I 
ho|ie  you  will  consider  the  defendant  only  as  a 
collector  of  news  from  all  parts  of  the  country, 
and  likewise  from  foreign  parts,  for  the  ad- 
Tsotageof  those  people  here  ihaitcadAV^ 


96S] 


i  GEORGE  II. 


Trial  of  Richard  Fraticklin, 


c« 


from  those  parts ;  anil  that  it  is  possible  for 
the  (Jet'endaDt's  correspondents,  after  all  the  care 
they  liave  taken,  sometimes  to  be  a  little  mis- 
taken in  their  intelligence,  or  not  so  correct  in 
wording  them  as  they  oufi^ht  or  might  be,  with- 
out any  intention  or  malicious  design  of  injury 


being  one  by  the  words  themselves,  iind  as  thi 
stand  in  the  paper  abstracted  from  the  i 
Duenilos ;  and  1  lio  say,  that  it  will  be  iropo 
sible  to  6nd  it  a  libel  on  our  present  iiiini»tei 
if  you  judge  of  it  so;  for  there  are  no  sue 
words  tuerein  as  the  ministers  of  Great- Britaii 


to  any  person ;  and  therefore,  if  such  thiugi^  I  believe  there  are  no  less  than  thirty  seven  ■ 
were  to  be  always  punctually  and  precisely  |  nuenilos  in  this  int()rmation,  and  you  caiw 
scanned,  and  the  printers  and  publishers  thereof  •  find  it  a  libel  when  stuffed  with  these  inouendQ 

Erosecuted,  an<l  subjected  to  punishment,  it  will  j  Gentlemen,  in  the  former  part  of  it,  yoa  wi 
e  of  very  dangerous  consequence  ^  because  we  i  be  please<l  to  observe,  that  they  say,  thatti 
should  not  have  any  intelligence  or  news-  '  defendant  is  a  constant  publisher  of  these  libeh 
papers  at  all,  and  consequently  be  ignorant  of !  and  yet  they  have  not  proved  that  so  much  i 
what  happens  daily  at  home  or  abroad,  and  one  of  them  was  ever  sold  by  the  defeodsi 
thereby  occasion  an  interruption,  in  trade  so  be-  himself.  And,  gentlemen,  with  respect  to  tt 
neficial  to  this  nation.    Besides, it  is  hoped^that  ,  innuondos,  it  is  to  be  observed,  that  there  vn 


you  will  consider,  that  this  piece  of  news,  in 
the  Hague  letter,  is  not  laid  down  as  a  truth 
to  he  depended  upon,  but  only  as  a  rumour  that 
had  been  spread  about  in  that  place :  And  the 
writer  of  the  letter  adds,  in  the  conclusion 
thereof,  that  he  docs  not  take  upon  him  to 
justify  Uiis  report ;  and  that  if  it  should  appear 
to  have  any  fuuudation,  he  should  hear  further 
from  him.  Again  you  will  consider,  as  have 
been  already  mentioned  to  you,  that  the  parts 
of  the  same  are  applicable  to  other  courts,  and 
that  it  cannot  be  applicable  to  Great- Britain,  or 
its  ministers,  without  innuendoes,  which  are 
not  to  bo  used  in  prosecutions  for  slander  or 
scandalous  words.  Also  consider,  that  they 
oould  not  draw  an  innuendo  iu  the  information 
to  include  his  present  msjesty ;  nor  have  his 
counsel  pretemled  to  shew  any  evidence,  that 
the  Hague  letter  had  any  tendency  to  reflect 
that  way  ;  and,  indeed,  the  innuendo  to  include 
his  ministers  is  very  far  fetched,  and  very  iniirli 
forced.  Besides,  the  writer  of  that  letter  di^es 
seem  to  approve  of  these  ccrtaih  niiiiislers  mea- 
sures of  endeavouring  to  bring  about  an  ac- 
commodation with  the  emperor,  by  saying, 
*^  That  it  must  be  confessed,  that  these  mea- 
sures are  very  desirable  at  present."  So  that, 
upon  the  whole,  I  cannot  sec  that  the  letter  is 
applicable  to  our  ministers,  or  that  it  contains  a 
Ijoel  upon  them,  or  that  it  any  ways  answers 
their  character;  and  I  hope,  gentfemen,  that 
you  will  be  of  the  same  opinion  in  your  verdict. 

Mr.  Taylor.  My  lord,  I  hope  your  lord^Iiip 
will  likewise  indulge  me  wiih  a  very  few  words 
on  the  behalf  of  the  defendant :  As  the  go- 
vernment is  concerned  in  this  cause,  so  the 
liberty  of  the  subject  is  also  greatly  concerned 
therein.  The  facts  which  you,  gentlemen,  are 
to  try,  are,  w  ht-ther  the  defendant,  Mr.  Frnnck- 
lin,  printed  and  published  this  paper  ;  and  whe- 


a  famous  cause  in  king  Charles  the  second 
time.  In  the  14th  May,  1669,  there  wis 
Writ  of  Error,  and  the  judgment  or  sentencen 
versed;  and  their  lordbihips  declared,  that  in 
nuendos  ought  not  to  be  allowed.  Nor  are  yo 
to  understand  it  here,  on  oath,  as  you  may  i 
in  a  coffee-house  by  conjectures;  therefore 
hope,  upon  consideration  of  these  things,  tbi 
you  will  not  find  this  piece  of  news  a  lilwl. 

Ate.  Gen.  My  lord,  I  beg  leave  to  make  i 
short  reply,  not  for  what  they  have  said,Dorfii 
our  want  of  proof;  but  I  think  some  thisgi 
Tery  strange  which  they  have  insisted  on.  Ote 
of  them  is,  that  there  is  not  sufficient  proof  of 
the  pnblication  of  this  pajier.  As  to  that,  1  beg 
leave  to  say,  that  I  never  saw  the  pubiicitioo 
of  a  papermorr  clearly  proved  ;  and  1  beliere 
they  never  saw  it  themselves  in  auy  instaoce 
whatsoever  ;  for  your  lordship  may  reineaiber. 
that  Mr.  Smith,  tiie  first  \%itnes8,  swears,  that 
he  applied  to  the  defendant,  Air.  FranckliD 
himself,  when  he  was  in  his  shop,  and  asked 
for  six  Journals  of  that  day,  the  9lh  of  Januiiyt 
1730,  and  two  of  the  Saturday  before;  im 
that  the  defendant  ordered  his  servant,  then  is 
the  shop,  to  deliver  them  to  iMr.  Smith,  whicli 
he  did ;  and  the  servant  received  the  inooey 
for  them  ;  nnd  therefore  his  ordering  his  ler- 
vant  to  deliver  them,  is  the  same  as  if  he  had 
delivered  them  himself;  there  cannot  be  t 
clearer  proof.  They  make  a  scruple,  becausfl 
he  did  not  ask  particiilnrly  by  name  for  such  i 
Journal,  though  I  think  he  usked  to  the  saise 
effect,  by  asking  for  six  of  his  Journals  of  thai 
day  ;  for  the  word  »*  his*'  may  take  in  the 
words  **  Country  Journal,  or  Craftsman"  be- 
cause that  is  thu  Journal  which  he  prints  and 
sells;  besides,  have  they  done  any  thing m 
their  part  to  prove  that  other  persons  sold  otbei 
Journals  of  that  name  or  otherwise  ?  or  baM 


ther  you  can,  upou  your  oath,  s:iy,  that  it  is  a  |  they  offered  auy  thing  to  contradict  or  weaken 
false,  scandalous,  and  seditious  liM  ;  and,  for     his  evidence?  Therefore  1  think  t 


that  end,  it  \till  be  necessary  that  you  take 
the  paper  intolyour  serious  consideration,  not  as 
it  is  inserted  iu  the  information,  with  al  grout 
number  of  innueudos,  but  as  it  was  originally  ; 
and  see  if  it  contains  any  scandalous  reflections 
ou  onr  present  ministers  particularly.  Gentle- 
men, it  is  not  sufficient  to  say,  that  the  infer- 
mtion  is  a  libel ;  but  you  are  tv  judge  of  its 


that  our  wit* 
nf>s8  is  the  strongest  for  the  king  that  can  be 
It  was  said  that  great  inconveniences  and  dan- 
gers might  happen  to  publishers,  if  news  wen 
so  scanned  or  siflted.  As  to  that  I  think  tftr) 
publisher  ought  to  be  careful  of  what  he  pob* 
fishes ;  for  it  is  no  part  of  the  printer  or  pab< 
iisher's  traile  to  scandalize  whom  they  plesae 
for  that  would  be  turning  printing  and  boik< 


665] 


for  a  Libel. 


A.  D.  17S1. 


[606 


•elling  into  lUMllinnf ;  nor  it  the  liberty  of  the 
MCie,  which  thev  so  much  cry  op,  and  siy  is 
u  deo^^  of  beiD^  utterly  bupprated,  to  be 
uimed  into  a  Ucentious  aod  diiorderly  abuse  of 
the  pre«.     Again,  it  hath  appeared  Mfore  your 
Mihip,  with  respect  to  the  proof  of  the  defeu- 
iiBl'a  imvik%  the  publisher,  that  there  is  not 
«ly  this  witness's  evidence  thereof,  (against 
ihitreditof  which  no  efidence  hath  been  of- 
faii)  but  there  are  other  witnesses  who  con- 
In  his  evidence,  such  as  Mrs.  Dodd  and  her 
and  Mrs.  Pierce  and  hers,  «»ho  had 
numbers  at  his  shop  weekly,  and  paid  for 
iM  \  and  that  Mrs.  Pierce  used  to  hate  about 
M  worth  weekly  ;  it  is  likewise  confirmed  by 
iecoUeetors  ami  servants  at  the  Stamp-office. 
AAcr  ail  this,  can  it  be  doubted  that  the  defen- 
kak  is  guilty  of  the  publication  of  this  paper, 
MfseialTy  when  the  defendant's  counsel  have 
Hi  eoutradicted  them,  or  offered  any  thing  to 
iwiUate  or  weakeu  their  evidence?  1  take 
Ae  publication  to  be  undeniabW  proved ;  and  it 
vsbM  be  but  mis- spending  of  time  to  say  any 
■nt  sn  that  head.    The  uezt  thing  is,  whether 
vcktve  sufficiently  proved  that  the  pretended 
Sijrae  letter  inserted  in  that  paper  is  a  libel  as 
Asrnd  in  the  information ;  as  to  that,  1  may 
■I  uat  there  hath  not  been  so  much  as  one 
■^objection  offered  against  the  construction 
sc  ^l  upon  it,  I  mean  of  its  being  all  applica- 
Uc  Is  his  present  majesty,  and  his  principal  of- 
iccfi  and  ministers  of  state ;  1  mean  not  one 
if  My  weiif  lit,  or  which  has  the  least  colour  of 
kdog  sppiicable  to  any  other  court,  country, 
flrpersou  what<;ocver.     The  words  are  **  cer- 
tiin  ministers."    These  are  the  persons  that 
Ibe  pretended  Hague  letter  chargts  with  per- 
idy,  ruining  their  country,  *Sec.  and  want  to 
Ittfs  a  meaniut;  put  upon  them ;  that  is  to 
By,  to  what  court  or  country  are  they  appli- 
ttUe.     Now,   consider  what  is  said  of  these 
cvtaia  ministers.      The  letter  says,  "  A  ru- 
■mir  bath  been  for  some  time  spread  abroad, 
tbit  t  misunderstanding  will  soon  discover  it- 
Klf  between  the  allies  of  Seville ;    and  that 
Mrtain  ministers  having  at  length  found  out, 
Alt  too  close  an  union  with  France,  and  a  war 
■^  the  foot  of  tlie  treaty  of  Seville,  is  quite 
ifaioti  tlie  grain  of  the  people,  nr(>  cude;\roiir- 
■i|;  Is  bring  about  an  accommodation  with  the 
Mperor."    Now,  gentlemen,  you  know  that 
*c  allita  of  Seville  are  the  king  of  Great- 
Iritein  and  the  French  king,  and  the  king  of 
^D.    And  then  consider,  that  these  certain 
feiaiMers  are  charged  with  perfidy  in  breaking 
te  treaty,  who,  to  be  sure,  must  be  one  of 
toe  three  courts,  Great- Britain,  France,  or 
R^D,  who  were  empowered  to  make  it ;  for 
Mother  could  be  guilty  of  breaking  it,  but  one 
•f  these  three  who  made  it:  Now  the  letter 
*nier  tells  us   plainly,  that  it  is  neither  the 
■isHlera  of  France,  nor  the  ministers  of  Spain, 
te  h«  thus  charged  with  |)erfidy  in  breaking 
AitlKnty ;  for  be  tells  us,  that  one  necessary 
^'     of  Mch  perfidy  will  be  the  conjunction 
ud  8|wio ;  and  thst  a  certain  court 
have  the  lortiflcatiop  to  see  these  two 


crowns  miited*  against  them  mora  ttronglj 
than  ever ;  This,  as  1  said  before,  amounts  to  a 
demonstration  that  ueithtr  the  muiisters  of 
France  nor  Spain  are  charge«l  with  that  per- 
fidy in  breaking  that  treaty  :  If  so,  then  tners 
is  but  the  ministers  of  one  party  lefi,  to  wit,  of 
Great-Britain ;  and  1  must  say,  that  it  is  as 
plain  as  if  the  ministers  of  Great  Britain  bad 
been  in  express  words.  Gentlemen,  this  is  no 
forcetl  nor  strained  innuendo ;  but  an  innuendo 
that  naturally  and  necessarily  flows  of  itself, 
and  which  yon  all  cannot  but  presently  draw. 
Gentlemen,  there  are  other  parts  of  the  letter, 
which  serve  to  support  and  confirm  this 
construction,  which  1  mentioned  in  the 
opening ;  such  as  these,  to  wit,  tliat  an- 
other effect  of  that  perfidy  would  be  the 
seizure  of  that  vast  pledge,  which  Spain 
hath  at  this  time  in  her  hands;  and  that  toese 
ministers  were  undoing  every  thing  they  had 
been  doing  for  ^s^  years  past ;  which  carries  it 
back  to  September,  1725,  when  the  treaty  of 
Hanover  was  concluded.  It  was  said,  that 
you  must  not  understand  it  as  you  would  do  in 
a  cofiee-house,  because  of  its  dangerous  con» 
sequences.  To  which  I  answer,  That  there 
is  no  more  danger  in  understanding  things  here 
than  there,  if  they  are  plain  (as  this  is),  and  do 
but  exercise  their  sense  and  reason  in  both 
places.  Gentlemen,  if  you  acquit  the  defen- 
dant, you  must  say  on  your  oath,  that  the  let- 
ter-wnter  did  not  mean  the  ministers  of  Great 
Britain ;  and  can  you  say  that  he  did  not,  and 
that  it  is  not  applicaMe  to  them?  I  told  yon 
in  the  opening  to  litis  or  the  like  effect :  that 
writiug  or  printing  may  be  a  lil>el,  though  the 
pei-sons  are  not  particularly  named  therein  ; 
and  that  it  is  no  hard  matter  to  sraudaliKe 
any  person  by  circumlocution,  fictitious  names, 
<Scc.  as  plaiuly  to  be  understood  as  if  their 
names  \\  crc  particularly  mentioned  ;  and  that 
the  law  construes  them  accordingly,  by  innu- 
emlos,  because  they  cannot  be  otherwise  con- 
strued ;  and  this  hath  been  the  practice  of  the 
law  for  some  hundreds  of  years ;  and  there- 
fore the  defend.inrs  counsel  telling  you  that  it 
is  doing  people  harm  to  bring  things  in  by  in- 
nuendos,  is  only  amusing  you  with  words;  for 
it  is  a  plain  auu  a  just  law,  and  the  law  would 
be  detective,  it*  it  were  otherwise,  and  people 
would  be  always  defaming  one  another  by  the 
like  methods.  '  I  told  you  of  the  case  ot  Mr. 
Mist's  Journal,  in  1728:  it  was  a  scandalous 
libel,  under  the  fif-titious  names  of  Ksreff  and 
So)>hi ;  which  the  jury  understood  plainly  to 
be  !j0,  and  brought  in  their  verdict  accordingly 
against  the  printer  and  publisher  thereof.*     i 

*  «  This  letter,  dated  Auif.  S4, 1728,  signed 
Amos  Dndge,  was  supposed  to  be  written  by 
the  late  Philip  dukeot  Wharton  ;  wherein  were 
contained,  under  the  characters  of  Mirewcis, 
Esreff,  and  Sophi,  many  scandalous  reflec- 
tions and  odious  comparis'.ms,  between  his  late 
majesty  king  George  2,  of  glorious  memory, 
and  the  Pretender.  It  was  so  virulent  a  letter, 
that  it  was  presented  by  the  grand  juries  of 


Trial  of  Richard  Francklitif 


[669 


7    X-  Ma.beirf 

—  t  •    -  14  I  ct'Uia 
^jf?:  r.  ITU  •■t-rM, 

--3115  una.  fi^- 

. ..^  I  amkiiiAt 

-^.  yrc  riiacd- 

tbe 

raider 

«^c "    iaJ,  in- 
^r^  Titf  =.t  this 


,^.       •.  rv  r.'  T  o:"  Cris- 

.    .     •*.  ^i:..'^  of  the 

.fc   ,-»A  cj^lL  J(»hn 

...«  :<\*.  i}icu  xn  lui'oT- 

.,    '.    iw  ix.»rney-ge- 

,.    .V  i>>*i»»tj;  -i  libel,  en- 

.......u  N    1  To, dated 

.'^  'a.H*.*,  scatida- 

...>  .HI  t!s  lute  und 

,  .    <^    >ti:«M'«  (uirallels, 

.^      .      a  h:>>  u'.siiiiialing 

^..  .' J  lJuur  ini- 

^  •.,         Vo  support 

<»  Tonl  and 

•v.l  ill  llie 

>  ■  «a;il  C'iarke 

t  <.!  .issistcd  in 

^    I  i^'aiiiM-luiie; 

t  .sv.i'^iTs)  the 

.  ..•«,  a  piliiter, 

...     I  %toiUiii^  off 

^.     V."  .1.  '^o  onlf red, 

.    ,■  j.i\  of  ilicm, 

.  .'.  ^  u'll  toijrllicr. 

^      ..  -.xxK  in  his  ex- 

,  •  \4i  \ic  assisted 

Ui<  pulilish- 

t      •,  .v*i  ..  \^M*  how^Ui 

.  ^.  .  .  M  .'.a  u>  him  by 

.    ^      .  lu*  OftV-ndaut 

....  *    .    ^l  ivuiis  and 

V  :.l  \Mih  his 

..Ji  ihol'ourt 

:  nuWinjJlhe 

,v:  tiulhi'inl- 

;■•  'lint  Mork- 

»  •.,•  iMidtTsland 

.K  ihar-u'ters; 

,  ,    »;..iionai;ttinst 

«    K  i  .»»'.taii'»w»'r**di 

X  oonsiidiTinyf, 

.     .  *\i  r.^vn  an  iw- 

V.    '.'iniinuj  and 

*»»••>  pou-d,  that 


\  > 


*  * 


k « . 


:  way  of  construinjir  it*  A^in,  it  is  lak),  that 
this  cannot  be  a  libel,  though  the  words  were 
understood  to  l>e  applicable  to  the  persons  men- 
tioned in  the  infurmatioo ;  because  what  is  af- 
firmed in  the  letter,  about  the  accommodation  or 
treaty  with  the  emperor,  can  be  proved  to  be 
true :  as  to  that,  1  must  say,  that  it  is  no  mit- 
ter  whether  the  words  lie  true  or  false,  if  it  is 
published  as  a  libel,  and  the  prosecution  be  fay 
indictment  or  information.  Then  it  halb  been 
said,  that  the  defendant  is  a  publisher  of  news, 
and  that  this  letter  was  sent  to  him  from  the 
llagrue,  and  that  he  inserted  it  as  such  in  bis 
Journal :  as  to  that,  I  do  say,  that  if  this  letter 
had  bcou  really  sent  to  him  from  the  Hague, 
it  would  be  still  a  libel ;  because  it  is  not  in  his 
power  to  publish  what  he  pleases,  or  what  may 

he  assisted  in  composine^  it ;  and  said,  as  h9 
was  about  it,  *  Mr.  Wolfe  and  I,  and  tberert 
*  of  us,  will  all  be  taken  up  for  this  journal.' 
The  defendant's  counsel  insisted  that  composing 
was  not  printing ;  to  which  the  attorney -ge« 
neral  answered,  that  though,  abstractly  con- 
sidered, it  was  nut  the  very  act,  yet  it  was  an 
act  preparatory  to  it ;  and  Mr.  Roberti,  a 
printer,  being  examined,  declared,  it  was  not 
only  part,  but  the  principal  part  of  printing; 
upon  which  the  objection  was  over-rulol. 
Another  point  was  also  objected  to;  that  is 
there  were  two  compositors,  each  havincf  a  se- 
parate form  allotted  to  compose,  one  of  tbem 
could  not  be  charged  willi  the  whole  libd, 
as  laid  i\\  the  information:  to  which  the  Court 
ansHorod,  that  v\hen  a  erime  is  per|)etrated  by 
iinirv  tiiau  ():'.e,  and  by  joint  consent,  any  one 
oftlieni,  bring  guilty  of  part,  is  guilty  of  the 
uliole.  Tile  (ieftndunt  was  ihcreforc  foiiini 
;rnilty  of  priuting  the  said  libel;  but  not  of 
piddisliing  it. 

*•  Joseph  Carter  (Wolfe's  apprentice)  was 
also  tried  on  the  ssiid  information  ;  and  the  eii- 
denee  a;*uinst  him  being  the  same  as  before,  hi 
was  found  guilty  of  printing  only. 

**  May  IDlh  following,  being  the  last  day  of 
the  term,  the  following  persons,  for  being  con- 
cerned id  printing  and  publishing  Mist's  Jour- 
nal of  .August  'iliU,  received  judgment  as  fol- 
lows : 

*'  John  Clarke,  the  pressman,  for  printing 
and  [Hiblibhing  (be  said  libel,  to  stand  thrice  in 
the  |i;liory  ;  once  at  the  Uoyal  Exchange, once 
at  TiMiiple-bar,  and  once  atCharing-CrObs;  to 
be  con:milted  lo  Hridtwell  for  six  months,  and 
there  kept  to  bard  labour. 

*^  Robert  Rnell,  the  compositor,  for  printing 
the  said  bbel,  to  stand  twice  in  the  pillory,  once 
at  the  Uoyal  IDxcbange,  and  once  at  Charing* 
Cross ;  und  to  be  committed  to  liridcwell  fur 
six  uionilis,  aitd  there  to  be  kept  to  hard  labour. 

*'  Joseph  Carter,  the  apprentice,  for  printing 
tlie  suid  libel,  to  go  round  the  four  courts  in 
Wistminster-llull,  on  the  first  day  of  next 
term,  uith  a  paper  fixed  upon  his  head,  de- 
noting his  olieiice  ;  to  be  sent  to  Uridewell  for 
one  month,  and  kept  t(»  hard  labour.*'  5Ionthly 
Chronicle  for  17 ^U,  ITU9.    iontur  £Uition» 


6BS] 


Jbr  a  Ltb^» 


he  eouilrQcd  defiimatory,  let  it  come  from  what 
qnaiter  it  will,  whether  from  abroad  or  at  home; 
fcr,  as  I  raid  before,  k  is  no  part  of  his  trade  to 
WBuM&i^  whom  he  pleases.  But  they  have  Dot 
cvoyiroTed,  that  that  letter  was  sent  to  him  from 
the  dagve :  all  that  tliej  have  done  it,  that  they 
hafc  called  a  constable,  who  says,  that  the 
leers  searched  for  papers,  and  took  away 
;  Dot  does  not  say  that  they  were  written 
or  that  this  llai^iie  letter  was  among 
no,  the  papers  he  means  were  only 
criminal  Craftsman.    Besides,   if  any 
thiDfif    had  been  seized,  such  as  that 
fnCiuded  Hag^ae  letter,  upon  application  made 
la  his  majesty,  or  the  secretaries,  he  might 
hiTe  htd  them  returned ;  but  the  gentlemen 
4»  not  pretend  that  they  made  any  such  appli- 
otiMi.    Then  they  say,  if  this  piece  of  news 
bdcemed  as  a  libel,  it  will  have  a  bad  cunse- 
fmee ;    for  no  person  will  print  any  news  at 
il,aad  then  the  people  will  not  know  how 
""      or  alTairs  go :  this  is  very  extraordinary, 
for  the  defendant  is  not  charged  in  the 
tion  for  publishing  the  piece  of  pre- 
kaded  news  to  wit,  *<  That  a  rumour  hath  for 
wmt  time  privately  been  spread  about,"  &c. 
Kt ;  hnt  he  is  charged  for  making  an  applica- 
tiia,  and  saying,  that  the  ministers  arc  guilty 
«f  perfidy,  and  ruining  their  country,  dice. 
Ktit,  seatlemen,  1  would  have  you  tool»erve, 
tetit  m  DO  part  of  your  office  to  consider  or  de- 
tBraiae,  whether  this  Hague  letter  is  a  libel  or 
Ht  ^though  the  defendant's  counsel  insinuated 
Ihlit  was  a  part  thereof) :  you  are  only  to  con- 
aiv,  whether  the  expressions  therein    are 
MM  to  refer  to  the  present  king  and  his  mi- 
■iOB,  and  are  properly  applicable  to  them, 
fttabetlier  this  amounts  to  a  libel  or  crime, 
k  «|y  the  office  of  the  Court  to  determine : 
Ar,  suppose  a  man  was  accused  of  felony,  the 
CSiNirt  will  determine  whether  it  amounts  to  it, 
•root    It  is  so  in  high-treason,  and  all  inisde- 
■ttnoars,  in  which  the  jury  is  to  determine 
tittfiicts,  and  the  judges  are  to  determine  the 
criMeand  punisbmenr,  as  lieing  matters  of  law : 
■Ml  it  is  confounding  the  office  of  the  Court, 
and  of  the  jury,  to  pretend  to  do  otherwise ; 
tad  it  is  likewise  a  perverting  of  the  law :  this 
1  ay,  with  great  submission  to  your  lordship. 
Tbeo  it  was  said,  that  there  was  nothing  m 
that  Hagne  letter,  that  did  relate  to  or  imply 
lay  reflection  upon  his  present  majesty  :  but, 
fntleinen,  that  yen  may  not  be  led  into  any 
WTorbysuch  an  n^sertion,  and  distinction  be- 
tween the  king  and  his  ministers,-  i  would  have 
M  to  consider,  ihnt  here  is  a  charge  on  the 
Bag's  mini&ters  for  mal- administration,  and 
Ar carrying  on  a  treaty ,  iihich  occasions  per- 
fty,  &c.    Now,  I  would  ask  you,  can  treaties 
ke carried  on  without  hi^  majesty's  direction? 
iad  therefore  I  say,   that  such  a  charge  as 
tint  is  a  libel  on  the  king  himself,  as  well  as 
ft  bis  ministers,  who  arc  empowered  and  ili- 
HOed  by  him.    The  same  may  be  said  with 
Mpect  to  magistrates  and  judges ;  for  they  are 
iagiaally  of  iiis  appointment,  and  the  courts 
*^Uia  king's,  and  he  makes  them,  and  is  at 


A. ».  YJit:  [67(f 

the  head  of  them,  and  without  him  they  cannoO 
subsist :  so  that  I  say,  that  a  reflection  on  tha 
king's  ministers,  officers,  magistrates,  6cc.  is  a 
high  reflection  on  the  king  himself.  Thera 
have  been  several  other  things  mentioned^ 
which  I  shall  not  touch  at,  because  1  think 
they  are  not  material.  There  was  another 
thing  mentioned,  which  was,  that  if  this 
Hague  letter  was  construed  a  libel,  it  would 
tend  to  the  utter  destruction  of  the  liberty  of 
the  press.  BIy  lord,  I  am  really  at  a  loss  to 
know  what  sort  of  liberty  they  mean  by  it ;  I 
hope  they  don't  mean  a  licentious  and  an  un- 
bounded liberty,  to  libel  and  scandalize  his  ma- 
jesty, or  his  principal  officers  and  ministers  of 
state,  or  his  magistrates,  or  even  any  of  tha 
meanest  of  his  subjects,  whenever  tbey  think 
fit ;  for  that  would  be  a  dau^rous  liberty  in- 
deed, and  be  of  a  Tcry  pernicious  consequence. 
Gentlemen,  I  would  have  vou  to  consider,  thai 
even  the  prerogatives  of  tue  king  are  founded 
on  the  law  and  limited  by  it,  and  so  are  all 
other  things  relating  to  his  subjects ;  and  it 
cannot  be  supposed,  that  a  printer  only  is  ex- 
empted, and  at  liberty  to  use  his  press  ibr 
what  purposes  he  pleases ;  if  he  is,  I  desira 
now,  that  the  defendant's  counsel  would  poini 
out  that  law :  no,  the  law  is  not  so  absurd  aa 
to  allow  such  a  liberty  of  the  press.  The 
liberty  meant,  is  to  be  understood  of  a  legal 
one:  he  may  lawfully  print  and  publish  what 
belongs  to  his  own  trade ;  but  he  is  not  to  publish 
any  thing  reflecting  on  the  character,  and  re- 
putation, and  administration  of  his  majesty,  ar 
his  ministers ;  nor  yet  to  stain  the  character  or 
reputation  of  any  of  his  subjects ;  for,  aa  I  said 
before,  that  to  scandalize  and  libel  people  is  no 
part  of  his  trade,  so  [  say,  that  it  is  only  that 
liberty  of  the  press,  which  he  is  to  use,  that 
is  regulated  by  law  and  subjected  to  it ;  and  if 
he  breaks  that  law,  or  exceeds  that  liberty  of 
the  press,  he  is  to  be  punished  for  it,  as  well 
as  for  breaking  other  laws  or  liberties.  And, 
gentlqpen,  though  it  has  lieen  insinuated  to 
yuu,  by  the  other  side,  that  the  making  of  such 
thiugs  a  lil)€l  came  from  the  Star-Cliamber  ; 
yet  I  must  tell  you,  that  printing  such  defa- 
matory expressions,  or  slanderous  news,  was 
deemed  a  libel,  and  punished  accordingly,  long 
before  the  StarChambtir.  It  is  a  law  made  in 
1275,  in  the  third  of  king  Edward  1,  infilled. 
An  Act  that  none  shall  report  slanderous 
news,  whereby  discord  may  arise.  The  words 
of  that  law  are,  **  Forasmuch  as  there  have 
been  oftentimes  found,  in  the  country,  devisors 
of  tales,  whereby  discord,  or  occasion  of  dis- 
cord, hath  many  times  arisen  between  tha 
king  and  his  people,  or  irreat  men  of  this 
realm ;  for  the  damage  that  hath  and  may 
thereof  ensue,  it  is  commnndeil,  that  from 
henceforth  none  be  so  hardy  to  tell  or  publish 
any  false  news  or  talcs,  ulierrby  discord,  or 
occasion  of  discord,  or  slander,  may  grow  be- 
tween the  king  and  his  people,  or  the  grent 
men  of  the  realm  ;  and  he  that  do  so,  shall  be 
taken  and  kept  in  prison,"  &c.  So,  gentle- 
men, you  see  that  this  «i  U\^V%\&  ^^A  %^ 


671] 


S  GEORGE  n. 


Trial  of  Richard  FrancUin, 


[m 


laiv,  or  one  that  came  from  the  Star-Cbamher ; 
bat  oue  that  has  been  almost  of  500  years 
standings;  therefore  I  hope  you  will  not  suffer 
yourselves  to  be  amused  by 'such  thin^.  That 
court  of  the  Star- Chamber  punished  without 
juries ;  but  thoug'h  juries  were  taken  away,  yet 
the  law  remai  ned  the  same  as  to  libels  and  crimes: 
80  I  hope  it  appears  to  you  to  be  very  plain, 
that  the  liberty  of  the  press  is  limited  and  p^- 
▼emed  by  law ;  and  that  the  law  sets  limits 
both  to  the  kingf  and  his  subjects.  Lastly,  I 
think  it  was  said  to  this  effect,  that  it  would  be 
making'  Mr.  Francklin  a  great  politician  in  the 
world,  to  suppose  that  he  knew  any  thing:  of 
the  meanini?  of  that  pretended  Ha^ue  letter 
which  he  pnnted  and  published :  as  to  that,  I 
think  I  may  venture  to  say,  that  he  could  not 
nor  cannot  be  ignorant  of  the  meaninpf  thereof, 
because  it  is  plain  to  any  common  reader,  that 
by  the  words  <  certain  ministers,'  are  and  must 
be  meant  the  ministers  of  Great-Britain :  and 
I  believe  that  the  treaties  of  Hanover  and 
8eTille  have  been  heard  of,  and  known  by  you 
all ;  and  that  you  likewise  have  heani,  and 
know,  that  there  have  been  differences  between 
Great-Britain  and  Spain.  80,  gentlemen,  I 
submit  it  to  you,  whether  you  are  not  con- 
vinced in  your  consciences,  that  Mr.  Francklin, 
the  defendant,  is  the  publisher  of  that  Crafls- 
inan,  the  Snd  of  January  last,  wherein  the 
pretended  Hacnie  letter  is  inserted;  and  se- 
condly, Whether  you  are  not  likewise  con- 
vinced, that  these  expressions  in  tiiat  letter,  to 
wit, ««  certain  court,"  and  •*  certain  ministers," 
and  what  is  spoken  against  them,  are  to  be  un- 
derstood of  tne  court  and  ministers  of  Great 
Britain  ?  These  are  the  two  things  now  under 
your  consideration ;  for  as  to  the  question, 
whether  these  words  amount  to  a  libel  or  not, 
you  have  nothing  to  do  with  that,  it  being  the 
office  of  the  Court  to  determine  whether  they 
do,  or  do  not.  So  we  doubt  not  but  you  will 
^ive  your  verdict  according  to  your  c<instierice ; 
and  do  justice  between  the  kint^  and  the  dcirn- 
dant,  which  is  all  that  is  required  of  yuu.  >Iy 
lord,  the  importance  of  the  cause  liath  occa- 
sioned me  to  take  up  much  of  your  time,  which 
I  hope  your  lordship  will  excuse. 

L.  C.  J,  Gentlemen  of  the  jury,  this  is  an 
information,  wherein  the  kiutr  is  ptaiutiff,  and 
Mr.  Francklin  defendant,  tor  printinsrand  pub- 
lishing the  Country  Journ^il  or  Crahsnmn,  the 
2d  of  January  1730,  wherein  is  inserted  an  ex- 
tract of  a  private  letter  from  tiie  2£a:rue,  re- 
flecting on  his  majesty  and  his  principal  ofH- 
cers  and  mini»ters  of  state.  In  this  iiijormuiion 
or  libel,  there  are  three  thi'ii'jfs  to  be  consii'.ered, 
whereof  two  by  you  tlie  jury,  and  one  by  tije 
Court.  The  lirst  thing  uuiUt  your  eonsiilcm. 
tion  is,  Whether  the  detendant,  Mr.  Fruiwk'iin, 
is  guilty  of  the  pulilication  of  thix  Crafisniau 
or  not?  The  second  is.  Whether  the  expres- 
aioDS  in  that  letter  refer  to  his  present  majesty 
and  his  principal  officers  and  ministers  of  stale, 
and  are  applicable  to  ihem  or  noti*  Tiiis  is  the 
chief  ihing  in  the  information  ;  for  if  you  think 
that  theve  defamatory  expressions  arc  uot  ap- 


plicable to  them,  then  the  defetidaiit  it  not 
guilty  of  what  is  charged  upon  hitn ;  but  if 
yoa  think  that  they  are  applicable  to  then, 
then  the  defendant  is  g'uiltv  thereof;  upon  thh 
supposition,  that  you  fino  him  to  lie  the  pifc- 
lisher  of  that  paper.    These  are  the  twooMt- 
tersof  fact  that  come  under  your  considerrtn; 
and  of  which  you  are  proper  judgm.    Bat 
then  there  is  a  third  thing,  to  wit,  Wbetfacr 
these  defamatory  expressions  amount  to  a  liM 
or  not  ?  This  does  not  belong  to  the  offiee  i>f 
the  jury,  but  to  the  office  of  tlie  Court;  be- 
cause it  is  a  matter  of  law,  and  not  of  fact ;  ud 
of  which  the  Court  are  the  only  proper  judges;* 
and  there  is  redress  to  be  had  at  another  plaor, 
if  either  of  the  parties  are  not  satisfied ;  for  we 
are  not  to  invade  one  another's  province,  u  h 
now  of  late  a  notion  among  tome  people  vbo 
ought  to  know  better;  for  matters  of  law  ud 
matters  of  fact  are  never  to  be  confounded.  Asta 
tha  first  thing,  whether  the  defendant  is  gnillj 
of  the  publication  of  that  Craftsman  which  h 
under  your  consideration.     And  here  in  tbii 
and  the  second  head  I  shall  not  be  looff,  be- 
cause things  have  been  so  often  repeated,  and 
all  sorts  of  observations  made  on  both  lUei 
that  it  is  possible  to  be  made  on  this  occasioo; 
and  my  endeavours  shall  be  to  hinder  yoa  from 
running  away  with  notions  which  are  not  rifsfat 
As  to  the  evidence  offered  to  prove  the  defenaot 
the  publisher  of  that  Craftsman,  the  plaintiff 
connsel  called  one  Air.  Smith,  against  mhm 
the  defendant's  counsel  could  not  say  nj 
thing  material.    This  Mr.  Smith  i;ives  aott- 
count,  that  on  the  9th  of  January  last,  heweot 

*  ft  is  now  by  Statute  32  G.  3,  c  60,  «t* 
tied,  that  the  jury  may  give  a  general  verdict 
of  iiuilty  or  Not  Guilty  upon  the  whole  mittff 
put  to  issue  on  the  indictment  or  iufonnatioo. 
See  vol.  8,  p.  36. 

As  to  the  contests  which  had  arisen  resped- 
ing  this  matter,  see  the  following  Case  of  Jflba 
Peter  Zenger,  and  the  Trials  for  state  libfliia 
the  first  thirty  years  of  (leo.  3,  particulii^J 
those  of  Woodfall  and  of  the  dean  ot  St.  Asaph* 
It  is  observable  that  lord  Mansfield,  in  givisjT 
his  judgment  on  the  latter  of  those  cases,  quoted 
from  memory  an  old  party  ballad,  which  Wtf 
published  on  occasion  of  an  acquittal  of  the 
CratUman.  It  appears  by  the  recent  pubiici- 
tion  of  the  eloquent  speeches  of  lord  crskisfy 
vol.  J,  p.  375,  that  lord  Mansfield  by  misre- 
dial  alt<!g^iber  perverted  the  meanintr  of  ibt 
passage  which  he  thought  he  remembrrsi* 
Thus  lia/arlouy  even  with  the  ablest  men  ii 
the  |)ni(:t ice  4)f  quotation  from  memory. 

1  lie  ri^^iit  und  duty  of  juries  in  such  ciitt 
has  been  very  fully  and  ably  discussed  by  9tr» 
Btiron  Maseres,  in  the  seeond  volume  of  bil 
*  Additional  Papers  ct»»cerning  the  province  m 
C^uel>ec'  (published  in  the  }ear  1776)  frMI 
p.  395  to  4v25. 

As  to  jiiil;;es  controlling  the  verdict  of  9l 
jury,  see  in  (his  Collection,  vol.0,  pp. 9fft 
992.  1013.  Harringtou,  Obs.  or^Wett.  pnmff§ 
and  the  authorities  died  in  his  Note  («}•      ^ 


7S] 


Jor  a  LibeL 


Mr.  Fnuicklin'f  iliop  to  buy  some  CraftnnaD 
Joarnals ;  be  said  he  wanteil  half  a  dozen  of 
It  day,  and  two  of  the  week  before ;  be  savs, 
ICO  he  came  he  found  Mr.  Francklin  in  bis 
nm  and  asked  him  for  half  a  dozen  of  his 
arnab  of  that  day,  and  two  of  the  Saturday 
bra;  and  that  Mr.  Francklin  asked  him 
MB  they  were  for ;  who  answered  tliat  they 
■•  for  binmelf;  and  that  Mr.  Francklin 
MbiiD  if  he  sold  them  ai^in ;  who  answer- 
It  Tea ;  and  that  atWwards  Mr.  Francklin 
aisled  to  his  servant,  and  told  him  to  look  out 
koe  Journals  for  him ;  which  he  accordingly 
ii ;  and  that  he  sold  one  of  the  Journals  of 
Kid  of  January  aflrain  to  another  person ;  but 
4are  tie  sold  it  he  marked  it ;  and  that  Mr. 
milk  p^id  his  servant  for  these  eight  Journals, 
ihiok  he  said,  that  the  two  Journals  were 
hHtof  the  2d  of  January.  Tliis  evidence  is 
ivy  positive  ami  full ;  for  he  bought  them  in 
k  defendant's  shop ;  and  the  defendant's  ser- 
rist  delivered  them  to  him  by  his  master's  di- 
rcctioD,  and  paid  the  servant  for  them ;  which 
ilia  oodeni able  proof  of  the  defendant's  being 
ihepobiisher  thereof;  and  nnless  Mr.  Smith 
h  wilfully  forsworn,  his  evidence  alone  is  suffi- 
«ak  Then  the  king's  counsel  went  on,  and 
oiled  other  witnesses  to  prove  the  defendant 
Iki  pabUsher,  Uiough  I  thought  there  was  no 
•eessMin  for  mora;  but  they  produced  other 
ailansij  (I  shall  not  be  long,  or  name  every 
•se).  They  produced  Mrs.  Dodd,  who  says, 
tesbenseil  to  send  her  servant,  Coram,  to 
Mr.  Francklin's  weekly  for  his  Craftsman,  or 
CooDlry  Journal ;  and  he  brotiivlit  them  from 
tkeace ;  and  these  of  the  3d  of  January  among 
Ae  rest ;  and  gave  the  money  to  another  ser- 
ial, in  onler  to  pay  Mr.  Francklin  for  them. 
Omd  teiUyou,  that  he  went  aliout  a  year  and 
I balf  together,  weekly,  to  Mr.  Francklin's,  for 
faie  Crallsinaii  or  Country  Journals,  and 
knigfat  thern  into  his  mistress's  shop ;  and 
tbine  brought  suuie  of  the  Sd  of  January,  and 
hiaght  no  Couittry  Journals  of  that  day  from 
Wf  scber  place ;  and  that  he  had  great  quan- 
of  these  Country  Journals  weekly.     Mrs. 


Rcrcesays,  that  she  sent  her  man,  David  Da- 
Hm,  10  Mr.  Francklin's  weekly,  for  some  time, 
fcrkis  Country  Journals,  and  for  that  of  the 
ttaf  January  among  the  rest;  and  had  such 
i  qoaotity  of  them  as  came  to  about  ll. 
*iKly.  "David  Davies  says,  that  he  was 
Mploved  by  Mrs.  Pierce  to  fetch  her  Jour- 
M|  the  Craftsman,  from  Mr.  Francklin's ;  and 
ittof  the  2d  of  January  annong  the  rest ;  and 
frii  the  inoney  for  them  to  the  amount  of 
4eat  ll.  weekly.  Then  they  called  an  officer 
if  Ike  Stamp-orijce,  wlio  says,  that  he  regis- 
IM  thirty -eight  advertisemenU  that  were  in 
fc  Craftsman  of  the  2d  of  January  last ;  and 
iM  the  account  of  the  advcrlisements  for  that 
of  January  came  to  10^.  i^s.  So,  gen- 
,  you  are  to  consider  whother  or  not  you 
■•  saliJfted  with  the  evidence  prnduceil  to 
iMitlie  defendant  tube  the  publisher  of  that 
MlBtaaD  qf  the  Sd  of  January  last.  The 
taitilmif  wbieh  you  are  to  consider  n^  whe- 
TOL,  XVIL 


A.  D.  1731.  [674 

ther  the  ezpretsions  in  that  Hague  letter,  refer 
to  his  present  majesty  and  his  principal  officers 
and  ministers  of  state,  and  are  applicable  to 
them  as  in  the  information  or  not ;  for  when 
people's  names  are  not  set  down  at  length,  but 
pointed  at  by   circumlocntton,  or  pieces  of 
words,  or  by  initial  letters,  &c.  the  law  always 
allows  innuendosin  informations,  which  €X« 
plain  and  tell  what  the  defendant  meant  by 
them;   and  the  law  likewise  allows  juries  to 
give  their  verdict  on  oath,  whether  they  think 
that  these  dark,  defamatory  speeches  have  the 
same  meaning  as  mentioned  in  the  informatioa 
or  not.    The  counsel  for  the  king  have  gone  on 
and  explained  and  applied  these  defamatory 
expressions  exactly  as  m  the  information ;-  and 
they  have  giren  their  arguments  and  reason^ 
for  fio  doing ;    drawn  from  the  several  parts  9S 
that  letter,  which  I  shall  not  trouble  you  with, 
because  they  have  been  so  oflen  repeateil  in 
your  hearing;     1  say,  they  have  explained 
them  as  mentioned  in  the  inmrmation  ;  that  is 
to  say,  that  by  these  defamatory  expreationr, 
arc  meant  his  orescnt  majesty  and  &is  principal 
officers  and  ministers  of  state ;  and  indeed  they 
must  be  applicable,  and  refer  to  them  or  to 
somebody  eise  ;  and  if  they  do  nieau  them, 
then  1  muBt  say  that  they  are  very  scandalous 
and   reflecting    expressions ;     because   they 
charge  them  with  perfidy  in  breaking  of  trea- 
ties, mining  in  a  manner  their  country,  &c.  as 
you  may  see  at  larse  in  the  letter  ;  and  it  is 
very  evident  that  these  treaties  could  not  be 
made  without  the  knowledge  and  direction  of 
his  majesty.    The  counsel  for  the  defendant' 
said,  that  these  scandalous  expressions  could 
not  be  understood  to  refer  to  his  miyesty  or  his 
ministers ;  but  they  did  not  tell  to  whom  they 
referred ;    I  should  have  been  glad  to  hav« 
heard  them  do  so ;   so  that  you  are  to  consider 
of  whom  these   defamatory  expressions   are 
meant,  or  to  whom  they  are  ajtplicable ;    and 
as  to  the  rule  and  manner  of  understandinjp 
them,  you  are  to  do  it,  on  oath,  after  the  sam« 
manner  and  way  as  you  do  privately  by  your* 
selves,  taking  all  the  parts  of  the  letter  together. 
I  shall  not  repeat  the  several  parts  of  it  now 
which  the  king's  counsel  did  use,  to  shew  that 
Ihey  were  meant  of  his  majesty  and  his  mi« 
nisters,  because  yon  are  to  have  the  letter 
along  with  you ;    for  it  is  plain,  that  the  con* 
struction  <>l  it  depends  on  the  words  themselves 
and  their  connection.     Gentlemen,  I  have  been 
very  Kliort  in  summing  up  the  evidence  ;  and 
laid  aside  the  points  of  the  law  ;   I  mean,  whe- 
ther these  defamatory  expressions  amount  to  a 
libel  or  noi ;  lircanse  the  Ci>art  can  only  detcr- 
mino  that :  and  if  not  satisfactory  to  either  of 
the  parties,  there  is  a  proper  redress  to  be  had 
at  another  place,  as  I  said  before.    There  was 
one  thing  more  mentioncl  by  the  defendant's 
counsel,  which  wan,  that  there  is  no  room  to 
think  that  letter  libellous ;   becinsc  there  could 
he  no  malice  supposed  by  inserting  it  in  the 
Craftsman,  being  only  designed  as  a  piece  of 
foreign  news  ;    and  that  the  latter  part  o£  the 
letter  qualifies  it,  by  saying  that  the  letter* 


675] 


9  GEORGE  II. 


Trial  of  John  PHer  Zenger, 


[676 


writer  does  not  take  upon  him  to  justify  the 
truth  of  that  re|K>rt ;  but  that  will  not  do ; 
fur  the  injury  is  the  same  to  the  persons  scao- 
dalized,  whether  the  letter  was  inserted  out  of 
mah'ce  or  not;  besides,  there  is  no  knowioff  or 
profin^jT  particular  malice,  otherwise  than  from 
the  act  it&elf ;  and  therefore  if  the  act  imports 
as  much,  it  is  sufficient;  nor  is  he  to  take  the 
liberty  to  priutwhat  he  pleases ;  for  the  liberty 
of  the  press  is  only  a  legal  liberty,  such  as  the 
law  allows ;  and  not  a  licentious  liberty. 
Gentlemen,  1  tell  you  again,  that  I  hare  de- 
signedly shortened  things,  because  it  bath 
bAn  so  fully  again  and  again  laid  before  you. 
But  if  there  is  any  thing  afterwards  that  you 
want  to  know,  after  you  have  considered  these 
things,  I  desire  you  would  acquaint  me.    So, 

SinUemen,  if  you  are  sensible,  and  couTinced 
at  the  defendant  published  tiiat  Craftsman  of 
the  2d  of  January  last ;  and  that  the  defamatory 
expressions  in  the  letter  refer  to  the  ministers 


of  Great  Britain  ;*  then  yoa  Ooght  to  find  tbt 
defendant  guilty ;  but  if  von  think  0lberwist| 
then  you  ought  not  to  Ana  him  g«iHj. 

The  Jury  found  the  defendant  gaihy  of  pi^ 
Ibhiog  the  said  libel.f 

The  term  following,  Mr.  Richard  Fmndii 
received  sentence  to  pay  a  fine  of  lOOH,  tsbt 
imprisoned  for  one  year,  and  to  find  seouiili 
for  his  good  behaviour  for  seven  years  ;  hisasair 
in  1,000^  penalty,  and  his  two  sureties  in  SOOL 
each. 

f  This  Hague  letter  was  said  to  be  wiillta 
bv  the  late  Henry  lord  viscount  Bolingbiski; 
£z  Infer.  Mr.  R.  Francklin.    Former  Editm, 

[  In  the  case  of  Periy  a.  d.  1793,  5  Tens 
Rep.  454,  Air.  Justice  Builer  read  a  nott  of 
proceedings  relating  to  an  endeavour  to  Mt 
aside  the  verdict  in  this  case*  See  a  report  of 
the  Trial  of  Perry  infra* 


490.  The  Trial  of  Mr.  John  Peter  Zengeu,  of  New-York,  PrintCTi 
for  printing  and  publishing  a  Libel  against  the  Government; 
before  the  Hon.  James  de  Lancey,  esq.  Chief  Justice  of  the 
Province  of  New- York ;  and  the  Hon,  Frederick  Phillipse^  esq. 
second  Judge ;  at  New-York,  on  August  4th :  9  Geokgk  IL 
A.  D.  1735.* 


JiH  there  was  but  one  printer  in  the  province 
of  New  York,  that  printed  a  public  news-pa- 
per, 1  was  in  hopes,  if  1  undertook  to  publisii 
another,  1  might  make  it  worth  my  while  ; 
and  1  soon  found  my  hopes  were  not  f^fround- 
less.  My  first  paper  was  printed,  Nov. 
6th,  1733,  and  1  continued  printing  and  pub- 
lishiog  of  them,  1  thought  to  the  satisfac- 
tion of  every  body,  till  tlie  Jsnuary  follow- 
ing; when  the  chief  justice  was  yieased  to 
animadvert  upon  the  doctrine  of  libels,  hi  a  long 
charge  given  in  that  term  to  the  grand  jury, 
and  aflerwards  on  the  third  Tuesday  of  Octo- 
ber, 1734,  was  again  pleased  to  charge  the 
grand  jurv  in  the  following  words : 

"  Gentlemen,  i  shall  conclude  with  reading 
a  paragraph  or  two  out  of  the  same  book,  con- 

*  Tliis  Trial  (or  ratlier  part  oi'  a  trial)  pub- 
lished by  Mr.  Zenger  hin»elf,  having  made  a 
great  noise  in  the  world,  is  here  inserted  ; 
though  the  doctrines  advanced  by  Mr.  Hamil- 
ton in  his  speeches,  arc  not  allowed  in  the 
courts  here  to  be  law.<— See  lord  liaymond's 
opinion  in  the  foregoing  Trial,  p.  072. — ^To 
ivhich  wc  have  subjomed  some  remarks  on  this 
trial,  published  soon  atler  it  made  its  first  ap- 
pearance. Former  Edition,  See  also  stat. 
39  Geo.  3,  c.  60,  as  referred  to  in  a  note  to 
Fraocklin's  Case,  ante^  p.  073,  and  tbo  other 
|Arti«ftkatBOt0. 


earning  Jibcis;  they  are  arrived  to  thatbe^i^^ 
that  they  call  loudly  for  your  animadvenioo; 
it  is  high  time  to  put  a  stop  to  them ;  forattbs 
rate  thing3  are  now  carried  on,  when  all  order 
and  government  is  endeavoured  to  be  trsmpkA 
on,  reflections  are  cast  upon  persons  of  all  de* 
grees.  Must  not  these  things  end  in  seditioi» 
if  not  timely  prevented?  Lenity,  you  have  seeOf 
will  not  avail ;  it  iiccomcs  you  then  to  eoquirs 
aiWr  tbe  olfenders,  that  we  may,  in  a  das 
course  of  law,  be  enabled  to  punish  them.  If 
you,  gentlemen,  do  not  interpose,  consider 
whether  the  ill  consequences  that  may  ariis 
from  any  disturbances  of  the  public  petCfi 
may  not  m  part  lie  at  your  door  P 

*'*  Hawkins,  in  his  chapter  of  Libels,  coondoi 
three  points:  Ist,  What  shall  lie  said  to  Is  i 
libel.  2dly,  Who  are  liable  to  be  punished  kt 
it.  3dly,  In  what  manner  they  are  to  ks 
punished.     Under  the  Ist,  he  says,  §  7t  *  Nil 

*  can  there  be  any  doubt,  but  tnat  a  writisgi 

*  which  defames  a  private  person  only,  is  m 
(  much  a  libel  as  that  which  defames  persons  ift" 

*  trusted  in  a  public  capacity,  in  as  muehuil 
'  manifestly  tends  to  create  ill  blood,  and  to  ctOH 

*  a  disturl>ance  of  the  public  peace ;  howercif  H 

<  is  certain,  tliat  it  is  a  very  high  aggravita 

<  of  a  libel,  that  it  tends  to  scamialisBO  the  g0« 

*  vcmment,  by  reflecting  on  those  who  are  si" 

<  trusted  with  the  administration  of  publietf« 

<  faiiit  which  does  notooly  eiuUuigw  tlM  pakii 


Jqt  a  Lihth  ' 


C IT  libel*  do,  by  Klirrini;  up  tlie 
iXy  cuncerrteil  Jii  it,  in  ncu  or 
«  liai  ■  ciirecl  wmioney  to 
lie  « ilislihc  nl'  Iheir  f^remors 
idiae  Ihcm  to  fuclinn  aiiil  neiMilno.'  As 
Id  Doint  lie  inyv,  \  10,  '  It  is  nrinln, 
\y  M  who  c<iiu|iOBei  or  procures  nnn- 
>  compiMp  il,  bill  ilso  (hot  lie  wlio  pub- 
or  procures  nnothrr  to  |iubli«li  it,  are  In 
r  of  bein^  punisbeil  for  it ;  ami  it  ia 
Im  mUcrml,  wbetlivr  lie  wlm  d'wper 


u  pulliih  the  most  virulmt  pap 
*M«Ht  EMUrity,  ir  the  i-oncMling  the 
n  or  lb«m  Troni  an  illilcralK  {lublishcr 
i  make  bim  safe  in  tde  iliuperslDg' 
Alio  it  bus  been  said,  tbat  if  he  who 
ttlier  read  a  libel  bimielf,  or  haih  lieird 
d  by  anotber,  do  afterwards  maliciously 
f  report  any  part  of  it  in  tbe  pmenee, 
er*.  or  lenil  or  kUpk  it  to  anollier,  be  it 
'  ofau  uiila>*l'ut  publication  oFil.  Also, 
il  been  boIJcii,  Ibat  llie  copying  of  a 
ball  be  a  condutive  evidence  of  llie  pub- 
Mi  of  it,  unless  Ihe  parly  cno  prore  tbat 
iTeT«d  it  to  a  Riagiiitrate  lo  examine  it, 
lieh  ca«e  the  act  aubsequent  i*  said  lo 
in  the  intention  precedent.  But  itieeiDs 
tbe  betler  opinion,  that  be  nbo  fiiEt 
II  Ub«I,  dictated  by  anniber.  ia  lliereby 
'  of  makinir  of  )t,  and  ciiusequenlly 
liable  for  the  bare  n-riting ;  fur  it  was 
el  till  it  wu  reduced  to  writing.' 
\<mt,  getilleiDeu,aresaiiieof  (be  uReticcs 
are  to  make  part  of  j'our  eiiijuirics ; 
i»y  otiier  should  arise  in  llie  course  of 
'ooecilugs,  in  wbicl)  you  are  A  a  loss, 
nivcany  doultls,  u|kiii  your  appHcaliua 
'«  Kilt  OMiat  and  direct  you." 
gnwd  jury  ool  iiuljcliug  m--  ns  was  ex- 
ibcgeulleincn  of  ibe  Cuuncil  prO<)eeiled 
my  Journals  into  coiisi deration,  and  stnl 
bwing   Mescage   to   the  General   As- 


I  Jofia,  3  p.  N.  ITtb  of  October,  1734. 
Mmh^  frnm  tbe  (Council  by  Philip 
■lt,m  tliese  wnrds,  to  nil:  ■Thatbniird 
bad  leKral  of  Zenger'n  New  Viirk 
r  Jeumali  laid  belbre  tliem,  and  other 
n>  papers,  landing  to  alienate  tbe  af- 
I  of  ihc  people  of  tins  province  from 
jcaiy'*  govcminenl.  to  raise  sedliions 
HuJM  among  the  prnjile  ol'  this  pro- 
ud 10  nil  their  minds  with  a  cnntompl 
Bl!^t«ly'a  I^overnmenl ;  And  eoosider- 
ipaniicioiu  cai»M|uence>  that  may  al- 
■■  growinn  evils,  if  nut  speeddy  and 
illy  put  a  stop  to:  And  conceiting  that 
M  Nk«ly  inelliod  to  put  a  atop  lo  such 
id  MubtMua  pradicci,  to   maintain  Ihe 

•T  hia  imyealy'a  govurnaieol,  and  lo 
■  lis*  peace  lben»f,  would  bv  by  a  con- 

bMween  a  Committee  of  this   board, 
jilpWUNsdlwAMMBtlfly  i  it  ia  thetc 


t^A.  D.  I73S. 


tGT» 


fore  orilereil,  that  Ibe  gentlemen  ofthisboan); 
now  assembled,  iir  any  seven  of  itiein,  be  s 
coinmiUee,  to  join  a  oommiUee  of  the  llnasa 
of  llepresenlniivei,  in  order  to  confer  tngellMr,' 
and  to  cximioe  and  enquire  ialo  llie  said 
pnjiers,  and  the  Bulbort  and  ivriteni  lliereof.*  „ 

*'  Which  Message  Vnan^  read, 

"  Ordered,  Tbut  Ibe  niemben  of  this  House,' 
or  any  funtteen  ol'lhein,  du  nieel  a  Conimille* 
of  IbH  Couucil,  at  tbe  time  and  place  ilicrein 
lueulioned.  ^ 

"  Die  Veneris,  9  a.  m.  18  October,  1734. 
"  Mr.  Oarretson,  from  the  Commitleeuf  thif 
Douse,  reported,  Thai  the;  last  iii|^ht  met  IllS 
Committee  of  the  Council,  on  Ihc  suli|erl>iiialler 
oftheir  Mess  age  of  yesterday  lo  Ihia  Housej  and 
that  aftar  several  preliminaries  between  ibe  eiu4 
Commillees,  ihe  gentlemen  of  the  Council  re- 
duced to  ffriliog,  what  tbey  reignesled  of  thil 
House,  and  dehvered  llie  same  to  Ibe  cbsirmaaj 
who  delivered  it  in  at  the  table,  auil  being  read) 
is  in  tbe  words  following ;  ■ 


"  •  At  a  Cororaitlee  of  tlie  Council  held  thq 
'  ITth  of  October,  1734 :  E>HE8ENT;Hr. 
'  Clarke,  Mr.  Harrison,  Dr.  Coldeo,  Mr.' 
'Livingston,  Mr.  Kennedy,  Mr.  Chief 
'  Justice,  Mr.  Corklandt,  Mr.  Lane,  Mr. 
*  Uotsmanden. 
"  '  Geatlemen  ;     Tlie  mnltcrs  we  re(|Ueit 

'  your  concurrence  in  are.  Thai  Zenger's  p«- 

■  pen.  No.  7,  47,  18,  49,  which  neie  read,  and 
'  wbieli  we  now  deliver,  be  burnt  by  the  bandl 
'  of  the  common  hangman,  as  contaiuing  in 
'  Ihein  many  things  demgalory  of  the  dignil^ 
'  of  bia  majesly'H  government,  reflecting  ujioq 
'  ibe  legislature,  upon  the  mnsi  conshlerabltt 

■  persoijs  in  the  most  diatinguisbed  stations  iii 
'  Ibe  pruvince,  and  tending  In  raise  cediLiout 
'  and  tumults  among  the  people  thereof, 

■'  ■  That  you  concur  with  us  in  tlie  address- 
'  ing  Ibe  governor,  to  issue  his  pivctaroniiuiH    ' 

■  with  a  promise  of  reward  fur  tbe  discovery  of   ] 
'  the  aulliors  or  wrilera  ol  these  nediliou*  libeli. 

"  '  I'hat  you  concur  with  us  in  an  Order  for 
'  proseruling  Ihe  printer  thereof. 
*■  'That  you  concur  wiiti  u!>  ia  an  Order  lo 

■  ibe  magistrates,  lo  exert  Ihemsalvts  in  lb* 
*  execution  of  iheir  oflicc<,  in  »rder  to  preaerrd 
'  the  public  peace  of  Ihe  pruvince.     By  orde^ 

■  of  Ihe  Commiiiee, 

"  '  Tbeo,  MtJBRjs,  CI.Coo,' 

■'  Mr.   Garrelson  delivered    likewise  to  lb*   ' 
House  the  several  papers  referred  loin  tile  said 
reipiest, 

"  Ordered,  That  the  said  pii|ier«  be  lodged 
with  the  clerk  of  this  House;  and  lliat  lh« 
coiraidaration  thereof,  and  Iha  said  rei|ue*l,  ba 
referred  till  Tuesday  next. 

■■  Die  Mortis,  9  *.  m.  3'j  October,  1731. 

"  Tbe  House  actMrding  to  Ordrr  proceeded  i 
lo  lake  inio  consideraiinn  the  rique^l  nf  a  C'uiii*  « 
millec  of  Council, dcliviired  to.t  Co  mini  Iter  of  '' 
thu  Usmc,  OB  tlic  lOtb  insuiDi,  as  tikcwiia  «l  ^ 


679]            9  GEORGE  II.                 Trial  of  John  POer  Zenger,  [680 

the  sereni  papers  tbereio  referred  to.     AaA  it  tboald  be  entered,  they  wooU  h«Te  thiir 

atW  aeveral  debates  upon  the  subject-matters,  protest  entered  against  it. 

it  was  ordered.  That  the  said  papers  and  re-  On  Wednesday  the  6th  of  Novcnbcr,  iIm 

quests  lie  on  the  table.' '  sheriif  of  Niew  York  mored  the  Court  of  QuBr< 

The  Council  finding  (be  General  Assembly  !f5:!!^i?";  ***  '^•TJ''^,]*'"'  ^J!^^^* 

would  not  do  any  thing  about  it,  they  sent  the  ,"£?■  J^'u  ""''  **  *"  "i^T^  °5*rf„IL2!: 

fo.lo.injMessa^totteouse:  in;nraUl7™S,'Sh«S;SriJ'rS 

*f  Die  Sabbati,  9  a.  m.  8  November,  1734.  not  objecting  to  it,  and  is  as  followelh : 

'  **  A  Messa^  from  tlie  Council  by  Mr.  Liv-  "  Whereas  an  Order  has  been  serred  OD  lUi 

ingfston,  desinog  this  House  to  return  by  him  Court,  in  these  words."    [The  Order  as  abova 

to  that  board  the  several  sethtious  Journals  of  inserted.]   **  And  whereas  this  Court  concciTfs, 

Zenker's,  No.  7,  47, 48,  49,  which  were  deU-  they  are  only  to  be  commanded  by  the  kiiic'i 

YercSi  by  a  Committee  ol'that  Board  to  a  Com-  mandatory  writs,  authorised  by  law,  to  which 

mittee  of  this  House  thp  17  th  of  October  last,  they  conceife  they  have  the  right  of  sbeviai 

together  with  the  proposals  of  the  Couimiitee  cause  why  they  douHobey  them,  if  they  beliert 

or  that  Board,  delivered  therewith  to  a  Corn*  them  improper  to  be  obeyed ;  or  by  Orders,  which 

mittee  of  this  House ;  and  then  withdrew."  have  some  known  laws  to  aulhorise  them ;  aii4 

On  Tuesday  the  5th  of  November,  1734,  the  "*•*"*•  *''!'  Court  conceives  this  Order  to  k 

y"  »"«=»"."j  •"'=•'"•'» '^  "^"""'t"  •»»•""»  n„    mandatory  writ  warranted  by   law,  M( 

yarter-sessjonsforthecityofNew  Yorkbe.  k„ows  of  no  law  that  authorises  themakiii  lb* 

gan  when  the  sheriff  dehveied  to  the  Court  an  ^y^^      aforesaid;   so  ti.ey  think  tbem^ft* 

Order,  which  was  read  m  these  words :  „„j^^  „„  oblijfation  to  obl^  it :    which  obcdj. 

<c  A*      ^        't  t   tj   A-n    ».  r^            •     x'  cncc,  they  think  would  be  in  them,  an  opeoioff 

«  At  a  Council  held  at  Fort  George   m  New  ^  j^^  J  ^^^         commands,  which.  wfcS 

York,  the  2d  of  November^  1734:   Pre-  ^^ce  opened,  they  Low  not  what  dangeroM 

sent;    His  Excellency  William  Cosby,  eousequencel  may  attend  it.    WherefoS^  Ihif 

CapUin  Grneral  and  Governor  in  Chiet,  Court  conceive,  itself  bound  in  duty  (for  tin 

&c.  Mr  Clarke,  Mr.  Harrison,  Dr,  Col-  e^^rvation  of  the  rights  of  this  curp^atioi, 

^u'f  ?   ;•     '*!ir  r:.  h'-  u^"rt  ?    '  «n^».  as  «»«»»  ^^  tl)cy1ian,  the  liberty  of  tke 

Chief  Justice,  Mr.  Cortlandt,  Mr.  Une,  '    and  the  people  of  the  province,  smce  n 

Mr.  Horsmanden.  isscinbly  of  the  province,  aud  several  gn84 

<<  Whereas  by  an  Order  of  this  Board,  of  this  juries,  have  refused  to  meddle  with  the  papm» 

day,  some  of  John  Peter  Zcnger*s  Journals,  when  a;)plii!d  to  by  the  Council)    to  protest 

entitled,   «The  New  York   Wlekly  .Itiunial,  ajrainst  the  Order  albresaid,  and  to  forbid  ill 

*  containing  the  freshest  Advices,  iorelgu  and  the  members  of  this  coqM»ratiou  to  pay  any 

*  domestic,'  No.  7,  47,  48,  40,  were  ordered  to  obedience  to  it,  uutil  it  be  shewu  to  this  Court, 
be  burnt  by  the  hands  of  the  commuu  han^-  that. the  same  is  authorised  by  some  knowa 
man,  or  whin|>er,  near  the  pillory  in  this  city,  I:iw,  which  ihey  neither  know,  nor  beiieTe  that 
on  Wednesday  the  Glh  instant,  betwci^ti  tue  it  is.'' 
Lours  ol  eleven  and  twelve  in  the  forenoon,  as 


tnemosiuisiinmiiiincu  sia  ions  ui  litis  province:  «    u   i     ^*  i     «i   *^u      ij.    «•  «u    i           ^    .»<i 

•*  ■    .1      i    «       t  ...  I    o'l    »  .1        "^      i"vc .  ^  ^  burnt  by  the  hands  ut  the  hanemaD,  aw 

It  IS  thcreiore  oi^.cd,  That^t^h                 and  that  the  mavor  and  aldermen  of  London  slUl 

niaffistrates  ot  tl.  s  city  do  attend  at  tbe^uru.njT  ^^j^,,  ,|,^  ^,-      ^^  -^     ^o  which  one  of  theal- 

ot    .he  severa    Papers  or  Journals  aioresaid,  ,,^,,„^„  ,„^^  J^d  ^^  ^^-^    ^            ^    ^^^  ^ 

numbered  as  above  ment.oued  conceived  the  case  was  no*  wi^s  parallel,  be- 

«  T    p  I   ^  f    J^'  i  Tttt^or  onL^"""'  «^«««  *>«•    Sucheierell  a,.d  his  H^moo  w«i 

To  Robert  ^-^^ing  esq    »a>j^^^  of  he  i„,peached  by  the  House  ot  Commons  of  Enf - 

city  of  New  Y«>rk;  •"J  the  rest  of  ifae  ,^J,,    ^^^,J^^/J^  ^^^         ^  .        ^^.   ^         JJ^ 

majrisirate-   lor   the  said   city    and  and  JeHresentativcM/the  wliole^ people  of  Eag- 

^**""v  •  land  :   that  this  their  impeachment  they  prose- 

Upon  readincf  of  which  Onler,  the  Court  cuied  before  the  House  of  Lords,  the  p«ate«t 

forbud  the  onterinj;  thereof  in  their  b<Miks  at  court  of  justice  of  Britain,  and  which,  beyoad 

that  time ;  and  many  of  them  declaretl.  that  if  memory  of  man,  hus  had  cinrnizance  of  thiogl 

' --  of  that  nature:    that  there  Sacheverell  had  • 

.   •   «  N.  H.     V)r.  Colden  was  that  day  at  Joir  hearing  in  defence  of  himself  and  of  hii 

Esopns,  VO  miles  from  New  York,  tlioui^h  men-  Sermon  ;   and  after  that  fair  heorinjr.  h«  mA 

tioned  as  preient  in  conocU."— forffMr  Edi-  his  Sermon  were  justly,  fairly,  and  iogoNy 

11011.  oimdmntd:  that h« had ntd Um OMa of  On 


OMJ  M  *  UhtU 

\  iBdtbMiht  iMCouM  charg«  bi« 
;  that  the  jud|[ni«i  «f  itis  Boom  of 
■o^  m  tint  MM  tfM,  That  tlia  naaym  and 
■hHiA  of  Isonhm  and  Miildletex  only  ilioulJ 
MMiibe  hnmingBfiheSemMD,  MHlnot  tbe 
dfaaca;  aiidfartberlMrememb«r«l, tlutllie 
Orftr  Mpoa  that  JDflgnaent  WM  only  directed  td 
fti  ^anfla  of  LeoduD,  and  uot  ereti  Id  tbc 
■mr,  who  did  not  attend  Iba  doiai;  it :  aud 
ftMB  aaid,  that  would  Mr.  RcRDrder  iLiew, 
Attbe  govemor  aod  council  bad  inch  autho- 
•Hfm  Uw  Honae  of  Lords,  and  that  tha  paper* 
MBtd  to  ba  borat  wen  in  like  man&et  kffally 
IWaoMed  and  condemiied,  Ibere  the  caia  of 
fc.  laahTarall  migbt  be  to  tlie  paipoae ;  but 
HkmA  abawii^  tbat,  it  ratber  proved  tbat  a 
MMR  OOgbt  not  lo  be  pronaoDced,  till  a  fair 
tU  \^  ■oompetent  and  legal  auiliority  were 


It  could  pra- 

kHiafficicat  aulhoriliea  to  warnnt  tbi*  Or- 

fci  iwy  would  Toadily  oliev  it,  bal  othprwiie 

■t    Vyaxi  which  be  laid,  ha  did  not  carry  his 

lab  aaout  with  him.    To  which  it  wat  an 

mral,  be  tnigtit  aend  Ibr  ihem,  ot  vrAtt  a 

[    MMaUa  to  feich  Ihem.       Upon    nhich    ha 

e    nat,  and  at  the  lower  end  of  Hie  tabic  he  men-' 

laai,  that  biifaop  Burnet's  Puloral  Lrller  was 

•    Mutdiby  llwHouseorLordiiiobobiirDt*  by  , 

I     ia^  bailiff  of  WeMminiter-,    ujwn  whicb  | 

laamplly  went  away,  without  waiiinefuran  . 

Maar,  or  pramisin^  tu  bring  hia  baots,  and 

Halt  ntam  aiiting  ibe  Court. 

ktm  Mr.  Recorder'a  dcparlore,  it  waa 
«Md,  that  tbe  Protest  thould  be  eolered  ;  to 
■lUit  was  anawered,  tbat  the  Protest  cuuld 
IM  ka  entered,  without  entering  alio  tbe 
(Mv,  tbat  it  was  not  Bt  to  lake  any  notice  of 
i  i;  ud  therefore  it  was  proposed  that  no  no- 
faa  abould  be  taken  in  tlieir  books  of  either, 
•Uefa  waa  unanimously  agreed  to  by  the 
CmbL 

nasfaerilFthenmoTed,  that  the  Court  would 
Ami  their  whippcr  lo  perform  llie  said  Or- 
fa;  lo  which  it  was  answered,  That  as  he 
«n  Iba  officer  of  the  corporatiun,  they  wuold 
^  ao  such  Order.  Moon  after  wbich  tbe 
Cm  adjouToed,  and  did  tiot  aiteuil  the  burn- 
Mi  of  Ibe  palters.  Aflerwards  about  noon, 
ftt  sberiS*,  after  reading  the  uunibera  of  the 
*>wal  papers  wbich  were  ordered  tn  be  burnt, 
Mrered  Idcri  unto  the  handsnf  hisown  negro, 
•1  ordered  him  to  put  them  into  tbe  fire, 
•kiehhe  did;  at  Hbich  Mr.  Recorder,  Je- 
naiab  Dunbar,  esq.  and  several  of  the  offi- 
*n  of  the  garriaoo,  attended. 

On  the  Lord's  ilay,  tbe  ITtb  of  Norember, 


*  Bishop  Kennet  aaya,  that  this  Letter 
Mned  to  be  aacriGced  to  a  poor  Jeat  on  the 
■■bar's  name  [BunMtl.  Complete  Hist,  of 
yi-wl.  9,  p.  S8r,  3  Ed.  in  Load,  iri9.— 


f«» 


"  At  a  Council  held  at  Fort  Geoiwe  in  New 
York,  Ilia    Sil  day  of  Nofember,   1734. 
Pkesent  ;  bis  Eicellency  William  Cosby, 
Captain  General  and  fioTernor  jD  Cbiw^ 
&c.      Mr.   Clarke,    Mr.    Harrison,  Mr. 
Livingston,  Mr.  Kennedy,  Chief-Juslieo, 
Hr.    Cortlanitt,    Mr.    I^oe,    Mr.    Uors- 
manden, 
"  It  is  ordered,  that  tbe  sheriff  for  the  citv 
of  New    York  do    forthwith    Ishe  and   ap- 
prehend John  Peter  Zeoger.  for  printing  and 
pubtiahing    aereral  aeditioua  Ubels,  disperaad 
thniiit{boul  bis  Journals  or  Newe-papen,  in- 
tituled, '  The  Nrw  York  Weekly  Journal,  con- 
taining the  freshest  advices,  foreign  and  da* 
mcalic ;'  as  having  in  lliem  many  things  tend- 
ing lo  raisa  lactioua  and  lumutla  among  iho 
propte  of  this  pnivlnco,  ioSuoiing  their  uiinda 
with   contempt  of  hia  majesty's  eovrmmaot, 
and  ^really  ilulurbing  the  pean-  Inerrof ;  and 
upon  his  taking  the  said  John  Peler  Zeagar,  to 
commit  him  lo  the  prison  or  comtnoa  jul  of 
■'         ■  ■    ■-     -|nj  i^unty. 

"  Faao.  Hoaais,  D.  Ct.  Con." 

And  bang,  by  virtue  of  that  warrant,  ao  ira- 
prisuned  in  tlio  jsil,  I  was  I'nr  several  day*  de- 
nipd  iheuseof  pt>n,  ink,  and  paper,  and  the  fi> 
berly  of  speech  »ilb  any  ptraiins. — Upon  mj 
eomiaiiment,  some  frirmls  hdou  uot  a  Habeaa 
Corpus  to  bring  me  betbre  the  uhief-juslioo,  in 
order  lo  my  discbargc,  or  being  bsileiJ  ;  on  the 
return  whereof,  on  VVedaesilay  the  SOtb  of  No> 
vember,  roy  counsel  dflicrred  exeeptiona  t* 
the  return,  and  tbe  chief- justice  ordered  Ibena 
to  he  argued  publicly  at  Ihe  city  ball,  en  tiie 
Salnrday  tbI  lowing. 

On  tktuTiiay  the  93d  of  Nuverober,  the  said 
eiterptinns  cwme  to  be  argued,  by  James 
Alexander  and  William  Smith,  of  rounsel  far 
mc.  and  by  Mr.  Aliornrj'  General,  snd  Mr. 
Warrei,  or  cr)un<tel  sgainsi  me,  in  presence  of 
some  hundreds  of  the  inhabiiants ;  where  my 
counsel  (>aving  the  benelil  of  exception  to  the 
illfi;aUt\  of  the  narraul)  iosiated  that  1  migbt 
be  admitted  to  reasouabie  bail.  And  lo  ahew 
thnt  it  was  my  right  to  be  so,  they  ofiared 
Magna  Chnrta,  the  Pelilion  of  Right,  S  Car. 
the  HabeasCorpusAdof  »l  Car.  3.  which  di- 
rects the  sum,  in  wbich  bail  is  to  be  taken,  to 
be,  '  accDiiling  to  tlie  qiialily  of  the  prisoner, 
and  nature  of  the  offence.'  AIm  3  Hawkini^ 
cap.  IS,  \.  ."i,  in  these  words,' But  justioesmnat 
lake  care,  that,  under  jirelence  iil'  demanding 
aufficii-nt  securily,  they  do  not  make  so  exces- 
sive B  demand  as,  in  effWt,  amounts  to  adeoial 
ot  bail  ;  for  ihia  is  looked  on  as  a  ereal  srriev- 
ancc,  and  in  complained  of  i 
H.  aesB.  9.  by 


Buch,  by  1  W.fc 
declared, '  Tbat  ex- 
to  be  required.'  It  wat 
also  shewn,  llnit  the  Heven  Bisboiw,  who,  in 
king  JampB  Ilii-  ad^  tirae,-were  charged  with 
Ihe  tike  crime  tliat  I  stood  charged  with,  were 
-'—  —  '  -  '    'on  tlieir  own  recogmsancet^ 


ess] 


9  GEORGE  II. 


Trial  of  John  Peter  Zenger, 


[»* 


tbe  archbishop  in  SOO/.  and  each  of  the  other 
six  in  100/.  a-piece  only.  Sundry  other  au- 
thorities and  aqg;ument8  were  produceil  and  in- 
sisted on  by  my  counsel,  to  prore  ray  riciki  to 
be  admitted  to  moderate  bail,  and  to  sucn  bail 
as  was  in  my  power  to  g^ve ;  and  sundry  parts 
of  history  they  produced,  to  shew  how  much 
the  requiring  excessive  bail  had  been  resented 
bv  parliament  And,  in  order  to  enable  the 
CduiI  to  juilge  what  surety  was  in  my  power  to 

r've,  I  made  affidavit,  That  (my  diebts  paid) 
was  not  worth  fony  pounds,  (the  tools  or  my 
trade,  and  wearing-apparel  excepted.) 

8ome  warm  expressions  (to  say  no  worse  of 
thetn)  were  dropt  on  this  occasion,  sufficiently 
known  and  resented  by  the  auditory,  which, 
for  my  part,  I  desire  may  be  buried  in  obli- 
Yion :  upon  the  whole,  it  was  ordered,  that  I 
might  be  admitted  to  bail,  myselfin  400/.  with 
two  sureties,  each  in  200/.  and  that  I  should 
be  remanded  till  I  gave  it.  And  as  this  was  ten 
times  more  than  was  In  my  power  to  counter- 
secure  any  person  in  giving  bail  for  me;  1  con- 
ceived 1  could  not  ask  any  to  become  my  bail 
on  these  terms  ;  and  therefore  1  returned  to 
jail,  where  1  lay  until  Tuesday  the  2Utli  of  Ja- 
nuary, 1734-5,  bring  tbe  lastdav  of  that  term ; 
and  the  grand  jury  having  found  nothing 
against  me,  f  expecte<l  to  have  been  discharged 
from  my  imprisonment :  but  mv  hopes  proved 
Yain  ;  for  the  Attorney  General  then  ehar^ 
me,  by  information,  for  printing  and  publisbmg 
parts  of  my  Journals  No.  13  and  23,  as  being 
false,  scandalous,  malicious,  and  seditious. 

To  this  information  my  Counsel  appeared, 
and  offered  ^Exceptions,  leaving  a  blank  for  in- 
serting the  judges  commissions,  which  the 
Court  were  of  opinion  not  to  receive  till  those 
blanks  were  filled  up.  In  the  succeeding  va- 
cation the  judges  gave  copies  of  their  commis- 
sions ;  and  on  Tuesday  the  15th  of  April  last, 
the  first  day  of  the  succeeding  term,  my 
Counsel  offered  these  Exceptions;  which  nere 
as  follow : 

"  Tbe  Attorney  General,  v.  John  Peter 
Zenger. — Ou  Information  for  a  Misde- 
meanor. 

**  Exceptions  humbly  offered  by  John  Peter 
Zenger,  to  the  honourable  James  de  Lancey, 
«sq.  to  judge  in  this  cause. 

*<  The  defendant  comes  and  prays  hearing 
of  the  commission,  bv  virtue  of  which  the  ho- 
nourable  James  de  LAncey,  esq.  claims  the 
power  and  authority  to  judge  in  this  cause,  and 
it  is  read  to  him  in  these  words : 

"  *  George  the  2d,  by  the  grace  of  God, 
'  of  Great  Britain,  France  and  Ireland,  king, 
'  defender  of  the  faith,  &c.  To  our  trusty 
'  and   well   beloved  James  de  l^ncey,  esq. 

*  We,  reposing  special  trust  and  confidence  in 

*  your   integrity,  ability  and   learning,  have 

*  assigned,  constituted  and  appointed,  and  we 

*  do  by  these  presents  assign,  constitute,  and 

*  appoint  you,  the  said  James  de  Lancey,  to 

*  be  chief  iustice  in  and  over  our  province  of 
^  Mew  York,  in  Ameiicay  in  thenMMD  of  Ltyris 


'Morris,  esq.  giving  and  by' these   |ineKBir- 

*  granting  unto  you  full  power  and  lawftil  an- 

*  tbority  to  hear,  try,  and  detennine  all  pleas 

*  whatsoever,  civil,  criminal*  and  mixt,  aeeord-^ 

*  iug  to  the  laws,  statutes,  and  ctistoms  of  mt 

*  kingdom  of  England,  and  tbe  laws  and  us^ 

*  of  our  said  province  of  New  York»  not  \tmg 

<  repugnant  thereto,  and  executibnsof  all  jade* 
'  ments  of  the  said  court  to  award,  and  to  nuse 

*  soch  rules  and  orders  in  the  said  court,  as  may 

*  be  found  convenient  and  usefaly  and,  as  sear 

*  as  may  be,  agreeable  to  the  rules  and  eidcffr 

*  of  our  courts  of   King's-bench,  ComiMa 

<  Pleas,  and  Exchequer  in  England.     To  have, 

*  hold,  and  enjoy  the  said  office  or  place  of  cfaisf 

*  justice  in  and  over  our  said  provmce,  with  all 
'  and  singular  the  rights,  privdeges,  profits  sod 
'  advantages,  sahiries,  fees  and  j[»erqaisites  mis 
*■  the  said  place  belonging,  or  in  any  ways  ap« 

*  pertaining,  in  as  full  and  ample  manner  m 

<  any  person  heretofore  chief  justice  of  oursaii 
'  provmoe  bath  held  and  enjoyed,  or  of  i^ 

<  ought  to  have  held  and  enjoyed  the  same,  l» 

<  you  tbe  said  James  De  Lanoey,  esq.  forasd 
«  during  our  will  and  pleasure.     In  tesduMMj 

<  whereof  we  have  caused  these  our  leiten  is 

*  be  made  patent,  and  the  great  seal  of  oar 

*  province  of  New  York  to  be  hereunto  affizsd. 

<  Witness  our  trusty  and  well-beloved  Willim 
*■  Cosily,  esq.  our  captain-general  andgoveiMr 
'  in  chief  of  our  provinces' of  New  York,  Nc« 

<  Jersey,  and  the  territories  thereon  depadiir 

*  in  America,  vice-admiral  of  tbe  same,  lad 
*■  colonel  in  oar  army,  at  Fort  George  in  Nev 

*  York,  the  21st  day  of  August,  in  the  7th  yor 

*  of  our  reign.  Anno  Domini,  17S3.' 

"  Which  being  read  and  heard,  the  said  John 
Peter  Zenger,  by  protestation  not  confessiog 
nor  submitting  to  the  power  of  any  other  per- 
son to  judge  m  this  cause,  doth  except  to  tbe 
power  of  the  honourable  James  de  Laocej, 
esq.  aforesaid,  to  judge  in  this  cause,  by  virtoe 
of  the  commission  aforesaid,  for  these  reatonii 


VIZ. 


"  1st.  For  that  the  authority  of  a  judge  of 
the  King's-bench,  in  that  part  of  Great  BriltiD 
called  England,  by  which  the  cognizance  of 
this  cause  is  claimed,  is  by  the  said  commissioa 
granted  to  the  honourable  James  do  Lanoey, 
esq.  aforesaid,  only  during  pleasure  ;  whme 
that  authority  (by  a  statute  in  that  case  mule 
and  provided)  ought  to  be  granted  during  good 
behaviour. 

**  2nd.  For  tliat,I)y  the  said  commission,  the 
jurisdiction  and  authority  of  a  justice  of  tba 
court  of  Common  Pleas  at  Westminster,  in  tbst 
part  of  Great  Britain  called  England,  is  granted 
to  the  said  James  de  Lancey,  esq.  which  juris- 
diction and  authority  cannot  be  granted  to,  and 
cxerciseil  by,  any  one  of  the  justices  of  tbt 
King's- bench. 

**  3rd*  For  that  the  form  of  the  said  commis- 
sion is  not  founded  on,  nor  warranted  bv  tbe 
common  law,  nor  any  statute  of  EnghinJ,  asi 
of  Great  Britain,  nor  any  act  of  assembly  of 
tliis  cohiny . 

'*  4th.  For  that  it  appears,  by  tba 


tbe 


fiS5J  JbraLiteL 

■fivrenid,  that  the  game  is  icnraDted  amter  > 

I  of  litis  colony  by  his  excellency  Wil* 
Cosby,  esq.  uroTernor  thereof;  and  it  ap- 
I  Boty  tbai  the  same  was  granted,  neither 
IIm  awiM  grranted,  by  and  with  the  advice 
consent  ^  his  majesty's  council  of  this 
tv ;  wiiboot  which  advice  and  consent,  his 
Irney  oonld  not  Rrant  the  same. 
Wherefore,  and  for  maov  other  defects  in 
■id  eommissioo,  this  defendant  hnmbly 
tbat  the  hononrable  James  de  Lancey, 
will  not  take  co|pizsnce  of  this  cause,  by 
Mof  the  commission  aforesaid. 
.  "  Jamhs  Alcxinder. 

*' William  SMrru." 

Tha  Sxceptions  to  tbe  Commission  of  the 
hMoarable  Frederick  PhilU|»se,  esq.  were  the 
MM  with  the  foregoio£^,  includiufi^  therdn  his 
I,  which  is  in  Ihciie  words: 


A.D.  1735. 


[688 


*Qeorve  the  8d,  by  the  f^raee  of  God,  of 
*flnt  Britain,  France  and  Ireland,  kinir,  de- 
HWsr  of  the  faith,  &c.    To  our  trusty  and 

^•beloved  Frederick  PhiUi|i8e,  esq.  j^reet- 

a:  whereas  it  is  uur  care,  that  justice  be 
y  administered  to  our  subjects  within  our 
iravfaice  of  New  York,  and  territories  thereon 
eBfsadieif  in  America ;  and  we,  reposing 
Dial  confidence  in  your  integrity,  ability 
iaaroiog,  have  assigned,  constituted  and 
~,  umI  we  do  by  these  presents  as> 
■Pi  ooostitnte  and  appoint  you,  the  said 
Fraderick  Phillipse,  to  be  second  justice  of 
Mr  supreme  court  of  judicature  tpr  our  pro- 
of New  York,  in  the  room  of  James  de 


liseeT,  es^.  eiving  and  granting  to  you,  tbe 
■iiredenck  Phillipse,  full  power  and  au- 
Miy,  with  our  other  justices  of  our  said 
■yKme  court,  to  hear,  try,  and  determine  all 
fw  wbatsoerer,  civil,  criminal,  and  mixed, 
MeordiDg  to  the  laws,  statutes  and  customs 
rfsor  kingdom  of  England,  and  the  laws  and 
Mgsa  of  oar  said  province  of  New  York,  not 
JMi^  repugnant  tliereto ;  and  executions  of  all 
jivments  of  tbe  said  court  to  award,  and  to  act 
ijM  do  all  things,  which  any  of  our  justices  of 
oiber  bench,  or  barons  of  the  Exchequer,  in 
■ttsaid  kingdom  of  England,  may  or  ought 
ts  do,  and  also  to  assist  in  tbe  making  such 
nils  aod  ordersnn  our  said  court,  as  snail  be 
htihi  good  and  benefit  of  our  said  proTince ; 
Mdi  as  oear  as  conveniently  may  be,  to  the 
tales  and  orders  of  our  said  courts  in  our  said 
bgdoei  of  England:  to  have,  hold,  and  en- 
jjij  the  said  office  or  placeof  second  justice  of 
•ttsaid  province  of  New  York,  together  with 
4  aad  singular  the  rights,  privileges,  salaries, 
fcii,  perquisites,  profits  and  advantages  there- 
tli  now  or  at  an^  time  heretofore  Mlonging, 
^io  any  wise  ot  right  appertaining,  unto  you, 
Ike  said  Frederick  Philhpse,  for  and  during 
*tt  pleasure.  I  n  testimony  w  hereof,  we  have 
tMwd  these  our  letters  to  be  made  patent,  and 
^  great  seal  of  our  said  province  of  New  York 
h  M  hereunto  affixed.  Witness  our  trusty 
^  well-beloved  William  Cosby,  esq.  our 
•imiigfptral  and  govamor  in  cWf  of  our 


*  pro? iDces  of  New  York,  New  Jersey,  and 
'  territories .  thereon  depending  in  America, 
<  vice-admiral  of  the  same,  anil  colonel  in  our 

*  army,  Sea,  at  Fort  Geprge  in  New  York,  the 

*  31st  clav  of  August,  in  the  7th  year  of  our 

*  reign,  Anno  Domini,  1733. 

*  Fred.  Morris,  D.  Secretary/ 

Tuesday^  April  15, 1735. 

Mr.  Alexander  offered  the  above  Exceptions* 
to  the  Court,  and  prayed  that  they  might  be 
filed.  Upon  this  the  chief  justice  said  to  Mr. 
Alexander  and  Mr.  Smith,  that  they  ought 
well  to  consider  the  consequences  of  what  tliej 
offered.  To  which  both  answered,  that  tlier 
had  well  considered  what  thev  offered,  and  aH 
the  consequences.  And  Mr.  Smith  added,  that 
ha  was  so  well  satisfied  of  the  right  of  the  sub- 
ject to  take  an  exception  to  the  commission  of 
a  judge,  if  he. thought  such  commission  ille- 
gaJ,— that  ha  durst  venture  his  life  upon  that 
point.  As  to  the  validity  of  the  Exceptions 
then  offered,  he  said,  he  took  that  to  be  a  se- 
cond point ;  but  was  ready  to  arc^ue  them  both, 
if  thi  ir  honours  were  pleased  to  hear  him.  To 
which  the  chief  justice  replied,  that  he  would 
consider  the  Exceptions  in  the  morning;  and 
ordered  4he  clerk  to  bring  them  to  him. 

Wednetday^  April  16. 

The  chief  justice  delivered  one  of  the  Excep- 
tions to  the  clerk,  and  justice  Phillipse  the 
other ;  upon  which  Mr.  Smith  arose,  and  ask- 
ed the  judges,  whether  their  honours  would 
hear  him  upon  these  two  points.  1st.  That 
the  subject  has  a  right  to  take  such  Exceptions^ 
if  they  judged  the  commission  illegal.  Sdly. 
That  the  Exceptions  tendered  were  legal  and 
valid.  To  which  the  chief  justice  said,  that 
ihcy  would  neither  hear  nor  allow  the  Excep- 
tions ;  for  Tsaid  lie)  you  thought  to  have  gain- 
ed a  great  deal  of  applause  and  popularity  by 
opposing  this  court,  as  you  did  the  court  of 
Exchequer ;  but  you  hare  brought  it  to  that 
point,  that  either  we  must  go  from  the  bench, 
or  you  from  tbe  bar:  therefore  we  exclude  yoa 
and  Mr.  Alexander  from  the  bar ;  and  defiver- 
ed  a  paper  to  the  clerk,  and  ordered  it  to  ba 
entered  ;  which  the  clerk  entered  aooerfii^y, 
and  returned  the  paper  to  the  chief  Msiice; 
aAer  which  the  chief  justice  orderai  tte  derfc 
to  read  publiclj'  what  he  bad  wiittui ;  aD  at- 
tested copy  whereof  follows : 

"At  a  Supreme  Court  of  Jodiiaavt  hdd  for  tbe 
Province  of  New  V«fk.  ai  lUe  Tily-Hall 
of  the  City  of  New  \utk,^  Wnlnesda^ 
the  IGtli  dav  of  Aiiril,  17^5.     Prised  t 
the  lion.  JaiBi^  it  Imut^y,  i  sq.  ri ' 
justice.    Tlie  Hm.  ^foitarick    Ph"" ' 
esq.  second  justic*. 

«'  James  Alpxai4«:,asu  sn<<  Wiliin-    ...' 
attoroies  of  this  CuM,  iisviiiii  prp-i         .-» 
withstanding   Ikpv  ^^gm   Utrcwrr: --  -^    . 
Court  of  thrir  4Bs^lSBwrp',  il  ihe;       -    «. 
to  sign,  imI  kmnm  arii^iu  ^  *« 

into  c«ttrt,  ■#-    :^ 


•  i» 


&' 


687]  D  GEORGE  II.  Trial  of  John  Pder  Zenger,  [OSB 

Peter  Zenger;  thereby  denying  the  legfality 
of  the  jiidjpes  their  coromiMicHis ;  though  in 
the  usual  lorm,  and  the  being  of  thii  Supreme 
Court  It  is  therefore  ordered,  tbat»  for  the 
aaid  contempt,  the  said  James  Alexander,  and 
William  Smith,  be  excluded  from  any  farther 
practice  in  this  Court ;  and  tliat  their  names 
oe  strucli  out  of  the  roll  of  attomies  of  this 
Court.  Per  Cur'.        James  Lyne,  CI." 


After  the  order  of  the  Court  was  read,  Mr. 
Alexander  asked,  whether  it  was  the  order  of 
Mr.  Justice  Phillipse  as  well  as  of  the  chief- 
justice  ?  To  which  both  answered,  that  it  was 
their  order;  u|ion  which  Mr.  Alexander  added, 
That  it  was  proper  to  ask  that  question,  that 
they  might  Know  how  to  have  their  relief : 
be  farther  observed  to  the  Court,  upon  reading 
of  the  Order,  that  they  were  mistaken  in  their 


Alexander  and  Mr.  Smith  said,  thejnadsr- 
stood  it  otherwise. 

They  both  also  mentioned,  that  it  was  a 
doubt,  whether  by  the  words  of  the  Order,  tbe^ 
were  debarred  of  their  practice  as  oonnacl,  m 
well  as  attomies,  whereas  they  praetiacd  ii 
both  capacities.  To  which  the  chief^jviiBi 
answered,  That  the  Order  waa  plain,  **  Vak 
James  Alexander,  esq.  and  Waliam  Sorilk, 
were  debarred  and  excluded  from  their  vkili 
practice  at  this  bar ;  and  that  the  Order  wv» 
tended  to  bar  their  acting  both  as  oonnael  wai 
as  attornies,  and  that  it  could  not  be  eonatrud 
otherwise."  And  it  being  asked  Mr.  Pbiflijisi^ 
whether  he  understood  the  Order  so  ?  He  an- 
swered, That  he  did. 

Upon  this  exclusion  of  my  counsel,  f  peti- 
tioned the  Court  to  order  counsel  for  my  de- 
fence; who  thereon  appointed  John  Cnaoh 


wording  of  it,  because  the  Exceptions  were  bers,  esq.  who  pleaded  Not'  Guilty  for  me  ti 

•nly  to  their  commissions,  and  not  to  the  being  the  information.    But  as  to  the  point,  whellier 

of  tlie  Court,  as  is  therein  alleged ;  and  prayed  tny  Exceptions  should  be  part  of  the  reoonl,sl 

that  the  Order  might  be  altered  accordingly,  was  moved  by  my  former  counsel,  Mr.  ChsoH 

The  chief-justice  said,  they  conceived  the  Ex-  hers  thought  not  proper  to  speak  to  it.    Mr. 

ceptionawere  against  the  being  of  the  Court.  Chambers  also  moved,  that  a  certain  day  nl 

Both  Mr.  Alexander  and  Mr.  Smith  denied  the  next  term  might  be  appointed  for  my  tml, 

that  they  were,  and  prayed  the  chief-justice  and  for  a  Struck  Jury  ;   whereupon  ray  irid 

to  point  to  the  place  tliat  contained  such  excep-  was  ordered  to  be  on  Monday  the  4tb  of  Av 

tions ;  and  further  odded,  that  the  Court  might  gust,  and  the  Court  would  consider  till  tkl 

well  exist,  though  the  commissions  of  all  the  first  dav  of  next  term,  whether  I  should  hsii 

judgtt  were  void;  which  the  chief-justice  con-  a  struck  jury  or  not;   and  ordered,  that  lU 

fessed  to  lie  true :  and  therefore  they  prayed  shcrifT should,  in  the  meantime,  at  liiy  dUKp, 

again,  that  the  Order  in  that  point  might  be  return  the  freeholders  book, 

.licred ;  but  it  wm  denied.  ^,  ,  j,^ ^^^ .  ,^  ^^^^  „f  Judicatore  held  for  lU 

Then  Mr.  Alexander  desired  to  know,  whc-  Province  of  New  York,  before  the  bo- 

ther they  over-nded  or  rejected  the  Excep-  nonrable  James  De  Lancey,  esq.  Ckisf? 

tioDs?  The  chief-jirstice  said,  lie  did  not  nn-  Jiisitice  of  the  said  Province  ;  and  the  bt? 

derstand  the  dilFf  ronce ;  to  which  said  Alex-  nourable    Frederick    Philli|>se,  esq.  fS- 

ander  replied,  that  if  he  rejected  tiie  Excep-  cond  Justiceof  the  said  Province, 

tions,  tben  they  could  not  ap|>ear  upon  the       ^    rj,  ^      ^  ,     f  j  ,  .     ^ 

EiT'^^X  r„Ll»  luZ''Z^^JltX  Courtopenedr  and  on  motion  of  air.  Cliamta* 

was  entitled  to  have  them  mane  part  ot  the  /. <.»'  .•»  _.    **^*u       i^ak* 

proceetlinn  by  bills  of  exceptions  :  'but  if  tl.cy  ^'^  *  ^'"^"^  Jury,  pumiant  to  the  rule  of  Ibe 

Sver-ruled  them,  then,  by  .0  doinp.  they  oulV  f''";''"?  '*'"!!,/'',*.  S""^.  ?S  AT?.' 

I    ,      ,  .1  '        iT^-  ...  A^  I-    I    "^.i    ^  that  I  was  entitled  to  have  a  Struck  Jarj; 

declaredthem  not  .ufficient,  to  h.nder  the.u  „„j  .^  .  g      „,.  ^    ^^  ^ 

S!".'"^.y.*  i!'C.!l'.?'n.  «1  ?f  *''™""''  of  my  friends  attended  the  clerk,  for  inimg 

!^  L!l?'*.i..'^V„  r»  i  Tf.T..    K™'\"  'I  •he  Jury,  when,  to  their  .arpriU.  the  de< 

recordset  the  C/Ourt,  and  ouj^ht  to  be  entered  •    .Jlj'^r        i     •       .1.    i-     1    u       u 1.  71 

..^  ^^«j  ^**  .1  « '     «      **       •    r.i  instead  of  producinff  the  freeholders  book,  tt 

on  the  record  ot  the  cause,  as  part  of  the  pro-      .  -i     .■     ■  ..  *'r  '^  •     ^u  •  m^ 

^^A'^^     Ti.^  «i.:-f  ;..-.  J«  ««:i    ti       i  ..  *  strike  the  jury  out  of  it  m  their  presence,  il 
ceedmira.    The  cuiei-jusuce  said,  They  must  ^1  1    *^    ■?      a     %-  a   c  Mt*       *  iL^ 

remain  uoon  the  file    to  warrant  i^liat  we  have  "*"**'  '^®  produced  a  list  of  48  persons,  »b«; 

remain  upon  ^l"^.^^^^^^  ^oIIaJJ  »»«  wW,  l»e  had  taken  out  of  the  freehoMot 

done :  as  to  beiiiuf  part  ot  tiie  record  of  the  •     •  r  •     1  a  1 1  c      .1    ^  .        ^  — 

-^™  1: :«  4K-*  Vw...o-    u^  ..«:.!    V  V .  -,  hook :  my  friends  told  him,  that  a  great  noinkcr 

proceedinirs  m  tliat  cause,  he  said,  You  may  ^c  *i  ^  '^  I*  r     1^1 1 «k^ 

-      1.  «^  Ti   *  .»«:«•  *«  »^»<«...  ^  of  these  persons  were  not  freeholders ;  ton 

•peak  i9  »•••«  point  to-morrow-.  ^^^^^  J^^  ^^^^  ,,^,jj^^  commlMiont  i>4 

Friday,  April  IBth,  irSS.  office,  at  the  ^o^ernor's  pleasure ;  that  olbrt 

'^'    '^  '  were  of  the  lalf  disjdaced  magistrates  of  tM 

Mr.  Alexander  signified  to  the  Court,  that  city,  who  most  be  supposed  to  have  resentmeal 

on  Wnlnesday   last  their  honours  had  said,  against  mc,  for  what  J  had  printed  conceraiaf 

that  the  counsel  for  Mr.  Zenger  might  speak  them ;  that  others  were  the  governor's  bakcff 

to  the  point,  concerning  the  rejecting  or  over-  taylor,  shoe-maker,  candle-maker,  joiner,  te 

ruling  of  Mr.  Zenger's  Exceptions,  on  the  that  as  to  the  few  indifferent  men  that  w«i 

morrow:  to  which  the  chief  justice  answered,  upon  that  list,  they  had  reason  to  believe  M 

that  he  aaid.  You  may  get  some  person  to  Ihey  bad  heard^  that  Mr.  Attorney  bnd  a  l» 

.i^penk  to  that  point  on  the  morrow,  not  mean-  of  them  to  strike  them  out ;  and  therefore  re* 

lag  that  the  Mid  Atexander  shouM  apeak  toil,  quested,  that  he  would  either  bring  the  fne^ 

tiiat  bti9g  oontrary  to  the  Ordft.    Mb  Mr.  holders  book|  and  oboie  out  of  tt  48  mo^ 


fit  a  LibiL 

ible  mas  in  their  presence,  as  usual ; 
,  that  be  would  bear  tbeir  oblectiooa, 
arijf  to  the  list  he  oflfered  ;  anutbathe 
ut  unpardal  men  in  the  place  of  those 
whom  thej  coubl  shew  just  otuections. 
lataadiog  tbu,  the  clerk  ret  used  to 
beinry  out  of  the  freebdklers  book, 
laed  tobear  any  objections  to  the  per- 
his  list ;  btit  told  my  friends,  if  any 

15  they  bad  to  any  persons,  thev  migpbt 
bose  persons  out;  to  which  they  an- 

Tbere  would  not  remain  a  jury,  if 
-uck  out  idl  the  exceptionable  men ; 
ording  to  the  custom,  they  bad  only  a 
strike  out  IS. 

lading  no  arguments  could  preraii  with 
k  to  bear  weir  objections  to  his  list, 
rike  the  jury  as  usual,  Mr.  Chambers 
I,  he  must  .apply  to  the  Court,  which 
;  moming  be  did ;  and  the  Court,  upon 
ion,*  ordered,  That  the  48  should  be 
«t  of  the  freeholders  book,  as  usual, 
tresence  of  the  parties ;  and  that  the 
MNiId  bear  objections  to  persons  pro- 
be of  the  48,  and  allow  of  such  cx- 
aa  were  just.  In  piu-suance  of  that 
jury  was  that  evening  strudc,  to  the 
ioo  of  both  parties,  though  my  friends 
loael  insisted  on  nu  objections  but  want 
olders ;  and  though  they  did  not  insist, 
'•  Attorney  General  (who  was  assisted 
Blagge)  should  shew  any  particular 
^iast  any  persons  he  disliked,  hut'ac- 
1  that  any  pierson  be  disliked  should  be 

16  48. 

e  James  De  Lancey.  esq.  Chief- 
f  the  province  of  Now  Yoik,  and  Fre- 
?hillipse,  second  jud^'e,  came  on  my 
]  the  fourth  day  of  August,  1735, 
information  fur  printing  and  publish- 
>  news- papers,  which  were  called 
;ainst  our  governor  and  his  adminis- 

lefendant  John  Peter  Zenger,  being 

ppeared. 

tie  sheriff  returned  his  Venire  for  the 

;his  said  cause. 

hamLertf  of  counsel  for  the  defendant. 

y  move  your  honours,  that  we  may 

iice  done  by  the  sheritf,  and  that  he 

irn  Uie  oamesof  the  jurors  in  the  same 

they  were  struck. 

■AieJ'  Juiiice,   How  is  that  ?  Are  they 

turned  ? 

'hamhers.    No,  they  are  not ;  for  some 

lames  that  were  last  stt  down  in  the 

ire  now  placed  6rst. 

kiif  Justice,    Make  out  that,  and  you 

righted. 

kamberi,  I  have  the  copy  of  the  pannel 

and,  as  the  jurors  were  struck ;  and  if 

:  will  produce  the  original,  8i<;ned  by 

vney  and  myself,  your  honour  will  see 

■laint  is  just. 

iki^'Juttice,  Clerk,  is  it  so.^   Look 

deopy ;  is  it  a  true  copy  of  the  panoel 

kflruck? 

Xvii. 


A.  D.  17S5» 


[C90 


Clerk.  Yea,  1  believe  it  ia. 

Mr.  Chief-Justice,  How  came  the  names  of 
the  jurors  to  be  misplaced  in  ti^e  pannel  an- 
nexed to  the  Venire? 

Sheriffl  I  have  returned  tbe  jurors  in  the 
same  order  in  which  the  clerk  gave  them 
tome. 

Mr.  Chief-Justice,  hei  the  names  of  tbe 
jurors  be  ranged  in  tbe  order  they  were  struck, 
agreeable  to  tbe  copy  here  in  court. 

Which  was  done  accordingly.  And  tbe 
jury,  whose  names  were  as  follow,  were  called 
and  sworn : 


JURT. 


Hermanns  Rutgers, 
Stanley  Holmes, 
Edward  Man, 
John  Bell, 
Samuel  Weaver, 
Andriea  Marsebalk, 


Effbert  VanBorson, 
Tno.  Hunt,  Foreman, 
Benjamin  Hildretb, 
Abraham  Keteltas^ 
John  Goelet, 
Hercules  Wendover, 


Mr.  Attorney  General  opened  tbe  informa* 
tion,  wbioh  was  as  follows: 

Ait.  Gen.  May  it  please  your  hoaoiin,  and 
yon  gentlemen  of  the  jury  ;  the  informatioii 
now  before  tbe  Court,  and  to  which  the  defecw 
idant  Zenger,  has  pleaded  Not  Guilty,  is  an  in- 
formation for  printing  and  uublishiog  a  false, 
8candaU>us,  and  seditious  libel,  in  which  hia 
excellency,  tbe  governor  of  this  province,  who 
is  the  king's  immediate  representative  liere,  is 
greatly  and  unjustly  scandalized,  as  a  persoa 
that  has  no  regard  to  law  nor  justice ;  with  niMcC 
more,  as  will  appear  upon  reading  the  infonni^ 
tioos.  This  [practice]  of  libelling  is  what  has  aU 
wa^  s  been  discouraged,  as  a  thing  that  tends  to 
create  differences  among  men,  ill  blood  among 
the  people,  and  ottentimes  great  hloo<l8hed  be- 
tween the  party  libelling  and  the  party  libelled. 
There  can  he  no  doubt  but  you,  gcutlcmeD 
of  the  jury,  will  have  the  same  ill  u|iinion  of 
such  practices  as  the  judgen  have  always 
shewn  upon  such  occasions :  Hut  1  shall  say 
no  more  at  this  time,  until  you  hear  tbe  infor- 
mation, which  is  as  follows : 

"  New- York,  Supreme  Court. 

"  Of  the  Term  of  January,  in  the  eighth  year  of 
the  reign  of  our  Sovereign  Lord  King 
George  the  Second,  &c. 

••  New  York,  ss.  Be  it  remeroberetl,  that 
Richard  Bradley,  esq.  Attorney  General  of  our 
sovereign  lortl  the  king  for  the  province  oINow- 
York,  who  for  our  said  lord  the  king  in  this 
part  prosecutes,  in  his  own  proper  person 
comes  here  into  the  Court  of  our  said  lord  the 
king,  and  for  our  said  lord  the  king  gives  the 
Court  here  to  understand,  and  bo  informed, 
that  John  I'eter  Zenger,  late  of  the  city  of 
Neiv-York,  printer,  (being  a  seditious  fierson, 
and  a  frequent  printer  and  publisher  of  talse 
news  and  seditious  libels,  and  wickedly  and 
maliciously  devising  the  government  of  otir 
said  lord  the  king  of  this  hisau^jesty's  provinoe 
of  New-York,  under  the  adminiauation  of  hia 

SY 


.091] 


9  GEORGE  II. 


trial  of  John  Peter  Zenger, 


[e» 


.  excellency  William  Ciwhy,  esq.  captaiD-iQfoncral 
and  governor  in  cliiei'  of  the  said  provinre,  to 
traduce,  scandalize  and  vilify,  and  bis  excel- 
lency the  said  governor,  and  the  ministers  and 
officers  of  our  said  lord  the  kingj  of  and  for  the 
Mid  province,  to  brin^  into  suspicion,  and  the 
ill  opinion  of  the  subjects  of  our  said  lord  the 
Jung  residing  within  the  said  province)  the  281h 
day  of  January  in  the  7th  year  of  the  reign  of 
our  sovereign  lord  George  the  Second,  by  the 
grace  of  God,  of  Great  Britain,  France  and 
Ireland,  king,  defender  of  the  faith,  &c.  at 
the  city  of  New-York,  did  falselvj  seditiously 
and  scandalously  print  and  publish,  and  cause 
to  be  printed  and  published  a  certain  false,  ma- 
licious, seditious,  scandalous  libel,  intituled, 
'The  New- York  Weekly  Journal,  containing 
the  fVeshest  advices,  foreign  and  domestic;'  in 
which  libel  (of  and  concerning  his  excellency 
the  said  governor,  and  the  ministers  and  of- 
ficers of  our  said  lord  the  king,  of  and  for  the 
^d  province)  among  other  things  tlierein  con- 
tained are  the  woras,  *  Your  appearance  in 

*  print,   at  last,  gives   a  pleasure  to  many, 

*  though  most  wish  you  had  come  lairly  into 

*  the  open  field,  and  not  appeared  behind  re- 
'  Irenchments    made   of  the   supposed   laws 

*  ag[ainst  libelling,  and  of  what  other  men  have 

*  said  and  done  before :  These  retrenchments, 
'  gentlemen,  may  soon  be  shewn  io  you,  and 

*  all  men,  to  be  weak,  and  to  have  neither  law 
^  nor  reason  for  their  foundation,  so  cannot  long 
?  stand  you  in  stead :  Therefore,  you  had  much 
""*  better  as  yet  leave  them,  and  come  to  what 
'^  the  people  of  this  city  and  province  [the  city 

*  and  province  of  New- York  meaning]  think 

*  are  the  points  in  question ;    (to  wit)   they 

*  [the  poople  of  the  city  and  province  of  New- 
'  York  meaning]  think,  as  matters  now  stand, 

*  that  their  liberties  and  properties  are  pre- 
'  carious,  and  that  slavery  is  like  to   be  in- 

*  tailed  on  them  and  their' posterity,  if  some 

*  past   things    be    not   amended;    and   this 

*  tliey  collect  from  many  past  proceedings.' 
{Meaning  many  the  past  proceedings  of  his 
excellency  the  said  governor,  and  of  the  minis- 
ters and  officers  of  our  said  lord  the  king,  of 
and  for  the  said  province.]  And  the  said  at- 
torney General  of  our  said  lord  the  king,  for  our 
said  lord  the  king,  likewise  gives  the  Court 
bere  to  understand,  and  be  informed,  that  the 
said  John  Peter  Zenger  afterwards,  (to  wit)  the 
8th  day  of  April,  in  the  7th  year  of  the  reign 
of  our  said  lord  the  king,  at  the  city  of  New 
York  aforesaid,  did  falsely,  seditiously,  and 
scandalously  print  and  publish,  and  cause  to  be 
printed  and  published,  another  false,  malicious, 
seditious  and  scandalous  libel,  entitled,.  <  The 
«  New  York  Weekly  Journal,  containing  the 

*  freshest  Advices  foreign  and  domestic'  In 
which  libel,  [of  and  concerning  the  government 
of  the  said  province  of  New  York,  and  of  and 
concerning  his  excellency  the  said  governor, 
and  the  mmisters  and  officers  of  our  said  lord 
the  king,  of  and  for  the  said  province]  among 
other  things  therein  contained  are  these  words, 
'  One  of  our  neighboQrs  [one  of  the  inbabittnts 


<  of  New  Jersey  meaning]  being  in  eompsBy, 
'  observing  the  strangers  [some  of  the  inu- 

*  bitants  of  New  York  meaning]  foil  of  eom- 

*  plaints,  endeavoured  to  persuade  tliem  to  rs- 

*  move  into  Jersey  ;  to  which  it  was  repii^ 
'  That  would  be  leaping  out  oTtha  frying-fa 

*  into  the  fire :  for,  says  be,  we  both  aresnkr 

<  the  same  governor  [his  excellency  the  aid 

*  governor  meaning]  and  your  Assembly  km 

*  shewn  with  a  witness  what  is  to  be  ezpcclii 

*  from  them  ;   one  that  was  then  mo? mg  is 

*  Pensylvania,  [meaning  one  tbat  was  ihci 

*  removing  from  New  York  with  intent  to  n- 

<  side  at  Pensylvania]  to  which  place  itis  n- 
'  porteil  several  considerable  men  are  reoMmsg 

*  [from  New  York  meaning]  expressed  in  teffw 
'  very  moving,  much  concern  for  the  cireaB* 

*  sunces  of  New  York  [theimd  circnmslaoeei 

*  of  the  province  and  the  people  of  New  Ywk 

*  meaning]  seemed  to  tbmk  them  very  nuNk 
'  owing  to  the  influence  that  some  men  \whm 

*  he  called  tools]  had  in  the  adminkibsliin 
'  [meaning  the  administration  of  gofuiMiMl 

*  of  the  said  province  of  New  York]  said  hewn 

*  now  going  from  them,  and  was  not  to  be  hurt 

<  by  any  measures  they  should  take,  bnt  ciaU 

*  not  help  having  some  concern  for  the  weUss 

*  of  his  countrymen,  and  should  be  glad  to  bcsr 

*  tbat  the  Assembly  [meaning  the  General  Ai" 

*  sembly  of  the  province  of  New  York]  wM 

*  exert  themselves  as  became  them,  by  ihse- 

*  ing  that  they  have  the  interest  of  their  cosi- 

*  try  more  at  heart,  than  the  gratification  of  tsf 

*  private  view  of  any  of  their  members,  or  baig 

*  at  all  afiected  by  the  smiles  or  frowns  of  a  g^ 

*  vernor,  [his  excellency,  the  said  goversor, 
«  meaning]  both  which  ought  et^ualiy  to  be  ds- 

*  spisetl,  when  the  interest  of  their  country  iiit 

*  stake.    You,  says  he,  complain  of  the  hsj- 

*  yers,  but  I  think  the  law  itself  is  at  an  «J- 

*  We  [the  people  of  the  province  of  New  Y«k 

*  meaning]  see  men's  deeds  destroyed,  jsctoi 

*  arbitrarily  displaced,  new  courts  erected,  wili- 

*  out  consent  of  the  legislature  [within  the  po- 

*  vince  of  New  York  meaning]   by  wbidi  it 

*  seems  to  me,  trials  by  juries  are  taken  swg 

*  when  a  governor  pleases,  [his  excellency  tbe 

*  said  governor  jiieaning]  men  of  known  es- 
« tates  denied  their  votes,  contrary  to  the  re- 

*  ceived  practice,  the  best  expositor  of  any  law : 
«  Who  is  then  in  that  province  [meaning  ttj 
«  province  of  New  York]  that  call  [can  aB 


>..w  »»» „«v.«w..  [meanmg 

«  tion  of  government  of  the  said  province  « 
«  New  York]  will  condescend  to  let  them  do  it, 
<  for  which  reason  1  have  lell  it  [the  proviics 
*  of  New  York  meaning]  as  f  nelievc  rows 
«  will ;'  to  the  great  disturbance  of  the  |ieacerf 
the  said  province  of  New  York,  to  the  gresl 
scandal  of  our  said  lord  the  king,  of  his  ex- 
cellency the  said  governor,  and  of  all  othcfi 
concerned  in  the  administration  of  the  goveiv* 
ment  of  the  said  province,  and  agaiost  the 
peace  of  our  sovereign  lord  the  aing,  Ul 
crown  end  dignity,  &c.    Wheienpontlie-^ 


COS] 
AttarMvO 


FucrZ 


Jlrt*fl  Libel. 
kl  of  our  Mill  lord  the  kinif,  for 


a  lord  ihe  kios',  prays  iLie  adiiienient  of 

the  Court  bere,  in  ine  premises,  and  the  due 

of  the  law,  sgaioBt  bim  Itie  said  John 

'  ~j^,ia  this  pari tobedaaCitoaDiwer 

lord  theking  of  audinihepremiMi, 

dec.  R.  Dbadlet,  Attorney  Graeral." 

To  Ihia  infonnatiaa  the  defendant  has  plead- 
tlNot  Guilty,  and  ne  are  ready  to  prove  it.^ 

Hr.Chamberabaa  not  been  pleased  Id  farour 
■ivilb  his  nates,  so  1  cannot,  for  fear  of  do- 
mg  him  injastice,  pretend  to  aet  iIowd  hia  argn- 
■W ;  but  here  Mr.  Chamber*  set  forth  very 
riaariy,  "  The  nature  of  a  libel,  the  sreat  al- 
iMnncea  that  ouKbt  to  be  made  for  Kliat  tnea 
^Mk  or  write ;  that  in  all  libels  there  must  be 
MMB  porticular  penon*  ao  clearly  painted  out 
tat  oo  doubt  must  renMin  about  *hn  is  meant ; 
,AKbe  waain  hopes  Mr.  Attorney  would  fail 
kUa  proof,  «■  to  this  point ;  and  therefore  de- 
iM  Inat  be  would  go  on  to  ezunine  bis  wit- 


Tka  Hr.  Hamilton,  who  at  the  reqneit  i 
MM  of  my  fKends,  was  aa  kind  ■    ~ 
tm  PhUmddi    ' 


a  PhUmddphia, 


It  me  on  the  trial, 


■r.  Hamiltom.  May  it  please  your  honour: 
liaeoBcenied  in  Ihii  cause  on  the  part  of 
A.Zenger,  the  defendant.  The  iaformalinn 
MgiM  my  client  was  sent  mc,  a  few  days  be- 
fit  I  lefl  home,  with  some  inslruciioni  to  let 
MkMW  how  far  I  might  rely  upon  the  truth 
tfflMt  parts  of  the  papcn  set  forth  in  the  in* 
WUmh,  and  which  are  said  to  be  libellous. 
Ulhoogli  1  am  perfuctly  of  tlie  opinion  with 
tttpoUeman  who  has  just  now  spoke,  on  the 
■Mtide  with  me,  as  to  the  common  course  of 
inoedings,  I  mean  in  jiulling'  Mr.  Attorney 

a  proving,  that  my  client  printi'd  and  puh- 
Ihnae  pa[iers  menlioncil  in  Ihe  informa- 
Ih  ;  yet  I  cannot  think  il  proper  tor  me  (with- 
Nl  doing  violence  lu  my  own  principles)  to 
fat  the  publication  nf  a  cumplainl,  which,  1 
Uak,  i(  ttie  right  ofeiery  free-born  subject  to 
Mke,  when  the  matters  so  published  can  he 
Mpported  with  triilli  ;  and  therefore  I'll  aate 
Xr.AUomey  the  trouble  of  exaroitiinghla  wit- 
KMi  tolhatpoinl;  and  I  do  (lor  my  client) 
BofeSB,  that  he  both  primed  sikI  published  the 
htaewBpapera  set  forlU  in  the  informalinn, 
■f  I  hope  in  so  dtnng  he  has  committed  no 


Hr.  HosiiVton.     If  you  brought  them  here 
*tf  ta  prove  the  printing  and  publishing  of 
I    Mtaewapapers,  we  have  acknowledged  lliat, 
'   Miball  abide  by  it. 

'  Bbc  my  Jonmeyman  and  two  sods  (with 
■Mil  otbeia  subpieoa'U  by  Mr.  Attorney,  to 
pa  nidenee  ajgainst  me)  were  discharged, 
M  Ikcn  »aa  aJcDc*  in  the  Court  for  loioe 


Oa^H 


A.  D.  17S5.  [m 

Ut.  Chief  Jialici.  Well,  Mr.  Altomey,  «iU 
you  proceed  ? 

Mr,  Altornty.  Indeed,  Sr,  as  Mr.  Hamil- 
ton has  conlesaed  the  printing  and  publisbing 
these  libels,  I  think  the  Jury  must  Hnd  a  Ter> 
diet  for  Ihe  king  ;  far  supposing  they  yttn 
tme,  the  law  aayi  that  they  are  uot  Ihe  less  li- 
bellous for  that ;  nay  initerd  the  law  sayi, 
their  being  true  is  an  aggraTalinn  of  the  crime, 

Mr.  Hamillim.  Not  so  neither,  Mr.  Altomeji 
there  are  two  wonla  to  lliat  bariraiu  :  f  hi>pe  It 
is  not  onr  bare  printing  and  publishing  a  paper, 
that  will  make  it  a  libel  :  you  will  Lave  aoma- 
Ihing  more  to  do,  before  tou  make  my  client  a' 
libeller ;  for  the  words  themselies  must  be  li- 
bellous, tliat  is  false,  scandalous,  and  seditiODS, 
or  else  they  are  not  guilty. 

As  Mr.  Attorney  nas  not  been  pleated  to  fa- 
vour us  witii  his  argoment  which  he  read,  or 
with  the  DOlCB  of  il,  we  cannot  take  upm  m  lo 
set  down  bis  words,  but  only  to  shew  tbe  book  -. 
cases  he  ciled,  aud  ibe  general  sct^  of  bb 
argument,  which  he  drew  from  those  authori- 
ties. ■  He  observed  upon  the  eicellancy,  aa 
well  as  UM  of  governmeot,  and  tbe  gre^i^ 
gard  and  rerereoce  which  bad  been  constaDtIr 
paid  to  it,  both  under  the  law  and  the  foapd. 
That  by  ^emment  we  were  protected  m  onr 
lives,  rehgion  and  propertiea ;  and  thai,  for 
these  reasoDB,  great  care  bad  always  been  taken 
ry  thing  that  might  lend  loacan- 
magistraies,  and  otbers  concerned  b  Ihe 
isliatian  iif  the  government,  especially 
the  supreme  niajiistrate.  And  that  there  were 
many  instances  of  very  severe  Judgments,  and 
of  punishments  inflicted  npoD  such  as  bad  at- 
tempted to  bring  the  government  into  con- 
tempi  ;  by  publishing  lalse  and  scurriloiia 
libels  against  it,  or  by  speaking  evil  and  acan- 
dalous  words  of  men  lu  auUiorilj  ;  to  the 
great  disturbance  of  the  public  peace.'  And 
lo  support  this,  he  cited  5  Coke  ISl.  (I  sup- 
pose it  should  be  135.)  Wood's  Instil.  430. 
3  Lilly  166.  1  Hawkins  7i.  11.  6.  From 
these  looks  he  insisted,  '  That  a  libel  waa  a 
malicious  defamation  of  any  person,  expressed 
either  in  prinliiig  or  writing,  signs  or  pictures, 
to  asperse  the  repulstiun  of  one  lliat  is  alive,  or 
the  memory  of  one  that  is  dead  ;  if  he  ia  a  pri- 
vate man,  tlie  libeller  deserves  a  severe  panisb- 
inrni,  but  if  it  ii  against  a  magititrale,  or  other 
public  person,  it  is  a  greater  offence ;  for  thia 
ily  Ihe  breach  of  llie  peace,  but 


scandal  of  govemmsnt  can  there  b  . 
have  corrupt  or  wicked  magiMralcM  lo  be  ap- 
poinleil  by  the  king,  to  govern  hia  subjecU 
under  him  ?  And  a  greater  imputation  to  the 
state  cannnl  be,  than  lo  suffer  audi  corrupt  men 
la  sit  in  the  sacred  seat  of  Justice,  or  to  bare 
any  meddling  in,  or  concerning  Ihe  administra- 
tion of  juslicc'  And  from  the  same  hooka 
Mr.  Altorncy  insisted,  that  whether  Ibp  person 
det'anivd  ia  a  jirivBle  man  or  a  maifistrsle,  whe- 
ther living  or  dead,  whether  llie  hbel  is  true  or 
false,  or  if  the  parly  against  whom  il  it  made  ia 
of  good  or  evif  fame,  it  it  neicrlheint  a  libal. 


(595] 


0  GEORGE  II. 


iFoT  iu  a  settled  slate  of  Kovernmcnt,  (he  party 
griefed  ought  to  comi>laiii  for  tfvery  Injnry 
done  hiin,  in  thr  ordinary  course  of  the  law. 
And  as  to  its  publication,  the  law  had  taken  so 
great  care  of  men's  reputations,  that  if  one  ma- 
liciously repeats  it,  or  singfs  it  in  the  presence 
of  another,  or  delivers  the  libel  ur  a  copy  of  it 
over,  to  scandalize  the  party,  he  is  to  be  pu- 
nished as  a  publisher  of  a  libel.  He  said  it  was 
likewise  evident,  that  libellingf  was  an  offence 
against  the  law  of  G04I.  Acts  xxiii.  5.  Then, 
said  Puul,  I  wist  not,  brethren,  that  he  was  the 
high  priest :  For  it  is  written,  Thou  shalt  not 
speak  evil  of  the  ruler  of  the  people.  2  Peter 
ii.  10.  Despise  government,  presumptuous  are 
they,  self  willed,  they  are  not  afraid  to  s|)eak 
evil  of  dignities,  &c.  He  then  insisted  that  it 
Ivas  clear,  both  by  the  law  of  God  and  man, 
that  it  was  a  very  great  offence  to  speak  evil  of, 
or  to  revile  those  in  authority  over  us;  and 
that  Mr.  Zengcr  had  offended  in  a  most  noto- 
rious and  gross  manner,  in  scandalizing  his  ex- 
cellency our  governor,  who  is  the  king's  im- 
mediate representative,  and  the  supreme  ma- 
gistrate of  this  province  :  for  can  there  be  any 
iuing  more  scandalous  said  of  a  governor  than 
what  is  published  in  those  papers  ?  Naj,  not 
only  the  governor,  but  botn  the  council  and 
assembly  are  scandalized ;  forthere  it  is  plainly 
said.  That '  as  matters  now  stand,  their  liberties 
and  properties  are  precarious,  and  that  slavery 
is  like  to  be  entailed  on  them  and  their  pos- 
terity. And  then  again  Mr.  Zcnger  says. 
The  assembly  ought  to  despise  the  smiles  oi* 
frowns  of  a  governor  ;  that  he  thinks  the  law 
is  at  an  end ;  that  we  see  men's  deeds  destroyed, 
judges  arbitrarily  displaced,  new  courts  erected, 
tvithout  couscnt'of  the  legislature  ;  aud,  that  it 
seems  trials  by  juries  are  taken  awuy  uhen  a 
governor  pleases  ;  that  none  can  call  any  thing 
their  own.  Ioniser  than  those  in  the  adminis- 
tration will  condescend  to  let  them  do  it.' — 
And  Mr.  Attorney  addetl^  <  That  he  did  not 
know  what  could  be  said  in  defence  of  a  man, 
that  had  so  notoriously  standalizcd  the  governor 
and  principal  magistrates  and  officers  of  the  go- 
verunicnt,  by  charging  them  with  ilenrivi.^g 
the  people  of  their  rights  and  liberties,  and 
taking  away  trials  by  juries  ;   and  in  short, 

putting  0A\  end  to  the  faw  itself If  thi:^  was 

not  a  libel,  he  said  he  did  not  know  what  uns 
one.  Such  persons  as  will  take  those  li1>oriies 
with  governors  and  magistrates,  he  thoii<;ht, 
ought  10  suffer  for  stirring  np  scdljtion  and  di  ;- 
content  nrnong  the  peojde.  And  concluded, 
by  >aying,  tiiat  the  government  had  been  very 
tuiu'li  tradijccil  and  exposed  by  I^Ir.  Zcngtr, 
before  lie  was  taken  notice  of;  that  at  last  it 
vas  the  opinion  of  the  governor  and  council, 
that  he  ought  not  to  be  8uffere<l  to  go  on,  to 
disturb  the  peace  of  the  government,  by  pub- 
lishing such  libels  against  the  governor,  and 
the  chief  |)ersons  in  the  government ;  and 
therefore  they  had  directed  this  prosecution,  to 

Sut  a  stoii  to  this  scandalous  and  wicke*!  prac- 
oe,  of  lioelling  and  defaming  his  majesty's  go- 
VmiineDt  aoa  disturbing  h»  iBBjet(y'8  peace/ 


Trial  of  John  Peier  Zenger,  tflSJ 

Mr.  CAa7R6<;rs  then  mimmcd  «f  tefliejiny, 
observing  with  great  strength  of  rtaaim  ea 
Mr.  Attorney's  defect  of  proof;  that  the  papen 
in  the  information  were  false,  mahcioos  or  se- 
ditions, w  hich  ^  as  incumbent  on  him  to  pravt 
to  the  jury,  and  without  which  thej^  coaM  Ml 
on  their  oaths  say,  that  they  were  Mil 
charged. 


Mr.    Hamilton.    May  it  please  3roar  ha- 
nour :  I  agree  with  Mr.  Attorney,  that  govern- 
ment is  a  sacred  thing  ;    bat   I  difler  very 
widely  from  him,  when  he  would  innmiaic^ 
that  tiie  just  complaints  of  a  number  of  meo, 
who  suffer  under  a  bad  administmtion,  is  libd- 
ling  that  administration.     Had  f  believed  thit 
to  be  law,  1  should  not  have  given  the  Cowt 
the  trouble  of  hearing  any  thing  that  I  coald  ny 
in  this  cause.     I  own,  when  I  read  the  infonnt- 
tion,  I  had  not  the  art  to  find  out  (without  the* 
help  of  Mr.  Attorney's  innuendos)  that  the  ^ 
vernor  was  the  person  meant  in  every  iieriodcf 
that  news-paper ;  and  1  was  inclined  to  beliere, 
that  they  were  wrote  by  some,  who  from  an  ex- 
traordinary zeal  for  liberty,  had  misconstraci 
the  conduct  of  some  persons  in  authoritjr  ^ 
crimes  ;  and  that  Mr.  Attorney,  out  of  bis  !••' 
great  zeal  for  power,  had  exhibited  this  iatlBr- 
mation,  to  correct    the  indiscretion    of  my 
client ;  and  at  the  same  time,  to  shew  liis  n- 
periors  the  great  concern  be  had,  lest  d»y 
should  be  treated  with  any   undue  freedoa- 
r»ut  from  what  Mr.  Attorney  has  ju&t  now  saiJ, 
to  wit.  That  this  prosecution  was  directed  by  tbe 
governor  and  council,  and  from  the  extraordi- 
nary appearance  of  people  of  all  condiiioD* 
which  I  observe  in  Court  upon  this  occasioD,! 
have  reason  to  th'.nk,  that  those  in  tbearitni* 
nistration  ha\c  by  this  pruseculion  sonietliing 
more  in  \icw,   nud   that    the  people  belieie 
they  have  a  good  deal  more  at  stake  than  1 
appreliended  ;  and,  therefore,  as  it  is  become oiy 
duty,  to  be  both  plain  and  particular  in  thi* 
cause,  \  beg  leave  to  bespeak  the  patience  01 
the  Court. 

I  was  in  hopes,  as  that  terrible  court,  wher» 
those  dreadful  judgments  were  given,  and  that 
law  establishc'l,  which  Mr.  Attorney  has  pro- 
duced for  autl. unities  to  support  this  cause,  was 
long  ngo  laid  aside,  as  the  most  dangerou* 
court  to  the  liberties  of  the  people  of  Enjr'an*' 
that  evei*  was  ki:i»wn  in  that  kingdom ;  that 
■>Tr.  \ttorncy  knowing  tlis,  would  not  ha** 
otlcmpli'd  to  set  up  a  Star- Chamber  here,  nort# 
make  their  judgments  a  prcrrtdpnt  to  us  :  fa^ 
it  is  well  kno\vii,  that  what  \  oull  have  bcf* 
judged  treason  in  those  da}  s  for  a  man  to  speak* 
I  think,  has  since  not  oidy  been  praeMseda* 
la'.vfiil,  but  the  contrary  doctrine  has  been  bdP 
t'j  be  law. 

In  IJrewsler's  ca<:e,  ft>r  prii:ting.  That  tb* 
subjects  might  defend  their  rights  and  lilierlif^ 
by  arms,  in  case  th(.>  kin^r  should  gn  about  1^ 
destroy  them,  he  was  told,  by  the  chief- jusCieP* 
that  it  was  a  great  mercy  he  was  not  procerdfA 
against  for  his  life ;  for  that  to  say  the  kii^ 
coukl  be  resisted  by  arms  in  any  can  irbil^ 


997] 


for  a  Libels 


mettr^  wm  evpmg  (relison.  And  yet  we  see, 
MBce  thai  time,  T>r.  Sachevercll  wax  seiitoneed 
IB  tbe  hifrbeat  court  in  Great  JSritain,  tor  say- 
inirt  that  such  a  lesistnoce  i»as  not  lawful. 
Beiideii,  as  times  have  made  very  great 
chaof^  iu  the  lawa  el*  £ntr|aiid,  &e  in  my 
•piniou.  there  is  good  reason  tliat  placet  shoulil 
do  so  too. 

Is  it  not  surprising  to  see  a  subject,  upon  his 
nenf  iD^  a  commission  from  the  king  to  be  a 
ytwmor  of  a  colony  iu  America,  immediately 
iBifining  himself  to  be  vested  with  all  the 

Eiogatives  belongintc  to  the  sacred  person  of 
prince?  And  which  is  yet  more  astonishing, 
ee  that  a  people  can  be  so  wild  as  to  allow 
•T  and  acknowledge  those  prerogatires  and  ex- 
mptions,  e?en  to  their  own  destruction  ?  Is  it 
IS  bard  a  matter  to  distinguish  between  the 
i^inty  of  our  Rovereign,  and  the  power  of  a 
•  fifeiuoi  of  the  plantations  Pis  not  this  making 
fery  free  with  our  prince,  to  apply  that  regard, 
iWdience  and  allegiance  to  a  suk^ect  which  is 
Ar  odW  to  our  sovereign  ?  And  yet  in  all  the 
MM  which  Mr.  Attorney  has  cited  to  shew 
As  duty  and  obedience  we  owe  to  the  snpreme 

Slislrate,  it  is  the  king  that  is  there  meant 
■nderstood,  though  Mr.  Attorney  is  pleased 
to  iige  them  as  antborities  to  pnne  the  hei- 
mmesi  of  Mr.  Zenger's  offence  against  tlie 
prcmor  of  New- York.  The  several  planta- 
iNDs  are  compared  to  so  many  large  corpora- 
tons,  and  iierhaps  not  improperly  \  ana  can 
My  one  give  an  instance,  that  the  mayor  or 
iMid  of  a  corporation  ever  put  in  a  claim  to  the 
Mocd  rights  of  majesty?  Let  us  not  (^vhile 
*eare  pretending  to  pay  a  great  regard  to  our 
pnooe  and  hUi  peace)  make  hold  to  transfer 
tittt allegiance  to  a  suliject,  which  mc  owe  to 
Mr  king  only.  What  strange  drctrinc  is  it,  to 
piws  every  thinsf  for  law  here  which  is  so  in 
Eo^aod  ?  I  believe  i%  e  should  not  think  it  a 
bfmir,  at  present  at  least,  to  establish  thin 
^tice.  In  Kngiand  so  trrf*at  a  rrgnnl  and 
mnvnce  is  bad  to  the  ju'lges,  (C.  3  Inst. 
140.)  that  if  any  man  strikes  up.othrr  in  West- 
Bmi«ter-ball,  while  the  ju<I::ph  are  bitting,  he 
riiall  lose  his  rii^ht-hiind,  and  forfeit  his  land 
lid  goods  for  so  tlt/niif.  And  thoiifrh  the 
jvd^es  here  claim  all  the  powtT^i  nnd  autho- 
nties  within  this  government,  that  a  court  of 
Kio^^^s- bench  has  in  Enf^Iand,  yet  I  believe 
Mr.  Attorney  will  scarcely  sny,  that  such  a 
Hnikhment  could  be  le«i^ali  v  innicS  d  on  a  man 
W  ciimnitting  such  an  oflVncr,  In  the  pre- 
■Mccof  tbe  judges  sittinp^  iu  uny  court  nitliin 
Ifce  province  of  New- York.  The  reason  is  oh- 
^iMs;  a  quarrel  or  riot  in  Nctv- York  cannot 
piRbly  be  attended  with  thoso  darcrtrous  oon- 
M^iccs  that  it  might  in  Westminster- hnll ; 
1^(1  hope)  will  it  be  alleged,  that  ony  mishe- 
■Miinir  to  a  governor  in  the  plantations,  will, 
MMif|[bt  to  be  judged  of  or  punislird,  as  a  like 
Milifulness  woultl  hcto  our  sovereign.  From 
|l  which,  I  hope  Mr.  Attorney  will  not  think 
■^per  to  apply  his  law-cnses  (to  support  the 
*BM  af  bis  governor),  which  have  only  hern 
Ngvdt  whow  the  king's  lafcty  or  honour  iras 


A.  D.  17SS.  [G9S 

eoncemed.  It  will  not  be  denied  but  that  ft 
freeholder,  in  the  province  of  New- York,  baa 
as  food  a  right  to  the  sole  and  separate  use  of 
his  lands,  as  a  freeliokler  in  England,  who  haa 
a  right  to  bring  an  action  of  trespass  against 
his  neighbour,  for  suffering  his  horse  or  coir 
to  come  and  feed  upon  his  lands,  or  eat  his 
corn,  whether  inclofied  or  not  iock)sed;  and 
yet  I  believe  it  would  be  looked  upon  as  a 
strange  attempt  for  one  man  here  to  bring  an 
action  against  another,  whose  cattle  and  horses 
feed  upon  his  grounds  not  inclosed,  or  indeed 
for  eating  anil  treading  down  his  com,  if  thai 
were  not  inclosed.  Numberless  are  Che  in* 
stances  of  this  kind  that  might  be  f|[iven,  to 
shew,  that  what  is  good  law  at  one  time,  and 
in  one  place,  is  not  so  at  another  time,  and  in 
another  place ;  so  that  I  think  the  law  seema 
tb  expect,  that  in  these  parts  of  the  work),  tneii 
should  take  care,  by  a  p^ood  fence,  to  preserre 
their  property  from  the  injury  of  unruly  beasts. 
And  perhans  there  may  be  as  good  a  reason 
why  men  should  take  the  same  care,  to  maka 
an  honest  nnd  unri||[ht  conduct  a  fence  and 
security  against  the  mjnry  of  unruly  tongocs. 

^Ir.Attomey,  I  don't  know  what  the  gen- 
tleman means,  by  comparing  cases  of  me* 
holders  in  England  with  the  freeholders  here. 
What  has  this  case  to  do  with  actions  of  tres- 
pass, or  men's  fencing  then-  ground  ?  The 
case  Itefore  the  Court  is.  Whether  Mr.  Zenger 
is  guilty  of  libelling  bis  excellency  the  go- 
vernor of  New- York,  and  indeed  the  whole 
administration  of  the  government  ?  Mr.  Hamil- 
ton has  confessed  the  printing  and  publishing, 
and  I  think  nothing  is  plainer,  than  that  the 
words  in  the  information  are  scandalous,  and 
tend  to  sedition,  aiid  to  di^squiet  the  minds  of 
the  people  of  this  province.  And  if  such 
papers  are  not  libels,  1  think  it  may  be  said, 
there  can  be  no  such  thing  as  a  libel. 

Mr.  Hamilton,  May  it  please  your  honour, 
1  cannot  agree  with  MV.  Attorney ;  for  though 
I  freely  ackuo^^  ledge  that  there  are  such  things 
as  libels,  yet  I  must  insist  iit  the  same  time, 
that  what  my  cHcnt  is  charged  with,  is  not  a 
libel ;  and  I  observed  juat  now,  that  Mr.  At- 
torney, in  defining  a  libel,  made  use  of  the 
words,  scandalous,  seditious,  and  tend  to  dis- 
quiet the  people ;  hut  (whether  with  design,  or 
not,  I  will  not  say)  he  omitted  the  word  false. 

3Tr.  Attorney.'  I  think  I  did  not  omit  tlia 
word  falsic  :  but  it  has  been  said  already,  that 
it  may  be  a  libel,  notwithsianding  it  may  ba 
true. 

Mr.  Unmiltm,  In  this  I  must  still  differ  with 
Mr.  Attorney  ;  for  1  deprnd  u|khi  it,  we  are 
to  be  trifd  upon  this  infi'rmntion  now  bi*fore 
the  Court  and  jury,  and  to  which  we  have 
piraded  Not  Guilty,  and  by  it  we  are  charged 
with  printing  and  publishing  a  certain  faUe, 
malicious,  seditious:  and  srandnlous  libel.  This 
word  false  must  Svwo  s<»nio  meaning,  or  else 
how  r;ime  it  there?  I  hopr  Mr.  Atlorory  will 
not  say  he  put  it  there  by  change,  and  I  am  fif 
opinion  his  informstion  would  not  be  g«Mid 
without  it.     Dut  to  kliew  that  it  is  the  princi  • 


61)UJ 


9  GEORGE  11. 


Trial  of  John  Peter  Zenger, 


[700 


pal  thing,  wbich,  in  my  opinion,  makes  a 
fibel,  1  put  the  case,  the  information  bad 
been  for  printing  and  publishing  a  certain  true 
libel,  would  that  l»e  the  same  thing  ?  Or  could 
3Ir.  Attorney  support  such  an  information  by 
any  precedent  in  the  English  law  ?  No,  the' 
^ilshood  makes  the  scandal,  and  both  make 
the  libel.  And  to  shew  the  Court  that  1  am 
in  ffood  earnest,  and  to  sa?e  the  Court's  time, 
and  Mr.  Attorney's  trouble,  I  will  agree,  that 
if  he  can  prove  the  facts  charged  u|>on  us  to 
be  false,  I'll  own  them  to  be  scandalous,  se- 
ditious, and  a  libel.  So  the  work  seems  now 
to  be  pretty  much  shortened,  and  Mr.  Attorney 
bas  now  only  to  prove  the  word  false,  in  order 
to  make  us  guilty. 

Mr.  Attomeif,  We  have  nothing  to  prove ; 
you  have  confessed  the  printing  and  publish- 
ing ;  but  if  it  was  necessary  (as  I  insist  it  is 
not),  bow  can  we  prove  a  negative?  But  I 
bopesome  regard  will  be  bad  to  the  autho- 
rities that  have  been  produced  ;  and  that  sup- 
posing all  the  words  to  be  true,  yet  that  will 
not  help  them ;  that  chief  justice  Holt,  in  his 
charge  to  the  jury,  in  the  case  of  Tutchin, 
made  no  distinction,  whether  Tutchin's  papers 
were  true  or  false ;  and  as  chief  justice  Holt 
bas  made  no  distinction  in  that  case,  so  none 
ought  to  be  made  here ;  nor  can  it  be  shewn 
in  all  that  case,  tliere  was  any  question  made 
about  their  being  false  or  true. 

Mr.  Hamilton.  1  did  expect  to  bear,  that  a 
negative  cannot  be  proved;  but  every  body 
knows  there  are  many  exceptions  to  that  ge- 
neral rule ;  for  if  a  man  is  charged  with  kill- 
ing another,  or  stealing  his  neighbour's  horse ; 
if  he  is  innocent  in  the  one  case,  he  may 
prove  the  man  said  to  be  killed  to  be  really 
alive ;  and  the  horse  said  to  be  stolen,  never  to 
have  been  out  of  his  master's  stable,  &c.  and 
this  I  think  is  proving  a  negative.  But  we 
will  save  Mr.  Attorney  the  trouble  of  proving 
a  negative,  and  take  the  onus  probandi  upon 
ourselves,  and  prove  those  very  papers  that  are 
called  lihds  to  be  true. 

Mr.  Chief  Justice,  You  cannot  be  admitted, 
Mr.  Hamilton,  to  give  the  truth  of  a  libel  in 
evidence.  A  libel  is  not  to  be  justified  ;  for  it 
is  nevertheless  a  libel  that  it  is  true. 

3]r.  Hamilton,  I  am  sorry  the  Court  has  so 
soon  rcHolved  upon  that  piece  of  law  ;  I  ex- 

rtcted  iirst  to  have  been  heard  to  that  point, 
have  not  in  all  my  reading  met  with  an  au- 
thority that  says,  we  cannot  be  admitted  to 
give  the  truth  m  evidence,  upon  an  informa- 
tion for  a  libel. 

Mr.  Chief  Justice,  The  law  is  clear,  that 
you  cannot  justify  a  libel. 

Mr.  Hamilton,  1  own  that,  may  it  please 
your  honour,  to  be  so ;  but  witli  submission  f 
understand  the  word,  justified,  there  to  be  a 
justification  by  plea,  as  it  is  in  the  case  upon 
an  indictment  tor  murder,  or  an  assault  and 
battery ;  there  the  prisoner  cannot  justify,  but 
plead  Not  Guilty :  yet  it  will  not  be  denied  but 
be  may,  and  always  is  admitted  to  give  the 
InKh  01  tbe  fact,  or  any  other  matter  in  evi- 


dence, which  goes  to  his  acqaittal;  as  in 
murder  he  may  prove  it  was  in  defence  of  his 
life,  his  house,  &c.  and  in  assault  and  battery, 
he  may  give  in  evidence,  that  the  other  party 
struck  first,  and  in  both  cases  he  will  be  le- 
quitted.  And  in  this  sense  1  understand  Ibi 
word  justify,  when  applied  to  tbe  case  bdks 
the  Court. 

Mr.  Chief  Justice.  I  pray  shew  that  yoacaa 
!  give  the  truth  of  a  libel  in  evidence. 

f/lr.  Hamilton.  I  am  ready,  both  from  what 
1  understand  to  be  the  authorities  in  tbe  case, 
and  from  tbe  reason  of  tbe  thing,  to  sbew  that 
we  may  lawfully  do  so.  But  here  I  beff  leave 
to  observe,  that  informations  for  libels  is  a 
child,  if  not  bom,  yet  nursed  np,  and  bron^ 
to  full  maturity,  in  the  Conrt  of  tbe  Sfiir^ 
Chamber. 

Mr.  Chief  Justice,  Mr.  Hamilton*  yon*!! 
find  yourself  mistaken ;  for  in  Coke's  Insti- 
tutes you'll  find  informations  for  libels,  loiy 
before  the  Court  of  Star-Chamber. 

Mr.  Hamilton.    1  thank  your  bonomr ;  tbit 
is  an  authority  I  did  propose  to  speak  to  by  soi 
bve :  but  as  you  have  mentioned  it,  I'll  reid 
that  authority  now.    I  think  it  is  in  tbe  3  Co. 
Inst,  under  title  Libel ;  it  is  the  case  of  JohB 
de  Northampton  for  a  letter  wrote  to  Robert  dt 
Ferrers,  one  of  the  king's  privy  council,  (Cob 
3  Inst.  174,)  concerning  sir  Wuliam  Scot,  cbicf 
justice,  and  his  fellows ;  but  it  does  not  appcir 
to  have  been  apon  information  j  and  I  have  good 
grounds  to  say  it  was  upon  indictment,  as  wm 
the  case  of  Adam  de  Ravensworth,  just  men* 
tioned   before  by  lord  Coke  under  the  sams 
title ;  and  I  think  there  cannot  be  a  greater,  at 
least  a  plainer  authority  for  us,  than  the  judg- 
ment ill  the  case  of  John  de  Northamptoo, 
which  my  lord  has  set  down  at  large.    "  Et 
quia  preedictus  Johannes  cognovit  dictam  Lilo^ 
ram  per  se  scriptam  Roberto  de  Ferrers,  qoi 
est  de  Conciiio  Regis,  quse  litera  continet  in  w 
nullam    veritatem,"    &c.     Now  Sir,  by  this 
judgment  it  appears  the  libellous  words  were 
utterly  false,  and  there  the  falshood  was  the 
crime,  and  is  the  ground  of  that  judffmeot: 
and  is  not  that  what  we  contend  for  ?    Do  not 
we  insist  that  the  fnlshood  makes  tbe  scandal, 
and  both  make  the  lilcl  ?     And  how  shall  it  be 
known  whether  the  wonis  are  libellous,  tliatis, 
true  or  false,  but  by  admittiii^  us  to  prove  theoa 
true,  since  Mr.  Attorney  will  not  undertake  to 
prove  them  falfts  ?    Besides,  is  it  not  ag^ainst 
common  sense,  that  a  man  hhould  be  puoisbed 
in  the  same  degree  for  a  true  libel  (if  any  sucfa 
thing  could  I)p)  ns  for  a  false  one  ?  I  know  it  is 
said,  that  truth  makes  a  libel  the  more  provok- 
ing, and  tliercf'ore  the  ofFenco  is  the  ipreater, 
and  conscq  uMitly  the  judgment  should  be  tbs 
heavier.     Well,  suppose  it  \\creso,  and  let  of 
agree  for  once,  that  ttulii  is  a  greater  sin  tbao 
falshood  :  yet  as  the  oflV'iices  arc  not  equal,  and 
as  the  punishment  is  arhitrary,  that  is,  accord- 
\ng  as  the  judges  in  their  discretion  shall  direct 
to  be  inflicte<l ;  is  it  not  absolptely  neceascrj 
that  they  sliould  know  whether  the  libel  is  true 
or  false,  that  they  may  by  that  means  be  able 


f(yr  a  Libel, 

ortion  the  panisfament?  For  wotild  it 
1  sid  caie,  if  the  judges,  for  want  of  a 
ffmation,  should  cnance  to  give  as  se* 
odgroent  against  a  man  for  writing  or 
Aff  a  lie,  as  for  writing  or  publishiug  a 

And  yet  this  (with  submissioD,)  as 
Mia  and  ridiculous  as  it  mav  seeoi  to  be, 
latural  consequence  of  Mr.  Attorney's 
s,  that  truth  makes  a  worse  libel  than 
I,  and  must  follow  from  his  not  proving 
ten  to  be  false,  or  not  suffering  us  to 
lein  to  be  true.  But  this  is  only  rea- 
iipon  the  case,  and  I  will  now  proceed 
,  what  in  my  opinion  will  be  sufficient 
ce  the  Court  to  allow  us  to  prove  the 
*  the  words,  which  in  the  information 
led  libellous.  And  first  I  think  there 
be  a  greater  authority  for  us,  than  the 
ot  I  just  now  mentioned  in  the  case  of 
i  Northampton,  and  that  was  in  early 
lod  before  the  Star-chamber  came  to  its 

of  power  and  wickedness.  In  that 
Qt^as  1  observed,  the  falshood  of  the 
hich  was  wrote,  is  assigned  as  the  very 
of  the  sentence.  And  agreeable  to  this 
urged  by  sir  Robert  Sawyer  in  the  trial 
Itfea  Bishops,*  that  the  talsity,  the  ma- 
d  seditions  of  the  writing,  were  all  facts 
iroved.  But  here  it  may  be  said,  sir 
was  one  of  the  Bishops*  counsel,  and  his 
iot  is  not  to  be  allowed  for  law :  but  I 
only  to  shew,  that  we  are  not  the  first 
ve  insisted,  that  to  make  a  writing  a 
must  be  false.  And  if  the  argument  of 
sel  must  have  no  weight,  I  hope  there 
more  regard  shewn  to  the  opinion  of  a 

and  therefore  f  mention  the  words  of 
Powel  in  the  same  trial,  where  lie  says 
>.  Petition  of  the  Bishops,  which  was 
i  libel,  and  upon  which  they  were  pro- 
I  by  information,)  that,  to  make  it  a 
must  be  false  and  malicious,  and  tend  to 
I ;  and  declared,  as  he  saw  no  falshood 
ce  in  it,  he  was  of  opinion,  that  it  was  no 
Now,  I  should  thioK  this  opinion  aldhe, 
case  of  the  king,  and  in  a  case  wliich 
)g  had  so  much  at  heart,  and  which  to 
f  has  never  been  contradicted,  might  be 
ient  authority,  to  entitle  us  to  the  liberty 
ring  the  truth  of  the  papers,  which  in 
brmation  are  called  false,  n»alicious,  se- 

and  scanilalous.  If  it  be  objected,  that 
inion  of  the  other  three  judges  were 

him,  I  answer,  that  the  censures  the 
snts  of  these  men  have  undergone,  and 
irobation  justice  PowePs  opinion,  his 
mt  and  conduct  upon  that  trial,  has  met 
sd  the  honour  he  gained  to  himself,  for 
to  speak  truth  at  such  a  time,  upon  such 
ision,  and  ui  the  reign  of  such  a  king,  is 
lan  sufficient,  in  my  humble  opinion,  to 
toot  insisting  on  hiH  judgment,  as  a  full 
ty  to  our  purpose  ;  and  it  will  lie  upon 
lamey  to  shew,  that  this  opinion  has, 
III  time,  been  denied  to  be  law ;  or  that 

*  Bee  tht  Caic,  vol.  12,  p.  183. 


A.  D.  1755- 


1109 


justice  Powel,  who  delivered  it,  has  eter  been 
condemned  or  blamed  for  it,  in  any  law-booft 
extant  at  this  day  }  and  this,  1  will  venture  to 
sa^,  Mr.  Attorney  cannot  do.  But,  to  make 
this  point  yet  more  clear,  if  any  thing  can  be 
clearer,  I  will,  on  our  part,  proceed  and  shew, 
that  in  the  case  of  sir  Samuel  Barnardiston,  his 
counsel,  notwithstanding  he  stood  before  one 
of  the  greatest  monsters  that  ever  fHresided  in 
an  English  court  (judge  Jefferiea,)  iusfstnl  on 
the  want  of  proof  to  the  malice  and  seditioos 
intent  of  the  author,  of  what  was  called  a  \\M, 
And  in  the  case  of  Tutchin,  which  seems  to  be 
Mr.  Attorney's  chief  authority,  that  case  is 
•gainst  him ;  for  he  vras,  upon  his  trial,  pot 
upon  shewing  the  truth  of  bis  papers,  but  did 
not;  at  least  the  prisoner  was  asked  by  the 
king's  counsel,*  whether  he  would  say  they 
were  true?  And  as  he  never  pretended  that 
they  were  true,  the  chief  justice  was  not  to  say 
so.  But  the  point  will  still  be  clearer,  on  otir 
side,  from  Fuller's  case,*!*  4br  falsely  and  wicIe* 
edly  causing  to  be  printed  afalseandicandaknis 
libel,  in  which  (amongst  other  things)  were 
contained  these  words.  **  Mr.  Jones  lias  also 
made  oath,  that  he  paid  5,000/.  more,  by  the 
late  king's  order,  to  several  persons  in  places  of 
trust;  that  they  might  complete  my  ruin,  and 
invalidate  me  for  ever.  Nor  is  this  all ;  for 
the  same  Mr.  Jones  will  prove,  by  undeniable 
witness  and  demonstration,  that  he  has  distri- 
buted more  than  180,000/.  in  eight  years  last 
past,  by  the  French  king's  order,  to  persons  in 
public  trust  in  this  kingdom."  Here,  yon  see, 
IS  a  scandalous  and  infamous  charge  against 
the  late  king ;  here  is  a  charge,  no  less  than 
high  treason,  against  the  men  in  public  trust, 
for  receiving  money  of  the  French  king,  then 
in  actual  war  with  the  crown  of  Great  Britain  ; 
and  yet  the  Court  were  fur  from  bearing  him 
down  uith  that  Star-chamber  doctrine,  to  wit, 
that  it  was  no  matter,  whether  what  he  said 
^as  true  or  false;  no,  on  the  contrary,  lord 
chief  justice  Holt  asks  Fuller,  *'  Can  yon  make 
it  appear  they  are  true  ?  Have  you  any  wit« 
nesses?  You  might  have  had  subpoenas  for 
your  witnesses  against  this  day.  If  you  take 
upon  you  to  write  such  things  as  you  are 
charged  with,  it  lies  upon  you  to  prove  them 
true,  at  your  peril.  II  you  have  any  witnesses, 
I  will  fiear  them.  How  came  you  to  write 
those  books  which  are  not  true?  If  you  have 
any  witnesses  produce  them.  Ifyou  can  offer 
any  matter  to  prove  what  you  have  wrote,  let 
us  hear  it."  Thus  said,  and  thus  did,  that  great 
mau,  lord  chief  justice  Holt,  upon  a  trial  of  the 
like  kind  with  ours ;  and  the  rule  laid  down  by 
him,  in  this  case,  is,  that  he  who  will  take  upon 
him  to  write  things,  it  lu«  u|K>n  him  to  prove 
them  at  his  peril.  Now,  Sir.  we  have  acknow- 
ledged the  printing  and  publishing  of  those 
papers,  set  forth  in  the  information,  and  (with 
the  leave  of  the  (/ouri)  agreeable  to  the  rule 


*  Sec  his  Case,  vol.  14,  p.  1123. 
t  See  his  Case,  vol.  li»  p.  :»18, 


T07J 


9  GEORGE  II. 


Trial  of  John  Peter  Eenger, 


[701 


pressed,  I  mean  iu  a  free  grofernment.  It  is 
true,  in  times  past,  it  was  a  crime  to  speak 
truth ;  and  in  that  terrible  court  of  Star- 
chamber,  many  worthy  and  brave  men  suffered 
for  so  doing ;  and  yet,  even  in  that  court,  and 
in  those  bad  times,  a  great  and  good  man  durst 
say,  what  I  hope  will  not  be  taken  amiss  of  me 
lo  say  in  this  place,  to  wit,  "  The  practice  of 
informations  for  libels  is  a  sword  in  the  hands 
of  a  wicked  king,  and  an  arrand  coward,  to  cut 
down  and  destroy  the  innocent;  the  one  cannot 
becaase  of  his  high  station,  and  the  other  dares 
not,  because  of  his  want  of  courage,  revenge 
himself  in  another  manner." 

Att.  Gen,  VrAy,  Mr.  Hamilton,  have  a  care 
what  you  say;  donH  go  too  far  neither :  I  don't 
like  those  liberties. 

Mr.  Hamilton.  Sure,  Mr.  Attorney,  you 
won't  make  any  applications :  All  men  agree, 
that  we  are  governed  by  the  best  of  kings ;  and 
1  cannot  see  the  meaning  of  Mr.  Attorney's 
cantion  :  My  well  known  prmdples,  and  the 
•cpse  I  have  of  the  blessings  we  enjoy  under 
his  present  majesty,  make  it  impossible  for  me 
to  err,  and,  J  hope,  even  to  be  suspected,  in 
that  point  of  duty  to  my  king.  May  it  please 
jrour  honour,  I  was  saying,  that  notwithstand- 
ing all  the  duty  and  reverence  claimed  by  Mr. 
Attorney  to  meo  in  authority,  they  are  not  ex- 
empt trom  observing  tlie  rules  of  common 
justioe,  vcither  in  their  private  or  public  capa- 
padties  ;  the  laws  of  our  mother- country  know 
no  ezoeption.  It  is  true,  men  in  power  are  harder 
^  be  oome  at,  for  wrongs  they  do,  cither  to  a 
private  person,  or  to  the  public  ;   especially  a 

fovernor  in  the  plantations,  where  they  insist 
pon  an  exemption  from  answering  complaints 
of  any  kind  iu  their  own  government.  We  are 
Indeed  told,  and  it  is  true  they  are  obliged  to 
^swer  a  suit  in  the  king's  courts  at  West- 
minster, for  a  wrong  done  to  any  person  here : 
But  do  we  not  know  how  impracticable  this 
b  to  most  men  among  us,  to  leave  their  families, 

iwbo  depend  upon  their  labour  and  care  fur 
lieir  livelihood)  and  carry  evidences  to  Britain, 
and  at  a  great,  nay,  a  far  greater  expence, 
Iban  almost  any  of  us  are  able  to  beai',  only  to 
prosecute  a  governor  for  an  injury  done  here  ? 
But  when  the  oppression  is  genera],  there  is  no 
remedv  even  that  way:  ^jo,  our  constitution 
has  (blessed  be  God)  given  us  au  opportunity. 
If  not  to  have  such  wrongs  redressed,  yet,  by 
our  pnidenceand  resolution,  we  may  in  a  great 
measure  prevent  the  committing  of  such 
wron(p,  by  makins^  a  governor  sensible,  tliat 
at  is  his  interest  to  be  just  to  those  under  his 
care ;  for  such  is  the  sense  that  men  in  general 

il  mean  freemen)  have  of  common  justice, 
liat  when  they  come  to  know  that  a  chief  ma- 
gistrate abuses  the  power  with  which  he  is  in- 
trusted for  the  good  of  the  people,  and  is  at- 
tempting  to  turn  that  very  power  against  the 
innocent,  whether  of  high  or  low  degree,  I  say, 
mankind  in  general  seldom  fail  to  interpose, 
«nd|  as  far  as  thev  can,  prevent  the  destruction 
•f  tbeir  fellow  su^ta.     And  has  it  not  often 


been  seen  (and,  I  hope,  it  will  always  be  seen) 
that  when  the  representatives  of  a  free  people 
ArCf  l>y  ju*t  representations  or  remoii8lnuice% 
made  sensible  of  the  sufferings  of  their  feUow 
subjects,  by  the  abuse  of  power  in  the  hasdi 
of  a  governor,  they  have  cleclared  (and  loidy 
too)  that  they  were  not  obliged  by  any  faw  to 
support  a  governor  who  goes  about  to  destroy  a 

Erovince  or  culony,  or  tneir  privilegesywfaicb 
y  his  majesty  he  was  appointed,  and  by  lbs 
law  he  is  bound,  to  protect  and  encoungei 
But  I  pray  it  may  be  considered,  of  what  uk  if 
this  mighty  privilege,  if  every  man  that  snftn 
must  be  silent?    And  if  a  man  roust  be  tslwB 
up  as  a  libeller,  for  telling  his  sufferings  to  hk 
neighbour,  I  know  it  may  be  answered,  Hare 
you  not  a  legislature  P  have  you  not  a  fionsa 
of  Representatives,  to  whom  vou  may  cooh 
plain  P   And  to  this  I  answer,  We  have :  But 
what  then  ?  Is  an  Assembly  to  lie  troubled  with 
every  injury  done  by  a  governor  ?    Or  are  tbef 
to  hear  of  nothing  but  what  those  in  the  ailmi- 
nistration  will  please  to  tell  themp    Or  what 
sort  of  a  trial  must  a  man  have  ?    And  bow 
is  he  to  be  remedied ;  especially  if  the  casa 
were,   as    I  have   known    it  to   happen  ia 
America  in  my  time,  that  a  governor  who  bu 
places  (I  will  not  say  |)eiisionii,  for,  I  beliera 
they  seldom  giic  that  to  another  which  diey 
can  take  to  themselves)  to  bestow,  and  can  or 
will  keen  the  same  Assembly  (alter  he  has  laO' 
delled  tnem  so  as  to  get  a  majority  of  tha 
House  in  his  interest)  lor  near  twice  seven  yean 
together?  I  pray,  what  redress  is  to  be  ex- 
pected for  an  honest  man,  who  makes  bis  com* 
plaint  against  a  governor  to  an  Assemblvi  «lw 
may  pro]>crly  enough  be  said  to  be  made  by 
the  same  governor  against  whom  the  complaist 
is  made  ?    The  thing  answers  iteelf.    No,  U  if 
natural,  it  is  a  privilege — 1  will  go  farther, 
it  is  a  right  which  all  freemen  claim,  and  are 
intitled  to,  to  complain  when  they  arc  hurt ;  they 
have  a  ri^ht  pubiicl\  tu  reuionsirate  against  tot 
abuses  oi  power,  iu  the  sti-ongest  terms,  to  pot 
their  nei^libuui'S  upon  their  guard,  against  tba 
cratl  or  open  iLolence  of  men  in  authority,  and 
to  assert  with  courage  the  sense  they  hare  of 
the  blessings  ui'  liberty,  the  value  they  put  upoo 
it,  and  their  le&olution  at  all  bazaras  to  pre- 
serve ft,  as  one  of  the  greatest  blessings  heafca 
can  bestow.    And  when  a  House  of  ^scmUj, 
composed  of  honei>t  freemen,  sees  the  genem 
bent  of  the   people's  inclinations,   that  it  it 
which  must  and  will  (I'm  sure  it  ought  to) 
weigh  with  a  legislature,  in  spite  of  all  ths 
emit,  caressing,  and  cajoling,  made  use  of  by 
a  governor,  to  divert  them  from  hearkening  to 
the  voice  of  their  country.    As  we  all  very  well 
understand  the  true  reason,  why  gentiemes 
take  BO  much  pains,  and  maike  such  gnat  in- 
terest, to  be  appointed  governors,  so  the  desiga 
of  their  appointment  is  not  less  manifest,    ns 
know  his  majesty's  gracious  intentions  to  his 
subjects ;  he  desires  no  more  tliau  that  bis  peO« 
pie  in  the  plantations  should  be  kept  up  to  uar 
du^  and  allegiance  to  the  crown  of  Great  Bri« 
tain ;  that  peace  may  be  prefer? «d  aiaoiig4 


IKmb,  nJ  juitlce  impartially  ailmimfltereil ; 
Ibalvenaybe^Teraerl  snnstoreiiiler  us  use- 
fill  14  nut  inollipr-ci)un(r}i  by  encourn^ng  ub  to 
*tk«  viA  niae  such  coinmiHtiiit*  u  may  be 
hmM  to  Great  llriiaiii.  Bui  wilt  Any  one  aay, 
Itol  al  or  any  of  Ihew  gao^i  emls  are  to  be  el'- 
fttti  bjF  a  gOTernor'a  Btltiiig  bi«  pe<i|ile  loge- 
IbtT  fcr  ilieean,  iimI  hv  the  aisisiiiBce  or  one 
|Vt  at  ibe  jKopIo  to  plague  and  plunder  the 
uStaJ  Tlie  GOmmtsiioii  wliicti|^tenior8l>eaT, 
«yi*lhey  ekeeuie  the  powers  ^ren  (tiem,  ac- 
wriingto  the  intent  ot  the  royil  Tranlor,  ei- 
p«Maa  io  thdr  coitiiiiiisiniis,  reqaires  and  dc- 
■nH*«ry  great  rererence  and  subiDinion ;  but 
wfema  gnrern or  depart*  from  the  duty  enjui tied 
InBbyliiiiDTereJip,  andactsaairhe  was  lesa 
•MOnotable  ihan  tlie  rojal  hand  thai  ga<'t  bim 
•II  that  {■own  and  bonour  irhich  he  is  posaes^ed 
t^diiasets  people  upoa  examioingfaud  enquir- 
Bf  iaia  Ibe  poirer,  authoriiy,  and  duty  of'suoh 
■  na^ialratf.  ind  bi  raimpare  those  wilh  bis 
CMdoet ;  and  just  as  far  OS  they  find  heexceeds 
the  boiiiiils  "f  his  autliority,  or  falls  short  in  do- 
iw  imparliBl  justice  lo  the  |>eople  under  his  ad' 
uonMration,  so  Car  ihey  very  often,  in  relum, 
CMM  abort  in  their  duly  to  such  a  ^vernor. 
Par  Mwer  alone  will  noitnske  a  man  beloved  ; 
ud  1  have  heaid  it  obserTed,  lliat  the  man  trho 
«■■  Deitber  good  nor  tvise  before  bis  bciug 
tudr  ■  governor,  never  mended  npon  his  pre- 
Ihramt,  bui  hua  be«n  generally  observed  to  be 

iriMlain  aad  virtue,  can  only  be  kept  in  bound* 
It  the  law  ;  aud  by  boivmiicii  the  farther  ibey 
DiBk  tliemselvrs  out  of  (he  reach  of  ibe  Ian, 
\j  to  iimcli  the  ninte  wickol  and  cruel  Ihey 
■I*.  I  wish  there  were  no  inaunces  of  Ihe  kind 
at  tfiia  day.  And  wtiereier  this  happens  to  be 
the  c»e  ut  s  I'otemor,  unhappy  are  Ihe  people 
■Bd«T  bis  all  ministration,  andui  Ibeeod  hen  ill 
find  hiinseif  sn  too ;  for  the  people  will  neither 
Inc  faitn   Dur  support  him.      I  make  nu  doubt 

■Mrc  are  thone  here,  *ho  are  Efalously 
Bwd  fi>r  the  success  of  this  prosMulion ; 
Kl  bopctbeyare  not  many;  and  even 
>0f  those,  I  am  persuaded  (when  they 
'tr  to  what  Irnglhs  such  proseculions  may 
b  carried,  anij  hnw  deeply  the  liberties  of  the 
pMple  may  be  afiecled  by  such  means)  will  not 
adabiifeb)' theirprcMnlsenlitneats;  I  say,  not 
aU :  for  the  man  who,  from  au  intimacy  and 
aeqiWRitBDGc  with  a  froveriMH-,  hascunceived  a 
ysrauual  regard  for  him ;  tlie  man  wboliasfelt 
Mneof  the  nrukei  of  his  power;  the  man  who 
WwvM  that  a  ^ternor  has  a  regard  for  him, 
•HlMKi6dei  inhim  ;  it  is  natural  for  such  coen 
la  wMi  well  to  the  affairs  of  such  a  governor  ; 
mhI  a«  ihey  may  he  men  of  honour  and  gencro- 
rfty,  may,  and  no  doubt  will,  wiih  him  success, 
wa  far  as  the  rights  anil  privileges  of  their  fel- 
bw-ciiizrni  arc  not  affected.  But  as  men  of 
haai>iiT,  I  can  apprehend  oothing  from  them ; 
theywiil  nrvvr  «icc«d  that  poinl.  There 
aUma  IImI  are  uodar  stronger  itbiigniions, 


A.  D.  ITS* 
tame  post  or  preferment :  lucb  men  have, 
what  IS  communly  called,  duly  and  i;ratilud« 
ta  inlhience  their  inclinations,  and  oblige  them 
in  go  his  lengths.  I  know  men's  interests  ai* 
very  near  lo  Ibem,  and  they  will  do  much, 
raiher  than  forego  the  (arnur  of  a  governor, 
andn  I'veliliood  It  Ibe  same  time  i  but  I  oan 
with  very  Just  grnnnds  hope,  even  from  ihoM 
men,  wbon)  I  will  siip)>ose  lo  be  men  of  lionour, 
and  conscience  lou,  that  when  they  see  the  li- 
berty of  their  country  is  in  danger,  eiilier  bj 
their  concurrence,  or  even  by  their  silence, 
tlicy  will,  like  Englishmen,  and  like  them- 
selves, freely  make  a  sacrifice  of  any  prefer- 
ment or  favour,  rather  than  be  accessary  lo 
destroying  the  libeitiea  of  llicir  country,  and 
entaiimg  slavery  upon  llieir  posterily.  Tlier* 
are  indeed  another  set  of  men,  of  whom  I  hare 
no  hopes;  I  mean, such  who  laif  aside  all  other 
coDside rations,  and  are  ready  to  Join  with  power 
in  any  shape,  and  with  many  or  any  sort  of 
men,  by  whose  means  or  interest  Ihey  ma^r  ba 
assisted  lo  gratify  tbrir  malice  and  envy,  against 
those  whom  ihey  have  been  pleased  to  hate ; 
aud  that  for  no  other  reason,  tut  because  they 
are  men  of  abittiiea  aniT  integrity,  or  at  least 
are  possaased  of  some  valuable  qualiiiea  far  su- 
perior to  their  own.  But  as  envy  is  the  sin  of 
Ihe  devil,  and  therefore  very  bard,  if  at  all,  to 
be  repented  of,  I  will  believe  tliere  are  bnl  few 
of  this  deleslable  and  worthless  sort  of  men,  nor 
will  Ihcir  opinions  or  inclHiations  have  any  in- 
fluence U|Hin  this  trial.  Bui  lo  proceed  :  I  beg 
leave  lo  insist,  that  the  right  of  complaining  or 
remonstrating  is  natural;  end  the  restraint 
upon  this  natural  right  is  the  law  only,  and 
that  those  restraints  can  only  extend  to  what  a 
falie ;  fur  as  it  is  truth  alone  which  can  excuM 
or  Justify  any  man  lor  complaining  of  a  bad  ad- 
ministration, I  as  frankly  agree,  that  nathiog 
ought  10  eicnse  a  man  who  raises  a  liiM 
charge  or  acmsBtion,  even  agaiost  a  privata 
person,  and  that  no  manner  of  allowance  ooght 
to  be  made  to  him  wlio  does  so  againit  a  pub> 
He  magistrate.  Truth  ought  lo  govern  tba 
whole  affair  if  libels,  and  yei  the  |Niny  accused 
runs  risk  enough  even  then  ;  for  if  he  lails  of 
proving  every  little  of  what  he  has  wrote,  and 
to  the  safufuclion  of  the  Court  and  Jury  too, 
he  may  find  tohiscmt.lbat  when  the  pronecu- 
tion  is  set  on  foot  by  men  in  power,  it  seldom 
wants  friends  lo  levour  it.  And  from  ihenca 
(it  is  said)  has  arisen  the  great  divrraiiy  of  opi- 
nions among  Jiidirei,  about  whol  words  were  or 
were  not  scandalous  or  libellous,  I  bdicve  it 
will  be  granted,  that  there  is  not  greater  un- 
certainty in  anv  part  of  the  law.  than  about 
words  of  scandal :  it  would  be  niis-speniling  of 
the  Court's  time  lo  mention  the  cases ;  thry 
may  be  said  to  lie  numberless ;  and  ibereforti 
the  utmost  care  ought  to  be  tak<-n  to  follfrwing 
precedenta  ;  and  tbetiraeawhenthe  judgment* 
were  given,  which  are  (tunied  tor  auihoniies  in 
the  cane  nf  lilieU,  are  much  to  b»>  rr^nled.  1 
think  it  will  ho  ogrerd,  that  ever  since  the 
time  of  the  Slar.Cbamber,  where  the  inwt  ar- 
bitrarj  sntl  dcuiucttvejndgmniu  aad  o^mioas 


i 


711] 


9  GEORGE  IL 


Trial  of  John  Pder^Zengeff 


[71! 


were  giren,  that  eirer  an  Enfflishman  heard  of, 
at  least  Id  bis  own  country :  1  say,  prosecutions 
for  libels  since  the  time  of  that  arbitrary  court, 
and  until  the  glorious  Revolution,  hate  gene- 
ral ty  been  set  on  foot  at  the  instance  of  the 
croivn,  or  its  ministers;  and  it  is  no  small  re* 
proach  to  the  law,  that  these  prosecutions  were 
too  ol^o  and  too  much  countenanced  by  the 
judges,  who  held  their  places  at  pleasure  (a 
otsagreeable  tenure  to  any  officer,  but  a  dan- 
gerous one  in  the  case  ot  a  iudge).  To  say 
Viore  to  this  point  may  not  be  proper.  And 
yet  1  cannot  think  it  unwarrantable,  to  shew 
the  unhappy  influence  that  a  sovereign  has 
■ometimes  had,  not  only  upon  judges,  but  even 
upon  parliaments  themselves. 

It  has  already  been  shewn,  how  the  judges 
differed  in  their  opinions  about  the  nature  of  a 
libel,  in  the  case  of  the  Seven  Bishops.  There 
you  see  three  judges  of  one  opinion,  that  is,  of 
A  wrong  opinion,  in  the  judgment  of  the  best 
men  in  England,  and  one  judge  of  a  right  opi- 
nion. How  unhappy  might  it  have  l^en  for 
all  of  us  at  this  day,  if  that  jury  had  understoml 
the  words  in  that  information  as  the  Court  didi* 
Or  if  they  had  left  it  to  the  Court  to  judp^e, 
whether  the  Petition  of  the  Bishops  was  or  was 
not  a  libel  ?  No !  they  took  upon  them « to  tlieir 
immortal  honour,  to  determine  both  law  and 
fact,  and  to  understand  the  Petition  of  the  Bi- 
flhops  to  be  no  libel,  that  is,  to  contain  no  false- 
hood nor  sedition,  and  therefore  found  them 
Not  Guilty.  And  remarkable  is  the  case  of  sir 
8amuel  Barnardiston,  who  was  fined  10,000/. 
for  writing  a  letter,  in  which,  it  may  be  said, 
none  saw  any  scandal  or  falsehood  but  the 
Court  and  Jury ;  for  that  judgment  was  after- 
wards looked  upon  as  a  cruel  and  detestable 
judgment,  and  therefore  was  reversed  by  par- 
liament. Many  more  instances  mi;r|it  be  jfiven 
of  the  complaisance  of  court- judges  uhout  those 
times,  and  before  ;  but  1  will  mention  only  one 
case  more,  and  that  is  the  ease  of  sir  Eilward 
Hales,  who,  though  a  lloman  Catholic,  was  by 


ways  been  such  as  to  make  precedenta  of,  but 
the  contrary  ;  and  so  it  happened  in  this  case, 
where  it  was  solemnly  judged,  That,  notwitb' 
standing  this  act  of  parliament,  made  in  III 
strongest  terms,  for  preservation  of  the  Prol«P 
tant  religion,  that  yet  the  king  ^  had,  by  hi 
royal  prerogative,  a  power  to  dbpenw  vitft 
that  law;  and  sir  Edward  Hales*  ww  ae* 
quitted  by  the  judges  accordingly.  So  tbi 
king's  dispensing  power  being  by  the  jndgii 
set  up  above  the  act  of  parliament,  thu  law, 
which  the  people  looked  upon  as  their  chief  is- 
curity  against  Popery  and  arbitrary  P(^*w, 
was,  by  this  judgment,  rendered  altogether  in* 
effectual.  But  this  judgment  is  sufficientlv  •» 
posed  by  sir  Robert  Atkins,  late  one  of  tki 
judges  of  the  Court  of  Common  Pleas,  in  hit 
Enquiry  into  the  King*s  Power  of  Dispeniiig 
with  Penal  Statutes ;  wherein  it  u  shewn,  who 
it  was  that  first  invented  dispensations ;  bse 
they  came  into  England  ;  what  ill  usehasbeei 
made  of  them  there ;  and  all  this  principally 
owing  to  the  countenance  given  them  by  tiw 
j ndn^es.  He  says  of  the  dispensing  power,  *  The 
Pope  was  the  inventor  of  it ;  our  kings  btrs 
borrowed  it  from  them ;  and  the  judges  bite, 
from  time  to  time,  nursed  and  dressed  it  a|i, 
and  given  it  countenance ;  and  it  is  still  upoi 
the  growth,  and  encroaching,  till  it  has  alMt 
subverted  all  law,  and  made  the  regal  powtr 
absolute,  if  not  dissolute.'  This  seems  not  oaly 
to  shew  how  far  judges  have  been  influenced 
by  power,  and  how  little  cases  of  this  sort, 
where  the  preroa:ative  has  been  in  questioB  in 
former  reigns,  are  to  be  relied  upon  fur  law :  baft 
I  think  it  plainly  shews  too,  that  a  man  msy 
use  a  greater  freedom  with  the  |>ower  of  bisio- 
vereign,  and  the  judges  in  Great  Britain,  tbio 
■  it  sccuis  he  may  with  the  power  of  a  govfraoi 
i  in  the  plantations,  who  is  but  a  fellow- subject. 
I  Arc  the  words  with  which  we  are  charged, like 
these?  Do  Mr.  /enger*s  papers  contain  my 
such  freedoms  with  his  governor,  or  his  coua- 
cil,  as  sir  Robert  Atkins  has  taken  with  there' 


hmfx  Jame^  i!,  preferred  to  be  u  colonel  of  his  ;  gal  power  and  tho  jud<;esin  Enirland  ?  And^i 
army,  no.  witlistandin'^'  the  statute  of  25  Ch.  3,  i  I  never  heard  of  any  inrormation  brought  aj^o^ 
chap.  2,  by  which  it  is  iirovidi'd.  That  every  >  him  for  these  freedoms, 
one  that  accepts  of  an  omce,  ci\  ii  or  mtlitnry,  i  If  llieu,  upon  the  whole,  there  is  so  great  tr 
&c.  shall  take  tiie  oalhs,  suI)soribe  the  declara-  j  nneertaiuty  among  judges  (icarne<l  and  ^[reai 
tion,  and  take  tiie  saorainent,  wittiin  3  months,  '  men)  in  matters  of  this  kind  ;  if  power  bai 


&c.  otherwise  he  is  disabled  to  hold  such  office, 
and  the  grant  for  tlio  same  to  be  nuil  and  vuid« 
and  the  party  to  forfeit  500l.  Sir  Edvvard 
Hales  did  not  take  the  oattis  or  sacrament,  and 
was  {irosecuted  for  the  500/.  for  exei  cising  the 
ofiice  of  a  colonel  by  the  space  of  three  mouths, 
without  conforming  as  in  the  act  is  directed. 
Sir  Edward  pleads.  That  the  king,  by  his  let- 
ters patent,  did  dispense  with  his  taking  the 
oaths  and  sacrament,  and  subscribing  the  de- 
claration, and  had  pardoned  the  forfeiture  of 
500/.  And  \«liether  the  king's  disitensalion 
was  good,  aifainst  the  said  act  of  parliament.^ 
was  the  question.  I  shall  m*ntinn  no  more  of 
this  case,  than  to  shew  how  in  the  reiifu  of  an 
arbitrary  prince,  where  judges  hold  their  seats 
At  pknufuiei  their  Uctenninatifflii  have  not  al- 


had  so  great  an  influence  on  judges,  how  cau- 
tious ought  we  t(»  l>e  in  detcnuining  by  tbcii 
judgments,  especially  in  the  plantations,  tod 
in  the  case  of  libels  ?  There  is  heresy  in  law  as 
well  as  in  religion,  and  both  hare  changed  very 
much  ;  and  we  well  know  that  it  is  nut  two 
ceuturies  ago  that  a  man  would  have  been 
burnt  as  an  heretic,  for  owning  such  opinion! 
in  matters  of  reli;;ion  as  are  publicly  wrote  ao^ 
printed  at  this  day.  They  were  fallible  roeni 
It  seems,  and  ^ve  take  the  lil»ertv  not  onlv  tt 
differ  fnmi  them  in  religious  opinions,  but  ta 
condemn  them  and  their  ojiinions  too ;  and  I 
must  presume,  that  in  taking  these  freedoms  ia 
thinkmg  and  spcakiitg  about  ni Titters  of  faith 


w^ 


»  fieehif  Cttie,  vol.  11,  p.  IIM. 


risi 


JwuUibd. 


A.  D.  I7S5. 


[714 


ir  ratipoa,  «•  tra  io  Ihe  right :  For,  though  | 
t  ii  ovd  there  are  very  great  liberties  of  tme 
eiimI  taken  in  New- York,  yet  I  hate  heard  of 
w  inforaiaiion  preferred  by  Blr.  Altoroey  for 
ujr  oifcncei  of  tbia  sort.  From  which  1 
hinlE  it  ia  pretty  clear,  that  in  New- York  a  wan 
ij  naJBe  very  free  with  his  God,  but  be  must 
'care  whathesaysofhisgofemor. 


j&ii.  npPMd  upon  bv  all  men,  that  this  ia  a 

10         " 


^  of  libeitr;  and  wbile  men  keep  within 

tti  houiida  or  troth,  1  hope  they  may  with 
mt/Bg  both  apeak  and  writ*;  their  sentiments  of 
im  oondiiet  of  men  in  power,  I  mean  of  that 
■rtiof  their  conduct  only,  which  affects  the 
Ibffity  Qt  property  of  the  people  under  their 
liainiBtratkm ;  were  this  to  be  denied,  then  the 
it0p  may  make  them  slaves.  For  what 
JM  can  M  entertained  of  slafery,  bevond 
af  anfiering  the  greatest  injuries  and  op- 
Bona,  without  the  liberty  of  complaining ; 
if  Chey  do,  to  be  destroyed,  body  and  estate, 
iraa  doing. 

.  Itai  aaid,  and  insisted  upon  bv  Mr.  Attorney : 

Ihafc  govemment  is  a  sacred  tnin^ ;  that  it  is 

llbe  aiipporled  and  referenced ;  it  is  govern - 

■aat  nat  protects  our  persons  and  estates; 

that  ptttventa  treasons,  rounlers,  rdiberies,  riots, 

and  ail  the  train  of  evils  tliat  overturns  king- 

dsiM  and  atates,  and  ruins  particular  persons ; 

and  if  those  in  the  administration,  especially 

Iks  attprema  magistrates,  must  have  all  their 

andnd  oenauradhv  private  men,  government 

OBBOt  aubsist.     This  is  called  a  lir-entiousness 

ait  la  be  tolerated.    It  is  said,  that  it  brings 

lbs  ralera  of  the  people  into  contempt,  and  thtir 

Mbirity  not  to  be  regarded,  and  so  in  the  end 

Ihilaws  cannot  be  put  in  execution.    These,  I 

«][,  and  such  as  these,  are  the  general  topics 

kined  upon  by  men  in  power,  and  their  ad- 

lietfes.     But  I  wish  it  mi^ht  be  considerpd  at 

the  same  time,  how  often  it  has  happened,  that 

the  abuse  of  power  has  been  the  primary  cause 

4f  these  evils,  and  that  it  was  tbe  injustice  and 

ippn'ision  of  these  great  men,  which  has  com- 

»broufi^t  tbem  into  contempt  with  the 
The  craft  and  art  of  such  men  is 
great,  and  who,  that  is  the  least  acquainted 
wiik  history  or  law,  can  be  ignorant  of  the 
ipecious  pretences,  which  have  ofWn  been 
■ade  nse  of  by  men  in  power,  to  introduce  arbi- 
tary  rule,  and  destroy  the  liberties  of  a  free 
peaple.  I  will  g^if  e  two  instances,  and  as  they 
Me  authorises  not  to  be  denied,  nor  can  be  mis- 
aaderstood,  I  presume  they  will  be  sufficient. 

Tbe  firat  is  the  statute  of  3d  of  Hen.  7,  cap. 
t.*  Tbe  preamble  of  tJie  statute  will  prove  all, 
ind  more  than  I  have  alleged,  it  begins: 
'The  king  our  sovereign  lord  retnemberetb,  how 
h^  onlawfbl  maintenances,  giving  of  liveries, 
ppis  and  tokens,  &c.  untrue  demeanings  of 
ifaeriffa  in  making  of  pannels,  and  other  untrue 
letnrna,  by  taking  of  money,  by  injuries,  by 
|vsat  riota  and  unlawful  asaemblies;  tbe  policy 
•■d  ^pood  rule  of  this  realm  is  almost  sundued ; 
tad  tor  tbe  not  punishing  these  inconveniencies, 
■nd  by  occasion  of  the  premisses,  little  or  no- 
thing may  ba  found  by  enquiry,  &e.  to  the  in- 


crease of  murders,  6cc.  and  uunureties  of  all  men 
living,  and  h^ses  of  their  lands  and  goods.' 
Here  is  a  tine  and  specious  pretence  for  iotro- 
ducinff  tbe  remedy,  as  it  is  called,  which  is 

ftrovided  by  this  act ;  that  is,  instead  of  being 
awfully  accused  by  twenty-four  ;rQnd  and  law- 
ful men  of  the  neighbourhood,  and  ui'terwarda 
tried  by  twelve  like  lawful  men,  here  \%  a  power 
given  to  the  lord  chancellor,  lord  treasurer,  the 
keeper  of  the  king's  privy  seal,  or  two  of  them, 
calhng  to  them  a  bishup,  a  temporal  lord,  and 
other  great  men  mentioned  in  the  act,  (who,  it 
is  to  be  observed,  were  all  to  be  dependants  on 
the  court)  to  receive  infurmatiun  against  any 
penon  for  any  of  the  misbehaviours  recited  in 
that  act,  and  by  their  discretion  to  examine, 
and  to  punish  tbem  according  to  their  demerit. 

The  second  statute  I  proposed  to  meniion,  ia 
the  11th  of  the  aame  king,  chap.  Sd,  the  pre- 
amble of  which  act  has  the  like  fair  pretencea  an 
the  former ;  for  the  king  calling  to  his  re- 
membrance the  good  laws  made  against  the 
receiving  of  liveries,  &c.  unlawful  extortions^ 
maintenances,  embracery,  &c.  unlawful  games » 
&c.  and  many  other  ^reat  enormities,  and  of- 
ten ces  committe<l  agamst  many  good  atatuteSt 
to  the  displeasure  of  Almighty  God,  which,  the 
act  says,  could  not,  nor  yet  can,  be  conve- 
niently punished  by  tbe  due  order  of  the  law, 
except  it  were  iiret  found  by  twelve  men,  &c. 
whicli,  for  tbe  causes  aforesaid,  will  not  find 
nor  yet  present  the  truth.  And  therefore  the 
same  statute  directs,  that  the  justices  of  aasiase, 
and  justices  uf  the  peace,  bliall  upon  inforraa- 
tiuu  for  the  kiiiif  l>efbre  them  made,  have  full 
power,  by  their  discretion,  to  hear  and  determine 
all  such  offences.  Here  are  two  statutes  that 
are  alloweil  to  hiive  given  the  deepest  wound  to 
tbe  liberties  of  tbe  people  of  England  of  anyr 
that  I  remember  to  have  been  made,  unlesa  it 
may  be  said  that  the  statute  made  in  the  time 
of  Henrv  8tb,  by  which  his  prodamationa 
were  to  have  tbe  effect  of  laws,  might  in  ita 
consequence  be  worse.  And  yet  we  see  the 
plausible  prrtences  found  out  by  the  great  men 
to  procure  these  acts.  And  ii  may  justly  be 
said,  that  by  those  pretences  the  people  of 
England  were  cheated  or  awed  into  the  deliver- 
ing up  tlieir  ancient  and  sacred  right  of  triala 
by  grand  and  petit  juries.  I  hope  to  be  excused 
iw  this  expression,  seeing  my  lord  Coke  calls 
it  (4  Insi  ) '  unjust  and  atrange  act,  that  tended 
in  its  execntiun  to  tlie  great  displeasure  of  Al- 
mighty God,  and  the  utter  subversion  of  the 
common  law.' 

These,  1  think,  make  out  what  I  alleged,  and 
are  flagrant  instances  of  the  influence  of  men 
in  power,  even  upon  the  representatives  of  a 
whole  kingdom.  From  all  which,  I  hope,  it 
will  be  agreeil,  that  it  is  a  duty  which  all  good 
men  owe  to  their  country,  to  guard  against  the 
unhappy  influence  of  ill  men  when  entrusted 
with  power,  and  especially  against  their 
creatures  and  dependents,  who,  as  they  are 
generally  more  necessitous,  are  surely  more 
covetous  and  cruel.  But  it  is  worthy  of  obser- 
▼ntioo,  that  though  the  spirit  of  liberty  w«f 


fI5] 


9  GEORGE  IL 


Trial  of  John  Peter  Zenger, 


[716 


borne  down  and  oppressed  in  England  that 
time,  yet  it  was  not  lost ;  for  tbe  parliament 
)aid  hold  of  the  first  opportunity  to  free  the 
subject  from  the  many  msufferable  oppressions 
nnd  outrages  committed  upon  their  persona  and 
estates  by  colour  of  these  acts,  the  last  of 
which  being  deemed  the  most  grie?ous,  was 
repealed  in  the  first  year  of  Hen.  8th.  Though 
it  is  to  be  obserfed,  that  Hen.  7th,  and  his 
creatures,  reaped  such  great  adf  antages  by  the 
l^evons  oppressions  and  exactions,  grinding 
the  faces  of  the  poor  subjects,  as  my  lord  Coke 
says,  by  colour  of  this  statute  by  mformation 
only,  that  a  repeal  of  this  act  could  neirer  be 
obtained  duriiif^  tbe  life  of  that  prince.  The 
other  statute  b^ng  the  faFOurite  law  for  sup- 
porting arbitrary  power,  was  continued  much 
longer.  The  execution  of  it  was  by  the  great 
men  of  the  realm  ;  and  how  they  executal  it, 
the  sense  of  tlio  kingdom,  expressed  in  tbe  7th 
of  Charles  1st,  (by  which  the  Court  of  Star- 
Chamber,  the  soil  where  informations  grew 
rankest)  will  best  declare.  In  that  statute 
Blagna  Charta,  and  the  other  statutes  made  in 
the  time  of  Edw.  3,  which,  I  think,  are  no 
less  than  five,  are  particularly  enumerated  as 
acts,  by  which  the  liberties  and  privileges  of 
the  people  of  England  were  secured  to  Uiem, 
ai^ainst  such  oppressive  courts  as  the  Star- 
Ciiamber,  and  others  of  the  like  jurisdiction. 
And  the  reason  assigned  for  their  pulling  do\vu 
the  Star-Charaber,  is,  That  the  proceedings,  cen* 
sures  and  decrees  of  the  Court  of  Star-Cham- 
ber, ereu  though  the  great  men  of  the  realm, 
nay,  and  a  bishop  too  (holy  man)  were  judges, 
bad  by  experience  been  found  to  be  an  intoler- 
able burthen  to  the  subject,  and  the  means  to 
introduce  au  arbitrary  power  and  government. 
And  therefore  that  court  was  taken  away,  with 
all  the  other  courts  in  that  statute  mentioned, 
having  like  jurisdiction. 

I  do  not  mention  this  statute,  as  if  by  the 
taking  away  the  Court  of  Star-Chamber,  the 
remedy  for  many  of  the  abuses  or  offences 
censured  tliere,  was  likewise  taken  away  ;  no, 
I  only  intend  by  it  to  shew,  that  the  neoplc  of 
England  saw  clearly  tbe  danger  ol  trusting 
their  liberties  and  properties  to  be  tried,  even 
by  the  greatest  men  in  the  kingdom,  without 
the  judgment  of  a  jury  of  their  equals.  They . 
bad  felt  the  terrible  effects  of  leaving  it  to  the 
judgment  of  these  ^reni  men  to  say  what  was 
scandalous  and  seditious,  false  or  ironical.  And 
if  the  parliament  of  England  thought  this 
power  of  judging  was  too  great  to  be  trusted 
with  men  of  the  first  rank  in  the  kingdom, 
without  the  aid  of  a  jury,  how  sacred  soever 
their  characters  might  be,  and  therefore  re- 
stored to  the  people,  tlieir  original  right  of  trial 
by  juries,  I  hope  to  ,be  excused  for  insisting, 
that  by  the  juugment  of  a  parliament,  from 
whence  no  appeal  lies,  the  jury  arc  the  proper 
judges  of  what  is  false  at  least,  if  not  of  what  is 
scandalous  and  seditious.  This  is  an  autliority, 
not  to  be  denied,  it  is  as  plain  as  it  is  great, 
and  to  say,  that  this  act  indeed  did  restore  to 
the  people  Uiab  by:  juries^  wbieh  was  not  tbe 


practice  of  (he  Star-Chamber,  but  tbat  it  did 
not  give  the  jurors  any  new  authority,  or  any 
1  iglit  to  try  matters  oi  law,  I  say  this  otgectiQa 
will  not  avail ;   for  I  must  insist,  that  when 
matter  of  law  is  complicated  with  matter  W 
fact,  the  jury  hare  a  rij^ht  to  detennina  bsA. 
As  for  instance ;    upon  indictment  for  murfa', 
the  jury  may,  and  almost  constant! jr  do,  lake 
upon  them  to  judge  whether  tbe  evidenoe  wll 
amount  to  murder  or  manslaughter,  and  find 
accordingly  ;   and  I  must  say,  1  canDOt  sce^ 
why  in  our  case  the  jury  have  not  at  leutis 
good  a  right  to  say,  whether  our  newe-iMptts 
are  a  libel  or  no  libel,  as  another  jury  has  It 
say,  whether  killing  of  a  maa  is  murder  er 
manslaughter.    The  right  of  the  jar3r  to  l«i 
such  a  verdict  as  they  in  their  comeinioeds 
think  is  agreeable  to  their  evidence,  is  sop" 
ported  by  the  authority  of  Bushel's  ease,*  n 
Vaugban's  Reports,  page  135,  beyond  any 
doubt    For,  in  tbe  argument  of  that  case,  tM 
chief-justice  who  delivered  the  opinion  of  the 
Court,  lays  it  down  for  law  :  (Vaaghan's  Rsp. 
p.  150.)  That  in  all  geueral  issues,  e>  upM 
non.  cul.  in  trespass,  non  tort,  nul  disseiao  a 
assize,  &c.  though  it  is  matter  of  law,  whetiwr 
the  defendant  is  a  trespasser,  a  disseizer,  kc 
in  the  particular  cases  in  issue,  yet  the  jsry 
find  not  (as  in  a  special  verdict)  the  fact  it 
every  case,  leaving  the  law  to  tbe  Court ;  bil 
find  for  the  plaintiff  or  defendant  upon  the 
issue  to  be  tried,  wherein  they  resolve  both  law 
and  fact  complicately.    It  appean  by  tbe  same 
case,  that  thoug[h  the  discreet  and  lawfnl  as- 
sistance of  the  judge,  by  way  of  advice  to  tbe 
jury,  may  houseful,  yet  that  advice  or  diredioa 
ought  always  to  be  upon  supposition,  and  not 
positive  and  upon  coercion.    The  reason  given 
in  the  same  book  is,  (page  144,  147.)   fieoune 
the  judge  (as  judge)  cannot  know  what  tbe 
evidence  is  which  tbe  jury  have,  that  is,  he 
can  only  know  the  evidence  given  in  court ; 
but  the  evidence  which  the  jury  have,  may  be 
of  their  own  knowledge,  as  they  are.  returned 
of  the  neighbourhood.    They  may  also  kno« 
from  their  own  knowledge^  t'lat  what  is  sworn 
ill  court  is  not  true  ;   and  they  may  know  th( 
witnesses  to  be  stigmatized,  to  which  the  Cour 
may  be  strangers.    But  what  is  to  my  purpose 
is,  that  suppose  that  the  Court  did  really  knoi 
all  the  evidence  which  the  jury  know,  yet  ii 
that  case  it  is  agreed.  That  the  judge  and  jur} 
may  differ  in  the  result  of  their  evidence,  ai 
well  as  two  judges  may,  which  often  happeni 
And  iu  page  148,  thejudge  subjoins  the  reason 
why  it  is  no  crime  for  a  jury  to  differ  in  opi 
nion  from  the  Court,  where  he  says.  That  i 
man  cannot  see  with  auother's  eye,  nor  hea 
by  another's  ear  ;  no  more  can  a  man  conclnd 
or  inter  the  thing  by  another's  understandiii) 
or  reasoning.     From  all  which  (1  insist)  it  i 
very  plain,  that  the  jury  are  by  law  at  libert; 
(without  any  affront  to  the  judgment  of  th 
Court)  to  find  both  the  law  and  the  fact,  in  oa 
case,  as  they  did  in  the  case  I  am  speaking  lo 

«  See  it,  vol.  6,  p.  999. 


717] 


for  a  Libel. 


irhicii    I  « in  bnf  leave  jimt  to  ineiitinn,  »nA  It 
WW  tbii;  Mr.  I'enii  auil  Urnil  being  Quakfr^, 
«ad  liaviti^  met  in  a  peaccnLile  manner,  ufier 
b«Dg  itiiit  out  Of  their  luceliDg- house,  preaclt- 
■d  in  Gnce-Cburrh-ttieet  in  London,  tci  tlie 
|)M)|ria  of  their  own  persuauon,  and  for  this  ilicy 
«H«  indicted  ;  and  it  ivas  said,  Tbitthey  »iiii 
Mhcr  penona,totiie  number  of  300,  nnlaiTt'iilly 
mt  tumultiioufly  asiemhled,  lo  ibe  disturbjuici: 
if  tka  peace,  &c.    To  trbich  they  plenileil, 
KMGuitly,     Aod  t]ie  |ietll  jnry  being  sworn  to 
kf  Iha  iHue  betneen  (be  kio^  aiid  the  pri- 
■va,  tbat  ia,  nlietlier  Ihey  nere  guilty,  ao- 
Mriingto  tbe  tnrni  of  the  indictment?     Ilc'i' 
Arc  waa  no  dispiilcbut  they  were  assen.MLl 
k|itber,  to  tbe  number  mentioned  in  tbr'  m- 
Aelnent;  bol,. whether  that  mcetintf  log^il)!-! 
na  tmUiiuIt,  tumulliiouiiy,  anil  to  the  ills- 
MtiMofuie  peace?  wai  ihe  queallon.    Ami 
thaConrt  lold  ine  juiy  itnaa,  and  ordered  ilif.- 
fBJtoftBditaot  for  (Mid  tbe  Court)  the  med- 
al ma  ifae  matter  of  tact,  and  that  ia  con  Icss- 
tC*Ml  we  tell  you  it  is  unlawful,  tnr  it  i^ 
■piMt  the  atatute ;  and  the  meeting  bebfrun- 
kml,  it  followB  of  course  tbat  it  was  tumul- 
feNi,iiMllothediatuitHuiceoflhepeac«.    But 
Ai  jwy  dkl  not  tbink  fit  to  take  tho  Court's 
Mi  for  it,  fbr  ibey  could  neither  find  not,  In- 
■A,oraDy  thing;  lending  to  the  lH«ach  of  ihe 
|Ma  contnitied  at  that  meeting ;  and  tbey 
MfriHed  Blr.  Peon  and  Mead.*    In  doing  uf 
■heb  they  took  upon  them  to  judge  both  tlie 
haudtbabcl;    at  which  the  Court  (being 
■biaiilies  true  courtiers)  were  so  mnch  of- 
AtMtlkat  they  fined  the  Jury  40  mirks  a- 

eitandGoaimitted  Ibem  till  paid.  Uul  Mr. 
M,  who  lalued  tbe  right  of  a  juryman  anil 
tkKbnly  of  hii  country  more  than  bis  nwn, 
itliiid  lo  pay  the  Ane,  and  waa  resoUcil 
(ilMagb  at  a  ^reat  expence  and  trouble  Ion) 
|*trJiV,  and  did  bring,  his  Habeas  Corpus,  ti) 
Hldidcd  from  hii  line  and  imprisonment,  and 
ke  wis  released  accordingly  ;  and  this  bt-ing 
Ik  judgment  in  biacase,  it  iaestabliKhed  fur 
^•,  T^the  judges,  how  grent  soever  they 
h,  baieno  right  to  tine,  imiirison,  or  punish  a 
jfj,  for  not  nndiog  a  *erdict  according  tu  the 
wdiuo  (rf*  tbe  Court.  And  tbi«,  I  bope,  is 
■*|fieient  to  prove,  that  jurymen  are  to  see 
■ilfc  their  own  eyes,  to  bear  with  their  oirn 
(■XiUd  lo  make  Uke  of  their  own  couacienrt-!^ 
{■twdentanding*  in  judging  of  tbe  lires,  li- 
'  ■"  heir  fellow  subjects.     Anil 


Ibing  which  a  mau  writes,  may,  with  the  help 


■soflheii 


el  low  subjects. 
••  '  Mve  oone  with  this  point. 

Tlis  ialbeaeeond  information,  for  libelling 
*UnTenior,  tbat  1  haie  known  in  Aracricn. 
Wue  first,  Ihough  it  may  look  like  t  rn- 
■Mm^  ftX,  as  it  is  true,  1  will  beg  leare  (o 
■■lisiit.  Governor  Nicholson,  who  happen- 
*lMbe,oAeiuled  with  one  of  his  clergy,  mM 
■W  tat  day  upon  Iberoad;  and  aa  it  «:>!• 
^■1  with  him  (under  Ibe  protecliou  of  liJi 
■Maiawop)  used  (be  poor  panwn  with  thr 
^t  of  kutguage,  threatened  to  cut  off  hia 
**iilit  his  now,  and  at  last  to  sbou  liim 
'n^  (he  head.      The  pifwin,  being  a  rcfe- 

*  8m  tba  Cote,  tol.  c,  p.  {»;i. 


I719 


iiity  lo  fly  for  it ;  and  coming  to  a  neiglibour'l 
bouse,  tielt  himself  rery  ill  of  a  ferer,  and  itn- 
niediately  writes  for  a  doctor ;  and  that  his 
phyiiclsn  might  be  the  better  judge  of  his  dia> 
temper,  he  acquainteil  him  with  the  usage  be 
had  received ;  concluding,  that  tbe  governor 
was  certainly  mad ;  for  that  no  man  in  bk 
nenies  would  have  behaved  in  that  manner. 
Thedoctor  unhappily  shews  tbe  parann's  letter: 
The  goveruor  came  to  hear  of  it,  anil  so  an  in- 
lorraation  was  preferred  against  the  poor  man 
lor  saying.  He  believed  Ihe  governor  woa  mad ; 
and  it  was  laid  in  the  information  to  he  falie, 
scandalous  and  wicked,  end  wrote  with  in- 
tent to  move  sedition  among  the  people,  and 
bring  his  excellency  into  contempt.  But  by 
an  order  from  the  late  ijneen  Anne,  there  wm 
a  slop  putto  Ihe  prosecution,  with  sundry  others 
set  on  Toothy  the  same  governor  against  gen- 
tlemen of  the  greatest  north  and  honour  ia  tbat 
govemmmt. 
And  mav  not  I  he  allowed,  after  all  thii,  to 

of  that  useful  term  of  art  called  an  innuendo, 
be  construed  to  be  a  libel,  according  to  Mr.  At- 
torney's definition  of  it,  that  whether  tbe  words 
are  spoke  of  a  person  of  a  public  character,  or 
of  a  jirivale  man,  whether  ilead  or  living,  gooil 
or  bad,  true  or  false,  all  make  a  libel ;  Tor  ac- 
cording ta  Mr.  Attorney,  after  a  man  hears  k 
writing  read,  or  reads  and  repeats  it,  or  laughi 
at  it,  (boy  ore  all  puuisbable.  ft  is  (ran,  Mr. 
Attorney  is  so  good  as  to  allow,  atler  tbe  party- 
knows  it  to  be  a  libel  ;  but  be  is  not  so  kiud  ai 
to  lake  tbe  man's  word  for  it. 

[Here  were  several  cases  nut  to  shew,  that 
though  what  a  man  writes  of  a  governor  waa 
true,  proper,  and  necessary,  yet,  according  to 
tbe  foregoing  doctriue,  it  might  be  conslrnetl  lo 
be  a  IjImI.  But  Mr.  Hamilton,  after  the  trial 
was  over,  being  informed,  that  some  of  tbit 
cases  he  had  put  had  really  happened  in  this 
government,  he  declared  he  bad  never  heard  of 
any  such ;  and  as  he  meant  no  personal  reflec- 
tions, he  was  sorry  he  bad  menlioned  them, 
and  therefore  they  are  omitted  here.] 

Mr.  Biun4/(on.  If  a  libeljs  understood  in  tha 

rge  and  unli 
torney,  there  is 
may  not  be  called  a  libel,  or  scarce  any  peraoa 
sale  from  being  called  to  account  as  a  libdler ; 
fur  Moses,  meek  as  he  was,  libelled  Caiu ;  and 
who  is  it  that  baa  not  libelled  the  Devil  1  For, 
according  lo  Mr.  Atliirney,  it  is  nojusliGcalion 
to  say  one  has  a  bad  name.  Echard  boa  li- 
belled our  good  king  William  ;  Burnet  has  li- 
belled, among  many  others,  king  Charles  and 
king  Jamei ;  ami  Itapin  has  libelled  them  all. 
How  musl  a  man  speak  or  write,  or  what  must 
he  bear,  read,  or  sing  t  Ur  when  must  ha 
laiigb,  ao  as  to  be  secure  from  being  taken  up 
aa  a  libeller?  I  sincerely  believe,  that  were 
•Mue  pennna  to  go  through  the  streets  of  New 
York,  Dsw-a-days,   and  tetid  a   part  aT  Ilia 


IIU] 


9  GEORGE  II. 


Trial  of  John  Peter  Zenger, 


[780 


*  Bible,  if  it  was  not  known  to  be  iugIi,  Mr.  At* 
toroey,  with  the  help  of  his  iunuendos,  would 
easily  turn  it  into  a  libel.  As  for  instance, 
Is.  XI.  16.  *<  The  leaders  of  the  people  caase 

*  them  to  err,  and  they  that  are  led  by  them  are 
destroyed.**  But  shoald  Mr.  Attorney  go 
ilbout  to  make  this  a  libel,  he  would  read  it 
thus :  *  The  leaders  of  the  people*  [innuendo, 
the  governor  and  council  of  New- York]  *  cause 
<  them'  [innuendo,  the  people  of  this  prorinee] 

*  to  err,  and  they'  [the  governor  and  council 
meaning]  '  are  destroyed*  (^innuendo,  are  de- 
ceived into  the  loss  of  their  hberty]  ;  which  is 
the  worst  kind  of  destruction.  Or  if  some 
persons  shonM  publicly  repeat,  in  a  manner 
not  pleasing  to  his  betters,  the  lOtli  and  the 
llfh  verses  of  the  56th  chap,  of  the  same  book, 
there  Mr.  Attorney  would  nave  a  large  field  to 
display  his  skill,  in  the  artful  application  of  his 
innnendos.     The  words  are ;  *  His  watchmen 

*  are  blind,  they  are  ignorant,  &c.    Yea,  they 

*  are  greedy  dogs,  that  can  never  have  enough.' 
But  to  make  them  a  libel,  there  is,  according 
to  Mr.  Attorney's  doctrine,  no  more  wanting 
but  the  aid  of  his  skill,  in  the  right  adapting 
his  ionuendos.    As  for  instance  ;  *  His  watch- 

*  men*  [innuendo,  the  governor's  council  and 
assembly]  ^  are  blind,  thoy  are  ignorant,' 
[iunueotlo,  will  not  see  the  ilangerouN  designs 
of  his  excellency.]  *  Yea,  they'  [the  go- 
vernor  and  council   meaning]   '  are  greedy 

*  doffs,  which  can  never  have  enough'  [innu- 
'  endo,  enough  of  rirhrsand  power.]  Such  an 
instance  as  this  seems  only  fit  to  be  laughed 
at;  but  I  tnay  appeal  to  Mr.  Attorney  him- 
ielf,  whether  these  are  not  at  least  equally 
proper  to  be  applied  to  his  exccllcDcy,  and  his 
mioistcrs,  as  suine  of  the  inferences  and  innn- 
endos in  his  iiiforinatiou  against  my  client. 
Then  if  Mr.  Altoruey  is  at  liberty  to  come  into 
court,  and  file  an  inrorniation  in  the  kind's 
name,  without  leave,  ^vho  is  secure,  whom  he 
is  pleased  to  prosecute  as  a  libeller  ?  And  as 
the  crown  law  is  contended  fur  in  bad  times, 
there  is  no  remedy  for  the  greatest  oppression 
of  this  sort,  even  thouij^h  tlie  parly  prosecuted 
is  acquitted  with  honour.  And  give  me  leave 
to  say,  as  great  men  as  any  in  Britain  have 
boldl)r  asserted,  that  the  mude  of  prosecuting 
by  information  (when  a  {;rand  jury  will  not 
ftnd  Billa  tera)  is  a  national  grievance,  an<l 
ffreatly  inconsistent  with  that  freedom  which 
the  siib|ects  of  England  enjoy  in  most  other 
ttttes.  But  if  wc  are  so  unhappy  as  not  to  be 
able  to  ward  off  this  stroke  ot  power  directly, 
let  us  take  care  not  to  be  cheated  out  of  our 
lAiefties  by  forms  and  appearances ;  let  us 
Always  be  stfre  that  the  charge  in  the  infor- 
mation is  made  out  clearly,  even  beyond  a 
doubt ;  for  though  matters  m  the  information 
may  be  called  form  upon  trial,  yet  they  may 
be,  and  Often  have  been  found  to  be,  matters 
df  substance  upon  givhig  judgment. 

Ctentiemen,  the  danger  is  great,  in  propor- 
fioo  to  ttie  miMshief  that  may  happen  flrrough 
oor  too  great  credulity.  A  proper  coofiiience 
in  a  ooiirt  is  commewnMe ;  bat  as  the  verdict 
{iH/ktmet  hu)  wiH  b9  yo«i|  joq  ongM  to 


refer  no  part  of  your  doty  to  the  discretion  of 
other  persons.    If  jou  should  be  of  opinion, 
that  there  is  no  falsehood  in  Mr.  Zenger's 
papers,  yoa  will,  nay,  (pardon  me  for  the  «■• 
pression)  you  ought  to  say  so ;  beonise  jm 
don't  know  whether  others  (I  mean  the  Coat) 
may  be  of  that  opinion.    It  is  yomr  right  m^ 
so,  and  there  is  much  depending  npon  yav 
resolution,  as  well  as  upon  your  integrity. 

The  loss  of  liberty,  to  a  generoos  Dnnd,  ii 
worse  than  death ;  and  yet  we  know  tbnc 
have  been  those  in  all  ages,  who,  for  the  aafti 
of  preferment,  or  some  imaginary  hon«or,  hns 
freely  lent  a  helping  hand  to  oppress,  nay,  li 
destroy  their  country.     This   bringi  to  ay 
mind  that  saying  of  the  immortu  Bratai^ 
when  he  looked  upon  tlie  creatures  of  Canr, 
who  were  very  great  men,  but  by  no  niMn 
good    men :   *•  Yon  Romans,"  aaid  BroM^ 
**  if  vet  I  may  call  yon  so,  consider  what  j[Si 
are  doing  ;  i^member  that  you  are  asriniif 
Cesar  to  fbrge  those  very  chains,-  which  om 
day  he  wilt  make  yourselves  wear."    Thii  ii 
what  every  man  (that  values  freedom)  oagbl 
to  consider :  he  should  act  by  judgment,  im 
not  by  affection  or  self-interest;  for  irfcm 
those  prevail,  no  ties  of  either  country  or  kin- 
dred are  regarded ;  as  upon  the  oilier  bui, 
the  roan  who  loves  his  country^  pvefcts  Ik 
liberty  to  all  other  considerations,  well  kaiv- 
ing  that  without  liberty  Kfe  is  a  misery. 

A  famous  instance  of  this  yon  will  find  ia  till 
history  of  another  brave  Itoman,  of  the  mk 
name ;  1  mean  Lucius  Junius  Bruins,  hIsk 
story  is  well  known ;  aud'^  therefore  i  Ml 
mention  no  more  of  it,  than  only  to  shew  the 
value  he  put  upon  the  freedom  ot  his  connlrj. 
A(\er  this  great  man,  with  his  fellow-dtiiesit 
whom  he  had  engaged  in  the  cause,  bad 
banished  Tarquin  the  Proud,  the  last  kkig  of 
Rome,  from  a  throne  which  be  ascended  bjr 
inhuman  murders,  and  possessed  bytheONit 
dreadful  tyranny  and  proscriptions,  and  bail  fejf 
this  means  amassed  incredible  riches,  efco 
sufficient  to  bribe  to  his  interest  many  of  Ike 
young  nobility  of  Rome,  to  assist  bim  in  le- 
coveritig  the  crown ;  but  the  plot  being  dii- 
covered,  the  principal  conspirators  wers  af- 
prehendcil,  among  whom  were  tworof  theiM 
of  Junius  Brutus.  It  was  absolutely  nccemiy 
thai  some  should  be  made  examples  of,  to  ddtf 
others  f!-om  attempting  the  restoring  of  Tv- 
quin,  and  destroying  the  liberty  of  Roafft 
And  to  effect  this  it  was,  that  Lncivs  Joniil 
Brutu9,  one  of  the  consuls  of  Rome,  ia  Ike 
presence  of  the  Roman  people,  sat  judge,  ail 
condemned  his  ow  n  sons,  as  traitors  to  their 
country :  and  to  give  the  last  proof  of  hiscfr 
sited  virtue,  and  his  love  of  liberty,  be  with  ■ 
firmness  of  mind,  (only  becoming  so  great  t 
man)  caused  their  heads  to  be  struck  off  ii 
his  own  presence ;  and  when  he  obseiredthA 
his  rigid  virtue  occasioned  a  sort  of  horMt 
among  the  people,  it  is  observed  he  only  sail: 
*'  My  fellow  eitiiens,  do  not  think  that  tUI 
proceeds  from  any  want  of  natural  atrecdan: 
No,  the  death  of  the  sons  of  Brutus  can  afftcl 

Bratuioolys  bM  the  Ion  of  Ubeity  wiU  aflM 


fir  a  LibeL 

mtry.*'  Thm  highly  wa9  liberty  et- 
in  ibose  days,  that  a  father  could  ta- 
lis sons  to  save  his  country.  But  why 
t  to  heathen  Rome,  to  brings  instances 
ore  of  liberty  ?   The  best  blood  in  Bri- 

beeu  shed  in  the  cause  of  liberty ;  and 
doin  we  enjoy  at  this  d»y,  may  be  sai<l 
1  a  fip^at  raeasuro)  owin^  to  the  ^lo- 
and  the  famous  Hampden,  and  others 

cx>untrymen,  in  the  Csse  of  Ship- 
*  made  ncrainst  the  arbitrary  demands, 
gfal  impositions,  of  the  times  in  which 
pfl ;  who,  rather  tiian  ^ve  up  the  rights 
lishmcn,  and  submit  to  pay  an  illegal 

0  more,  I  think,  than  three  fshiltings, 
to  undery^o,  and,  for  the  liberty  of 

nntry,  did  nnderg^o  the  cfrritest  extre- 
n  that  arbitrary  and  ternble  court  of 
lamber ;  to  whose  arbitrary  proceeding's 
f  composed  of  the  principal  men  of  the 
md  calculated  to  support  arbitrary  go- 
at) no  boun:]s  or  limits  could  be  set, 
id  any  other  band  remorc  the  evil  but  a 
ent. 

V  may  justly  be  compared  to  a  great 
vhile  kept  within  its  due  buunils,  it  is 
autiful  and  useful ;  but  wheu  it  over- 

1  banks,  it  is  then  too  impetti«u<)  to  be 
d ;  it  bears  down  alt  belore  it,  and  brings 
ion  and  desolation  m  hcrcver  il  comes. 
this  is  the  nature  of  power,  let  us  at 
our  dnty,  and  like  w!<e  men  (who  va- 
nlom)  use  our  utmost  care  to  support 
the  only  bulwark  against  lawless  power, 
in  all  ages,  has  sacriticed  to  its  wild 
il  boundless  afiibition,  the  blood  of  the 
n  that  ever  lived. 

e  to  be  pardoned,  Sir,  for  my  zsnl  upnn 
sasion:  it  is  nn  oM  and  wise  caution, 
when  ourtiei^iiboiir's  tinusc  is  on  fire, 
It  to  take  care  of  niir  own."  For  tliougli, 
be  God,  1  lire  in  a  government  where 
9  well  anderstomi,  and  frrely  enjoyed  ; 
srience  has  shewn  us  all  (I'm  sure  it 
oe),  that  a  bad  precedent  in  one  govem- 
I  sii«m  set  up  for  an  authority  in  ano- 
nd  therefore  I  cannot  but  think  it  mine, 
ry  honest  man's  duty,  that  (while  we 
due  obedience  to  men  in  authority)  we 
t  the  same  time  to  be  upon  our  guard 
power,  wherever  we  apprehend  that  it 
ici  ourselves  or  our  fellow- subjects. 
truly  very  unequal  to  such  an  under- 
on  maliy  acc-unts.  And  yon  see  I  la- 
der  the  weight  ef  many  years,  and  am 
»WB  with  great  intirmitiesof  body ;  yet 
weak  as  1  am,  1  sliould  think  it  my 
required,  to  go  to  the  utmost  part  of 
I,  where  my  service  could  be  of  any 
mifltine  to  quench  the  flame  of  proae- 
«pon  inibrmations,  set  on  foot  by  the 
nent,  to  deprive  a  people  of  the  right  of 
ratipg^  (and  complaining  too)  of  the 
f  Mtlempts  of  men  m  power.  Men  who 
B^oppresfthe  people  under  their  ad- 

I  'i^m  Ilia  GoUwlioD,  vol.  3,  p.  82C. 
'^  XVII. 


A.  D.  17S^. 


[TM 


ministration,  |iroroke  tbem  to  cry  out  and  caa^ 
plaiu ;  and  then  make  that  very  complaint  th« 
tbuDdiatkm  for  new  oppressions  and  prosecu* 
tiorfiB.  I  wish  1  could  say  there  were  no  in- 
stances of  this  kind.  But  to  conclude ;  the 
question  before  the  Court,  and  you,  gentlemen 
of  the  jury,  is  not  of  small  nor  private  concern  ( 
it  is  not  the  cause  of  a  poor  printer,  nor  of  New 
York  akme,  which  yon  are  now  trying :  No  I 
It  may,  iu  its  consequence,  affect  every  free- 
man that  lives  nnder  a  British  government  on 
the  main  of  America.  It  is  tl)e  best  cause ;  it 
is  the  cause  of  liberty ;  and  I  make  no  donbt 
but  yonr  upright  conduct,  this  day,  will  not 
only*eniitle  you  to  the  love  and  esteem  of  your 
fellow-citizens;  but  every  man,  who  prefer* 
freedom  to  a  life  of  slarery,  will  bless  and  ho« 
nour  you,  as  moo  who  have  baffled  the  attempt 
of  tymnuy ;  and,  by  an  impartial  and  uncer* 
rupt  verdict,  have  laid  a  noble  foondation  for 
securing  to  ourselves,  our  posterity,  and  onr 
neighbours,  that  to  which  nature  and  the  laws 
of  our  country  have  given  us  a  right — ^the  li- 
berty— both  of  exposing  and  opposing  arbitral  y 
power  (in  these  parts  of  the  world,  at  least)  by 
speaking  and  wrillog  trutli. 

Here  Mr.  Attorney  observed,  that  Mr.  Ha* 
railton  had  gone  very  much  out  of  the  way^ 
and  had  made  himself  and  the  people  rery 
merry  ;  but  that  he  had  been  citing  cases  no| 
at  all  io  the  purpose.  He  said,  tliere  waa  o^ 
such  cause  as  Mr.  Bushel's,  or  sir  Edwarf 
Hale's,  before  the  Court;  and  he  could  pot 
tind  out  vrhat  the  Court  or  Jury  had  to  do  witU 
dispensations,  riots,  or  unlawful  assemblies  t 
all  that  the  jury  had  to  consider  of,  was  Mr. 
Zenker's  printing  and  publishing  two  scanda- 
lous libels,  uhich  v«ry  highly  rtflected  on  hb 
excellency,  and  the  principal  men  concerned 
in  the  administration  of  this  government,  whicb 
is  confessed  ;  that  is,  the  printing  and  poblisb- 
iog  of  the  Journals  set  forth  in  the  information 
is  confessed.  And  concluded,  that  as  Mr. 
Hamilton  had  confessed  the  printing,  and  therf 
could  be  no'  douht  hut  they  were  scandalous 
|)apers,  highly  rcllecting  upou  his  excellerqy, 
and  the  principal  magistrates  in  the  province ; 
and  therefore  he  ntade  no  doubt  but  the  jurj 
would  find  tlie  defendant  guilty,  and  would  re- 
fer to  the  Court  for  their  direction. 

Mr.  ChirJ'  Justice.  Gentlemen  of  the  jury, 
the  great  pains  Mr.  Hamilton  has  taken  to  shew 
how  little  regard  juries  are  to  pay  to  the  opinion 
of  thejudges,  and  his  insisting  so  muah  upon  the 
conductor  some  judges  in  trials  of  this  Icind,  is 
done,  no  doubt,  with  a  design  that  you  should 
take  but  very  Utile  notice  ol'  what  I  may  say 
upon  this  occasion.  I  shall  thcreiore  only  ol^ 
serve  to  you,  Uiat,  as  the  facts  or  words  in  thn 
inlbrmatioo  are  confessed,  tbe  only  thing  that 
can  come  in  question  before  yon  is,  wbe|her 
the  words,  as  set  foiith  in  the  information,  make 
a  libel ;  and  that  is  a  matter  of  law,  no  doubt, 
and  which  you  may  leave  to  the  Court.  But 
I  shall  trouble  you  no  further  with  any  thinr 
more  of  my  own ;  but  read  to  ^ou  the  wonw 
of  a  learned  and  u|>rigbtjadge,  ra  a  csKof  the 

9A 


ns] 


90E0BGE  n. 


tilw  nature.     [Lord  Chief  Jiutiea  Holt,  in . 
Tulcliin'a  Com.*]  I 

"  To  soy  that  corrD[it  officen  are  appointed  ' 
to  adminiiter  afTaira,  ia  certainly  a  reflectian  od 
the  go*eniroeiit.  If  people  abODld  not  be  called 
to  accouut  Ibr  poaaeaiing  the  people  wiib  an  ill 
opinioa  of  the  EOTernmeDt,  no  goTeranimt  can 
•ubiiat ;  for  it  u  necesaary  for  ul  goTemnienta 
that  the  peo|i1e  abouM  have  a  good  ojanion  of 
it  i  and  nothing  oan  be  worae  to  any  gorern- 
mentftfaan" 
Aa  to  the 


ZVmI  tfjokn  PiUr  Benger, 

dennan  Fell,  be  i 
draiqht  thereof. 


[784 


to  proCDte  anil 
of  It,  ibia  haa 


wayi  looked  upon  aa  a  crime,  and  DO  goi 
meat  can  be  aafe  without  it  be  puniabao." 

Now  you  are  to  coosidfr,  whetber  these 
vorda  I  Gate  read  to  yon  do  not  lend  to  beget 
'  an  ill  opinioa  of  ifaoaorainittration  of  the  go- 
Terameni;  to  tell  ut,  that  thoae  that  ate 
employed  knoi*  nolbing  of  the  matter,  and 
Ihoae  that  du  know  are  not  -employed.  Hen 
are  notadapied  to  ofGeea,  but  officea  to  men, 
out  of  a  particular  regard  to  their  intereet,  and 
not  to  their  fitueM  foi  tbe  places.  Tbia  ia  the 
purport  of  iliese  papera . 

Hr.  Hamilton.  IhumUy  beg  year  boBuor'a 
pardoD ;  1  am  very  much  misapprebended,  if 
you  auppoae  n-hat  I  aaid  waa  ao  designed. 

Sir,  you  know  1  made  an  apology  for  the 
freedom  I  fbnnd  myaelf  under  a  necesaity  of 
oaing  npoo  ihia  occawoo,  I  taid,  there  waa 
Kothing  personal  dengned ;  it  arose  from  the 
Mlure  of  oar  defence. 

The Juiy  withdrew,  and  in  a  amall  lime  re- 
lumed ;   and  being  aakcd  by  the  clerk, 

WtiMher  iber  were  agreed  of  their  lerdiel, 
and  whether  Jonn  Peter  Zenger  was  Guilty  of 
prioting  and  publiahii^  the  libels  in  the  inlbr- 


Thcy  answered,    by  Thomas  Hunt,  their 

Ibreman,  Not  Guilty. 
Upon  which  there  were  three  bozEO*  in  the 

Ball,  which  was  crowded  with  people;   and 

the  next  day  I  wai  diieba^ed  from  my  im. 

prison  ment, 

Cily  of  New  York,  a. 

A}  a  Common  Council,  held  at  tbe  City-liall 
of  the  aaiil  city,  on  TueiNlay  llie  leth 
day  of  Senteraher,  *.  d.  1T35.— Pruknt, 
Paul  Ricbardi,  tiq.  Mayor;  Gerardui 
Stuyvesant,  esq.  Deputy  Mayor ;  Daniel 
Ilorsemandeu,  esq.  fieeorder — Aldcrmtii, 
William  Roome,  caq.  Simon  Johnioo,  esq. 
John  Walter,  e«q.  Christopher  Fell,  esq. 
Wephen  Bayard,  esq.  Johannes  Burger, 
esq.— jiHuluiilt,  Mr.  JohaiiiiM  Waldrou, 
Hr.  Ede  Itlyer,  Mr.  John  Moore,  BIr. 
John  Fred,  >Ir.  Chstks  Le  Koux,  Mr. 
Urert  Byfaok. 
Ofdered,   That   Andrew  Hamillon,  esq.  of 


with  ibeFreedom  of  this  Corpotation :  and  that 
■Idwman  Bayard,  aMscinan  J^sssa,  aad  al- 


City  of  New  York,  u. 
t  a  Common  Council,  held  at  tba  City-hal 
of  the  said  dty,  on  Monday  the  SIWI  day 
of  September,  being  tba  teaaiday  of  A 
Michael  the  Archangel,  a.  d.  tTSS.— 
PnEaEXT,  Paul  Richarda,  eaq.  Mayor; 
DBDielUarsemaDden,eiq.  Recorder^— AL 
dermtm,  William  Roome,  eaq.  Smoa 
Johnson,  eaq.  John  Waltrr,  esq.  Ghm* 
touher  Fell,  esq.  Stephen  Bayard,  Mf, 
Joliaunea  Burger,  eiq. — Auitlm^tf,  Mr. 
Johanoes  Watdron,  Mr.  John  Fred,  Br. 
Charlea  le  Roux,  Mr.  Evert  Byml^ 
Mr.  Henry  BogerL 

Stephen  Bayard,  Smon  Jofanacn,  asd  Cbrii- 
topber  Fell,  eaqis.  aldermen,  UwbonilwM 
rderred  to  prepare  the  drmngbt  of  the  FicedM 


Hamillon,  esq.  make  tbe  Heport  tbereon  in  lit 
words  following,  (to  wit)  That  Ibey  hare  ar^ 
pared  tbe  form  of  the  grant  to  the  anid  AnAcv 


Hamilton,  esq.  of  the  Freedom  of  the  dij  •( 
New  York,  in  then  worda,  (to  wit) 

"  cay  of  New  York.  n. 
Paul  Richarda,  esq.  the  Reoonler.  AU«r- 
men,  and  AsaiatanU  of  the  rity  of  Now  York,  eon- 
renHlinCoamoDCanndlttoall  towbontbcaa 
preseolaahallcunie  greeting.  Whereas  booMir 
la  the'Just  reward  (^virtue,  and  public  benrfis 
demand  a  puUic  acknowledgment :  Wetboe- 
fure,  uniler  a  grateful  sense  of  tbe  remarkaUr 
service  dime  to  tlie  iohahitanta  of  this  eily  tad 
L-okmy  by  Andrew  Hamilton,  eaq.  of  Pennifl- 
fsoia,  haiTiiler  at  law,  by  his  learned  ini 
genemus  defence  of  the  rights  of  maakiad,  iiid 
5ie  liberty  of  llie  press,  in  tbe  caseofJoha 
Peter  Z('iit!:«r,  lalelv  Iried  on  an  iofilRiialiai 
exhibiteil  in  liie  augirrme  court  of  this  coIobj, 
do,  by  the$e  presents,  bear  to  the  said  Andrvr 
'lamiltou,  esq.  the  public  thanka  of  the  free- 
len  of  this  Corporation  for  that  aignal  acrtice, 
hich  Jie  cheerfully  uodertnok  nndcr  great 
indispoMiianofbody,aodgenerDualyperfi)naad, 
refusing  su y  fee  or-  reward :  and  in  teatinaoj 
of  our  1,'reat  esteem  for  Ilia  person,  and  seniesf 
hia  meril,  dn  hereby  present  him  with  tlw 
Freedom  of  this  Corporation.  These  are  tbve- 
fare  to  certify  and  declare,  that  the  eald  la- 
drew  H^iuiiltun,  eaq.  is  hereby  admitted,  la- 
ceiieiJ,  and  allowed  a  freeman  and  citisaa  if 
the  said  city :  to  hare,  hold,  eqjoy,  and  paitab 
of  all  the  beoefiu,  liberiies,  pririWgca,  freedaai 
and  immuuiiiea  wbatsoerer,  granted  or  bekMf 
ing  to  a  ireemaD  and  citizen  of  tbe  aaRMcityi 
In  testimony  whereof,  tlie  Comnoa  Cooidl 
uf  tbe  said  cKy,  in  Common  Council  ifr 
setobled,  bare  caused  the  seal  of  Ibe  ssad  alf 
*~  ^  bacunto  aKixed,  ibia  SWh  day  of  Si^ 
r,  4.  D.  1T3S.    By  otdOT  of  6m  Ow 


Jii^  %  Liitl, 
"  And  we  (to  furtliFr  report,  thai  ■unilry  of 
theiii«nb«ra  nflbis  coi-jMnitiun,  anil  (TeDllvmeD 
of  UiH  dly,  hare  ralunlarily  conlriliuled  sulfi' 
«i«ot  Tot  ■  gald-box  or  tife  ounrrs  nnJ  »  hall', 
for  inctotingllieiolulllii-iBiil  I'renlnni-,  Itpnn 
IIm  IhI  of  which,  we  lire  nf  opjninn,  should  be 
mgnwtd  ihc  arms  nf  the  city  of  New-York. 
Www  our  hnndt  thU  S9lh  day  of  8fpl.  173». 

t^EPIJEN  UaVIID. 

StKoN  Johnson. 
Chbiitophkn  Fell.' 

■ikR*poni>ia|tpmTe<l  by  this  Court,  and 

I.Thalihe  Frredum  antf  Box  be  forthwith 

inl  lo  lh«  said  Rrporl ;   anil  that 

the  oommon  clerk  of  ihii  city,  do 

•«a]  nf  ibe  same  Frecdoui,  ond  inclow 

Mid  Box. 

LAUerman  B*y»rdgoiD(!toFbila<]elpliia, 

femna;  to  be  the  beaivr,  ut  the  said  Free- 

rlo  Mr.  Hamillon  ;   Ordered,  That  Mr. 

a  drlifer  it  to  Aidrmian  Bayard  for  that 

,    .    r :  and  ihal  Alderman  Bayard  do  deliver 

a  I*  3lr.   HamiltoD,  with  aisuraiices  of  the 

_     |nU  esteem  (hat  thia  corporalion  have  for  hia 

L   imaiMidiBeriL 

ft  CUy  of  New  York,  u. 

W  UlComnen  Council,  hold  attheCily  hall  of 
4  lh«  aud  city,  on  Wedneaday  the  15ih  <]ay 
J  of  October,  «.  d.   1735.— Haas ent,  Paul 

i  Itiobarda,  caih   lHayor;     Danial   Hone- 

i  BudettiCU).  Hecotaet.— Aldermen.  John 

^  Watler,  esq.  Simon  Johnaon,  esq.  William 

■  Hoome,  eaii.  JoliBiines  Burger,  eiq. — As- 

auKanfi,    Mr.    Johaonea    Waldron,    Mr. 

IAbnham  Do  Peyater,  Mr.  Gerardus  Beek- 
naOiHt.  Peter  btuuteoburKh,  Mr.  Henry 
Boprt. 
OMarad.'  That  the  Freetlom  eraoted  hy  this 
WMration  to  Andrew  IlamiTton,  eaq.  with 
At  iteport  of  the  CommiKee  for  preparing  a 
fangblol  the  same,  and  the  order  of  thiacourt 
■moD,  may  be  printed.  Wm.  Shupis. 

Boand  on  (he  lid  of  the  box,  mentioned  in  the 
iteliJiid  Report  and  Order,  there  ore  engraved 
W  Wily  the  arm*  of  the  city  of  New  York, 
ha  alao  ibis  motto  in  a  ^rter  ;  "  Demersa; 
t^U  timefacta  Libertas—bicc  tandem  emer- 
fMI." 

On  the  inner  side  of  the  lid  of  the  box,  shew- 
i«ilMlfai  Hie  aame  time  with  Hie  certificate 
■lb*  frveriam,  there  are  -en^aieo,  in  a  flying 
prHr.tliMe  worda;  '-Non  nammii,  Virtute 


If  Iha  tiiB  of  the  aaiJ  box,  there  ia  engn 

Ct  of  Tolly'*  winh  ;    ■■  It*  cuique  ereniat,  ut 
MfMk*  meruit." 

Wiiidi  Freedom  and  Box  were  presented  in 
kMnacr  llul  had  been  d  irected ,  an  d  gralefii  I  ly 
IMftad  by  tb«  said  Andrew  Hamilton,  esq.* 


A.  D.  1791. 


REMARKS 
Oh  thr  Trial  op  JOHN  PETER  2EN- 
GER,  pRiNTBB^F  THE  NEW  YORK 
WEEKLY   JOURNAL,    who    wa* 

LATELY  TRIED  AND  ACaulTTCD,  FOB 
PRINTINO  AND  PUBLISHIHO  TWO  Ll- 
BELi  AOAINST  THB  GoVEdNUENT  OP 
THAT  i'ROVINCE.t 

Sir ;  It  bas  been  a  common  remark  among 
those  who  have  observed  upon  the  capricious 
dispeuMiioDi  of  fortune,  that  great  events  arc 


Eers,  ice.  by  The  Father  of  Candour ;"  which 
as  been  ascribed  to  Lord  CbaDCcllnr  Camden, 
and  also  lo  Lord  Ashbiirloo,  it  is  noticed  ihat  the 
Prehce  to  Zenker's  Trial  coulaini  niSDy  things 
very  well  wonli  reading. 

t  "  These  fteroarks  were  written  by  (wo 
eminent  lawyers  in  one  of  our  colonies  io 
America,  immediately  after  the  publication  of 
the  Trial  of  Mr.  Zeuger,  which  it  seems  had 
been  industrionsly  spread  over  that  part  of  th* 
world,  before  It  reaclied  England. 

"  As  ihe  doctrines  canlaio''d  in  that  (rial,  or 
rallier  in  the  speech  of  Mr.  Hamilton,  are  of 
so  new  a  cast,  and  su  absolutely  coatrBdlctory 
lo  all  the  resolutions  and  judgments  ihnt  have 
been  settled  and  eilablished  lor  so  many  ages, 
and  by  Judp^es  of  the  hi^hekl  rejiutntioa,  and 
luost  unquestionable  characters,  fur  iheir  in- 
tegrity, virtues  and  abilities,  it  conid  nol  be 
imagined  so  wild  and  idle  an  harangue  could 
have  had  any  weight,  or  have  met  with  anv 
reception  here,  where  the  laws  relating  lo  libew 
haie  been  so  oftf  n  cauvassed,  and  are  generally 
BO  well  understooit ;  and  therefore  the  person 
to  whom  Ihcw  Remarks  were  seni,  never 
thought  of  making  any  oilier  use  of  them  than 
to  satisly  his  own  curiosity,  and  tliat  of  hit 

Bui  seeing,  lo  his  great  surprize,  thai  Ihii 
extraordinary  declamation  ba>i  been  mentioned 
with  an  air  uf  applause  and  triumph  in  several 
news-papers,  as  striking  out  some  new  lights 
with  regard  to  Ihe  doctrine  of  libels ;  and,  u|>ua 
(lie  credit  of  that  recommendation,  the  wbolo 


Trial  not  only  Iwice  printed  here,  but  retailed 
the  public  news-papers,  whereby 


many  well  meaning  people  may  be  deceived; 
and  led  into  wrong  noDons  concerning  ths 
taws  of  their  country  in  this  point:  lie  ha* 
(bought  Bt  to  comraunicaie  these  Kemarks  to 
tbie  public,  in  order  to  remove  any  mistakes  or 
ors  that  persons  may  fall  iuto  for  want  of 
adequate  judgment  in  these  malters ;  and 
tbe  rather,  because  if  aucb  false  opiniona 
abould  happen  to  influence  the  conduct  or 
practice  of  any,  (be  cunsequencea  may  be  very 
dangerous;  it  being  an  established  maxim  in 
outlaw,  that  neither  ignorance  nor  miaiako  ia 
an  excuse  to  any  one  who  bas  broke  it.  from 
tbe  penally  of  it."    Pr«fac«  to  ibe  Remarks. 


-WTJ 


9  GEORGE:  II. 


TruJ  qfJoktt  Ptftr  Zengeri 


t7f» 


often  produced  by  instruments  that  are  not  1 1  rain  iteh  of  writing  ;  for  thflre  are  m> 


aeemiu((ly  adequate; 'na^9  tbattbe  same  ap- 
parent causes  ba?e  quite  contrary  effects ;  and 
the  road  that  leads  one  man  td  wealth,  honour, 
and  power,  sometimes  oarrin  another  Co  so- 
TertY,  intamy,  and  ruin.    Hence  cooiea  Uiat 
cbunised   distribution  of  axes    and  coronets, 
JMlters  and  ribbons,  trbicb'  history  ifisptays  by 
numerous  slioeking  examples ;  .aiid  thus  it  is, 
that  f|ite  seems  to  play  at  cross- purposes  with 
nrankind;  or  to  speak  in  Scripture -phrase,  in 
this  sense  as  well  as  many  others,  "  the  wisdom 
of  this  world  is  foolishness." 
'  I  find  myseU'  drawn  into  these  gmft  reflec- 
tions, by  readings   the   Trial  of  John  Peter 
Zeogrer;  at  New- York,  apon  an  inlbrmation  for 
printing  and  publishing  a  libel.    This  piece, 
if  seems,  has  been  lately  printed  there,  and  was 
put  into  my  hand  the  other  day  by  a  friend, 
who  has  both  a  general  acquaintance  and  a 
correspondence  with  the  northern  colonies,  as 
a  rare  production,  containing  many  tilings  new 
and  surprising.    And,  in  truth,  I  most  say  it 
affords  a  lively  specimen,  in  miniature,  of  the 
justness  of  the  foregoing  remarks :  I  mean  that 
part  of  it  which   is   attributed   to   Andrew 
Hamilton,  esq.  of  Philadelphia,   barrister  at 
law ;  together  with  the  sequel,  describing  the 
munificent  behaviour  of  the  citizens,  in  com- 
nion  council  assembled,  to  the  learned  gen- 
tleman, for  his  singular  ^lertbrmance  ou  that 
occasion. 

I  must  at  the  same  time  assure  you,  that  if 
^{ieoger's  trial  had  been  printed  by  order  of  the 
Court  that  trie<l  him,  or  from  a  copy  taken  by 
a  private  hand  ut  the  trial,  or  by   any   other 
means  tliut  excluilod  Mr.  iiamiltou^s  approba- 
tion or  privily,  J  should  liavc  rnjiiyed  luy  own 
opinion  without  troubling  aou  or  any  body  else 
about  it,  aud  had  the  churit y  tu  vrsolve  all  tlic 
extra vaji^aueies  that  occur  turouifhout  his  de- 
clauiatiou,    into  a    ri^^hl  (liscerunicnt  of  the 
people  he  talked  to,  and  a  dexterity  in  capli- 
vatint;^  them,  which  had  its  effect  in  the  ac- 
quittal (it*  his  client.     Hut  when  a  gentleman 
9f  the  bar  takes  the  pains  to  write  over  a  loni^ 
discourse  (he  being  the  only  lawyer,  of  either 
aide,  who  ^ave  the  printer  his  notes),  in  order 
to  send  ii  abroa^l  through  the  world,  as  a  speci- 
men of  his  abilities,  sentiments  and  princiiiles  ; 
as  a  solemn  argument  in  the  law,  fiL  to  see  the 
light,  aud  abide  the  test  in  all  places ;    and, 
above  all,  as  a  task  of  duty,  which  he  thought 
himself  hound  to  perfbrni,  even  by  going  to 
the  utmost  parts  of  the  laud  for  the  purpose  ; 
and  all  this,  without  lee  or  reward,  under  the 
weight  of  many  years,  and  great  infn  inities  of 
hotly  :  When  a  barrister,  1  say,  thus  becomes 
a  volunteer  for  e;-ror,  and  piesuiiius  to  obtrude 
bad  law  and  false  reasoning  upon  the  sense  of 
mankind,  because   th^    s;tgir    magistrates    of 
New- York  huve  put  their  seal  toil;  1  think 
myself  at  liberty,   wikhout    using  any  other 
apology,  to  exercise  the  judging  privilege  of  a 
reader,  since  the  ^cutleman  himself  has  put 
luc  into  the  possession  of  it. 
lu  doing  ihia-,  I  sUall  not  in  the  least  graiily 


ordinary   talents  necessary  for  lefntisg 
absurdities ;  but  I  shall  have  the  hoBMt  meril 
of  endea?  ouring  to  undeceif  e  aoch  of  mv  felWw- 
subjects  in  the  plantations  as  may,  irom  tha 
late  uncommon  success  of  the  doctrine,  mistake 
the  liberty  of  the  press  for  a  lieence  to  write 
and  publish  mfamous  thuigs  of  their  mjierion^ 
and  of  all  others,  at  their  pleasure,  profidad 
they  write  and  publish  nothing  but  what  is 
true.      In  the  next  place,  I  would  preserre,  as 
far  as  I  am  able,  the  dignity  of  the  professkia  el 
the  law  in  these  remote  parts  of  the  British  is- 
minions ;  and  prevent  its  learned  piofeMoia  in 
England,  who  probably  will  see  the  renowMd 
piece  above  mentioned  (if  we  may  judge  fnm 
the  industry  used  in  dispersing  it),  from  aw* 
peeling  that  all  their  American  brethren  «i 
the  like  arts  to  gain  popularity  and  honouraWi 
rewards.    The  former,  having  the  advaiitqpB 
of  going  daily  to  tlie  great  school  of  laW  at 
Wtstminster,  are  already  apt  cnoiigh  to  tldiik 
meanly  of  the  accomnlisliments  oi  the  latter. 
who  are  iar  removed  from  iostraction^  loi 
their  opinion  must  be  strongly  confirmed  u  ihii 
respect,  if  such  a  rhapsoify,  aa  was  ottered  II 
New- Vork,  should  not  only  be  applauded  Mil 
rewarded  publicly  there,  hut  printed  and  sosl* 
terediu  reams  through  the  other  colonies,  with* 
out  being  folbwed  by  a  suitable  animeiiffinioa 
Neither  will  it  be  amiss  to  take  aoma  MCioe, 
in  this  place,  of  the  quackery  of  the  phJisiise 
in  general,  without  any  particular  aipplioatuoy 
as  it  has  been  practised  with  vast  luooess  ia 
some  of  our  colonies.    Voo  will  often  see  (if 
common  fame  may  be  trusted)  a  self'Sufficieot 
enter[trising  lawyer,  comikoundeil  of  soiuetliiui; 
bet  wot- n  a  politician  and  a  broker,  who,makinj^ 
the  foibics  of  the  inhaliitants  his  capital  study, 
and  withal  takinsf  advantajj^v?  of  the  \f^eskn«i 
of  his  judges,  the  ignorance  of  some  of  bis 
brethren,  the  nuxlosty  of  others,  and  the  hoDCtt 
scruples  Of  a  third  soit  (without  having  any  of 
his  own),  becomes  iu<iensibly  an  oracle  in  the 
courts,  and  aripiiros  by  degrees  a  kind  of  do- 
minion over  the  minds,  as  well  as  the  estates  of 
the  people;  an  influence  never  to  be  obtained 
but  by  the  help  of  qualities  very  differeoi  frooi 
learning  and  integrity.     Wheuever  such  a  raso 
is  ftMuid,  the  wonder  is  not  great,  if,  from  t 
long  habit  of  advancing  what  be  pleases,  sihI 
having  it  received  for  law,  he  comes  in  time  to 
fancy  that  what  he  pleases  to  advance  is  resllf 
law. 

I  have  taken  the  pains,  during  this  short  va- 
cation between  our  monthly  courts,  candidly  Id 
examine  this  new  systciu  of  libels  lately  cow* 
posed  and  propagated  on  the  continent;  tbi 
discovery  of  which  cost  the  good  city  of  New< 
York  five  ounces  and  a  half  of  ^old,a  scrip  o 
parchment,  aud  three  Latin  sentences.  My  in 
tentiou  is  to  consider  things,  not  persott 
having  no  other  knowledge  of  the  gentlema 
principally  concerned,  than  what  is  derive 
irom  the  pa}M.'r  now  before  me;  and  beia 
wholly  a  stranger  to  the  merit  of  those  dispute 
that  gave  riso  lo  the  proaecutiou  of  tUia  pnatei 


JiffaLiiik 

•btU  I  turn  sdvocau  for  any 
lOwcT  in  goTeraors ;  God  forbid  1  iboiild 
f  of  such  a  prostitution,  who  know  by 
ce  cf  what  stuff  tbey  are  commonly 
hm  wrong  impressions  they  are  apt  to 
oftheuMelfes  and  others;  their  pas- 
ejiid ices, and  pursuits;  though  when 
Nuble  allowances  are  made  for  certain 
tances  that  attend  their  mission  from 
nd  their  situation  abroad,  a  considerate 
amy  be  tempted  to  think — it  is  well  they 
rorae  than  they  are. 
I  come  to  my  remarks  on  Mr.  Zenger's 

laklering  the  Defence  made  for  the  de- 
(Mr.  Zniger)  hy  his  counsel  (Mr.  Ha- 
upon  Not  Guilty  pl<>a(led  to  an-  in- 
n  for  printing  and  publishing  a  libel, 
to  the  purpose  to  in<iuire  how  fhr  the 
charged  in  the  information  are  in  their 
ihelloua ;  nor  whether  the  innuendoes 
criy  osed,  to  apply  the  matters  to  per- 
ings  and  places.  It  is  only  neoesnry 
MM  the  truth  of  this  single  propositinny 
hich  the  whole  Defence  is  grounded, 
whicli  the  ser eral  psrts  of  it  refer ; 
,  That  the  several  matters  charged  in 
rmation  are  not,  and  cannot  be  libellous, 
they  are  true  in  fact. 
ia  the  canlioal  point  upon  which  the 
^gentlcmsa's  whole  argument  turns, 
■dli  be  by  a  down,  o?er<^nd  over, 
ini  principle  that  governs  the  doc- 
^  Kbela;  and  accordingly  he  confesses 
nling.  and  puUishiug  of  the  papers 
the  informatiaa,  and  puts  it  upon  the 
nuusel  to  prove  the  facts  contained  in 
be  false;  allegin|r,  at  the  same  time, 
nless  that  wene  done,  the  defendant 
lot  be  guilty;  but  if  the  sstne  were 
to  be  talse,  he  would  own  the  papers 
ing  them  to  be  libels.  To  this,  it  seems 
umey  General  answered,  that  a  nega- 
NiC  to  be  proveil ;  and  the  other  replied 
»  words,  which  I  choose  to  set  down, 
nay  not  be  thought  to  do  him  wrong- 
expect  to  hear  that  a  negative  cannot  be 
;  but  every  boily  knows,  there  are 
•xceptions  to  that  general  rule :  For  if  a 
charged  with  killiog  another,  or  steal - 
neighbour's  horse ;  if  he  is  innocent 
ine  case,  he  may  prove  the  man  said  to 
J  to  be  still  alive  ;  and  the  horse  said  to 
tn  never  to  have  been  out  of  his  master's 
Sir,  and  this,  J  think,  is  proving  a  ne- 
"  Now,  1  must  think,  that  it  is  strange  a 
nan  of  his  sagacity,  who  owns  lie  was 
:d  tor  the  objection,  coirid  not  yet  hit 
ome  of  these  many  exceptions  which 
Kidy  knows ;    for  he  does  no  more  than 

0  inUances  of  one  affirmative  being  de- 

1  by  another,  that  infers  a  negstive  of  the 
at  which  rate  most  negatives  may  be 
,  and  then  the  old  rule  may  be  diseard- 
rbos,  if  it  is  shewn  that  a  man  is  alive, 
m%  clearly  that  he  was  not  killed;  and 
«ae  ia  proved  to  hare-|iceQ  tivayi  in 


A.  D.  17S5. 


[TSG 


big  master's  stable  (for  this  it  wliat  must  ht 
understood  of  hii  Ma^  never  out  of  the  stable), 
it  certainly  follows  that  he  could  not  be  stolen. 
80  that,  accQNling  to  this  new  scheme  of  |)roof, 
he  who  is  accused  of  killing  a  man,  or  stealing 
an  horse,  is  to  be  nut  upon  proving  that  be 
did  not  kill  or  steal,  because  it  is  possible  thai 
such  proof  mar  bo  had  sometimes :  And  so, 
in  the  principal  case,  if  a  ouustion  arises  wbe« 
tber  a  certain  magistrate  has  done  particulai 
acts  of  ininstice  or  n6t,  the  method  is  to  shen 
that  he  did  not  do  such  acts,  not  that  he  did 
them.  I  have  touched  upon  thu,  not  for  ifti 
importance,  but  as  a  specimen  of  the  learnei 
barri8ter*s  manner  of  reasoning,  and  of  th< 
spirit  with  which  he  sets  out  from  the  begining, 
At  length  however  be  takes  the  onus  pro* 
baniii  npon  himself;  and  rather  thau  the  thing 
should  go  unproved,  generously  nndertafc«» 
at  his  client's  peril,  to  prove  the  matters,  chaigei 
in  the  information  as  libellons,  to  be  tme.  fin 
I  would  be  glad  to  know,  by  the  way,  how  thi 
undertaking  gentleman  could  have  proved  tbi 
tnith  of  divers  facts  contained  in  the  pa|)er  wbiel 
the  .defendant  published,  supposing  the  Cow 
had  been  so  moch  overseen  as  to  let  him  into  1 
proof  of  this  sorti  Could  he  prove  for  ezam< 
pie,  that  judges  were  arbitrarily  disphieed 
and  new  courts  erected,  in  the  province  o 
New  York,  without  consent  of  tlie  tegislaturtl 
For,  I  am  credibly  informed,  there  never  was  t 

Kretence  or  surmise  of  more  than  one  jndgi 
eing  displaced,  or  more  than  one  court  erected 
ander  Mr.  Cosby's  administration,  both  wbid 
happened  upon  one  and  the  same  occasion 
Now  1  would  not  have  this  esteemed  a  captiou 
exception,  when  1  have  to  deal  with  a  man  0 
law,  who  must  or  ought  to  know,  that,  if  sucl 
a  jufftiticntion  as  he  offei  ed  were  at  all  allow 
able,  it  ought  to  be  full  and  express,  so  as  t 
leave  no  room  for  a  libeller  to  multiply  and  ex 
aggerate  facta  at  hicpleasnre,  when  lie  is  d  is 
posed  to  tradace  persons  in  authority ;  tber 
being  a  manifest  difference  between  a  aingi 
act  of  power  without  or  against  law  (froi 
which    perhaps    tew  governments  have  bee 
free),  and  an  habitual  abuse  of  power  in  n 
peated  instances  of  the  same  species.    1  wool 
further  ask,  how  he  could  prove,  that  the  la* 
itself  was  at  an  end,  and  that  trials  by  jnrii 
were  taken  away  when  a  governor  pleased 
for,  if  1  mistake  not,  he  was  at  that  time  speal 
ing  to  a  jury  in  a  regular  court  of  law,  and  in 
prosecution  which  the  giivernor  had  much  ) 
heart  (as  the  gentleman  himself  insinuates 
and  -woald  have  been  highly  pleased  to  coi 
vict  hb  client ;   yet  wouki  not  attempt  it,  bi 
in  the  ordinary  course  of  trial  by  a  jury ;   ai 
then  too,  oouULnot  find  a  jury  iBat  wouki  coi 
vict  him.      I  think  1  am  warranted  in  puttii 
these  questions,  even  by  the  authority  of  tl 
barrister  himself,  who  says,  «  Truth  ought 
govern  the  whole  affair  of  libels,  and  yet  tl 
party  accused  runs  risk  enough  even  then  ;  f 
if  he  fails  of  proving  everjr  tittle  he  has  wrot 
and  to  the  Rati<«f.iCtion  of  the  court  and  ja 
too,  he  may  find  to  iiiscost,'*  &c. 


7312 


9  GEORGE  It. 


Trial  gfJofm  Peter  Zenger, 


[732 


But  for  tlie  present,  I  will  suppose  Mr. 
Haiiiilton  Mas  able  to  prove  all  these  tliiags; 
nay,  that  the  jury  knew  them  all  to  be  true.  I 
will  go  further,  and  allow,  that  juries  in  cri- 
minal cases  may  detertnine  both  law  and  fact, 
when  they  are  complicated,  if  they  will  take 
such  a  decision  upon  their  consciences  (which 
is  almost  the  only  point  in  which  I  can  have  the 
honour  of  ag^reem^  with  him) ;  yet,  after  all 
these  concessions,  the  main  question  rests  still 
between  us,  viz.  Whether  a  writing  can  be  a 
libel,  in  legal  acceptation,  if  the  matter  con- 
tained in  it  be  true  ?  He  is  pleased,  indeed,  to 
express  his  dislike  of  infamous  papers,  even 
when  they  are  true,  if  levelled  against  private 
vices  and  faults;  and  in  this  case  he  calls  them 
base,  unworthy,  scandalous,  unmanly  and  un- 
mannerly. But  surely  it  might  be  expected, 
when  a  point  of  law  was  in  question,  that  he 
would  have  told  us,  whether  they  were  lawful 
or  unhiwful,  innocent,  or  criminal,  since  these 
ImI  are  the  only  epithets  that  were  relative  to 
his  subject,  though  the  first  might  have  their 
weight  m  a  sermon  or  moral  essay.  But,  it  is 
plain,  he  was  aware  of  the  consequdnce  of  be- 
ing explicit  upon  this  head ;  for  bad  he  owned 
Mch  writings  to  be  lawful,  because  true,  he 
would  have  alarmed  the  common  sense  of  man- 
kind, by  opening  a  door  for  exposing  at  mercy 
the  frailtieSf  vices,  defects  and  misfortunes  of 
every  person^  high  and  low,  which  must  ine- 
Titablv  destroy  tiie  peace  of  families,  and  be- 
get illblood  and  disorders.  If,  on  the  other 
hand  he  bad  acknowledged  such  writings  to  be 
unlawful,  inasmuch  as  Uicy  concerned  private 
miscarriages  and  transactions ;  but  that  every 
man  might  write  as  much  truth  as  he  pleased 
about  the  adminiKtration  of  the  government, 
not  only  by  pointing  out  faults  and  mistakes, 
but  by  publishing  his  own  comment  and  in- 
ferences, in  order  to  (ill  the  minds  of  the  people 
xvitli  all  the  jealousies  and  apprehensions  his 
iniagniation  can  form;  it  must  have  shocked 
men  of  understanding  to  be  thus  told,  that  the 
law  had  provided  against  private  quarrels  and 
lii-eacUes  of  the  peace,  occasioned  by  virulent 
writing ;  but  had  taken  no  care  to  prevent  se- 
dition and  public  disturbance  arising  from  the 
same  cause. 

His  favourite  position,  however,  was  to  be 
maintained  at  all  events ;  and  therefore,  when 
the  Chief -justice  rightly  instructed  him,  that  he 
could  not  be  admitted  to  give  the  truth  of  a 
libel  in  evidence,  that  the  law  was  clear  that  he 
could  not  justify  a  libel ;  for  it  is  nevertheless  a 
libel,  though  it  is  true ;  the  discerning  gentle- 
man was  pleased  to  understand  by  the  word 
jubtify,  a  justification  by  plea,  as  it  is  in  the  case 
of  an  indictment  for  muitler,  or  an  assault  and 
battery :  there  (savs  be)  the  prisoner  cannot 
justify,  but  plead  Not  Guilty ;  yet  in  murder, 
he  may  prove  it  was  in  defence  of  his  life,  his 
house,  &c.  and  in  assault  and  battery,  he  may 
give  in  evidence,  that  the  other  part^  struck 
first ;  and  in  both  these  cases  he  will  be  ac- 
quitted. 

If  the  partj  in  eith^  cue  ii  acquittedi  the 


reason  is,  I  presume,  because  the  inalter  given 
in  evidence  amounts  to  a  justification  in  law  of 
the  fact  charged  on  him,  and  is  e^uimlenitpa 
confession  and  avoidance  in  plcndio^.  In  like 
nuinner,  if  truth  be  a  sufikient  justification  of 
a  libel,  the  defendant  will  be  acquitted  opea 
proving  the  contents  of  his  paper  to  be  true. 
Now  let  it  be  observed,  that  the  wnrds  of  the 
book  which  the  chief-justice  relied  on  «« 
these :  It  is  far  from  being  a justifioMion  if 
a  libel,  that  the  contents  thereof  are  tran— 
since  the  greater  appearance  there  is  of  truth 
in  any  malicious  invective,  so  much  tlm  nuan 
provolcing  it  is.  That  this  is  good  law,  I  hept 
I  shall  be  able  to  shew  fully  hereafter,  as  1 
shall  shew,  in  the  mean  time,  that  it  is  an  ex- 
press authority  against  the  well-read  barrister, 
who  declares,  he  baa  not  in  all  his  reading  met 
with  an  authority  that  says,  he  cannot  be  ad* 
mitted  to  give  the  truth  in  evidence,  &c. 

He  seems  to  take  it  for  granted  (and  I  shall 
not  dispute  it  whh  him  now)  that  matter  if 
justification  cannot,  in  any  case,  be  pleaded 
specially  to  an  indictment  of  assault  or  mnidsn 
but  the  party  is  to  take  advantage  of  il  in  evi- 
dence upon  Not  Guilty  pleaded.  Let  it  be  so ; 
yet  stiU  this  matter  must  be  a  sufiicient  justifi- 
cation, or  the  party  can  have  no  benefit  from  it 
any  way.  In  an  action  of  assault  and  bntlsry, 
where  the  first  assault  must  be  pleaded  ape- 
cially  ;  the  matter  of  justificatMMi  is  just  the 
same,  as  in  an  indictment  for  the  same  nflncf^ 
where  it  must  be  given  in  evidence  upon  tfat 
general  issue.  I  ask  then,  Whether  the  fint 
assault  is  a  justification  in  an  indictment  if 
assault  and  liattery  ?  If  the  barrister  sboaU 
answer  negatively,  such  answer  is  against  sll 
sense,  for  the  party  is  acquitted  by  virtue  of 
the  justification  only.  If  he  should  answer  af- 
firmatively, he  is  inconsistent  with  himsdf ; 
for  he  has  but  just  affirmed  that  when  the  book 
says,  truth  is  no  justification,  it  must  be  on* 
derstood  of  a  justification  by  plea,  by  which  be 
must  mean  that  nothing  else  is  a  juatificatHMi 
but  what  is  pleaded,  or  he  must  mean  notbiog 
at  all.  For  the  words  of  the  book  are^— it  is 
fiu"  from  being  a  justification,  &c.  it  is  not  said, 
— ^you  are  far  from  being  at  liberty  to  plead  it 
in  bar.  In  truth,  the  author  is  not  there  speak- 
ing of  the  forms  and  rules  of  proceedings  upon 
libels,  (1  Hawk.  chap.  73,  §  5,  6,  7,)  but  upon 
the  substance  and  nature  of  the  cnme,  what 
shall  and  what  shall  not  excuse  or  justify  it. 
This  is  manifest  from  the  reason  subjoins  to 
support  his  assertion,  viz.  Since  the  gn-ater  ap- 
pearance there  is  of  truth,  &c.  which  is  a  soTid 
reason  grounded  on  the  wisdom  of  the  law, 
which  punishes  libels  even  against  private  |)er- 
sons,  as  public  offences,  because  they  provoke 
men  to  acts  of  revenge  and  breaches  of  the 
peace.  I  hope  it  will  not  be  said  that  a  libel  is 
less  provoking,  because  tlie  truth  of  it  is  to  be 
given  in  evidence,  than  if  it  was  to  be  pleaded 
in  bar. 

But  all  this  is  Star-chamber  doctrine  with 
the  banister,  and  the  very  mention  of  that 
ooort  terrcs  him  for  an  auwcr  to  nraiy  thing» 


for  n  LiUl 
Ar  obiclt  he  bu  BO  other  ansirer ;  beraiiHlhe 
m»m*rj  <tX  Ihat  Irihiinal  is  juilly  dolested  un 
acc«iiiil  of  Riaay  illegal  and  exorbiunt  pro- 
aedioKJi.  No  ;  lUia  is  Ihe  auiborhy  of  Mr. 
imMDl  Hawkins  ftliouf;li  lie  uses  mirciD'l 
metrnm  lo  some  Sisr-vliBDiber  cukf*).  wliose 
dHDC  ii  too  infill  Id  receiTe  any  idclition  from 
Ail  P*||''<'>  Bi"!  "'ho,  after  a  long  and  ituilloai 
wmtelt  m  th«  crowD-Uw,  laid  down  iliii  propo- 
Hm  for  law  at  the  lime  he  wrote  his  hook; 
ari  1  believe  it  will  appear  in  the  lequcl  thai 
k(«U  not  mblakvo.  AiiUnowlconae  tajaiii 
iavMitti  the  harri«ter  tjpon  lliiN^oiai,  who- 
ihrMr.  Serjcnnt  or  be  is  in  the  right;  or,  in 
ribtr  worU,  whether  tiiltitjr  in  fact  be  eisen- 
lHllOBi>hel,»olhat  the  truth  oftbe  I'act  may 
UgifMi  inefhlence  to  proTe  n  Miillnglu  be  no 

UomaintainatbeaffirinaliTe (if  the  question, 
tMh  from  what  he  understands  to  be  the  au- 
thaiiUM  in  Ihe  case,  and  from  ihe  rraeon  of 
lb*  thine-  All  which  ihall  be  considered  in 
tWIr  dnler. 

Hie  authorities  cited  by  nir.  Ilunillon  lo 
Mfport  the  propomilon  formerly  itated,  consist 
■ncipaNy  ofl'our  eases,  which  1  ahal  I  consider 
litte  nrirer  as  they  were  produced. 

Tbelimt  is  the  case  of  John  de  Nortbamp- 
M,  18  Edw,  3,  3  Inst,  174,  whicb  he  ub- 
MiHdoesnalappear  la  Imve  been  a  cassupoa 
I,  but  Ihat  he  has  good  groimds 
upon  an  indictraent.  This  ii 
ihall  not  cooleit  wilb  hiu,  because  it  ia 
MaUcriiil,  or  indeed  euy  to  lie  determined, 
lAliMlaecinfrihe  record;  tboucrh  1  conceive 
■tevmgrouiids  to  Bay  it  was  not  upon  an  in- 
Mwat,  u  wai  the  case  nf  Adnni  de  Ravens- 
■Wb,  inMtioned  by  lord  Coke  in  Ihe  sanie 
4Hlir.  The  case,  bowever,  standi  tbna: 
'Mb  de  Northampton,  an  attorney  of  the 
'tt0-bent'h,  wrote  a  letter  to  one'  Ferrers, 
'•H»rtb«  king:'!  oonneil,  that  neither  sir  Wil- 
"^     *"  chief-justice,  nor  his  lellows  the 

,  nnr  their  clerks,  any  great 
)ty  the  comtnandment  of  our 
king.  Set.  which  laid  John  being 
■■J,  oonfetBed  the  letter,  &c.  El  ijuia 
■MUm  Johannes  coffnovil  dictam  hie- 
■  per  ae  seriptam  Ruberlo  de  Ferrers, 
4tM  deconcilio  Itegis.  quic  btera coclinet 
'•tnullam  verilatrm:   pTtetextucujusDom. 

I'  BCi  ern  Curiam  el  Josliciarios  suos  habere 
'mwt  ndignatiooem,  quod  esselin  seanda- 
'  Un  Juuic.  rt  CuH».     Ideo  dictus  Johannes 
'  Minmitiilur.  Sec,*     Here  says  the  barrister, 
-iiientil  appears  the  libellous  words 
:  lUe,  and  there  the  falsehood  was 
I  IV  the  y^uod  of  the  judgment. 
'    11  |>[irl,  i  can  neither  see  truth  nor 
iiMi.iuil  ill  the  words  at  the  time  they  were 
■W*,  for  tbey  refer  to  a  future  contmgency 
I       M  uiehl,  or  might  not  be  as  he  said  ;  anil  in 
they  were  the  same  as  if  the  man 
o  rnof  of  Westminster- hall  would 
William  Scat  and  his  fellows.  Be- 
ords  lakcu  by  themselves  have  no 
\  bit  1  inspiD*  it  niH  b«  alloffeil 


tinrii 


-MB  scoi.  a  ciiiei 
'Ui^'i  jnstices,  t 
'Um  wottid  do  b) 
■W  Ibe  king,  & 


A.  O.  I75S. 

tliat  most  of  Ihe  great  things  whicb  judges  do 
OS  judges,  are  such  asouKbt  neither  lo  be  done, 
nor  Idl  undone  by  ibe  king's  commaodiuent. 
Where  then  was  the  offence?  The  tccord,  I 
think,  shews  that  in  the  following  words : 
"  prsteltu  ciijus  Dom.Rex  erga Curiam  el  Ja»- 
*'  tic.  siios  habere  (losset  indignationem."  See, 
"  Ideo  dictus  Johannes  cominiililur,"  dec.  It 
Uobserrable,  that  the  sulhor  of  Ibis  letter  was 
Bn  altorney  of  the  Court,  >ud  by  the  coiilenia 
lliereof  he  presumes  to  undertake  for  the  beha- 
viour of  the  judges  in  some  great  innttersthst 
concerned  llieir  office.  Tlie  letter  was  ad- 
dressed to  a  person  who  was  of  the  king's 
conocil,  and  luighl  possibly  cnmmunicalelDe 
conleols  of  such  a  iMIer  to  the  king  ;  the  coD- 
Bequence  of  which  might  naturally  lie,  ihst 
*'  Dam.  Rex  habere  posset  indignaiionvm  erg* 
"  Curiam,"  ice.  far  great  things  were  some- 
times done,  in  those  days,  by  iho  king 's  com-' 
■uandnient ;  and  the  judges,  besides,  held  their 
posts  at  will  and  pleasurt-, 

llii!  uorits  "  quEe  liters  cominetin  se  nnllam 
veritslcm,"  were  ihcrelaia  proper  for  the 
Judges  to  insert,  in  order  lo  acquit  ibeotselvei 
t(i  the  king ;  but  they  are  no  roore  the  groDad 
of  the  judgment  Ibon  these  other  wurils,  "  ooi 
est  de  Concilia  Regis  ;"  both  being  only  ic 
dental  clauses  thai  come  i~  '     ~  "  ' 


iiiILun 


by  way  of  descrip- 

Quia  htera  prKdicIa 

•— '■     After  all,  1 

of  the  case, 

pots  merely  upon  my 


would  not  hare 

plain  and  nalural  as  it     ,  ,  _,     , 

awn  credit ;  for  I  Ehall  shew  that  this 
was  so  uodiffiiood  by  one  of  the  greatest  law- 
yers of  his  lime,  before  lord  (.'oke's  3d  Inst. 
appeared  in  the  notjd. 

SI  Jsc.  B.  ft.  Tanfield  v.  HJroD.  Godbolt 
405, 0. 

The  plaintilF  broughl  an  action  upon  Ibe 
case  agatiisl  the  defendant,  for  delivering  of  b 
Ecandnious  writing  lo  the  prince,  &c.  Noy  for 
the  plaintiff  cited,  16  Kd.  3,  a  bnter  was  sent 
lo  Ferrers  one  of  the  king's  council,  the  elfect 
of  which  was,  that  Scot  chief-Justice,  Bnd  bis 
companions  of  the  same  bench,  would  not  do  a 
vain  thine  ai  Ihe  command  of  the  king;  yet 
because  be  sent  such  a  letter  to  Ibe  king's 
council,  allboiigh  be  spnkeno  ill,  yet  because  it 
might  incense  the  king  against  the  judges,  be 
was  punished.  If  no  ill  was  said,  will  it  be 
pretended  that  the  falshood  of  what  was  said 
could  be  a  reason  for  nunisliing  a  man  f  Is  it 
not  ridiculous  to  say,  that  the  falshood  of  inno- 
cent or  iosignificini  words  can  be  cTirainal  F 
This  booh,  iberefore,  Ibllows  the  record  of 
Northampton's  case,  andsays,  because  it  might 
incense  the  king  against  tlie  judges,  he  was 
punished  ;  which  is  almost  a  translation  of 
'  proHexlu  cujns,'  &o.  which  was  the  grouoit  of 
the  Judgment,  '  Ideo  com mittilur.' 

The  next  case  which  the  barrisier  called  to 
his  aid,  is  that  of  the  t^ven  Bislions.*  And 
here  he  relies  on  a  flourish  of  oocoftiie  counsel 
for  tho  bisliops,  and  a  dubious  cxprmion  of 


735] 


9  GEORGE  XL 


Trial  of  John  Pder  Zengeff 


[73 


one  of  the  judges,  teparited  from  tberest  of 
bis  discourse. 

SSir  llobert  Sawyer,  it  is  tnie,  says,  f*  Jlolh 
the  foiuiy  of  it  (the  libel)  and  that  it  was  oiali- 
cious  and  seditious,  are  all  mattf^rs  of  fact, 
which  they  (the  kinsf's  counsel)  have  offered  to 
the  jury  no  proof  of,**  &c.  This,  I  must  con- 
fess, proves  one  point  to  which  the  Imri-tster 
adduced  it,  viz.  that  he  was  not  the  first  who 
insisted  that  to  make  a  writinfif  a  libel,  it  must 
he  fake.  And  when  I  have  allowed  this,  I 
may  almost  venture  to  cay,  it  is  the  only  point 
he  does  prove  from  the  l>e^inningf  tn  the  endings 
of  bis  lony^  elaborate  speech. — ^Let  me,  however, 
oppose  to  this  the  reply  of  sir  Thomas  Powis, 
in  these  words :  **  Whether  a  libel  be  true  or 
not,  as  to  the  matter  of  fact ;  was  it  ever  yet 
permitted  in  any  court  of  justice  to  be  made  a 
i|uestion,  whether  the  party  be  punishable  fur 
it  ?  And  therelbre  I  wonder  to  hear  these  gen- 
tlemen say,  that  because  it  is  not  a  false  one, 
therefore  it  is  not  a  libel."    Fol.  382. 

Mr.  Justice  Powei  also  does  sa^,  that  to 
make  it  a  libel,  it  must  l>e  false  ;  it  must  be 
malicious;  and  it  must  tend  tose<Iition.  U|)on 
which  words  of  this  learned  and  worthy  judi^e, 
I  would  not  presume  to  offer  any  comment  ex- 
cept that  which  other  words  of  bis  own  afford, 
that  plainly  shew  in  what  sense  he  then  spoke. 
His  subsequent  words  are  these :  **  They,"  the 
bishops  **  tell  his  mnjcsty,  it  is  not  out  of 
averscness  to  pay  all  due  obedience  ;  nor  want 
of  tenderness  to  their  disscntin)^  fellow- sub- 
jects ;  but  because  they  do  conceive  the  thin^r 
that  was  c(>mma:i(!rd  tl;cm,  was  a«rainst  the 
Jaw  of  tlie  laiui.  Tliry  k\\\  they  a|)j)rrhriid 
the  J>(vlaratioi)  is  iliO^a),  because  it  is  founded 
on  u  disnuiisin^'  power.  1  do  not  rcinriiii'.i'r  in 
any  case  in  all  onr  iuw,  tiiatthcio  is  any  such 
power  in  the  kiii.^-;  und  the  case  nuL-^t  turn 
upon  that.  In  klioi:,  if  there  bu  no  such  dispen- 
sing po^vcr  in  the  Uin;jf,  thou  th;it  can  be  no 
libel  which  thoy  presented  to  the  hin'^,  which 
sa^'s  that  the  DiTlaratian  Iwrntr  founded  upon 
such  a  pretended  power,  is  illes^l."  8o  that 
tlie  jud(;('  put  the  whole  upon  tliat  sinq^Ic  point, 
whether  it  be  true  that  the  kin^;-  had  such  a 
dispensinir  power,  or  not ;  whicii  is  a  quesu'on 
of  law,  and  not  of  fact  ;  au;!  arc'irdinjrly  the 
judg-c  appeals  to  his  own  readini^  in  the  law, 
not  to  witMCsses  or  other  teslinioiiv,  for  a  dcci- 
sionof  it.  In  truth,  the  Petition  ci'ihr  lii>hoj)s 
i»  not  capn^'Ic  of  h::\inn^  ialshofd  or  Irnih  ap- 
jilied  to  it  in  any  other  sf^nse,  tnue  hAu'^  no- 
thintr  else  afiirmcd  or  denii'd  in  it.  huliUacthev 
thouj^ht  the}'  could  not  do  A^h^t  was  com- 
manded them,  because  it  was  a^\;!nsi  ihc  law. 
This  was  the  behaviour,  these  were  tho  scnii- 
nienls  of  that  upris^ht  judg^e,  that  £:;ainod  him  so 
mncb  honour  among^  all  ^ood  tuen,  as  the  bar- 
rister takes  notice ;  Lot  any  o|iinion  of  his, 
that  the  contents  of  a  libel  mu^t  be  false  in 
iact,  to  make  it  a  libel ;  as  he  would  unfairly 
insinuate. 

Sir  Samuel  Barnard iston*s  case  is  the  third 
that  is  touched  upon ;  and  here  too  ihe  gentie- 
Aiao  fuuis  Dotbing  that  can  be  strained  to  his 


purpose,  but  tho  defendant'*  eoontel  insistiDi 
on  the  want  of  proof  to  the  malice  and  sedi 
tious  intent  of  the  author.  He  seems  to  ha? 
forcfot  tliat  the  same  {gentleman  insisted  also  I 
have  it  proved,  that  the  defendant  was  a  pena 
of  a  turbulent  and  un<fuiet  spirit,  because  thn 
words  were  set  forth  m  the  information  ;  an 
be  takes  no  Misuner  of  notice  how  all  this  wi 
answered,  which  1  must  now  do  for  biro,  in  th 
words  of  the  Court :  **  Certiinly  the  law  sup 
plies  the  prciof,  if  the  tbinpp  itself  speaks  roabe 
and  sedition.  As  it  is  in  murder ;  we  say  ij 
ways  in  the  indictment,  be  did  it  by  tiie  inli 
fl^atwn  of  the  devil :  can  the  jurv,  if  tbey  fin 
the  fact,  find  he  did  it  nctt  by  suck  instigatioa 
No,  that  dues  necessarily  attend  the  very  m 
ture  of  such  an  action  or  tbingf.  Ho  in  iafoi 
maiions  for  offences  of  this  nature,  we  say,  h 
did  it  falsely,  maliciously,  and  aeditiouslj 
wliieb  are  the  formal  words  ;  but  if  tbe  natim 
of  tbe  tbin{f  be  such  as  necessarily  impom  ma 
lice,  reproach  and  scandal  to  tbe  govemmeol 
1  here  needs  no  proof  but  of  the  fiict  done ;  tki 
.  law  supplies  tbe  rest.'*  How  shall  any  mi 
prove  another  person's  malice,  which  is  i 
thinfif  that  lies  only  in  a  nnan's  mind  ?  Hon 
should  any  man  know  Chat  I  am  malidoH 
aifsiust  the  gfovernment,  but  by  my  actions  i 
These  words,  inileed,  were  pronounced  by  Ihi 
chief  justice  Jefleries,who  was  then  themoadi 
of  the  Court ;  but  tlioofrb  be  was  really  an  is* 
teuijierate  iudipe,  (or  a  monster,  as  thebanislcr, 
in  his  bar-lan(f uage,  deli|;bts  to  call  bim)  yet  I 
may  safely  n^er  it  to  all  men  ol^  law,  wbetta 
these  words  could  have  discreilited  the  b«l 
month  that  ever  spoke  upon  that  bench. 

Au  instance  of  this  soii  may  not  be  imperti- 
nent, u  here  a  chief  justice  (wh(»  was  no  moB- 
stor)  addres-seshimself  to  a  jury,  that  was  trying 
a  libel  in  this  manner :  '^  I  will  not  repeat  tba 
]»articulars  to  you,  oidy  somethinjir  to  what  tbe 
defendant  has  said,  that  you  may  not  lie  milled. 
He  says,  it  does  not  appear  that  he  did  it  mali- 
ciuusly  or  knowingly.  There  are  some  ihioc!! 
that  yuu  that  are  of  tiie  jury  are  not  toeipect 
evidence  for,  which  ii  is  imposKiblc  to  kino^ 
hut  hy  the  act  itself.  I^ialice  is  conceived  in 
the  heart;  no  man  knows  it,  unless  he  dedsrei 
it :  as  in  murder,  I  have  malicv  to  a  mau  ;  no 
uiao  knows  it.  ]  meet  this  man  and  kill  biin; 
the  law  calls  this  malice.  If  a  man  spetk 
scandalous  words  against  a  man  in  bis  calling 
or  trade,  he  lays  his  action,  malice  ;  thoiHfh  he 
cannot  prove  it  but  by  the  words  themselves; 
you  Uiay  see,  there  is  malice  supposed  to  i 
private  person  in  that  slander,  much  nnofeti 
the  king  and  the  slate." 

Tutchiu's  case,  the  barrister  docs  not  proper 
ly  cite,  hut  endeavours  to  answer  as  a  caa 
ur^^ed  against  him  by  the  kind's  counsel;  ad 
therefore  I  shall  observe  upon  it  in  aiiotbe 
place. 

Bui  the  case  of  cases  is  still  behind,  whid 
liP  reserved  lor  cIm>  last,  to  make  the  point  cleare 
on  his  side,  than  all  the  rest  put  tofifether  couli 
do.  It  is  Puller's  case.  And  it  deserves  no 
lice,  that  although  Fuller  was  charged  with  writ 


757] 


for  a  Litcl. 


A.  D.  irs5. 


[738 


3 


ir^ 


lag'  a  libel,  yet  that  was  not  the  firist  of  the  iii- 
formatioo.  He  was,  in  truth,  pi-osecutcfl  for 
lieiugf  a  cheat  and  impostor,  liy  order  of  the 
House  ef  Lords,  as  tlie  king's  counsel  declare 
in  the  opening. 

The    iDforinatiou    aoconliii{|;ly    sets    forth, 

«  That  W.  F.  intending,'  the  late  kin;^  William 

and  bis  subjects  to  deceive,  and  to  get  several 

Kieat  sums  of  money  fraudulently  and  deceit- 

fsUy  from  the  said  King,  concerning  a  corrcs- 

pSMOicy  between  divers  oflicers  and  subjects 

of  lae  s^id  late  king,  and  the  late  king  James, 

fihely  pretended  to  be  had  ;  did  write  and  print 

■  fibel,  intituled,  Original  Letters,  &c.  with  the 
4ipositioD  of  T.J.  and  T.  F.  esqrs.  proving  the 
eorraption  lately  practisal  in  this  nation  ;  and 
the  said  W.  F.  allerwards  did  publish,  utter, 
md  for  truth  affirm,  the  said  several  false  and 
Mudalous  libels,  without  any  lawful  authority ; 
vbercts  in  truth,  the  said  T.  J.  did  not  depose, 
■poB  bn  oath,  as  is  contained  in  the  said  lulsc 
•nd scandalous  libel;  but  the  said  scaudalous 
fiWs  are  false,  feigned,  and  altogether  contrary 
li  IruUi,  5cc."     Here  it  in  manifest  he  was  ac- 
Mri  of  a  cheat,  in  forging  the  correspondence 
Udtlie  depositions  just  mentioned,  with  a  de- 
till  of  getting  money  by  his  pretended  disco- 
ury.    And  hence  it  comes,  that  the  judge  very 
iroperly  asks  him,  '*  Have  you  any  witnesses? 
If  yoa  lake  upon  you  to  write  such  things  as 
JM  are  charged  with,  it  lies  upon  you  to  prove 
Ikn  true,  at  your  peril.    How  came  ynu  to 
vrita these  books  that  are  not  true.*^     If  you 
britaDy  witnesses,  produce  them."   Tims  said 
lad  thus  did  that  great  man,  lord  chief  justice 
Boh;  but  not  upon  a  trial  of  the  like  kind  with 
Nr.  Zenger's,  as  his  counsel  would    hare   it 
tboaght.     For,  in  this  case,  the  cheat  and  the 
■ijio«iure   was  the  oflence,   which    consisted 
^oliy  in  the  falsity  ;  that  is,  in  aflirming  such 
IkiD^  for  realities,  when  tiicy  were   nought 
bat  Hotions.     On  the  contrary,  had   he  been 
iUe  to  prove  those  letters  and  thoie  depositions 
to  be  authentic,  the  discover y  would  have  been 
^•luable,  and  might  iutille  liini  perhaps  to  fa- 
^ur  and    protection,  instead  of  punishment, 
W«fer  irregular  lie  was  in  taking  such  a  me- 
thod to  publish   matters  of  that  high  consc- 
IJneoce.     After  this,  let  the  learned  barrister, 
in  all  his  rrading,  shew  an  informal iun  or  in- 
dictment for  a  libel,  where  the  falsity  is  assign- 
ed in  form  with  an  ubi  re  tern,  as  ibc  foundu- 
lioa  of  the  offence,  which  is  done  in  ^^dlcr*s 
cue:  and  then  I  ni'l  ackuowlrdge,  that  tlie 
^sntjiins  put  here  by  lord   Holt  would    have 
oMn  proper,  upon  tht;  trial  of  his  client. 

This  is  the  sum  <d'  the  barrister's  law- cases. 
And  IK  it  not  high  time  to  nsk,  vi  hctlier  such 
Ipostsiiiisn'presentations  of  the  bmiks  can  proceed 
fraiD  ignorance  or  dii: ingenuity  :'  He  tliut  as  it 
will,  it  might  certainly  l»o  expected,  thcit  a  jiro- 
ysaiion,  advanced  with  sn  inuc'.i  assurann*,  by 

■  Man  of  years  and  reading,  should  havn  been 
sipported  by  some  one  authority  in  point,  ra- 
ther tbao  by  a  series  of  hiw  pre^aricatiun  and 
qailible.    CJoqld  be  not  find,  in  all  tlio  hook- 

»  and   trials  at  large,   couccrnijfig    libels 
VOL.  XVII. 


(which  are  sufficient  of  themselves  to  make  a 
large  volume,)  one  example  of  pi-oof  bi'iiig  re- 
ceived to  the  truth  or  falsity  uontaiued  in  a 
libellous  writing  ?  Indeed,  there  is  nothing 
like  it  to  be  found  ;  thuugii  the  occasions  have 
been  many,  whore  such  proof  might  lie  had,  if 
it  were  pri>]>er ;  nay,  where  the  truth  of  the 
thing  was  notorious  to  all  men,  and  yet  da 
ffucstion  ever  moved  concerning  it.  This  shall 
fully  appenr  in  the  sequel. 

If  any  thing  can  be  necessary  further  to  ez- 
|iose  Mr.  Hamilton's  doctrine* of  libels,  after 
answering  his  own  cases,  it  is  only  to  subjoin 
some  others,  that  will  shew  how  much  he  is 
mistaken  in  almost  every  thing  lie  has  ofl'ered 
on  the  subject.  I  shall  therefore  mention  a 
very  (tiw,  that  will  bear  a  particular  application 
to  his  crude  notions,  without  entering  into  a 
multitude  of  othera.to  tire  the  reader. 

16  Car.  2,  the  Ring  v.  Pym,  1  Sid.  S19, 
O.K. 

Pym  was  indicted  at  Exeter  for  a  libel,  which 
he  delivered  to  a  parson  to  be  published  iii 
church  there,  and  was  to  this  ed'cct:  *'  Vou 
are  desired  to  bewail  the  sodomitrv,  wicked- 
ness, whoredom,  lewdness,  that  is  oflate  broken 
out  in  this  formerly  well-governed  city ;  that 
God  would  turn  their  hearts  from  committing 
those  wickednesses  which  go  unpunished  by 
the  magistrates."  Pym  confessed  the  indict- 
ment, and  was  fined  100/.  He  afterwards 
brought  a  Writ  of  £)rror,  and  assigned  for 
error,  that  this  was  no  offence,  because  though 
be  says,  go  unpunishe^l  by  the  magistrates; 
yet  he  does  not  say  that  the  magistrates  knew 
of  it,  and  wickedness  unknown  cannot  be  pn- 
nished.  It  was  answered  by  the  Court,  that 
this  contiins  matter  of  great  scandal  to  the  go« 
verument  of  the  city';  for  it  makes  the  lata 
government  better  than  the  present,  &c.  Hide, 
Twisden,  Kcelyng,  Windham,  Just. 

I  have  pitched  upon  this  case,  because  tha 
barrister  is  fond  of  comparing  the  plantations 
to  large  cor|>omtions ;  and  he  will  find  here, 
that  even  those  arc  not  \e\\  to  the  mercy  of 
libeller:?,  although  they  do  not  put  in  a  claim  to 
the  sacred  rights  of  majesty  :  and  that  a  mis- 
behaviour of  this  kind  to  the  magistrates  of  a 
corporation  is  not  entirely  innocent,  because  it 
is  not  to  be  judge*!  of,  or  punished,  as  a  lika 
umlutifulness  would  be  to  our  sovereign. 

This  ruse  was  adjudged  about  four  years 
afW  I  lie  Restoration,  when  the  memory  oY  the 
preceding  usurpation  was  fresh  in  every  body's 
mind.  It  is  strange,  therefore,  Mr.  Pym  did 
not  put  himself  o:i  his  trial  at  Fxeter;  for  it 
was  evident,  iR'Vond  (*(;ntraflietion,tothe  peopla 
of  that  agclVom  tliuir  own  knowledge,  as  it  is 
now  to  us  from  history,  that  tho  wickedness 
sp'.'ci!ie<l  in  the  iibil  wa**  restrained  by  a  stricter 
hand  before,  than  alter  the  Restoration.  Rut 
this  notorious  trulii,  it  seems,  did  not  avail  Mr. 
Pym. 

13'i  Car.  2,  the  King  v.  Saunders.  Hayro. 
201.  M.  R. 

Information  for  writing  a  Rcandalnni  libel  to 
H.  Rich,  who  was  iodebtctl  to  him,  and  kep| 

3li 


739} 


9  GEOBGE  II. 


Trial  ffJohn  Peter  ZengeTf 


{7«) 


biin  out  of  his  money  tliree  years  by  ohtainioqf 
a  protection,  and  at  length  getting  into  the  pri- 
son ol'the  Kln(|;'8-beuch.  SaiintUrs  wrote  him 
a  letter,  wherein  he  tells  hiiu,  That  if  he  had 
any  honesty,  civility,  sobriety,  or  humanity,  he 
would  not  deal  so  by  him  ;  and  that  he  would 
one  day  be  damned,  and  be  in  hell  ibr  his 
cheating ;  and  cited  neveral  places  of  Scripture 
to  make  good  his  allegations.  The  defendant 
was  found  guilty,  and  moved  in  arrest  of  judg- 
ment, that  the  substance  of  the  letter  is  not 
scandalous,  but  impertinent  and  insignificant, 
fo.  Cur.  The  tetier  is  provocative,  and  tends 
to  the  incensing  Mr.  Rich  to  break  the  peace. 
The  Court  adjudged  the  letter  scandalous,  and 
fined  him  40  marks.  Keelyng,  Twisdcn, 
Aainsford,  Moreton,  Just. 

I  ivould  intreat  the  clea^ sighted  barrister  to 
look  cai-efuliv  into4lie  words  of  this  libel,  and 
try  if  \w  can  discover  any  truth  or  falsbood  in 
them  that  was  capable  of  proof.  And  I  must 
remark  upon  both  these  cases,  that  though 
they  were  adjudged  in  the  reign  of  king 
Charles  ^,  yet  neither  of  them  was  upon  a 
state -prosrcuiion,  or  at  a  time  when  the  spirit 
pf  \Aoia  and  factions  had  infected  the  courts 
o^*  jtijticp ;  but  they  remain  unquestionable 
authoriiies  at  this  day. 

The  citfic  of  Tutchin  is  strong  against  him  ; 
a  case  arljiulgcd  since  the  Revolution,  befure 
that  learned  and  upright  judirc  sir  John  Holt, 
and  plainly  shews  the  fallacy  that  runs 
throughout  his  whole  argument. 

The  paints  insisted  on  by  this  chief  jiistirr, 
in  his  cliar«^e  to  the  jury,  wen?  these :  *'  To 
say  that  I'.oiriipt  ofHctiS  arc  appointed  to  ud- 
minister  ullriirs,  is  ceiluinly  a  rctlectuin  on  the 
goveiiiinciit.  If  people  should  not  be  called 
to  an  arcoiint  ior  possossiii^f  the  people  with 
an  ill  opinion  <»f  the  QfovcinuKhi,  no  govcrii- 
mont  ( an  subsist  :  Novv  you  ai\  (t>  coiisidef, 
wliethtT  tlu  sc  wokIs  I  have  read  to  vtui  do 
not  tend  to  begot  an  ill  oiiiiiion  of  thu  admi* 
liistration  of  tlic  govcriiiiiciit ;  to  tell  us,  that 
those  that  are  empioycil  know  nothing  of  the 
matter,  and  those  that  do  know  are  iiot  rni- 
ploycd.  I^Ien  are  not  adapted  to  oftiocs,  but 
offices  to  men,  out  of  a  )  articular  reiCiv.-d  to 
their  interest,  and  not  to  tUtir  fitness  for  the 
places.  Tins  is  the  purport  of  these  papers." 
If  tills  was  the  purport  of  the  papers,  and  so 
criminal  as  hatii  been  jnsl  said,  it  is  amazing 
sui^^ly,  tliat  !Mr.  Tutchin  did  n«>t  ofl'cr  to  prove 
the  truth  of  these  nllcLfntions,  and  thereby 
take  out  their  stini;  !  (-onUl  not  he  possibly 
think  ot'  as  many  corrupt  or  incompetent 
oHicei*s,  rccU>sia!«tical,  civil,  or  uiililary  in 
Kngland,  preferred  by  interest  rather  than 
meiit,  as  there  were  jud<xes  (!iK)ilared  and 
courts  erictcvl  in  New- York?   Or   if  lie  wa.s 


Tutchin's  trial,  it  was  the  My  Mriml  witbiii 
the  memory  of  man,  or  the  roaoi  of  Ustorji 
that  wasted  the  like. 

But  the  misfortune  was,  the  poor  man  wm 
not  blessed  with  Fuch  skilful  connsel  as  is  ts 
be  had  in  Philaddphia,  to  think  of  these  floodf 
things  for  him  ;  •  otherwise  you  miglit  'navo 
heaitl  an  alert  advocate  (atler  retaroing  thanks 
to  his  kn-dship  for  nothing)  address  himself  ts 
the  jury  in  this  or  the  like  eloquent  straio : 
*'  Then,  gcotlemsn  of  the  jury,  it  is  to  you  wt 
roust  appeal  for  witnesses  to  the  truth  of  ths 
facts  we  have  offered,  and   are  denied  tbs 
libert}' to  prove:  the  law  supposes  you  to  be 
summoned  out  of  tiie  neighbourhood  when 
the  fact  is  alleged  to  be  committed ;  and  the 
reason  of  your  being  taken  out  of  the  ndgk- 
bourhood  is,  because  vou  am  supposed  to  have 
the  best  knowle<lge  of  the  fact  that  is  to  be 
tried.     And  were  you  to  find  a  verdict  agaisit 
my  client,  you  must  take  upon  you  to  ssy, 
the  papers  referred  to  in  the  iofbrroatioii,  sod 
which  are  proved  to  be  written  and  publiibed 
by  us,  are  false,  scandalous,  and  seditisof. 
You  are  citizens  of  London,  honest  and  lawftl 
men,  and  the  facts  which  we  ofler  to  profe 
were  not  committed  in  a  comer ;  they  are  ne- 
toriously  known  to  be  true.     And  as  we 


denied  the  liberty  of  giving  evidence  to  pnfs 
the  truth  of  what  we  have  published,  I  vill 
beg  leave  to  lay  it  down  as  a  standing  mie  m 
such  cases,  that  the  suppressing  of  evidesce 
ought  always  to  be  taken  for  the  strongest  eii- 
dcnce;  and  1  hope  it  will  have  that  weight 
with  you.  Lay  your  hands  upon  your  hearts, 
gentlemen,  and  recollect :  do  none  of  }ou 
know,  nay,  do  not  all  of  you  know,  certaiii 
persons,  wlio  sliall  tic  nameless,  that  have  beeu 
lately  promoted,  by  favour  and  interest,  \a 
places  of  trust  and  proiit,  Iiolh  in  church  aud 
Slate,  army  and  navy,  whom  you  must  knotr 
and  believe  in  your  consciences,  to  be  ill  nieo, 
and  no  way  qualitied  for  such  preferment ;  ii 
tnv  sanrncious  client  li'\s  most  seasousblv  rt;- 
monslrated  to  the  neiirli-ours.  by  virtue  of  tint 
right  which  every  free- born  sidijcct  hatb  of 
publishing  his  coinpIiMiils,  when  the  matterf 
so  published  can  bo  supported  with  truth  f** 
Hut  is  lord  Holt  asleep  all  this  time?  C«d 
any  reasonable  man,  who  has  hut  common  no- 
tions of  judicature,  ininc^inc  that  this  £rreat 
judge  would  suiler  such  trash  as  this  to  be 
thrown  out  iu  any  court  where  he  sat  injud;;- 
ment?  Hut  what  must  he  have  said,  if  tlie 
libeller  bi'fore  him  had  oU'eied  to  prove,  that 
the  law  itself  was  at  an  end  ;  that  trials  I*/ 
j lilies  were  taken  away  Mheii  a  minii»ter 
pleased ;  that  no  man  eonll  call  any  thing 
his  own,  or  cni<iv  any  lilnrtv,  longer  thuo 
those  in  the  adininistratiMi  uouM  condescmu 


restrained,  by  the  hard-Iftaricd  jinl'^'-e,  fi«»m  |  to  h:t  him  do  it?  Would  l»c  have  saiil,  that 
dispi^rtins:  him^clt  in  this  pltasant  and  s^arifMi^  j  then.'  tliins;s  ('id  not  tend  to  ]H)ss€ss  the  people 
field,  rouM  he  not  apply  to  the  pviv^'tf  kuovv-  j  with  en  ill  opinion  of  the  government;  and 
ledge  which  the  jurors  (as  wrll  as  ilie  r(  m^  of  ;  t!i  U  ;:ovrrnuienis  might  well  subsist,  thocgb 
nankiu.'l)  had  of  these  inattfrsi*  I'or  I  inK>-  !  men  rliould  not  he  called  to  an  account  for 
/rine  it  will  be  allowed,  that  if  uo  in^taiiees  uf  :  ptiblishiog  the  like?  Or  would  he  have  fsid, 
iiu'g  Mort    could   be  shewn  at    the    time  of  I  it  waai  no  matter  what  opioiua  the  people  bad 

9  \ 


9!tQ 


fiif  tf  ZaM* 


A.  D.  I735L 


£»« 


4if  tkm  gmmmmnuU  iwr  whether  it  tobMitAd 

•r  Boiy  puftfided  UiMe  uwrtkms  werA  true ; 

and  so  hkve  diaeharged  the  man  m  a  puUisher 

«f  Mcioiia  and  utrifoi  tratbt|  ta   put  the 

■MhbfHwd  on  their  guard  ? 

Ml  hcra  alto  tiM  barrieter  laye  hold  of  a 

qnettiooa  pot  by  one  of  the  kiog'e 

tf9  Mr.  Mootafipue,  who  was  for  the 

and  was  tbra  touohtng^  upon  the 

of  the  Bar  J :  8aith  the  tbrmer.  Will 

ly  thej  are  true  ?    Now  the  latter  had 

I  mm  much  as  that  thece  thiofifs  were  true ; 

Mdid  it  with  that  cautioa  which  a  maa  of 

dUB  uses,  when  he  would  say  somethiof  in 

^iporl  of  a  lamia  cause,  but  don't  care  to  press 

m  ■apropriety  too  far.    For  that  learned  gen- 

waa  very  sensible,  that  if  he  had  pre- 

to  insist  expressly  on  the  truth  of  the 

I  oontaiaed   in   his  client's  papers,  a 

reprimand  was  the  best  tiling  that  could 

befallen    him.    Hi*  words  are  these : 

**MMNly  can  aay,  that  we  never  had  any  mis- 

■■igtBieotr  in  the  royal  navy ;  and  when- 

4v  that  has  happened ;   the  merchants  of 

Mrind,  in  all  probability,  have  suffered  for 

ii"^Biit  does  the  judge,  In  bis  charge  to  the 

^rp,  v4Mcbsafe  to  give  this  matter  any  answer, 

•laiMieh  as  to  mention  h?  Lord  Holt  did 

Mtasoaliy  pass  by  material  things,  that  were 

sflmdin  defence  of  persons  tried  before  him ; 

yily  in  this  case,  he  makes  no  question  or 

■rifle  about  the  truth  or  falshood  of  Tutcbin's 

MM^  although  they  coutaioed  many  thinsfs 

vhieh  his   lordship,    the  jury,  and  all   tlie 

VvUluiew  to  be  ****.    This  candid  jwlge, 

Vnifer,  putt  the  merits  of  tlie  whole  upon 

tht  waadal  of  the  government,  and  the  evil 

IttiHey  of  such  writings.    And  therefore  1 

Mrtsnce  more  call  u|K>n  the  northern  barrister 

1|  ihew  a  single  in^ftance,  where   witnenses 

kMebecn  produced  by  counsel,  and  admitted 

W^the  Court  to  prove  the  truth  of  a  libel. 

Whsa  he  does  this,  it   v»ill  deserve  consi- 

^natkra ;  but  till  then,  he  may  talk  by  the 

hiar  without  auy  meaning. 

1  could  mention  some  cases  of  a  more  mo- 
dnn  date,  that  have  been  adjudged  in  West- 
tiismiii  hall,  when  this  wild  doctrine  was  not 
unseh  as  thoocrht  of,  and  when  it  would  not 
Ws-been  altogetner  useless,  had  it  been  prac- 
tiedils;  but  I  have  chose  to  mention  such 
illy  ss  are  reported,  that  the  books  may  speak 
ftr  Ihemaelves,  and  judge  between  us. 

Bai  this  lawyer  aeems  to  be  above  having^ 
b  points  of  law  decided  by  the  authorities 
tf  loe  law ;  and  has  something  in  reserve, 
vUsk  may  serve  to  overthrow  not  only  what 
tps  been  offeretl  in  this  paper,  but  even  all  the 
liaks  of  the  law.  This  is  what  he  calls  the 
iHMa-of  the  thing;  but  is  truly  and  properiy 
ajketeh  of  his  own  politics ;  which  leads  me 
lishew,  that  the  true  reason  of  the  thing  here 
Ipeea  with  the  law,  and  consequently  both 
ftaae  are  agaiqst  this  expert  master  of  law 


TIm  reasoD'  of  the  thing,  as  well  as  it  can 
h^MysoMlfMil  a  heap  of  particulan  haddled 


together  wittloat  order  and  method,  may  be 
reduced  to  the  tliree  Ibllowing  heada : 

1.  The  form  of  an  information  for  a  hfada 
and  the  necessity  of  knowing  the  truth  or 
ftilshood  of  its  contents,  in  order  to  direct  the 
judges  in  awarding  arbitrary  punishment. 

S.  The  right  every  man  hath  of  publishing 
his  complaints,  when  the  matters  so  published 
can  be  aupporled  with  truths 

3.  The  necessity  there  is  of  using  this  ritrhty 
in  the  plantations  especially,  by  reason  of  itss 
difficulty  of  obtaining  redress  against  evil  go- 
vernors oy  any  other  means. 

1.  It  will  not  be  improper  to  premise,  under 
the  first  bead,. that  a  gentleman  of  tiie  1(^, 
who  takes  upon  him  to  |ironounce  so  magiste- 
rially as  the  northern  barrister  has  done  con- 
cerning libels,  ought  to  have  considered-  well 
the  nature  and  eitent  of  his  subject,  ft  might 
be  expected,  that  be  is  not  unknowinff  in:  any 
part  of  learning  necessary  to  (ix  his- idea  of  a  kw 
oel ;  and  yet&e  present  case  would  appear  to 
be  quite'  diiesent.  This  learned  gentleman 
might  have  informed  himself,  by  reaittni*  some 
of  the'ancieut  laws  bcture  the  Conquest,  that 
when  the  fUsity  of  virulent  writings  and 
s|)eeches  was  taken  into  the  description  of  the 
crime,  there  was  a  specific  penalty  annexed, 
via.  Gutting  out  the  offender's  tongue,  Lamhi 
Sax.  Laws.  But- this  Severity  seems  to  have 
fallen  into  disuse  under  the  Norman  kings;  and 
accordingly  Bracton,  who  wrote  in  the  reign  of 
Henry  3,  gives  a  description  of  these  offences, 
as  they  were  understood  in  his  days,  wherein 
fiibity  ia  neither  expressed  nor  implied.  These 
are  hia  words :  **  Fit  autem  injuria,  non  solum 
mm  quia  pngno  percun-sus  fuerit,  verberatus^ 
vtilneratua,  vel  fustibus  ciesus ;  veruni  cum  el 
Convitiuni  dictum  fuerit,  vel  de  eo  factum  Car- 
men famosum  et  hujnsmodi,"  fol.  155.  in- 
deed, here  is  no  mention  of  libels  against  the 
king,  or  the  state ;  the  reason  of  wlijcli  seems 
plainly- to  be,  that  offences  of  this  sort  were  con- 
sidered as  a  species  of  treason,  not  only  Jn  that 
age,  but  in  several  ages  after,  notwithstanding 
the  statute  25  £d.  3,  antl  though  they  have  by 
happy  degrees  dwindled  into  misdemeanours, 
yet  nobody,  except  the  barrister,  will  say  they 
are  come  to  have  a  greater  indulgence  from  tha 
law,  than  the  like  offences  a^inst  private  per- 
sons. How  far,  therefore,  Bracton^s  accepter 
tion  of  a  lil>el  liaa  prevailed  ever  since,  must  be 
submitted  upon  what  has  been  offered  in  the 
preceding  (lart  of  the  Remarks. 

Here  the  barrister  throws  in  a  shrewd  ques- 
tion, arising  from  the  form  of  the  ioformationt 
which  charges  the  libel  to  be  false :  This  word 
*  false,'  says  he,  must  have  some  meaninj^, 
else  how  came  it  there?  1  hope  Mr.  Attorney 
will  not  say  he  put  it  there  by  chance;  and,  C 
am  of  opinion,  his  information  would  not  be 
good  vritbout  it.  By  way  of  answer  to  this,  i 
must  take  leave  to  put  a  question  or  two  in  the 
same  strain.  Suppose  a  man  brings  an  actioD 
of  trespass  for  violating  his  wife,  and  ii"  *aiily 
sets  forth  the  truth  of  the  case,  viz.  That  the 
defendant,  by  amorous  addrenes,  Ul 


¥\1i3] 


9  GEORGE  II. 


Trial  nfJJin  Peter  Zenger, 


•enU,  <l!i;c.<)icl  gain  the  content  of  the  pisinliff's 
wife,  anil  B I  leaglh  debauched  her:  I  would 
uk,  nlicther  aa  BCtioD  of  tresjiaM  thus  laiil  can 
be  su|>|wrteil  i"  I  fancy  not ;  nnd  yet  thin  is  a 
.marc  just  account  of  llie  mailer,  than  when  ri 
tt  armii,  (iz.  sffnrde,  Etat es,  knitei,  fte,  are 
introdaced  as  iiistriiments  of  invBiling  Ihia 
lender  jiArt  of  our  nFii;hbnur'i  prn|ierty .  tSnp- 
pose  further,  a  man  kills  aoolher,  whOTii  lie 
nerer  mw  or  heard  of  before,  anil  lie  if  oceuseil 
of  mirderiu^  him  ornulice  fore-lhout^hl,  how 
eaaic  inch  words  to  be  (lut  into  bd  indlciuient 
for  a  lat't  so  circuaiitanceil  ?  Tliey  must  hare 
•ome  tnca]]iti|{ ;  surely  thpy  are  not  |>iil  thers  ' 
by  chance  :  aud,  I  ani  of  oiiinion,  the  indict- 
nent  would  not  be  good  without  them  ?  Why, 
there  \%  this  short  answer  to  be  given  to  all 
these  c hi] ilisb  rjueations:  Ihereare  many  words 
used  in  pleadings  of  most  kinds,  snmclioies  for 
ftggTtTations,  Bumetimes  for  com  pre  hens  Inn, 
unea  in  compliancy  with  anciMit  usage,  which 
>are  not  trarer»alile,  and  many  times  arc  incspn- 
blc  of  proof.  The  Ibrm  of  indictnKnls  and  in- 
formations follows  the  nature  of  the  fiicl,  and 
■els  it  out  in  its  worst  dre«s  ;  and  if  the  lacl  is 
made  appear  to  be  unlawful,  all  the  hard  names 
ve  supplied  by  implication  of  law. 

This  II  not  all,  quoth  the  counsellor;  "  It  is 
said,  Ihal  truth  makm  a  libel  the  more  ptoTok- 
ing:  well,  let  us  agree  for  once,  that  truth  is  a 
greater  sin  than  faleehood  ;  yet,  as  the  oRence* 
ure  not  ei]ual,  and  as  the  punishment  is  arbi- 
trary, is  It  not  absolutely  necessnry  that  .they 
tliould  know  whether  the  libel  is  Ime  or  false, 
that  they  may  hy  that  means  be  able  to  propor- 
tion the  ppuiabmeut  P  For  would  it  not  he  a  aad 
case,  if  the  judges,  for  want  of  B  due  informa- 
tion, slioiihl  chance  to  give  as  severe  a  judg- 
ment sKBinst  a  man  for  nriling  or  publishing  a 
lie,  as  tor  writing  or  publishing  atrulh  ?"  Now 
is  it  not  a  sad  case,  that  be  should  want  to  he 
told,  that  human  laws  dou'i  strictly  regard  the 
moral  prsiity  of  actions,  but  their  tendency  to 
hurt  the  community,  whose  peace  and  safely 
are  their  principal  objects ;  so  that  hy  tins 
Btandanl  only  are  punishments  racBsured  ?  If 
litis  vrofounil  sophistar  is  of  ouolher  opinion, 
Ut  him    giye   a  reason  why  it   should  be  a 

g'Mtcr  crime  in  our  law  fur  a  man  to  counter- 
it  a  ailrar  Bliilliug,  than  to  cut  bis  fatlier'a 
Utrual. 

%.  Tlie  right  of  renionstraling  or  publishing 
just  cum  plain  Is,  the  barrister  thinks  the  right 
of  all  freemen  ;  and  to  think  I,  (iroiided  such 
reinonslrnnceE  and  comptaints  arc  made  in  a 
lawful  way.  But  when  becomes  to  explain, 
it  it  not  a  court  of  justice,  it  is  not  a  house  of 
reprcMiildiiies,  it  i*  not  a  legislature  (hat  is  to 
he  troubled  (as  he  phraaes  it]  with  these  tilings. 
Who  then,  I  pray,  is  to  be  trouhted  with  them ; 
for  the  king,  it  seems,  is  out  of  the  question  ? 
Ijct  the  barrister  speak  for  himself:  They  have 
•  ri^lit,  (says  he)  puhlicly  to  i-emoostrale 
against  the  kbuses  ul  power  in  the  sirong^ct 
terms,  to  put  their  neighbours  upon  their  guard, 
tec.  and  in  another  place,  bespeaks  of  it  as  a 
kardship,  If  a  iuaii  nuiu  be  taken  up  as  a  ti- 


l»ell(T,far  telling  hissufferings  to  bit  w 
Ni>w.  ihough  I  wish  anil  hope,  as  eai~ 
he  can  du,  that  a  free  tieu|de  may  n< 
tbe  meaiisuf  ulteringthrir jiiBlcomplsti 
of   redressing  their  wrongs  too,  whea  | 
comptaintsarennl  tieani ;  yet  latwavsl' 
these  things  were  better  uixlerstood  tli 
pressed  in  a  couil  of  law ;  and  I  sball  m 
remain  in  that  opinion,  till  the  leamee , 
msD  can  produce  something  from  the  « 
or  statute  law  to  shew,  that  a  British  > 
haso  right  of  apjwBling  puMicly  to  hi* If 
bours(tbBt  is,  to  the  cidlective  Mily  of^ 
pie)  when  he  is  injured  in  his  person,  rig 
possessions.     When  t  am  assured  tliatM 
do  this,  I  promise  him  I  shall  n 
voyage  to  that  country,  where  liberty  Is  «l><fl 
underelood,  and  so  freely  enjoyed,  that  I 
receive  the  important  discovery  from  Ih'~ 
instructive  moulh. 

I  know  the  law-books  assert  the  r 
complaining  to  the  msgistraiea  and  ci 
josiice,  to  tbe  pnrlianieni,  to  the  king  hin 
butiriebt  of  complaioiiig  to  the  neiglibn 
what  has  not  occurred  to  me.      Alter  ^ 
would  not  be  ihouehl  loderogate,  by  anylk 
I  have  said,  or  shall  say,  from  ihnt  noblepi' 
l<>ge  of  a  free  people,  the  liberty  of  the  pi 
1  think  it  the  bulwark  of  all  other  lih«rty,l 
the  surest  defence  agninsl  tyranny  and  0(  ~  ~ 
sion.     But  siill  it  isa  ttio-edgedw"   ~ 
ble  of  cnltiug  Imlh  ways,  and  is  not 
be  trusted  in  the  hands  of  every  dtsoon 
fiiol,  or  designing  knave.      Men  of  veiM 
address  (wlio  alone  deserve  puUie  Mm 
will  ever  be  able  to  convey  proper  ideatlt 
people,  in  a  time  of  danger,  witliollt  rM 
vcnniti'r  to  all  order  and  decency,  or  eryttlffi 
and  murder  through  the  streets,  if  Iheycur 
to  awake  from  a  Irigbtful  dream.     Bat  I  d._, 
ogniu  urge,  that  these  points  are  nal  ftt  lo  Ij 
discuEsed  in  a  court  of  Justice,  whose  julWiM 
lion  is  cii'cumacribed  by  positive  aod  kwn 
laws.     Besides,  they  tske  place  properly  il  ll 
sovereign  state,  which  has  no  superioroiiclr<k| 
and  where  an  injured  jHraple  can  eipeot  M  r^ 
lief,  but  from  on  appeal  to  henveo,     Tbtt  icffl 
from  being  the  case  of  colonies ;  and  tbereM 
1  come  to  sbew,  under  the  third  haad)  ibal  tt) 
bariister'i  reason  of  thelbin^  is  MoifaerthM 
reason  inverted,  which   possibly  m»y  htlptH 
projects  of  a  demagogue  in  America,  but  Hi 
oeter  be  reconciled  to  ihe  sentiments  of  a  law 
yer,  or  tbe  principles  of  a  patriot,  oottsidendt 
a  subject  of  (ireat  Britain. 

3.  1  bate  bitherto  been  taught  lo  bdinv 
that  when  a  brave  a od  free  people  havenMtl 
ed  to  ufcasiires  unautboriwd  by  the  ordinaf 
course  of  the  laws,  such  messiires  have  bea 
justitied  by  tbe  extraordinary  necessity  of  tl 
case,  which  excluded  all  oilier  means  of  i< 
dresi :  and,  as  far  as  I  undcretaud  the  cobmI 
tution,  and  have  heard  accounts  of  the  Britii 
coloiiieii,  such  a  case  cannot  well  tiappcii,  afl 
has  never  yet  huppcnrd  among  Ihem.  Bl 
here  ibe  bairister  is  ready  lo  uk,  how  muM  « 
bdiave  nlicn  we  are  oppicsMd  by  a  gottnm 


W- 


fir  o  Lilil. 


A.  D.  17S5. 


'"f'V  where  llio  courts  of  lutr  are  said 
'  r'i.L'rci(e  |inwer  over  Ins  [lerMii,  aiiil 
: .  preseDtatifcs  of  the  penple  are.  hy 
,  niai1eaccom[dicesnVbisiui<|uityf 
i[  L-Hu't  he  a  new  discoTEry  to  tell 
yr  llial  BB  Ibe  gotemor  is  a  creature 
crown,  so  the  moiit  natural  and  easy 
1  lu  lutik  up  to  Hie  hand  iliai  iDadehim. 
itiiagiiie  il  niav  he  aftinnml  (without 
I  .\n  occasion  nrofTering  jneeuaetoma- 
.11  ITuiie hair dI' the  tacts  contuni'd  !□ 
'■■  iiiipera,  and  vuucheil  for  true  by  his 
.  U:iil  been  fairly  repreaenled  anil  proved 
:,  Air.  Cushy  iTould  nut  hare  eonilniied 
ingcr  in  hia  tp>*ernnieDl  ;  and  then  the 
of  >ew  York  laiglit  hate  applied  to  itself 
JBMTiplian  of  tlie  %o\A  hox,  ■■  Demerae  \r,  ■ 
'libaiftKltA  liberlaa  hcec  lanilem  enierpunt," 
»I«proririety  and  securily, than  could 
be  denveil  Trom  the  inifetuaUB  ha- 
of  Bny  lawyer  whatsoever.  1  am  the 
miboldened  to  aay  thus  much,  became 
It  il  tny  lot  to  dwell  iu  a  colony  \»here 
'lU  not  nl  nay  a  been  well  underttood,  at 
freely  enjoyed,  yet  I  haveknownago- 
brwlghl  |u  juBlice,  within  ihcae'lail  90 
_  ,irha  waa  not  only  supported  hy  acoiincil 
rHMmbly,  besides  a  nunieroUB  party  here, 
'  kIm  by  powerl'ol  friciidn  Ht  hocae ;  all 
Ufa  adTDIilBgea  were  notable  to  screen  liim 
noMre,  ili»)^ce,  and  a  removal  IVoiu 
IMI  be  had  abused. 

■  not  always  necessary,  thai  particular 
Ulhoold  leare  (heir  affairs  and  families 
_ja  fitantatinns  to  prosecute  a  ;;ovcrnoi'  in 
r«UHini>ler-hal1,   iiiilesa   their   fortunes 


in  private  injuries,  inasmuch  as  he  can't  Und 
bb  account  in  any  thing  le«  than  what  is  of  a 
jKoml  and  ;>iiblic  nature.  Atid  when  ibis  is 
Ike  rue,  I  hi>|ie  nnne  of  our  colonies  are,  even 
at  ibis  time,  to  destitute,  but  that  they  can 
Had  the  menns  of  inHking  a  regular  apphcnlion 
(n  their  aiivereign,  either  in  person,  or  in  his 
««arl«  al  WcstniiDslcr,  as  tlieir  case  may  le- 

Hul  the  wild  inconfislenry  thai  shines 
throii-,'h  most  parts  of  ibis  ornlnr's  speei^h,  is 
pecubarl y  glarmg  in  tbit  pan  of  it  now  before 
me.  The  remedy  which  he  sHya  our  cmiitilu- 
lion  pit-criliea,  for  curing  or  j.rcrenting  ihe 

■titEaM-fi  uf  an  eril  aiinti lustration  f"  *'■ '" 

Bin.  1  ihatt  give  in  bip  own  words 
out  livvn  otien  seen  (and  I  ho|ie  it  will  always 
t>e  nfTn)  ibtit  when  Ihe  repreaenlatives  of  a  free 
pcMplf  Mr,  by  just  repreaeittalinns  or  rcnion- 
■Iraiici'",  iitsde  sensibleor the sulferingaaf  their 
Iclliuv-F'iibjfeta,  by  the  abiine  of  power  in  the 
Imii'U  t>r  a  governor,  they  have  rWlared  (nnd 
loudly  tuoi  thai  Ibey  vrere  not  obliged  by  any 
|«w  U>  Mipport  a  gotemor,  who  goes  about  t» 
dt*<Ti>y  apinvlnce  or  colony,"  Stc.  Onewnuli" 
Itoa^te,  al  flnl  sight,  tbnt  Itiia  man  had  th< 
aamo  nniiim,  witli  the  mt  nf  mankind,  of  just 
rvfHiacnlatinna  and  remunslrances  to  Ihe 
fN««tt«liv«a  of  a  free  people,  which  has 


1 

I  in  form  :     I 


understood  to  be  by  n 
dress,  directed  nnd  nresentcif  to  ijirni  ii 

'hicb  case  it  is  Impeit  thnt  lliey,  being 
moved  by  the  comptuinrs  of  the  pciiple,  will 
stretch  fori h  their  ariDS  tn  help  Ihem.  Dul, 
alas !  we  are  all  mistaken  ;  for  he  tells  us,  in 
the  same  breath,  that  the  ritfhl  way  is  by  tell- 
ing our  Bulferingstoour  npighl>oun  ingOKetles 
aud  newspapers ;    for  Ihe  re  present  allies  are 

10  lie  troubled  with  every  injury  dnne  by  ai 
governor ;  besides,  ihey  are  samctimn  in  llie 
plot  wilh  the  governor,  anil  the  injured  parly 
"    have  no  redress  from  their  hands ;  so  that 

JirsI  complaint  (instead  of  the  Inst  resort) 

It  be  to  the  neighbours,  and  so  cniiie  about 
to  the  rejirrsentatjves  through  that  channel. 
Now  I  would  be  very  glad  to  know,  what  the 
tiifhbours  can  do  toward;!  effecting  the  desired 
rclnrinalion.  that  will  be  attended  with  so  gnuj 
succcts,  anil  so  few  ill  conseiiuences,  as  a  re- 
gular a|>plication  to  Ids  mnjcsly  would  be.  It 
would  be  pleasant,  duublless,  to  bear  this  poli- 
tician nprak  out  and  esplaiii  himielf  al  large 
upon  this  auhject.  I  coufess  il  surpasses  my 
comprehenriun  to  canceive  what  the  neigh- 
bours, inspired  with  weekly  revelations  IruDi 
the  city  journalist,  can  du  with  their  governor 
and  assembly,  unless  it  he  to  reform  ihem  hy 
those  pcrEuasivc  arguments  which  the  nin/Or 
rii  neier  wanui  good  store  of.  If  ihis  be  tbe 
pattiol's  meaning,  his  woriU  may  iMuwiUy  be 
understood  ;  hut  without  this  meaning  tbey  are 
mere  jargon. 

In  a  word,  I  shall  agree  with  lite  barrister 
(and  so  lake  my  leare  of  him),  that  the  liberty 
of  exposiug  and  opposing  nrbitrary  power  ra 
the  right  of  a  free  people ;  and  he  ought,  at 
same  lime,  tn  admit,  llist  the  order  of 
things,  and  the  peace  of  aociely,  require  that 
extraurdinary  meant  should  not  lie  used  Ibrllila 
purpose,  till  the  ordinary  have  fnilcd  in  tbe 
experiment.  The  supreme  roagislrnle  of  an 
'  idependent  kingdom  or  slate,  cannot  always 
e  contrauled  by  the  o'ne,  and  then  Ihe  other  ia 
justitied  by  that  coaiidera lion.  But  in  colonics 
that  are  from  their  creation  subordinate  to  their 
mother' country,  there  Is  no  person  who  is  not 
conlroulable  by  regular  and  well-known  me- 
thods of  proceeding ;  and  consequently  there 
can  be  no  absnlule  occejuily  of  flying  to  enlre- 
inities,  at  least  in  the  tirst  instance.  From  all 
which,  I  conceive,  it  follows,  that  locJ  consi- 
derations, upon  which  the  genllemsn  lays  so 
great  stress,  conclude  direcily  Kgnln^i  him; 
uiid  1  hupe  Ihe  security  which  ihe  Hrilith  inn- 
slitutiun  ifTordu  ID  every  mnn's  person,  pro- 
jwrly,  nnd  reputation,  as  well  as  to  Ihe  public 
tranqaillilv,  n  uol  leMered  hy  any  distance 
from  t lie  fountain  ofpoMer  and  jiiaiice  ;  but 
that  a  libel  is  a  litiel,  and  punishable  as  such  iu 
America,  ai  well  n*  in  Horoiie. 

I  SID  aenmhle,  there  ii  a  freedom  nf  cxpret. 
sinn  uiipil  in  llirse  pngivre,  of  which  I  shtmM 
disappnive  in  the  common  caiies  of  fontrorersT ; 
hut  1  fuund  mysplf  under  a  new««ity  of  shriv- 
ing no  rtMpr-ct  III  the  perlnrmniice  under  cnna)- 
delUiun,  iiultM  1  were  to  forfeit  the  litilotf 


747]  9  GEORGE  11. 

mi«:1it  lie  due  to  the  Kciiiarkn.  For  tboufi^h  « 
jHwver  is  free,  nay  obliged  by  llie  duty  of  bis 
piYiK-sttion,  to  make  the  most  of  the  cause  be 
«8|iouN«iK,  (bis  real  seiiiimeuts  liein^  su8{»eDded 
for  tliat  time,  by  reason  of  the  bia.Hs  under  which 
lie  acts)  yet  when  be  draws  his  private  opioioii 
into  the  debate,  and  interests  his  passious  in 
the  success  of  it,  he  then  departs  from  bis  cha- 
racter, aud  bucouics  a  party,  rather  than  an  ad- 
vocate. In  short,  there  is  an  air  of  self-suffi- 
ciency and  oinfidcnce  mixed  with  tlie  whole 
lump,  cnouf^h  to  |;f ive  a  disrelish  eveu  to  good 
sense  aud  good  law  ;  but  is  nauseous,  beyond 
all  bearing,  when  neatlier  of  these  is  found. 
Among  lawyers,  1  was  sure  this  lawyer  de- 
Bcrvetl  no  answer ;  and  yet  an  answer  scciueil 
iiidlsponsable,  not  only  'or  the  reawns  given  at 
luy  scttinsf  out,  but  afso  in  order  to  savu  many 
well-meaning  pcoplu  from  reverencing  a  piece 
of  bnflToonery,  tliut  had  been  thrust  into  tlie 
world  with  so  much  florid  conceit,  and  a  gold 
box  tagged  to  the  end  of  it:  n  piece,  wherein 
the  whole  roinmon- place  of  popular  declama- 
tion (equally  adapted  to  all  popular  occasiou*) 
is  exhausicu,  aud  the  Holy  SoTiptures  brought 
in  to  season  his  jokes.  But  as  tiiis  last  seems 
designed  only  for  a  sally  of  wit  and  humour,  I 
shall  not  oifc-r  to  detract  tViim  its  merit ;  con- 
siilcring  too,  U  had  so  happy  an  effect  as  to  set 
the  good  people  a  laugtking,  when  tbey  heard 
the  Word  of  God  ini):»t  iii^^eiiiou^ly  iiurlesque4l 
hi   a   ('hrUtian  e\>uvt:    a  piece   that    hardly 


Trial  oJJxihn  Peter  Zenger^ 


n« 


fession  supposes  tbem  ministen  •£  jmiioe; 
nnd  when  this  too  shall  be  dtgniticd  with  a^ 
plause,  and  made  highly  mcriiorious ;  1  coft* 
ceive  neiiher  ((ood- nature,  nor  the  sojemniiy  4 
public  seals,  should  rcstiaiu  an  honest  pen  ftga 
exphidiiig  the  practice,  in  order  as  wol  to  mi 
the  progress  of  its  evil  eflects,  as  to  ^ercatthi 
like  attempts  for  the  future. 

Virtue  and  merit,  it  is  most  certain,  ought  li 
be  encouraged,  especially  by  all  in  sotboiity; 
but  when  that  which  is  luerely  counterfeit  lull 
gain  esteem,  stand  in  the  room  of  what  is  tmAf 
genuine,  and  be  actually  loadetl  witli  the  rewirdii 
thereof,  it  does  not  only  frimtratc  the  origiBil 
intffntion  of  such  rewards,  but  likewise  giia 
oounteiiaiice  to  the  impostor,  and  furnish  Um 
with  still  further  means  of  vending  his  fidsi 
wares,  in  prejudice  of  the  public.  Now  tbii^ 
with  all  due  submission,  I  take  to  he  the  cm6 
of  the  (Jurpuratiou  in  North  America,  with  re- 
gard to  the  honours  they  were  lately  pleased  ti 
confer  on  a  noted  barrister  in  those  parts,  for 
his  sujipased  services  in  the  aiTuir  of  Zcnger  tbe 
printer,  wbosu  trial  has  been  so  plentifully  dii- 

JK'rsed  here,  and  in  other  places.  Aggregate 
todies,  we  find,  may  be  mistakf^n,  and  tM 
often  are,  as  well  as  private  men ;  and  whea 
they  do  err,  it  is  of  the  more  dangerous  collI^ 
qoence,  on  account  of  the  extent  of  their  (lowtf 
and  ioHuPucv*.  The  province  in  general  of 
New  York,  or  (he  city  in  particular,  might,  for 
aught  J  know,  have  sufficient  cause  of  coui- 
plaint,  insoiiio  re^jiects,  against  their  then  com- 
inaudcr  in  chief,  and  his  administration  ;  bat 


shews  tlieuuihor  to  have  been  serious  wbeu  he 

proiionnced  it,  or  his  wise  licnefactors  when 

they  rewarded  him  ;    but  that  his  solv'ma  pro-  i  it  is  to  be  considered,  that  as  there  never  wai 

fessions  of  princiirle  and  duty  cbuipel  a  chari-  •  uhe  absoluiely  free  from  iaults,  so  it  is  the 

'  great  privik-jj^e  of  the  inhabitants  %i\^  evtry  Bri- 
;  ti>h    government-,   that  a   proper  ciiaund  is 


table  luiml  to  suspect  his  kntiwledge  rather 
than  his  sineiriiy ;  and  citi/eus  are  ever 
tlioupnt  !o  be  in  rarn;>!it.  uhen  they  part  uith 
th«  ir  ^«iKl  .uii!  s!iv:w  :ht;ir  Ie.iriiin^. 

Sir,  I   vtij^ht   to  ui^ike  an  apoluL:  v  to  you  for 
tre>j»assi'.^  so  hmg  upon  \our  |-.iii(.iice.  i\hieh 


ehuiked  out,  in  all  such  events,  and  a  nay 
I  oiK-ii  \\-r  relKi'.  Tbe  method,  therefore,  whicii 
,  the  coDMiiuiien  preicril)es  ought  to  be  strictly 

pursued;  and  any  iiUgal  di'vialion  is  not  only 


iiii;:iii  ha^eheen  hrtlei*  ein;ilo\  ( d  ;  hut  I  (hitter  .  i:ieonbi»;eiU.  a.ul  unjustiliabie  in  itself,  but  bas 
in)'Mifuiih  the  hopes  oilin\iiig  some  iiiio^tance  besiuc^.a  leitilHuey  to  introdiice  mischiefs  more 
iimde  for  an  houist,  thoni:!i  \uak  ai:enipt  t(»  j  to  be  dre-.tud  even  than  those  that  were  sought 

i  to  be  rodiirssid.     It  is  the  law  which  must  be 

thestp.iiJaiil  of  ri^htauil  wrc:ig  ;  and  whoever 

■  has  recourso  to  any  other  nid,  or  knowingly 

adiisrs  tiieriio,  in  the  case  of  i>articuiar  griev- 

I  ances,  cannot  act  on  a  true  pruiciple  of  public 

j  spiiit,  hut  inuat  be   inilueueird  \t\   unworthy 

•  iiiutives,  and  is  always  Uior^.'  or  le&a  an  enemy 

to  tiie  community,  aceorilinir  lo  his  situation, 

and  in  proportion  !o  the  talents  he  iiap|»ens  to 


re.scue  tlie   pnit'e>sion  of  lae  lavv,  and   the  in 
li.re.st of  \\\\ t'ul lihi  rty  fr(tni  the  dio;;rat:e  thrown 
upon  both  in  (Me  of  our  siitw'r>coleoiis.     'fliis 
is  the  trntli,  and  let  it  be  my  ewus.'.     I  am 

}OUrS,  <!^C.  A.NOLO-A:iLlUCAM:>. 


Lett r. IX  II. 


Sir;   It  must  be  moiiit'ying,  n»  doubt,  to  a  •  po<ise<s.     If  Jlr.  Zenpjer  then  will  avowedly 
ersoa  ^tho  hr.s  received' peeuiiar  marks  of-  publish  s^  Jitious  libels  against  the  go  vernmeot 

under  whieii  he  ]ive$,  and  his  counsel  will  otfer 
to  support  him  by  ariiiices  unbecoming  tbo 
Ion,;  robe,  and  advancini;  pr<  positions  mani- 
fest I  v  contrary  to  law  ;  as  the  t'cmcr  deserves 
1 )  be  punished  bv  it,  so  the  latter,  i  humbly 
presume  to  say.  what-  ^cr  he  may  claim  from 
itamc  time  the  juJ;::uent  oi  thosr  whose  vut-  ^  hi»  client,  oitj^ht  not  to  he  paid  his  wages  by 
fra;;c  had  btH'nioui  uuHoi-thily  obtained,  liut  :  a:)y  set  of  men  who  o.ve  their  being  to  tho 
when  the  lan*s  are  openly  |Hi-verted,  and  courts  ■  law.  and  cuunot  exist  wiihout  it. 
of  justice,  with  au  air  of  gravity,  drolled  oni  j  liui  I  shall  not  5cru])le  to  aeknowle-lge  bcre^ 
of  tUcir  tfstalhisUcd  iulc8|  by  svch  nbose  |uo-  j  «ud  1  do  it  on  no  superficial  obKrratioD,  that 


public  approbation,  to  he  tehl,  that  the  very  :>ct 
Wiiich  proeured  it  wa-s  m>  f.u-  iVom  bein\j  ro:ii- 
nu ndahle,  that  it  rea!i\  deserved  a  severe  ewu- 
siire  ;  and  oiu»  would  the  rather  decline  such 
an  oilav.  Lou  j(istsi>c\ir  the  occasion,  because 
it  caiuiot  be  d,)ne  without  cendinuuincT  at  the 


Jor  a  Lihc!» 

11^1  be  a  more  pemiciom  rrcntur^,  in  a 
loion}',  than  that  of  a  practitioncT  of  iha 
th  much  a^turaiire,  little  knowledge, 
norals ;  a  charucter  not  unheard  of  in 
an  one  of  his  majesty's  plantations,  and 
^'et  i  would  by  no  means  apply  to  Mr. 
11,  any  otherwise  than  may  appear  to 
from  the  perfonnanco  he  has,  it  seems, 
•  much  pains  to  publish  to  the  world, 
cious  llemarks  already  made  upon  it  by 
Lmericanus,  will  lianlly  leave  room  for 
ig  to  be  added  that  is  very  mateiial ; 
-ikort  J  shall  content  myselt  with  a  few 
;s  only,  and  mnke  some  cursory  reflec- 
?reon,  whilst  they  afford  me  an  oppor- 
f  bearinj;^  my  testimony  also  aj^inst 
think  the  most  indecent  heha?iour  at 
it  may  not  be  called  thcbfddest  outragfe, 
r  was  exhibited  from  the  bar,  without  a 
chastisement. 

iver  has  enquireil  into  the  doctrine  of 
id  tiie  reasou  of  their  punishment,  wiH 
,  that  thoy  take  their  degrees  as  they 
rifate  persons,  particular  magistrates, 
limed  aj2fain«t  the  government  itself; 
lay  vent  tire  to  say,  that  no  lawyer  of 
m  will  deny  but  what  is  set  forth  in  the 
lion  against  John  Peter  Zen&^er  tvas  of 
kind,  and  that  too  conceived  in  the 
(erm^f,  such  as  will  not  admit  of  a  dif- 
onstructiun,  or  of  any  other  meanin>; 
lat  la  put  upon  them  by  the  prosecutor 
Town.  Now  J  am  sensible,  tliat  ^eat 
;es  are,  with  gf>of1  reason,  made  to 
in  the  Ik  at  of  arn^uuient,  and  when  sup- 
be  ui)i<nut(*d  with  a  laudable  zeal  for 
nits.  Nor  has  it  been  usucl  to  correct 
r  every  harsh  and  hasty  expression, 
I  ihf  V  kcqi  within  bounds,  and  stick  to 
ell  is  their  duty,  without  runnin;^  into 
that  hu\e  no  reiittion  to  tlie  issuo,  and 
lirly  s<  rve  the sidi* ilir y  espouse.  Yet, 
rd  chancellor  N(*lli:ijrham  orcusionaliy 
iin>el  siiould  not  speak  as  if  they  would 
t^uilt  (d' their  clitnts  rather  than  ad- 
nr  their  innoccncy.  And  since  your 
s  cui  H'spondL^t  fias  clearly  evinced, 
truth  of  a  libel  cannot  be  frivcn  in  cvi- 
liat  It  IS  no  juhtitication,  uu  the  general 
id  consetpirMilly  do  pi.'-|)er  deCeiiceto  a 
)f  that  nature  (if  ail  which  Mr.  Ilamil- 
J  not.  or  ou»hi  not  to  have  btrn  i^no- 
is  worthy  of  ronsidcMatidn  whether  he 
involve  huiisilt  in  his  clitut's  crime, 
rake  of  hi'j  ;^iiih,  by  declaring  in  the 
t)lic  rnanurr,  that  the  facts  publi.^hed  in 
i-papeiH,  and  contained  in  the  inCorma- 
"Q  true ;  and  offcrini^  to  (.rove  them  to 
orea  rotirt,  \^ni('h  had  rm  power  to  re- 
e  grievances  cuuphkined  of,  4  Co.  14. 

arthnlomew  Shower,  I  rrmenibcr,  in 
meut  in  the  cam;  of  the  kin*^  against 

ei  uL  assent!,  that  *•'  in  nil  cases  of 
la  to  a  court,  ')i>  presontrnent  is  neces- 

not  Ri»  urncli  as  to  convict ;  for  if  (tone 
e  Cur  id,  a  re<*oid  may  be  mada  of  it, 


A.  D.  1735.  [750 

and  a  pnnisbment  jndiciaTly  in-fllcted,  and  that 
executed  immediately.*'  Show.  Rep.  110. 
And  a<^reeuble  hereto,  we  find,  that  in  a  late 
case  of  the  king*  apiinst  Thorog^ood,  Trin.  9 
Geo.  jirimi,  the  defendant  having  made  an  affi- 
davit \u  C.  B.  and  appearing  on  summons,  con<- 
fessed  that  he  made  it,  and  that  it  was  false  ; 
wheieupon  tiie  Court  recorded  his  confesKion, 
and  ordered  that  he  should  be  taken  into  cus- 
tody and  stand  in  the  pillory,  &c.  which  was 
executed  accordingly  the  lust  day  of  the  term. 
Mod.  Ca.  in  Law  &  £q.  179,  180.  This  is  the 
more  remarkable,  because  it  was  in  the  Court 
of  Common-Pleas,  which  has  ordinarily  do 
jurisdiction  in  criminal  cases. — May  it  not 
from  hence  be  inferred  ^I  hint  it  with  vl  due 
sating  to  all  the  just  privilege  of  the  barj  that' 
the  Court  at  New- York  might  well  have  re- 
corded some  of  the  most  seditious  expressions  in 
BIr.  Hamilton's  rhapsody,  and  committed  him 
for  the  same,  &c.  ?  If  they  had^  1  doubt  the 
blame  most  have  centered  m  himself,  and  bit 
own  conduct;  of  which  therefore  he  might 
then  haf  e  had  leisure  to  repent,  as  well  at  of 
his  long  journey  to  so  ill  a  purpose. 

But  it  will  not  be  amiss,  perhaps,  for  ex- 
ample sake,  to  give  an  instance  ot  what  has 
been  done  on  the  like  occasion  iuth  that  before 
us ;  and  to  this  end  I  shall  citie  a  case  in  the 
Court  of  King*s-bench,  many  years  afW  that 
of  the  Star  Chambt;r  was  at  an  end, and  which, 
in  the  words  of  sir  Thomas  Raymond,  was  as 
fidloweth :  **  Memorandum,  June  18,  1680, 
iMr.  Nathaniel  Reading  having  been  convicted 
(before  justices  of  Oy^r  and  Terminer  by  virtue 
of  a  special  c  minussion  (for  endeaTouring  to 
persuade  liedlow,  who  was  a  witness  against 
the  noblemen  imprisor.ed  in  the  Tower  of  Lon- 
don, to  forbear  his  prosecution  of  them ;  and 
he  the  said  Mr.  Reading  having  had  judgment 
executed  upon  him,  by  being  set  in  the  pillory, 
and  fined  1,000/.  and  imprisoned  for  the  same, 
but  his  fine  since  pardoned  by  the  king,  came 
this  day  into  court,  and  demanded  that  an  io* 
formation,  which  he  there  brought  in  his  hand, 
might  be  received  by  Mr.  Astrey  against  the 
commissioners  who  condemned  him,  of  whicb 
my  brother  Jones  and  brother  Dolben  were  two, 
and  that  the  information  might  be  filed.  .  Rut 
the  C'ourt  did  declare,  that  he  was  in  the  wrong 
way  to  exhibit  any  information  in  this  manner, 
and  did  cause  his  words,  u hereby  he  did  accuse 
the  two  judges  of  oppression,  to  be  recorded  ; 
and  for  iliese  words,  and  for  that  he  was  in- 
famoqs  by  having  been  on  the  pillory,  the  gen- 
tlemen at  ilie  bar  did  pray  that  his  i,own  might 
be  pulled  over  his  ear*, "he  having  been  for- 
merly a  practiser  at  the  bar,  whiih  was  or- 
dered and  executed  in  court ;  antl  he  was  also 
condemned  in  court  to  pay  the  king  tiOOL  and 
to  lie  in  prison  till  he  paiti  it,**  Raym.  Rpp.  370. 
The  trial  of  this  gcntleinan  referred  to  here, 
may  be  seen  in  thi»  State  Trials,  on  which  occa- 
sioii  the  lord  chief- justice  North  made  a  speech 
aci^ravntiug  the  detcudai  t'f  offence  as  he  was  a 
ri)iii:svl,  one  who  ought  to  be  a  man  of  know- 
Ird-^e,  and  a  mioikter  of  justice  to  assist  the 


\ 


751] 


9  GEORGE  II. 


Trial  of  John  Pder  Zenger, 


[75 


Court  wherein  be  pleaded.  He  said,  he  thought 
the  Court  ought  to  shew  a  more  than  ordioary 
severity  ai^aiost  such  an  ooe ;  and  that  it  is  a 
|rreat  credit  and  benefit  to  the  profession,  that 
the  mem  hers  of  it  for  such  offences  should  be 
dealt  with  more  severely  than  we  should  deal 
in  other  cases.  Id.  p.  Sr4,  5.  Far  be  it  from 
tne  to  make  any  invidiuns  comparison  here  be- 
twixt the  present  practiser  in  Pennsylvania,  and 


the  quondam  one  in  VVestniiuster-hall,  tboui^^h  j  against  by  Zeoger's  counsel,  and  yet  1  neve 


the  king  and  government ;  at.  That  they  migh 
as  well  have  hanged  him  at  Tyburn  as  he  cam 
by,  as  brought  him  thither,  only  to  murdc 
him  with  a  little  more  formality.  For  whicl 
tbeCourt  gave  judgment,  that  he  should  pt; 
a  tine  of  500/.  stand  on  the  piltory  twice,  ao! 
be  of  the  g(MMl  behaviour  for  a  twelvemoutb,' 
Skinner's  Rep.  124.  1  shall  only  observe  tbi 
case  was  on  an  information,  so  much  inveigbe 


they  are  both  celebrated,  the  one  in  the  trial  of 
Mr.  Zenger,  and  the  other  in  his  own.  It  may 
however  be  noted,  that  the  latter  was  said  to  be 
artful  and  affectedly  eloquent,  and  to  have 
strove  to  lead  the  jurlgcs  out  of  the  way,  while 
he  was  told  by  the  chief-justice,  that  his  defence 
•  was  artificial,  Itecause  it  was  nothing  to  the 
purpose ;  and  by  another  of  the  judges,  that 
ne  disgraceil  his  pn>fe$sion  by  making  so  weak 
a  defence.  But  without  adverting  to  any  par- 
ticular beauties  in  the  modern  performance, 
this  is  certain,  that  counsellor  Reading  lost  the 
bar-gown  by  his  art,  and  counsellor  Ilamihon 
got  a  gold-box  of  five  ounces,  with  the4reedom 
of  the  city  of  New- York,  by  his.  A  pregnant 
instance  of  the  capriciousncss  of  fate,  and  of 
the  justness  of  your  late  correspondent's  obser- 
vation at  the  entrance  to  his  excellent  Remarks ! 

The  gentlemen  at  the  bar  (as  indeed  it  might 
well  be  expected  from  their  education,  and  the 
nature  of  their  business)  have  been  remarkable 
for  observing  the  regard  that  is  due  to  all  in 
authority  with  the  utmost  delicacy ;  and  in  re- 
turn have  always  been  used  with  suitable  re<^ 
spect.  But  that  the  lawyer  of  Philadelphia 
may  see  the  courts  of  justice  in  former  ages, 
as  well  as  of  late  years,  did  not  spare  the  un- 
ruly meinbci-s  of  the  profession  any  more  than 
others,  for  much  less  faulty  hrhaviour  than  that 
of  the  leading  counsel  in  ZongerVs  trial,  I  will 
refer  him  to  a  case  uhicli  happened  IVIicli.  13 
Eliz.  Rot.  39,  when  ITcnry  Blaundford,  a 
coimsellor  at  law,  was  cominitted  to  the  Fleet, 
and  finnl,  for  falsely  reportiijjj:  the  O|nnion  of 
the  lord  LeicvstcT  and  secretary  Cecil  with 
these  wonts,  *  JIuinaiium  est  erniro.'  And  that 
even  noblemen  ujet  with  the  like  treatment  on 
such  occasions,  will  nppiar  from  the  case  of 
the  lord  Stourton,  who,  19  Hon.  8,  was  com- 
mitted by  tlic  Court,  and  fined  for  saving  lliese 
words,  **  I  am  sorry  to  see  rhetoric  rule  where 
law  shouhl." 

Before  I  proceed,  I  xvlM  mention  one  case 
more,  piiveiv  lo  s!iew  how  daDjr.Mous  it  is  to 
allbrd  any  unlawiul  helps  to  persons  on  their 
trials  in  erimjual  preKrcutio:i«?,  even  thoiioh  it 
Ik»  niprel y  hy  way  of  privnte  ii)strnctioiis,  when 
such  instructions  ure  to  he  puhlici  v  ui.ide  n<e  of. 
and  i-.npurr  scamhl  to  the.'  covcriiisynt.  It  is 
the  case  "f  tlie  King  n^ain^•t  \i}vva  Smith, 
Wich.  3.>  C:ii.  'J,  in  B.  U.  "  T!:ii  tnm  (says 
the  hook,  \»  Iiirh  Ifjis  the  all>\v:!iice  of  all  the 

i"ndge:»)  Aar<»n  Smith  was  hrou-^hl  into  court, 
>eing  formerly  convict eil  on  a  trial  at  bar,  for 
delivering  to  Stephen  College,  being  upon  his 
trial  at  Oxford  for  high -treason,  a  paper  of  in- 
structions, full  of  scandalous  reflections  upon 


beard  it  censured  at  all,  as  was  that  of  poo 
College,  I  own,  with  too  good  reason. 

It  is  now  time  to  take  notice,  that  there  is 
amidst  a  heap  of  jargon  and  absurdities,  on 
obvious  mistake,  which  runs  throughout  Mi 
Hamilton's  ostentatious  harangue,  and  that  i 
in  relation  to  the  Court  of  Star-chaoaber.  Hi 
would  suggest,  that  because  that  court  wai 
abolished  by  act  of  parUamcut,  on  accooot  o 
some  insufferable  abuses  tliat  bad  crept  into  it 
all  the  cases  that  had  been  adjudged  there,  ot 
informations  for  libels,  were  consequently  of  m 
authority.  Whereas  the  judgments  giva 
there,  in  matters  properly  cognizable  MfoR 
them,  which  libelling  especially  was,  are  tl- 
lowed  to  be  good  law  at  this  day,  and  are  cod« 
stantly  quoted  as  such  in  the  Court  of  King*!- 
bench.  Indeed  it  is  said,  that  the  reason  ol 
disallowing  the  Star- Chamber- Court  was  be- 
cause their  authority  was  before,  and  now  is, 
in  B.  R.  and  consequently  that  court  nnneres- 
sary,  Comb.  36.  So  the  lord  chief  justice  Hdi 
declare<l,  that  B.  R.  possessed  all  the  lawfu 
power  the  Star- Chamber  hod,  Id.  142.  Adc 
that  the  Court  of  Star- Chamber  was  takei 
away,  because  the  crimes  were  puuibhable  here 
5  Mod.  4(3-1,  which  is  likewise  iutimaled  bvth< 
statute  itself.  Now  though  I  am  as  well  sa- 
tisfied |»erhaps  with  the  taking  away  of  tlic 
Court  of  Star- Chamber,  considering  the  occa- 
sion that  had  been  given,  as  our  northern  bar* 
rister  can  possibly  be,  and  should  equally  re- 
joice, I  hope,  at  the  redressing  any  other  public 
grievance ;  yet  I  cannot,  with  him,  condemu 
by  the  lump,  and  argue,  that  because  that 
court  did  sotne  things  aiuiss,  therefore  it  did 
nothing  right.  At  this  rate,  every  court  that 
had,  or  has  a  being,  may  be  in  danger  of  the 
same  epithets  he  loves  *to  bestow  on  that  we 
are  speaking  of  ;  and  it  may  as  well  be  sop- 
pose  J,  that  because  a  certain  set  of  citizciisi 
not  unknown  to  Air.  llamiilon,  lately  did  i 
very  silly  thing,  they  therefore  never  did  awisfl 
one.  For  which  reason  I  presume  it  will  not 
he  altogether  impertiiK-nt  to  produce  the  senti- 
rnents  of  that  oracle  of  the  law,  sir  Edwanl 
Coke,  coneerning  the  Court  of  Sur-Chamber 
**  It  is  (says  he)  the  mo.st  honourable  court 
our  parliament  excepted,  that  is  in  tlie  Chris 
tiiin  world,  both  in  resprr-t  lo  tiie  judges,  and  o 
thei:'  honoorMhle  procmll'.igs  according  to  thei 
just  jurisilietion,  and  the  ancient  and  juf 
orders  of  tlic  Court.  For  the  judges  of  th 
same  arc,  the  grandees  of  the  realm,  the  lor 
chancel !o'.*,  the  lord  treasurer,  the  lord  pretl 
dent  of  the  king's  council,  the  loni  privy  sea 
all  the  lords  spiritual  and  umporali  andnitlia 


753] 


Jur  a  Libel. 


A.  D.  17S5. 


[754 


•r  the  king's  most  Lonourable  priry  coudcII,  | 

aihI  the  principil  judges  of  the  reahn,  and  sucii  ' 

other  lords  of  parliament  as  the  kin^  sbaJI 

name.    And  they  judge  upoB  coDfession,  or 

deposition  of  vritnesscs.    And  the  Court  cannot 

sit  for  hearing  of  causes  under  the  number  of 

eight    at   the  least.     And    it  is    trnly  said, 

"  Curia  Camers  Stellatse  si  vetustatem  spec- 

tenus,  est  antiquissima,  si  dignitatem,  honora- 

tiwoia.*'    This  court,  the  right  intsitution  and 

iKieDt   orders  thereof  being  observed,  doth 

kKp  all  England  in  ouiet."    4th  Inst.  p.  64. 

dafonnable  hereto,  a  late  learned  writer,  who 

na  advanced  to  the  highest  posts  in  the  law 

IB  a  neighbouring  kingdom   to   that  of  our 

aother  country,  and  wherein  he  died,,  has  a 

pragraph,  which  I  believe  will  gire  us  a  truer 

aeeoant  of  the  Court  itself,  and  the  abolishment 

•fit,  than  what  is  to  be  learned  from  our  barris- 

kr*s  s|ieech  at  New  York,  and  therefore  I  will 

JMert  It  here.*    "  The  court  of  S^tar-chamber, 

vbibt  kept  within  due  bounds,  was  certainly  of 

Am  greatest  use  to  preserTc  the  peace  and  se- 

ority  of  the  kingdom  ;  and  perhaps  was  tlie 

Miy  oAort  which  by  its  ordinary  and  proper 

jiradiction,  could  elRectoally  prevent  and  pu- 

■iib  riots,  perjaries,  and  other  misdemeanors  of 

dw  highest  nature.    But  being  made  use  of  by 

Ihe  Court  to  support  proclamations  and  orders 

if  iltte,  and  to  vindicate  illegal  commissions 

ttd  monopolies,  that  extension  of  their  power 

WcMoe  a  grievance  insupportable,  and  the  na- 

lioB  wu  never  easy  till  that  court  was  entirely 

•■ppressed  by  act  of  parliament.    The  House 

^Commons  were  so  eager  in  their  zeal  to  de- 

itey  what  they  called  a  Court  of  Inquisition, 

^though  the  Bill  was  of  to  great  conse- 

qoeoce,  yet  they  sint  it  up  to  the  Lords,  with 

only  once  reading  it,  and  without  its  being  ever 

C'^^itted,  which  was  a  thincf,  perhaps,  never 

^ore  heard  of  in  parliament.*'    Cla.  v.  1. 223. 

I  Deed  only  add  on  this  head,  that  Xho.  crime 

^^libeiling  is  the  same  now  as  it  was  while  tlie 

Court  of  the  Star  Chamber  subsisted,  and  the 

MtQre  of  the  oflence  the  same  then  as  now  ;  a 

^OM!  that  must  necessarily  be  punished  as 

long  as  there  are  states  and  communities  esta- 

Uitbed  in  the  wurld.     And  our  assuming  har- 

fitier  will  not  fiud  an  author  that  treats  of  the 

<^WD  law  since  the  statute  of  10  Cha.  1.  cap. 

lU,  lay  more  than  before,  hut  makes  use  of  the 

Cues  adjudged  in  the  Star  Chamber  generally 

*igood  Uw,  and  of  equal  authority  in  those 

putters  with  such  as  wore  afterwards  adjudged 

IB  the  King's- liench.     Some  indeed  are  justly 

liilile  to  exception  in  the  foriiior,  as  wo  have 

iks  known  too  many  in  the  latter,  particularly 

daring  the  next  succeeding  rc'ifin  of  (3ha.  2, 

Bone  whereof  are,  however,  God  be  praised, 

t9  be  met  with,  or  lieaid  of  since  the  glorious 


A  Discourse  concornin:;  Trca^(>n8  and 
KUa  of  Attainder,  p.  94,  printed  ainio  1716, 
vrate  bjT  Mr.  West,  afterwards  Lord  Chan- 
cellor of  Ireland,  wbo  also  tvrute  an  ingenious 
and  learned  treatise,  entitled,  An  Lupilry  into 
ibe  Manner  of  creating  Peers,  lormtr  £<IU, 
■•~    XVII. 


and  Iiappy  Revolution  in  1688,  which,  I  tmst^ 
has  for  ever  excludeil  all  partiality  and  opprea- 
sion  from  Westminster-hall. 

But  the  learned  lawyer  of  Philadelphia  de- 
clares. That  lie  has  not,  in  all  his  readingf, 
met  with  an  authority  that  says  we  cannot  be 
admitted  to  give  the  truth  in  evidence  upon  an 
information  for  a  libel.  I  don't  know  what 
this  gentleman's  reading  may  be;  but  if  he 
had  read  some  of  the  cases  above- mentioned^ 
which  could  not  well  escape  him,  it  mi^ht  rea- 
sonably have  been  expected  he  would  have 
taken,  warning,  been  a  little  more  cautiout, 
and  not  have  ventured  to  incur  ,the  penalties 
which  others  l>efore  him  had  so  justly  suffered. 
By  all  his  reading,  he  would  insinuate,  I  sup* 
pose,  that  he  had  read  all :  and  if  that  was  true, 
it  might  well  be  thought  he  had  read  to  very 
little  purpose,  who  could  make  so  ill  an  use  of 
it,  or  think  it  a  duty  on  him  to  go  to  the  ut- 
most parts  of  the  land,  to  propa(;ate  doctrinea 
and  principles  diametrically  op|K)site  to,  and 
just  the  reverse  of  what  he  must  have  read. 
We  shall  soon  discover  that  the  barrister's 
reading  is  not  quite  so  extensive  as  he  would 
have  it  imagined.  But  it  is  previously  to  he 
observed,  that  if  there  was  no  such  authority 
in  terminU  as  that  he  calls  for,  a  man  who 
reads  with  any  tolerable  umlerstanding  would 
of  course  infer  the  same  thing,  when  all  the 
books  on  the  subject  of  libels  lay  it  down  as  a 
rule,  which  they  unanimously  do,  that  it  is  not 
material  whether  tlie  libel  be  true  or  false.  For 
if  that  be  not  material,  to  what  end  should  the 
truth  be  offered  ia  evidence?  Or,  how  should 
it  be  rejected  before  it  was  offered,  which  un- 
doubtedly is  the  reason  that  there  have  been 
no  late  instances  of  that  sort.  It  might  suffice 
therefore  to  undertake,  as  often  as  this  well- 
read  lawyer  produced  a  precedent  of  its  being 
demanded  from  tho  bar  to  give  evidence  of  the 
truth  of  a  libel,  to  shew  that  it  was  as  often 
denied  by  the  Court.  And  though  I  admit  it 
has  been  attempted  before,  on  trinU  for  libels  of 
the  less  cndrnious  kinds,  vet  he  is  probably  the 
only  one  that  has  done  it  in  any  case  within 
these  hundred  years.  However,  if  we  would 
find  an  instanrcttf  that  sort,  we  must  necessa- 
rily have  recourse  to  the  proceedingn  of  the 
Court  uhcre  that  crime  was  usually  punished. 
The  Siar-('hamber  Reports  then  may  satisfy 
Mr.  Hamilton,  that  Term  Pasc.  7  Car.  1,  there 
was  the  case  of  Coston,  gent,  v,  Httcham, 
Mil.  Servient,  ad  legfem,  as  follows  :  **  The 
defendant,  the  morning  before  be  went  to  the 
sessions,  being  a  justice  of  the  peace,  received 
scandaliMis  and  libellous  articles  against  the 
plaintitr,  carried  them  to  the  sessions  in  bis 
pocket,  and,  in  open  court,  in  disgrace  of  the 
plaintiff,  pulieil  them  out  and  said,  You  shall 
see  what  u  lewd  iellow  this  is,  and  not  fit  to 
speak  ill  this  place ;  and  then  caused  the  said 
libellous  articles  to  be  read  in  the  public  ses- 
sioiifi.  And  the  plaintiff  then  desiring  a  copy 
of  them,  and  to  be  tried  upon  them,  the  wit- 
n«'sf:es  to  prove  them  being  noted  in  the  mar- 
gin, the  defendant  did  not  suffer  him  to  have  a 


SC 


755] 


9  GEORGE  II. 


Trial  of  John  Peter  Zenger, 


[750 


copy,  or  to  be  tried  thereupon,  Dor  took  any  |  authority  to  my  purpose.    Bat  it  it  report ecf, 

coui-sethat  he  mitrht  at  the  next  sessions,  or  at  '  as  hUotp,  in  sir  Thomas  ]^Iallet*s  31S.  Treatise 

any  time  after   bo  questioned  for  thrm,  but  j  of  the  Courtof  Siar-Chaiitber,  a  copy  wlicreol' 

took  the  articles  a{>;ain  out  of  the  sessions  and  has  fallen  into  my  hands  liy  the  faTour  of  a 

carried  ihem  away.     And  after,  further  to  dis-  friend.     And  since  I  have  naroeil  this  woH.,  I 

grace  thi-  tdaintitf  in   his  practice  (bein^  an  shall,  witli  his  leave,  take  a  paragrapli  out  of 

attorney,)  s-  nt  the  saifl  articles  to  Mr.  Justice  |  it,  which,  I  am  persuaded,  will  not  be  d^tmcd 

Harvey,  at  t!te  reference  of  a  cause  to  him,  ^  unsuitable  to  the  present  debate,  aft ir  Ijiuiu^ 


which  <  i^tiM  attended;  and  a  jury  kavini; 
fifiven  D  v(  itiict  against  the  defendant,  he  sent 
lor  the  juntrs  nnd  questioned  them  about  their 
▼erdict,  iiiui  i-ilii  them  they  were  a  company  of 
fooitt,  an>i  tii.ii  if  there  haid  hceu  itut  one  wise 
man  am'>::<r  ilx-m,  their  verdict  bad  not  been 
BO.  And  (•  r  li:*  se  oAenct  n  ho.  was  commiitf^d 
to  the  V\''.\  '.iu\  fined  QOOl.  In  thia  cause, 
the  defend  i-:t  would  havt  had  witnesses  to 
prove  the  in.vtif-i'  of  the  said  soandalons  articles 
to  be  true,  but  ihnt  wasdisallowidby  the  Court.'' 
Rush.  Col.  vol.  3.  p.  36,  in  Append.  This,  I 
presume,  the  barrister,  when  jie  is  serious,  will 
allow  to  l>e  in  point,  thouf^h  it  happened  not  to 
fall  in  the  way  of  his  reading,  lie  cannot  ob- 
ject, surely,  that  it  does  not  appear  to  be  on  an 
information  prelerrrd  by  tlie  Attorney- General, 
since  it  is  a  much  stroncfer  case  than  if  it  had. 
For  if  the  Court  would  not  receive  such  evi- 
dence in  a  cause  depending:  on  the  complaint 
of  a  petty  solicitor  for  Iwing  lil>elled,  and  this 
too  preferred  acfainst  a  justice  of  peace,  a  knig^ht, 
and  a  seijeant  at  law  ;  a  fortiori,  they  would  . 
never  admit  it  on  an  information  exhibited,  by 
his  majesty's  attorney  gfencral,  agfainst  a  pri- 
Tate  person,  for  libelling  the  tjfovernraent. 

Thtre  was  also,  as  I  hare  learned,  divers 
years  Im  (ore,  viz.- Mich.  2  Jac.  the  case  of 
relcr  iircn-ton, ilerk,  lor  writin'^  a  scandalous 
letter  to  l.oyd,  n'«;isii.r  to  tlic  l»ishop  of  St. 
As«ph,  aiul  sent  to  hiIII^c!^,  who  >> as  therein 
chari^ed  uiiii  bribery  uiid  extortion  in  his  of- 
fice; for  which  libeijons  letter  tin;  dcfendunt 
uas  sentenced,  thenijli,  :js  the  book  has  it,  he 
would  haie  underiiikt  II  to  piovcthe  contents 
of  the  lelicr  to  be  true.  Ileie  then  are  two 
precedents  of  wliat  the  banister  himself  had 


that  the  book  seems  to  he  wrote  in  the  time  uf 
James  1,  when  the  doctrine  now  revived,  and 
so  tenaciously  advanced  by  Mr.  Hamilton,  is 
said  tu  have  been  long  before  exploded  as  a 
^ross  error.     "  There  are,"  says  sir  Thomas, 
**  two  ^ross  errors  crept  into  the  world  cnn- 
cerning  libels ;  the  one,  that  it  is  no  lil'tt  if 
the  party  put  his  hand  unto  it,  and  the  other, 
that  It  is  not  a  libel  if  it  be  true ;  both  which 
have   been  loiii^  since  exploded  out   of  this 
court.     For  the  first,  the  cause  why  the  lav 
punibheth  libels  is,  for  that  they  tend  to  raise 
the  bn*ach  of  the  peace,  which  may  as  well  be 
done,  and  more  easily,  when  the  hand  is  sob- 
scribed,  than  when  it    is   not.    And  for  tba 
other,  it  hath  been  ever  agfreed,  that  it  is  sot 
the  matter  but  the  manner  which  is  panisbable. 
Forlibelhnnr  ap^aiiist  a  common  strumpet  Is  u 
great  an  ofieiice  as  against  an  honest  womaa, 
and  perhaps  more  daugerous  to  the  breach  of 
the  peace ;  for,  as  the  woman  said,  she  sbouM 
never  grieve  to  t>c  told  of  her  red  nose,  if  she 
bad  not  one  hideed.    Neither  is  it  a  grooud 
to  examine  the  truth  or  falshood  of  a  libel,  be- 
cause it  is  sub  JudicCf  whether  it  be  a  libel  cr 
not ;  for  that  takes  away  subjectum  quettionit^ 
and  determiiie<;  it  to  be  no  libel,  by  admitting; 
the  defendant  lo  prove  ilio  truth  ;  and  the  de- 
fendant in   that  c:ise  ctu'y[:\  to  plead  a  jnstifia- 
tion  auil  <lew:nr  in  Irw.     l$iit  if  he  plead  N<'l 
(iuilty,  the  e:i"slit»n  is  pfone,   whether  it  be  a 
hliel  or  not."     Thus,  accordini;'  to  this  author's 
opinion,  who,  if  1  mistake  not,  was  one  of  the 
justices  ol'  the  court  of  Kinji^^'s- bench  in  hii 
time,  Mr.  llnmilton,  could  he  really  hare  per- 
suaded himself  that  the  matters  chargetl  io  ti>e 
information  were  not  libellous,  as   he  iDsi>ts 


never  met  with  all  in  hisreadin;^;  the  one  in  a  !  they  are  not,  would  have  discovered  more  »c- 
case  for  hbeliiny;  u  priictisinjj  attorney,  and  the  curacy  in  his  profession,  as  well  as  cantloiiria 
other  of  ll.e  npister  of  a  bishop's  court ;  but  I  /  his  pi  notice,  by  advisini^  his  client  to  demur  to 
believe  I  in;iy  defy  this  ;>;ent'.enian,  if  he  were  '  it,  whereby  he  would  have  adniilted  no  rpore 
to  read  as  many  inoie  yeais  as  he  has  done,  j  tiitn  Mhat  was  avowed  at  the  trial  on  the  ec- 
to  proiiucc  a  ihinl,  whtie  tlieofl'tnce  under  \  neral  issue.  Then,  indeed,  it  would  have  fairlj 
prosecutiou,  hiiijirof  the  hi'^hcs't  deiiiee,  and 


evelled  at  the  tiovernment,  like  that  f<»r  whirh 
he  was  so  /talous  an  advcate,  the  counsel  f»»r 
the  diftudant  dared  u*  oiler  evidence  of  the 
tivilh  of  it.  On  the  contrary,  if  he  had  dipt 
into  the  lord  chief  justice  Iveelynp's  Keports, 
fol.  <j:>,  (betere  he  left  his  chiir.ihers)  he  woulil 
have  there    found  it    resolve rl    I»v  the  whole 


come  bil'ore  the  C(»urt  to  he  considered  whe- 
ther the  papers  were  lihellons  or  not,  and  hf, 
as  counsel  for  the  defendant,  might  regulatiy 
have  been  heard  to  it. 

lie  would  then  have  been  at  liberty  to  exert 
his  uncommon  t.ilc-nts,  manifest  his  extreor- 
din.?ry  readin;;^  his  superior  genius  and  irrett 
skill  in  lan^fiK^iro,  and  in  explaining;  iJie  trK 


court,  th;it  though  a  couns^.^llMr  ut  law  may  ;  import  of  \7/)rds,  wiihout  so  direcily  fi\in2ril 
plead  his  elicn*'.s  cause  r.u:ainst  ihe  Uin-^,  y«.t,  if  the  f.ico  of  ev(  n  aulliorily,  and  oppti>ipg  all 
uinkr  .  olour  of  that  he  t:ikes  upon  hiui  lo  vent  ■  the  c?..''e«j  that  eVtr  wcrv.  adjudged  concerning 


sedilian,  he  is  to  be  punished. 

It   ib   no  wonder,    iiMhcd,  if  our   barrister 

should  be  unapprized    of  BniTloirs  case,    it 

not  brio;;  (at  UaM  to  u\\  kr.owloih^^)  in  print ; 

and  \ou  perceive  I   was  under  no  Mecesj»i<v  of 

tueutioaiug  it,  be'iug  befoie  provJ'  ^^u 


j  li'jcls,  before  he  was  horn  and  since.  But 
alas  !  that  would  nor  have  answered  the  inten- 
tion of  onr  r)o(|uent  h.irrister.  He  would  uot 
then  have  had  it  in  his  power  to  use  his  arts, 
and  play  his  game  with  a  dozen  honest  mes, 
of  as  good  natural  understaudiiigs,  perhaps 


57] 


JvT  a  LibeU 


A.  D.  17SS. 


[75& 


loti^h  not  of  eqnal  experience  and  cunning 

ith  faimselt*.    If  he  had  (fone  that  way  to 

'ork,  he  would  have  had  no  chance  for  the 

rize.    Vain  had  been  his  expedition,  and  lost, 

Dtirely  lost,  all  his  labour.     In  a  word,  if  the 

larning  and  inteffrity  of  the  bar  only  were  re- 

oired,  he  oaight  as  well  have  staid  at  home, 

rbere,  if  I  am  rightly  informed,  there  are  in- 

kances  in  abundance  of  the  blessed  effects  of 

fr.  Hamilton's  well-known  principles. 

This  sagmcioQS  gentleman  begs  leave  to  ob- 

■rte,  that  informations  for  lil^ls  is  a  child. 

If  Mt  bora,  yet  nursed  up  and  brought  to  full 

Mtority  in  the  Court  of  Star-Chamber:  but 

vhat  is  particularly  to  be  inferred  from  this 

ibrewd  observation,  he  does  not  at  present  tell 

■I.    If  the  Star- Chamber  was  the  Court  where 

ciiaiesof  this  nature  were  generally  punished, 

aeeonling  to  its  ordinary  and  proper  jurisdic- 

lioa,  as  it  certainly  was,  how  should  it  be 

flthowise-  than  that    informations  for  libels 

mit  be  met  with  there  P  And  considering  the 

■liqoitv  of  that  court,  it  is  more  than  pro- 

WUe  the  crime   was    first   prosecuted   and 

pnidicd  in  it.    But  what  then?  Is  the  legi- 

tiuey  of  the  child  (if  I  may  be  allowed  to 

cmy  on  the  metaphor)  therefore  to  be  called 

ii question;  or   its  education   the   less  ho- 

BMnble  ?   I  might  put  our  wittv  barrister  in 

siad,  that  what  I  have  mentioned  is  the  very 

RMOD  why  the  spurious  brat  he  is  so  fond  of^ 

vUch  was  never  brought  to  full  maturity,  nor 

ever  will,  first  appeared  in  the  Htar- Chamber, 

tagb  it  has  not  been  heard  of  since  in  any 

«Wr  court,  till  very  lately,  at  New- York  ;  I 

■nihat  of  making  falshood  to  be  essential  to 

*U,  and  claiming  a  right  to  giire  evidence 

tftke  truth  of  it  by  way  ofjiistincation. 

flemust,  however,  intend  by  the  foregoing 

PiMgr,to  impeach  the  legality  of  informations 

fM  toch    (which  by  some  words  that  drop 

^  bim  many  pages  after,  would  seem  to  be 

*Ut  be  aims  "at),  or  as  they  relate  only  to 

Adi;  and  in  eitner  case  be  will  again  betray 

Iheseantiness  of  his  reading  and  knowledge  in 

^  law.    As  to  informations  in  general,  it  has 

kci  ittcontestibly  proved,  that  this  method  of 

pneeedins  is  no  way  contrariant  to  any  funda- 

jBeotal  rule  of  law,  but  agreeable  to  it.   <*  That 

Avis  the  constant  usage,  and  had  the  appro* 

taion  of  the  judges  and  lawyers  of  all  ages, 

and  in  all  reigns."    Show.  Rep.  106,  to  125. 

M  in  the  case  of  the   inlbrmation  against 

Kventy  poor  persons  for  a  riot  in  pulling  down 

faces,  &c.  2  W.  and  M.  (which  probably  may 

kthe  same)  it  was  said  by  lord  chief  justice 

Bidt,  that  **  the  lord  chief  justice  Hales  com- 

phioed  of  the  abuse  of  informations,  but  not 

tkat  they  were   unlawful;   ihat  he   should 

1st  come  now  and  impeach  the  judgment  of 

iB  his  predecessors ;  that  the  Star  Chamber 

«ii  not  set  up  by  the  statute  of  lien.  7,  but 

Vii  as  common-law,  and  informations  were 

Iteordingly  brought  in  that  court  and  others. 

iadthe  whole  court  were  of  opinion,  that  in- 

ikiiatiuQS  lay  at  common-law."    5  Mod.  463, 

<  Mow  this  I  take  to  be  as  good  ao  authority 


as  the. extrajudicial  opinions  of  those  anony- 
mous great  men  who,  Mr.  Hamilton  snya, 
have  boldly  asserted  that  the  mmle  of  prosecu- 
tion by  information  is  a  national  grievance,  and 
greatly  inconsistent  wiih  the  freedom  which 
the  subjects  of  England  enjoy  in  most  other 
cases ;  nor  can  one  forbear  observing,  tn 
pasiant,  that  he  seems  much  more  disposed, 
where  there  is  no  danger  a(  least,  to  follow  the 
example  of  bold,  than  of  wise  and  judicious 
men. 

This  then  being  a  legal  course  of  proceeding 
in  criminal  cases,  and  for  all  public  offences,  it 
must  undeni^ly  be  as  proper  in  the  case  of 
libels  as  in  any  other.  And  sir  B.  Shower  in 
reckoning  up  the  several  crimes  that  were  cog- 
nisable in  the  court  of  Star-Chainbcr,  includes 
libels  among  the  rest,  for  which  he  says, 
There  were  always  informations  in  the  Star- 
Chamber  and*  King's-bencb.  Show.  119.  I 
am  the  more  free  in  borrowing  what  1  do  from 
that  eminent  practiser,  on  the  subject  of  in- 
formations, because  he  had  studied  it  well,  and 
taken  more  than  usual  pains  therein  ;  and  as 
the  Judgment  aflerwarus  given  by  the  court 
of  King's-bench  was  pursuant  thereto,  so  it 
seems  to  have  put  a  penod  in  VVeslminster-hall 
to  all  cavils  against  that  mode  of  prosecution. 

If  the  barrister  means  notwithstanding  to 
suggest  moreover,  Ihat  informations  for  libels 
are  bot  of  modern  date,  or  little  longer  stand- 
ing than  about  the^  time  of  the  expiration  of 
that  court,  where  he  supposes  they  had  their 
oriifin,  let  him  be  further  refuted  by  the  above- 
mentioned  sir  Thomas  Mallet,  who  wrote  pro- 
fessedly on  the  court  of  Star-Chamber,  and 
may  be  supposed  to  be  pretty  well  acquainted 
with  his  subject :  he  tells  us,  [Treatise  of  the 
court  of  Star-Chamber,  ubi  supra]  that  **  in 
all  ages  libels  have  been  severely  punished  in 
this  court,  but  most  specially  when  they  began 
to  grow  frequent  about  49  anil  43  Eliz.  when 
sir  Edward  Coke  was  her  attorney  general." 
And,  treating  of  the  antiquity  of  that  ciiurt, 
he  makes  it  very  probable  [Id.  1  Part,  4th 
Consid.]  that  it  was  the  most  ancient  of  any 
court  of  justice!  and  the  mother- court  of  the 
kingdom  ;  wherein  he  does  n6i  differ  from  sir 
Edward  himself,  in  his  4ih  Inst.  64,  already 
quoted.  Now  it  was  while  this  consummate 
lawyer,  it  seems,  was  attorney- general  to  the 
.renowned  queen  Eliasabeth,  thai  informations 
for  libels  began  to  be  most  frequent,  or,  in  Mr. 
Hamilton's  elegant  stile,  when  the  child  was 
brought  to  full  maturity  :  and  it  is  readily  sub- 
mitt^  to  all  who  are  versed  in  our  history  and 
constitution,  whether  that  period  will  be  any 
disparagement  to  the  offspring. 

But  if  informations  for  liMs  in  particnlar, 
were  one  of  the  grievances  of  that  court,  nay 
the  chief ,  as  the  barrister  would  labour  to  make 
his  hearerv  believe,  how  came  they  to  be  prac- 
tised after  the  abolishment  of  it  ?  Or  what  will 
he  say  to  the  case  of  the  king  against  Darby, 
which  was  an  information  exhibited  against 
the  defendant,  being  an  attorney  of  the  Com- 
mon-Pleas, for  delamttory  words  obI«  '  '  '~ 


W»] 


OGEOEIGE  n. 


Trial  of  John  Peter  Zengert 


John  Kay,  a  justice  of  peace,  oonoemiD(|r  the 
exercise  oC  his  office  ?  The  words  were,  as  they 
are  set  forth  io  Comb.  65.  '*  Sir  John  Kay  is  a 
buffle- headed  fellow,  (a  pretty  thio^  to  be 
proved  in  court !)  undervtaads  not  law,  and  is 
not  fit  to  discourse  it  withine ;  he  hath  not 
done  justice  to  my  client.'*  There  it  was  arpied 
for  the  defendant  on  a  demurrer,  (and  I  chuse 
to  recite  it  because  of  the  concessions  of  hb 
eonosel,  against  our  northern  advocate,) "  That 
an  information  would  not  lie  for  scandalous 
wordf  spoken  only  of  a  particular  person,  be- 
cause he  miffht  have  an  action  on  the  case  to 
recompence  nim  in  damages. — It  is  true,  such 
a  proceeding  might  be  warranted  for  libels,  or 
for  dispersing  defomatory  letters,  because  by 
auch  means  the  public  peace  might  be  dis- 
turbed, and  discords  fomented  amon^  neigh- 
bours, which  might  at  last  be  a  public  injury : 
but  there  is  no  such  thing  alleged  in  this  case, 
only  words  in  common  discourse,  for  which  an 
action  on  the  case  might  lie,  hut  no  informa- 
tion. On  the  other  side  it  was  insisted,  that 
this  information  was  founded  on  sufficient 
matter,  because  the  prosecution  is  not  only 
as  it  respects  the  person  of  sir  John  Kay,  but 
it  relates  to  him  as  he  is  a  public  magistrate, 
and  who  is  subordinate  to  the  government,  and 
therefore  such  defomatory  words  are  a  reproach 
to  the  supreme  governor,  by  whom  magis- 
trates are  intrusted,  and  from  whom  they  de- 
rive their  antbority  ;  and  it  will  not  be  denied, 
but  that  words  reflecting  on  the  public  go- 
vernment are  punisliable  at  the  suit  of  the 
lung  by  an  information.  And  for  this  reason 
the  Court  held  that  an  information  would  lie, 
and  thereupon  t^ave  judgment  against  the  de- 
fendant, and  fmed  him  an  hundred  marks." 
Cartli.  14,  15. 

Mr.  liainiltoii,  who  would  seem  to  be  more 
knowing  than  bis  neighbours  in  many  things, 
aflfects  to  be  more  ignonint  than  every  body, 
of  what  constitutes  a  libel ;  and  theretore,  al- 
though he  pretends  freely  to  acknowledge 
there  are  such  things  as  libels,  vet  he  insists  at 
the  same  time,  that  what  his  client  is  charged 
with,  is  not  one;  and  it'  it  be  not,  I  will  as 
freely  acknowledge  there  can  be  no  such  thing. 
He  desires  the  Attorney  General  to  favour 
them  with  some  standard  doftuition  of  a  libel, 
by  which  it  may  be  certainly  known,  whether 
a  writing  be  a  libel,  yea  or  not.  And  what  is 
this  for  ?  W  hy,  truly,  to  shorten  the  dispute. 
But  what  dispute  does  he  s|)eak  of  .^  The  only 
point  that  could  admit  of  dispute  had  been 
^iven  up  before  by  his  confessing  the  matters 
in  issue,  and  the  prosecutor's  witncMSCs  being 
thereupon  discharged.  As  to  what  he  requires, 
either  there  was  such  a  definition  to  be  met  with 
in  the  books,  or  tliere  was  not ;  if  there  was,  he 
ought  to  have  known  it ;  if  there  was  not,  why 
should  he  desire  Mr.  Attorney  to  favour  him 
with  one  ?  Yet  tdlct  he  had  been  indulged  be- 
yond measure,  and  a  definition  was  produced 
from  a  good  author,  who  besides  refers  to  se- 
▼sral  others  that  are  nnqnestioiiablc,  all  which 
•Qochulp  agaiiuit  bis.  cUoit;  is  this  loquacious 


advocate  contented  ?  No;  there  are  twt 
to  that  bargain,  as  he  had  said  bofon 
makes  it  a  foundation  for  further  disput 
according  to  his  wonted  ingenuity  and  < 
throughout  his  reverie,  calls  the  ooi 
sense  of  our  books  Mr.  Attorney's  n 
Mr.  Attorney's  doctrine. 

<'But  what  certain  standard  rule,' 
he,  "  have  the  hooks  laid  down,  b3 
we  can  certainly  know  whether  the 
are  malicious?  Whether  they  are  < 
tory  ?  Whether  they  tend  to  a  breach 
peace  ?  and  are  a  sufficient  ground 
voke  a  man,  his  family  or  friends 
of  revenge  ?"  &c.  Now,  these  quer 
thinks  do  not  so  well  become  the  mout 
advocate,  as  they  might  that  of  kit 
when  abandoned  to  his  own  defence  ii 
perate  cause.  But  I  answer,  no  ru 
tainly  can  be  of  use  to  those  who  an 
mined  to  act  without  any,  or  in  oppos 
all  rules,  in  which  class  our  northern  I 
must  be  placed,  if  we  are  to  frame  a  ju 
of  him  from  the  share  he  bore  in  tl 
The  rule  laid  down  in  our  hooks  cou 
libels  (1  speak  of  libels  in  the  strict  sen 
cording  to  the  definition  of  Mr.  Sei  jeac 
kins,  referred  to  in  the  trial,  and  whic 
concerns  the  present  case)  is  founded 
reason  of  the  thing ;  and  is  the  sam( 
is  to  be  observed  in  other  matters  that 
upon  the  construction  of  words  and  v 
which  are  signs  only,  or  images  of  ii 
tended  to  be  conveyed  to  the  underslai 
the  reader.  There  may,  indeed,  be  dive 
applied,  according  to  the  circumstance 
case;  and  this,  among  the  rest,  thai 
words  are  capable  of  two  senses,  t 
faulty,  the  other  innocent,  the  laiter 
takeu,  provide<l  such  a  construction  i 
made  without  violence  to  their  natural 
and  meaning.  From  whence  it  will 
that  the  same  cases  may  happen  t 
doubtful,  and  do  not  come  under  any  s 
rule,  on  all  which  occasions  honest  and 
judges  will  intlineto  the  favourable  side 
may  be  others  again  so  clear  and  evide 
a  man  must  resi^^n  his  reason,  or  resoU 
orifice  his  conscience,  that  does  not  dis 
will  not  allow  them  to  be  libellous, 
none  of  thes^e  cases  can  it  come  proper 
a  question  before  the  jury,  whether  a 
not,  on  the  plea  of  Not  Guilty,  thou(;h  i 
afterwards  be  so,  before  the  Court,  in  s 
judgment.  By  what  has  been  said,  th 
pears  to  be  latitude  enough  for  a  ski 
(who  notwithstanding  must  do  it  at  h 
to  lash  public  and  private  vices,  to  cau 
people  against  measures  that  may  be 
to  them,  or  to  remonstrate  against  t 
practices  even  of  those  in  |)Ower,  witli 
mg  always  exposed  to  the  peoaltics  of  I 
Such  a  liberty  of  writing  and  printing 
doe  restrictions,  1  own  Englishmen  ou| 
and  1  hope  never  will,  be  deprived  o 
where  this  is  dexterously  done,  it  w 
ridiculous  for  private  persons  to  put  the 


761] 


faraliUi. 


A.  D.  17S5. 


[76f 


L«: 


tbcir  omi  beadi,  Mid  no  kit  impolitic  for  ihoie 
io  high  sutioot  to  ap|ily  e?ery  thing  to  their 
idiDiaistnUion.  When  loch  a  work  is  under- 
taken b^  able  hands,  and  with  a  gtnerous  fiew 
of  serviDg  the  public,  il  is  always  Uudable, 
tod  ofteo  f  ery  useful ;  but  to  succeed  herein, 
requires  a  capacity  and  talents  not  to  be  dis- 
csfcred  in  Hr.  Zenker's  news-papers,  or  his 
dwad's  speech. 

1  perceife  my  letter  is  unawares  run  to  a 

gMt  length,  by  the  quotations  that  are  inter- 

■ystd,  and  which  yet  I  am  sensible  is  the 

hHt  exceptionable  part  of  it.    I  shall  therefore 

tdtt  DotiGc  but  of  one  thing  more  in  this  roatch- 

las  harangue,  which  indeed  ought  not  to  be 

fNKOt,  because  it  is  made  the  basis  and  foun- 

tomof  the  wliole;  and  that  is,  concerning 

tut  *«  right  of  freemen  to  compUin  when  they 

an  hurt.*'    This  our  lawyer  otWn  asserts  in 

fBMial  terms,,  with  some  Tariation  only  of  the 

aymsion.   As  to  which,  1  would  ask,  whether 

bf  it  be  means  a  right  to  remonstrate  and  com  • 

pHB  in  a  legal  way,  or  a  right  in  all  cases  to 

tNcsl  to  the  people  by  seditious  and  scandalous 

■Ml?  if  the  former,  nobody  ever  denied  it, 

isd  what  he  said  was  not  ad  idem ;  so  that  he 

an  fighting  with  the  air,  and  quarrelling  with- 

'    flit  la  adf  ersary  :  if  the  latter,  he  dishonoured 

[    bii  gown,  by  advancing  what  is  notoriously 

ityapant  to  all  laws,  human  and  dirine.     ft 

Wniled  in  the  Court  of  B.  R.  Triu.  16  Car. 

Tbtahhoogh  abill  be  preferred  in  the  8tar- 

Chuaber  against  a  judge  for  corruption,  or 

r    tiy  stfaer  for  any  great  misdemeanor,  yet  if 

[     tke  plaintiff  will  tell  the  effect  of  his  bill  in  a 

tarern,  or  any  open  place,  and  by  that  means 

Kandalize  the  detiendant,  the  same  is  punish  • 

dile  in  another  court.     March,  Rep.  76,  77. 

f»in  the  Case  of  Hole  and  Meilers,  28  £liz. 

inC.  B.  it  was  said  by  the  Court,  that  although 

Ibe  queen  is  the  head  and  fountain  of  justice, 

tsd  therefore  it  is  lawful  for  all  her  subjects  to 

iHtrt  unto  her  '  ad  faciendam  Querimoniam ;' 

^  if  ft  Rubiect,  after  the  bill  once  exhibited, 

*iil  diviili;c  the  matter  therein  coinprehendetl, 

li  the  disgrace  and  discredit  of  the  person  in- 

Med,  it  is  ^uod  cause  of  action,  3  IjCou.  138. 

M  (0  the  same  purpose,  in  a  much  later  case, 

^.  that  of  Lake  and  King,  reported  in  many 

tfosr  books,  to  which  Mr.  Serjeant  Hawkins 

nfer^  it  seems  agreed,  as  be  obser?es,  that 

Homr  delifers  a  paper  full  of  reflections  on 

^/ person,  in  nature  of  a  petition  to  a  com- 

Mlee  of  parliament,  to  any  other  person  ex- 

flipt  the  members  of  parliament,  may  be  pu- 

liriied  as  the  publisher  of  a  libel,  in  renpect  of 

4ch  a  dispcr»ing  thereof  among  those  who 

We  nothing  to  do  with  it.  1  Hawk.  c.  74,  §  12. 

fiot  our  forward  barrister,  age<l  and  infirm 

H  ha  represents  himself  (which  compared  with 

kis  oottduct,  is  the  keenest  satire  that  could  be 

^Hfcaced  of  him),  oui^ht  to  be  further  in- 

ftKted,  that  even  where  cumplaiuts  are  to  the 

fag  hiamelfy  they  must  be  made  in  a  proper 

regular  manner ;  a  decency  is  to  be  ob- 

aad  a  regard  always  hud  to  tliecha- 

and  iUtkNM  oi'  the  pertona  against  whom 


aach  eonphints  are  made.  In  IS  R.  S,  Rot. 
Parliament,  N°  45,  the  Commons  desired  they 
might  not  be  troubled  for  any  matter  that 
should  be  contained  in  petitions  to  the  king ; 
and  the  king  answered.  Let  every  man  com* 
plain,  so  it  be  with  law  and  reason.  It  is  law« 
ful  tlierefore,  no  doubt,  as  it  has  been  resolved, 
for  any  subject  to  petition  to  the  king  tor  re- 
dress, in  an  humble  and  modest  manner,  whera 
he  finds  himself  aggrieired  by  a  sentence  or 
judgnaent;  for  access  to  the  sorereign  must 
not  oe  shut  up,  in  case  of  the  subjects  distresses. 
But,  on  the  other  side,  it  is  not  permitted,  un* 
der  colour  of  a  petition  and  refuge  to  the  king, 
to  rail  upon  the  judge  or  his  sentence,  and  to 
make  himself  judge  in  his  own  cause,  by  pre* 
judtring  it  before  a  re-hearing.  Hob.  8W.  Yet 
sir  Rowland  Flaxing  was  committed,  and  deep* 
ly  fined,  for  reporting  to  the  king,  that  he  could 
hare  no  indifferency  before  the  Lords  of  the 
Council,  7  Feb.  18  Hen.  8.  So  likewise,  in 
the  time  of  Hen.  7,  sir  Richard  Terrets  waa 
committed,  fined,  sent  to  the  pillory,  and  ad- 
judged to  lose  both  his  ears,  for  his  slanderous 
complaint  exhibited  to  the  king,  in  a  written 
book,  against  the  chief-justice  Fitz  Jaroea. 
Which  Ca!»es  are  citetl  by  chief -justice  Mon- 
tague, in  the  Case  of  Wravtiham  (who  was 
severely  punished  for  an  offence  of  the  same 
nature),  as  may  be  seen  in  this  Collection,  vol. 
2,  p.  1059.  To  these  may  be  added,  Jeife'a 
Case  in  the  King's- bench,  Mich.  5  Cor.  Jeflh 
was  indicted  tor  exhibiting  an  infiimous  libel, 
directed  to  the  king,  against  sir  £dward  Coke, 
late  chief -justice  of  the  Kmg'K- bench,  and 
against  the  said  court,  for  a  judgment  given  in 
the  said  court,  in  the  Case  of  Magdalen- College, 
aifirming  the  said  judgment  to  be  treason,  and 
calling  him  therelu  traitor,  perjured  judge,  and 
scandalizincf  all  the  profess(»rKof  the  law.  He 
fixed  this  libel  upon  the  great  gate  at  the  eu- 
trance  of  Westminster  hall,  and  in  divers  other 
places  ;  and  being  hereupon  arraigned,  prayed 
that  counsel  mii^lit  be  assigned  him,  which  was 
granted ;  and  he  had  them  ;  but  would  not  be 
ruled  to  p^ead  as  they  advised,  but  put  in  a 
scandalous  plea ;  and  insisting  upon  it,  affirmed 
he  would  not  plead  otherwise.  Whereupon  it 
was  adjudged  he  should  be  committed  to  the 
marshal,  and  that  he  should  stand  u|)on  the 
pillory  at  Westminster  and  Cheapside,  with  a 
.pajier  mentioning  the  offence,  and  h  ith  such  a 
paper  be  brought  to  all  the  courts  of  West- 
minster, and  be  continued  in  prison  until  he 
made  his  submission  in  every  court;  and  that 
he  should  be  bound  with  sureties  to  be  of  good 
behaviour  during  his  life,  and  pay  1,000/.  fine 
to  the  king.    Cro.  Car.  175,  6. 

What  now  shall  we  say,  or  what  must  be 
thought  of  one,  who,  while  he  pretends  to  great 
reading,  and  a  thorough  knowledge  of  these 
things,  could  yet,  in  the  face  of  a  court,  aud  iii 
defiance  of  its  authority,  and  indeed  of  all  au- 
thority, presume  to  jusitify  the  publication  of 
the  most  audacious  libels,  against  that  very  go« 
vernmeut  under  which  he  was  brestliing  thee 
sedition !  A  penoo,  whO|  aa  a  countellor  at  lait^ 


767] 


1  GEORGE  I. 


Trial  afJofiH  Oliphant  and  otiten. 


[768 


SODS  guilty  of  the  crimes  Ij^belled,  should  incurr 
the  pains  of  Proem unire,  that  thereby  the  acts 
related  to  the  inditemeot,  must  be  underRtood 
to  be  repealled,  and  this  statute  of  the  6th  of 
the  queen  not  being  lybelled  on,  tlie  lybe)  must 
fall. 

To  which  it  is  answered,  That  the  said  act  of 
the  6th  of  the  queen,  can  ne?er  be  understood 
in  any  manner  to  derogat  from  the  laws  and 
acts  of  parliament  made  in  Scotland  before  the 
Union,  anent  leasing  making  and  slanderers, 
and  far  less  to  the  laws  of  all  nations,  as  well 
as  of  this  kingdom,  against  speeches  uttered  in 
contempt  of  the  government,  and  licenciously 
reflecting  upon  its  proceedings,  which  directly 
tends  not  only  to  the  disturbiince  but  uiter  dis- 
solution thereof,  for  no  new  law  that  is  cun- 
sistent  with  laws  formerly  made,  is  ever  un- 
dcrstood  to  abrogate  former  laws,  unless  such 
a  provision  l>e  expressly  contained  therein,  and 
it  can  never  be  alledgrd,  that  this  act  of  the 
sixth  of  the  queen,  which  properly  concerns 
only  one  crime,  the  direct  premeditate  wiiful 
and  malicious  denyal  of  the  sovcraign's  right, 
and  a  direct  asserting  of  the  right  of  another, 
is  anywoyes  inconsistent  with  the  laws  and 
acts  of  parliament  upon  which  the  imlitemcnt 
is  founded,  which  concern  all  expressions, 
which  either  directly  or  by  consequence  im- 
port a  contraverting  of  the  .^loveraig'n's  title  or 
the  government's  legal  proceedings,  uud  mt  (end 
to  the  raising  jealousies  belivixt  the  govern- 
ment and  the  subject,  and  to  excite  the  subject 
to  sedition,  and  are  framed  in  suidi  extensive 
terms,  as  do  comprehend  most  of  the  crimes 
that  are  committed  by  word  or  wryte  against 
the  soveraigne,  thfir  crown  or  dignity,  or  the 
peace  and  quiet  of  their  government,  which 
appears  from  the  very  narrative  of  the  fuurtii 
act  of  the  first  session  of  queen  Ann's  first  par- 
liament, where  the  said  art  narrates,  that  in 
respect  of  the  generality  of  the  saids  acts 
therein  recited,  and  the  various  construction 
that  the  same  may  admilt,  tlu^refore  the  capital 
pnniNlimont  is  altered  to  an  arbitrary  one, 
which  is  a  plain  indication,  that  the  pail  lament 
looked  u|>outhe  saidsacts  to  comprehend  many 
cases  n(»t  therein  exprest ;  and  therefore 
thought  fitt  rather  to  restrict  the  punishment 
than  to  limit  the  sense  and  import  thereof,  to 
the  express  cases  therein  contained,  so  that  it 
isneedhss  to  insist  furder  upon  a  matter,  so 
very  plain  in  itself,  and  what  has  ever  been 
held  as  a  principal,  that  no  new  act  of  parlia- 
ment derogates  from  former  acts,  except  where 
the  last  is  incon«!istenl  with  the  lormer,  or  ex- 
pressly rescinds  it. 

It  was  again  alledged  for  the  pannals,  that 
drinking  of  the  Pretender's  heaiih  under  the 
style  and  title  of  king  James  the  eight,  does 
not  fall  under  any  of  the  acts  of  parliament 
anent  leasing  making,  upon  which  the  indite- 
ment  is  founded. 

To  which  it  is  answereil,  That  the  fact  here 
charged  against  the  pannells,  is  not  only  pu- 
nishable though  thore  were  no  such  acts  of 
pftrliameyt  are  ly  belled  upon,  as  beiog  an  af- 


front and  indignity   done  to  the  fp?emment 
and  standing  laws  thereof,  by  asserting  the 
right  and  title  of  the  crown,  to  belong  to  any 
other  than  the  soveraign,  then  Tesled  with  tlie 
exercise  of  the  government,  but  this  crime  m 
lybelied  will  be  found  without  any  streacbed 
inferences,  to  be  attended  witli  all  the  liad  con- 
sequences that  our  law  has  studied  so  anxiously 
to  prevent  by  the  foresaid  acts,  for  the  fact  as 
laid  in  the  lyhel,  is  an  express  owning  of  tbe 
Pretender  as  the  rightfull  king  of  these  realms, 
by  drinking  of  his  liealth  under  that  title  and 
designation  of  king,  which  is  not  only  declami 
by  the  standing  law  to  be  usurped  upon  to  tbe 
dishonour  of  his  present  luajeslie,  his  just  right 
and  title  which  stands  upon  the  same  fonodBp 
tion  with  that  of  her  late  majestie,  but  is  also  a 
little  inconsistent  and  incompatible  with  hii 
majesties  undoubted  right  and  title  to  the  crowa 
of  these  realms,  antl  a  Tirtual  denyal  of  tin 
same,  and  charging  tlie  government  with  uior* 
pation  and  mal-admintsktration  of  the  biffhdt 
kind,  sfoing  the  regal  power  in  monarchiil  yo- 
verniuents,  being  a  jus  individuum,  if  the  rigirt 
to  govern  be  not  in  the  person  of  him  that  bis 
the  exercise  of  the  same,  and  the  right  to  suc- 
ceed do  not  justly  l>elong  to  him,  upon  whom 
the  same  is  settled,  both  the  exercise  of  the 
government  by  the  person  not  justly  intituled 
thereto,  and  ihe  very  deed  oi'  settlement  itself 
upon  the  successor,  to  witt,  his  presoot  ma- 
jestie, oannot  be  looked  upon  as  any  thio^ 
else  but  usurpation,    and    lier    late   majestie 
beiog  undoubtedly  in  the  exercise  of  thersyil 
power,  the  denying  of  her  right  to  the  sane, 
or  tisserting  the  said  right  to  be  in  the  penoB 
of  another,  is  by  a  direct  consequence  to  as- 
sert, that  her  majesties  government  was  usur- 
pation, unjust,  and  without  any  right  or  title, 
which  can  never  he  denyed  to  be  a  practice  tint 
rxpi-essly  falls  under  the  laws  lybelied  on,  foe 
w  hat  more  scandalous  and  slanderous  speech 
can  be  uttered  against  a  soveraign  and  tbeir 
government^  than  to  tax  them  with  osarpi- 
tion,  wiiicli   is  not  only  to  usurp  the  ri(;lit  of 
another,  hut  to  assume  a  power  *  vi  ct  frawjc, 
which  they  have  no    right    to  over  a  ite^ 
people. 

u  hat  can  more  naturally  tend  to  excite  k* 
dition  and  di<%turb  the  quiet  and  peace  of  ^ 
soveraign  and  government,  than  to  qoana 
and  deny  their  right  to  the  alledgence  simI 
obedience  of  their  subjects,  and  the  suecessur'' 
right  to  the  same  alledgiance  upon  the  deiaiso 
ot  that  soveraigne,  or  assert  the  right  to  belong 
to  another,  or  can  there  be  a  more  express 
setting  up  and  encouraging  the  false  and  ssaB- 
dalous  pretentions  of  another,  to  the  prejudice 
nf  the  soveraign's  just  right  and  title,  than  by 
owning  a  person  attainted  by  our  laws,  as  kiiUf 
and  soveraigne  of  these  dominions,  and  drinkinjf 
his  health  as  such,  and  that  even  by  magi^tntf 
and  councellors  of  a  burgh,  whose  oflice  it  is 
not  only  to  suppress  and  punish  such  pnc* 
tices,  but  by  a  dutiful  I  and  loyal  behaviour  to- 
wards their  lawful  soveraign  to  cocoura|{t 
those  under  their   inspection  to  a  due  wib- 


for  drinking  the  Pretender^s  Health* 


A.D.  1715. 


[7eff 


iou8  preteotions  of  any  person,  to 
:e  of  his  majestie,  his  estate,  4ii8  just 
lavvful  title  tu  the  crown  of  these 
eins^  up  thereliy  his  majesties  sub- 
likcing,  setittion  and  disobedience  to 
»  just  authority,  especially  when 
r  any  thing  tending  thereto,  is  done 
ats,  and  such  whose  duty  it  is  to 
repress  such  practices,  are  criroes  of 
lature  and  severely  punishable :  as 
e  law  of  God,  of  this  and  all  other 
led  realms,  the  cursing  of  his  ma- 
crime  of  an  hainous  nature  and 
nishable ;  yet  nevertheless  the  said 
lant,  Alexander  Watson,  Mr.  Wil- 
ly,  present  baillies  of  the  town  of 
illiam  Lyon  younger  of  Ogill,  town 
lere,  and  Mr.  Thomas  Wilson  vint- 
dl  and  each  of  them,  shaking  off  all 
,  and  re^aird  to  his  majesties  laws 
ty,  and  m  msfnifest  contempt  of  his 
ust  right  and  title  to  the  crown  of 
Ds,  and  for  advancing  and  abateing 
d  scandalous  pretentions  of  the  pre- 
ce  of  Wales,  \^  ho  now  styles  himself 
eat  Britain,  or  king  of  England  by 
»f  James  the  third,  or  king  of  Scot- 
e  name  of  James  the  eight,*  and  to 
stirr  up  his  majesties  subjects  to 
and   sedition,   and   disobedience  to 
ies  just  and  lawful  authority,  did 
10th    day   of  June,    1714   years, 
&id  Pretender's  birth  day,f  go  to  the 
undie,  and  there  the  whole  persons 
ed  and  each  of  them,  did  in  a  solemn 
ink   the    said    Pretender's    health, 
itie  of  king  James  thecitj;ht,  thereby 
is  right  to  thn  style  and  title  of  king 
alms,  in  opposition  to  his  majestie 
J  undoubted  riiii^ht  thereto,;^  and  in 
ntomptof  his  majestic,  although  the 
Oliphunt,   Alexander   Watson  and 
im   Kumsay  wore  then  councellors 
tears  in  the  said  hurjjli  of  Dundie*at 
As  also,  upon  thr  20tli  of  January 
t,  1715,  the  said  t\?.y  being  by  his 
ro^al  procli>mr\!i(»F!,  appointed-  to  be 
a  day  of  t|)unks(;:iving  for  his  roa- 
:eable  accession  to  tlio  thrnn  of  these 
en  nomo  well  affected  to  his  majesties 
Qo\  ernmeiit  lor  a  farder  evidence  and 
ion  <:f  their  joy,  had  caused  ring  the 
e  said  town  after  seruion  was  over, 
)hn  Oliphaiit  present  baillie  of  the 
,  came  to  the  steeple  where  the  said 

'  is  a  story,  that  in  the  days  of  Jaco- 
lioister  of  ili?  Kirk  of  Scotland  being 
d  company  called  on  for  a  health 
^  answered,  **  The  tougiio  ib  an  un- 
•James  third,  and  eighth.'* 
vol.  12,  n.  123,  a  report  of  the  Pro- 
dative  to  nis  Birth, 
le  10th  of  June,  1714,  queen  Aiuie 
ihe  throne  ;  as  is  vtated  in  the  pro- 
^be  died  on  August  1,  in 


bells  were  ringing,  and  in  an  insolent  and  rode 
manner,  asked  at  thos^  ringiujg  the  said  bells, 
in  these  words,  God  damn  you,  who  gave  you 
orders  to  ring  the  bells?  and  when  it  was  an-* 
swered  by  some,  That  they  were  ringing  tha 
bells  in  honour  of  king  George,  the  said  John 
Oliphant  replyed,  God  damn  king  George's 
blood  and  yours  both,  and  immediately  in  a 
violent  manner  stopt  all  farder  ringing  of  the 
said  bells.  From  all  which,  the  said  John 
Oliphant,  Alexander  Watson,  Mr.  William 
Ramsay,  William  Lyon  younger  of  Ogill,  and 
Mr.  Thomas  Wilson,  wei%  all  guilty  actors  art 
and  part  of  the  forsaid  crime  of  drinking  the  said 
Pretender's  health,  under  the  title  of  kiofl^ 
James  the  eight  in  manner  above  lybelled. 
And  the  said  John  Oliphant  guilty  of  cursiocf 
his  majestie  also  in  manner  lybelled.  Which 
being  found  proven  by  the  ve([dict  of  an  assyse, 
before  the  lords  justice  genehd,  justice  clerk, 
and  commissioners  of  justiciary,  they  and  each 
of  them  ought  to  be  punished  severely,  to  the 
example  and  terror  of  others,  to  commit  the 
like  in  time  coming. 

Pursuers. — Sir  James  Stewart^  bis  majestiet 
solicitor  for  bis  bighness's  interest. 

Procurators  in  drfence.'^Sir  James  Natmith^ 
JiHr,  James  Grahame^  Mr.  Charles  Erskine,  Ad- 
Tocats. 

Informations  ordered  28th  June  1715. 

Information  for  his  Majesties  Advo^  •  Tor 
his  highness  interest, 

AdAINST 

John  Oliphant,  Alexander  Watson^  and  Mr. 
William  Raiiisay,  present  baillies  of  tha 
town  of  Dundie,  William  Lyon  younger 
of  Ogill,  town  thesaurer  there,  and  Mr. 
Thomas  Wilson  vintiner  there. 

The  persons  above  named  Being  indited  and 
accused  at  the  instance  of  his  majesties  advocat, 
upon  the  law  of  this^nd  all  other  well  governed 
realms,  and  upon  the  4th  act  of  the  Ist  session 
of  her  majesties  queen  Anne*s  1st  parliament, 
anent  leasing  making  and  slandering,  and  the 
acts  therein  recited,  ror  having  upon  the  10th 
of  June  1714  years,  gone  to  the  cross  of  Dun- 
dee, and  there  in  a  solemn  manner,  drank  the 
Pretender's  health,  under  the  style  and  tytle 
of  king  James  the  eight,  in  manifest  contempt 
of  the  laws  and  acts  above-mentioned,  and  of 
bis  majesties  lawful  right  title  and  authority. 
And  also  the  said  John  Oliphant  for  having 
upon  the  twentieth  of  January  last,  in  manifest 
contempt  of  the  law  of  God,  the  laws  of  this, 
and  all  other  well  governed  realms,  maliciously 
and  wickedly  cursed  his  majestie  king  George 
by  praying  God  to  damn  his  blood,  as  if  more 
particularly  contained  in  the  inditement. 

It  was  acknowledged  in  defence  of  the  pan- 
nells.  That  the  first  crime  lybelled,  was  not 
punishable  by  any  other  act,  than  that  made 
since  the  Union  in  the  sixth  of  queen  Anne, 
by  which  act,  there  being  a  new  punibhment 
introduMd  for  arimi^  of  this  nature,  vix.  per- 


1 


1  GEORGE  I 


Ttial  of  John  Oliphanl  and  ot) 


nee  to  fais  preaeat  migesiieiijiiit  aittho- 
'e  crimeii  of  a  IicIdodb  nulure.     Aud  sub- 
liiift,  tl)Bt  ibe  pannells  in  contempt  uf  his 
KajesireB  just  tight  anil  title  to  the  crown,  and 
far  advaociniir  Ihe  piel«nMoni  ortlie  pretended 
srince  of  Wulcs,  nlio  tion'  glyles  himself  Li  njr 
^Grent  nritnin,  gr  bin;  of  Scotlanil,  by  lli« 
le  of  J«meB  the  eight,  onil  to  stirr  up  his  pre- 
It  iDiiJeilieisiibjecli  to  niisUkiiig  and  ilisohe- 
'nce  10  his  iiiBJesiies  jnst  and  lawful  aulbo- 
Kty,  did  upnn  the  IO>ii  of  June  oae  iboiiMnd 
^en  biinitred  and  fimrie^  yaars,  at  lb«  Cross 
^Diindie,  in  a  B'llemn  maimer,  driuk  the  said 
'a  hesltli,  nnder   ihe  tille   of   kinc; 
'*  Ilie  eiElit,  thereby  a-isertin^  hi>;  ri^lil  to 
'leaml  titleaf  king  nf  these  realms,  mop- 
u  to  his  preu^nt  inajeBlie  I  lis  cole  and  un 
loubicil  riftbt  llierelu,  and  in  maDifest  cooterupl 
'Thit  preEcnt  mnjesiie. 
'll  sflbrdi  a  ijriul prejudice  B^iiut  lybellsof 
■,  n'hen  the  proseculioD  is  so  lone;  a 
e  delnyed,  and  nhen  ihe  ioforreieis  them- 
es fnill  10  appear  as  parlies.     Ifliue  xeall 
ir  Ihe  lawful  govern  meat,  bad  been  the  molite 
f  this  detalion.  wbat  hindered  the  imiucdiul 
0  ?    The  proof  of  the  alleadged  fact, 
tioiild  certRinly  liave  been  clenr,  the  more  re- 
Jfcot  the  Iryal  was ;  and  the  irvTorniKTS  will  not 
Swu,  thai  (he  delay  of  giving  information  was 
"     ideovnur  to  make  the  proof  elparsr.     Nei- 
shall  the  pannells  lake  up  the  lords'  lime, 
^ith  exposing  the  practices  has  been  used  to- 
arards  ibis  euU ;  they  shull  content  Ihemselres 
With  denying  the  ly'Wl,  as  ihey  have  already 
pdicially  done,  and  proceed  to  examine  llie  re- 
Vrancy  of  the  samp. 
_       Tjie  lybt^l  se  the  lords  perceive,  is  laid  upon 
■  *t)ie  statutes  touching  leasing  making,  the  pu- 
^itbinentwhercot'  by  ourlaw  was  capital,  as  it 
Jits  likewise  declared  to  he  in  England,  in  the 
Teigne  of  kin^  Henry  the  elghi,  Anno  ^*jmo. 
hp.  S9.  enliluled,  "  Act  concerning  the  king's 
Jtuccessian,"  but  of  late  our  law  with  respect  to 
rwie  punishment,  has  receifcd  nn  alteration  be- 
y  ^t!  tlie  L'nion,  as  a|ipears  by  the  statute  upou 
Kirhich  this  lybel  is  founded.     And  that  ibe  sub- 
',Jccl«  of  both  nations  mi^lil  be  after  the  Unioa 
f  (-nnder  the  same  lawn,  which  concern  public 
ruht,  policy  and  civil  government  iu  the  terras 
•  M  the  eigliieeolh  aniele  of  Uie  treaty,  and  tiiat 
1  of  this  nature  and  the  method  of  jirose- 
I  sutioi;    might    be    more    ascertained,    there 
Jras  an  act  made  in  the  parliameot  uf  Great 
firilain,  anno  sexto   Annis   regime,  whereby 
*"'  'n  acted.  That  any  words  spoken  againsl  the 
n,  or  towards  the  abnteiog  the  right  or 
;e  of  the  pretended  prince  of  Wales,  who 
TItjIes  biuiseir  by  the  title  of  king  James  the 
1n|;hl  of  Scotland,  must  lie  malicious  and  direct. 
'Is  protided,  that  no  person  shall  be  pro- 
in  Tcrtoe  of  that  act   for  any   vionls 
^krn,  unless  iuformalion  of  such  words  be 
n  oath  wiibin  three  daves,  and  the 
prnsrciiiiun  he  nilliin  three  months  alter  such 

It  will  not  be  doubted,  bat  this  Bel  super- 
Kdt4  all  lorner  laws  in  lii^aiid,  sjj;*iB«t 


crimes  aryseiug  from  words  apokwr,  W 
derous  speech,  andlhat  after  the  snme  panmut 
a  law,  no  person  cuuM  he  indicted  upoa  ny 
former  acts,  where  the  punishmeDt  mlgbl  M 
more  rignrous  than  that  ul  t'lemunirc,  tDDn(4 
to  the  crimes  contained  in  this  act,  and  if  tb 
art  made  in  Scotland,  restricting  the       ^    '. 

Eunishmeni  bad  not  pasted,  it  would  oertMl 
ave  appeared  very  much  out  of  the  w»jf, 
have  bruught  a  lybell  upon  Ibe  crime  tnemti 
t'd  In  the  British  acl,  concluding  a  capitilftf 
nishineni,  from  ihe  said  old  Sfols  acts,  AM 
Iherefore  Ihe  ]>annells  did  plend.  rtiat  Ihtt  M 
Ilxh  scl  of  parliament  did  Tiriuslly  abro^Wail 
former  taws  louchiu^  the  crimes  therein  aat 
lioned,  which  miglil  have  been  prerionslj  ll 
force  in  either  kingdome.  For  it  cniinotbell 
learl^eiJ,  Ihat  the  late  Scots  act  toiichiita  lesAl 
making,  if  il  cnmpr^'hcnds  the  crim« TybdW 
could  be  preserved  from  ihis  alteration  by  Ik 
latter  British  statute,  upon  account  that  ItM 
Iroduccd  a  more  mild  punishment,  and  If  da 
British  statute  made  an  ulleralion  of  (h«fi» 
roer  law  in  eilhcr  kingdoroe  as  to  any  , 
then  cerlainly  it  altered  the  whole,  particuhdy 
with  respect  to  Ihe  manner  of  prosectrf' 
Ihal  no  person  shnuld  be  indited  for  wordli 
ben,  unless  informalinn  of  such  words  be  j; 
upon  oath  within  three  dayes,  aiul  Ihe  ff 
cution  for  audi  offence  within  (hrec  moiwIhK 

And  if  it  was  nthcrnisi',  this  iuc«fqr  " 
must  fullow,  thai  ihe  subjects  of  Scotland  w 
be  indited  for  the  same  ciime  ujran  old  Soi 
laws,  and  likewise  iiiion  ihe  llrilisb  at-t,  t ' ~ 
the  sulyects  of  England  contd  only  be  Kfl 
iilionthetkct  conlaintdin  thelybcl.by  ll»k 
Briiish  acl,  which  cannot  be  well  tUMOMl 

It  was  answered  for  the  pursuer,  Thst  Ml 
obbrogating  of  a  liirmer  law,  tlierc  is  nmit 
an  express  clause  in  the  subsequent.  ^ 

9do.  That  the  late  British  acl  staltitfl  «rf 
unon  one  crime,  and  so  cannot  be  undenlaoll 
abbro|[nle  the  law  against  leasing'  maker 
slanderers  of  thesoveraigniWhicFi  may  h 
'  ly  other  ways        ' 

Ihe  Uiitish  act. 

It  Is  replied.  That  there      

cjuires  the  alteration  uf  former  Inwa,  lo  btlg 
express   words,  a   contrary   practice  with  II 
ahtrogates   a  former   law,  by  turning  k  * 
desuetude  from  the  implied  allcntion  of  I 
legislators  will.  "  Nam  quid  interest  snfit^ 
populus  votuiil3tem   Buam  duclarct,  an  ini 
ipsis  etfactis."     And  what  more  eipretfA 
clarationoftlieli^iihitors  will  can  bereiiN 
for  the  alteration  of  a  (i>rmer  Taw,  than  to 
lute  upou   the  crimes  forbid   by  theM  ibr_ 
laws,    and  introduce  a  new  punishment  M 
manner  of  prosecution,  "  Non  est  novnn  I 
pnsteriores  Leges  ami  priores  Irahantnr  tM 
qua  anleriorea  Leges  aJ  posteriores  traluitlitn 
est :  Kl  stimper  quasi  hoc  legibus  in  eiM  chA 
opportcl,  ut  ad  eaa  quoqnc  personas  et  ad  M 
res  pertinent,  qiiie  quandoqoe  similes  eniB(i^ 
1.  20,  et  37,  ff.  de  Legibns.     fl  baie  fuOiim 
the  MS]  j 

And  biiDporli  nollliat  Icuiiig  buIobs  I^L 


Jot  driniing  the  Pretender^t  Health.  A.  D.  171S. 

•Unileriii"  or  the  surenisne  may  be  by  several  |  tlie  fact  Klielled  itoes  not  ilirrclty  fall 

tAitvT  wonli  and  ux|irenii(ins,  ibm  these  men-     tLeacu  labelled  upon,  hi     -'     -  >     

tiooeiiiD  Ibclalc  xUtiile,  nniJ  IliBt  it  is,  tliepiir-         ""  " ""  -"---■ 

tuore  bare  out  contrortTleJ,  therufare  it  Tnl- 
Inw*,  lliat  M  to  lliiit  cri[Qe  aaJ  exprcssionx 
Imn  whence  it  is  drawn,  ibe  Ipi^islative  has 
■Mile  an  ulieration,  an  lo  ihe  manner  of  proee- 
cutiua,  wliivb  nut  being  answered,  ihe  lybet 
an&oi  he  auiUiiieil. 
TtiB  arconil   (leleiice  proponed  for  Ibe  nan- 


™ 


,  TUat  llie  drinLnK  llie  PreleniUr's 
Mtb  uaiier  the  title  of  king  James  the  eight, 
hm  nut  fall  under  the  description  of  the  act* 
■moat  leaniai;  maLiiig,  lur  ihia  aiaiute  21 
AWn  (he  first,  is  detineil  lu  be  the  infeoling 
[  tfniiaoiira  belneeo  ibe  king  and  the  people, 
'~~^btke  fact  labelled  on  caunollwHild  to  be; 
""  ~  "  ippear  from  Ihe  lyhel  itself,  where 
01  laid  to  he  in  driiikinK  the  health, 
^ptaaouncing  the  nnrds,  which  properly 
'^^  l^ao  aftirmatian,  hut  a  compellation ; 
D  only  argument  that  can  he 
rting  tlie  lybet,  is,  that  deaig- 
^  person  by  the  name  of  kinK  Jamea 
■iplies  an  affirinallon,  that  Inn 
—  -^  hasrigbl  to  the 


It  the  per 
'n  of  thes 


^ Bulthen  (liifi  tsonly  by  an  innuendo 

^JileK&oe  which  ought  not  to  be  admitted  in 
1  lybella,  atid  Ibta  the  pursuer*  have 
I  tar  aware  of,  Ibat  Ihev  neither  said  io 
IkUbel,  that  Ihe  |iDnoellsdiildirectly  or  tna- 
^■Wy  or  adiyirdly  pronounce  these  ivonls. 
VBut  further,  llie  drinkitig  of  any  persDnn 
IWtli,   utidcr   whattuever   ilehignallon,   can 
'    hrtt  be  reckoned  the  iiiveuling  of  rumoura 
blKMti  Ibe  king  ani)  hiK  people,  nor  any  false 
~-tt  lUndcrous  aprecli   of  the  soieraigne,  be- 
lt Uicre  if  DMhiiig  apnkc  of  llie  sovrraigne, 
it«f  a  third  |>«rty. 

Tie  pui-aoers  auaivereil  that  the  giving  of 

kef  king  10  nnv  nrrsoo  im[ilies  likewise  the 

nbg  of  bin  nghl,  oiiil  that  assertion  rines 

Jtk  implvi  that  the  rigbll'ul  soieraigne  ha> 

^tifbl,  Uiai)  which  there  cao  not  he  a  mure 

Mil  ruinour  and  laliu  slander  tending  tu 

a,  anil  alirring  up  the  people  to  dialyke  of 

'■ilea  ueraoQ  and  guverument, 

nbeJ,  T^at  crimea  are  not  to  be  made 

'icatiooa,  and  there  ii  do  crime  that  is 

«  hedged  infromsireeches  and  ioDU- 

'k  crime  of  leaaiog  making,  Ihe  lery 

ieb  ibe  crimes  is  lbuiided,cumpUina 

r  touching    Ihe  aame  have    been 

~BbM ;  Aiul  the  ilerlarstion  of  ihe 

in^  the  Claim  of  lUgbl,  and  oOer 

.0  king  William  and  queeu  ftlary, 

ikk  down  as  one  of  the  articles  of  king 

■  lb«  Mcenlh    hit   Ibrfaulluri^,    that    he 

I  parions  upon  slreechea 

tand  ubaolet  la«a,  and  the  puiticulnra  sett 

■iln   Ihu  article  abewa,  that  the  slreechea 

■VMnftltined  of  concern  the  laws  auai 

""- — '^''K.  w  that  if  llie  words  lyhel 

Urcct  slanilei  of  Ihe  tuveraigne 

I  invtnling  of  a  false  rum< 

,  no  iiuplieutian  or  innuendo 


that  the  lyhell  is  alto^elhcr  irrelevan 
icept,  in  sn  far  as  it  mentions  llie  fact  ti 
ommilleil  against  his  uresi^iit  mnjeslie,  ui: 
the  prejudice  of  hia  htgiine. 
just  and  lawful  title  to  ibe  < 
other  part  of  the  lybell,  it  ia  said  to  be  ag*inst 
his  tnajeslies  liole  and  undoubted  right,  lo  iba 
crown  of  these  realms  ;  whereas  it  appears, 
from  the  lybell  itself,  that  the  crime  ia  said  to  ba 
committed  upon  the  lUth  of  June,  17U,  before 
his  roajeslies  happy  accession,  and  therefore 
cannot  be  said  to  he  con)mitted  agaijist  hia 
■najettie,  who  at  thnt  lime  had  only  a  presump- 
tive right,  and  consequently  not  the  sole  and 
undoubted  riglit,  which  includes  pottession. 
*  waaantwi^red  lor  the  pursuer,  That  tha 
o  never  dits,  to  that  crymes  committed 
list  the  crcivru  and  diguily  of  ihe  cruwn, 
ilways  punishable;  and  the  crimp  lybellM 
not  being  of  the  nature  of  a  personal  injury 
to  the  Miieraign  ral^ning,  but  against  the  right 
with  which  her  majetde  was  rcsicil,  the  auc- 
MSOT  bis  present  majeslie  anil  iifiiceia,  ara 
ell  intitled  to  prosecute  the  nffeiices. 
SJo.  It  couht  nut  be  doubled,  if  any  perann 
should  DOW  impugn  her  late  inajeslies  right,  a 
Ivhell  could  be  cumpdenlly  brnughl,  becaus* 
the  successor!  right  de|iends  upun  the  prede« 
iBora  right. 

To  this  the  pan  nel  Is  reply,  I'hni  ihe  punueri 
mistake  I  heir  uun  lyhcl.  which  does  not  |)ru' 
as  ii'  the  crime  were  committed  against 
Ibe  queen,  but  against  liis  pteaenl  inajeiitie. 
And  iberefore,  that  ihe  crown  dyea  not,  has  no 
import  in  this  question,  which  retulves  liinjily 
ipto  this,  whither  or  not  words  spoken  agamst 
he  late  queen,  can  be  said  to  be  against  tlio 
king?  ao  as  to  iufer  ibe  crime  of  leasing 
making,  or  the  inventing  ur  Bjneailing  of  ru- 
in against  his  present  majestic,  who  was 
king  at  the  time.  For  this  is  tlie  tybel, 
and  upon  the  resolulion  of  thi«  question,  tha 
whole  lyhel  depend*,  for  certnittly  it  i«  not 
leasing  making,  aa  ilelined  by  our  statutes,  la 
spread  rumours  or  false  and  sliiuderou*  speeches 
amongst  aubjeclt. 

And  whereas  ilia  all  edged,  that  the  lyhel 
bearf,  that  the  fact  wascoiumitled  in  op]>osilloii 
to  his  majesties  title  to  the  crown,  ami  couse- 
quenily  lu  the  Actof  Setllement  and  his  majta^ 
lies  succensiun. 

But  Ibis  ia  a  rery  strained  inference,  and 
seems  to  be  cnntrailicled  by  the  lyhel  itself, 
which  mentions  his  majesties  sole  and  undoubt- 
ed tight  lo  the  crown,  and  consequently  couki 
netcr  he  meant  ofhis  right  of  sucvessiun  wliieli  . 
ivasouly  iHn/ie.  And  elsewhere  it  ia  said, that 
the  fact  lybelled,  does  tend  to  aliennle  the  af- 
fection  ol  the  subject  from  his  waJKties  |iersan 
and  g-i<erninent,wbich  ciiulil  never  bv  apply ed 
hut  lo  the  BOTGcaignn  reigning  si  comnilliing 
Ihe  liict.  and  nui  in  liis  majnuie,  whose  liajipy 
accession  was  sumo  timetbcrratlcr. 
Awl  Uu.yrtUiiGit  11m ■jftwbtf  agaiurt  Um  ■ 


775] 


1  GEORGE  I. 


Trial  of  John  Oliphani  and  oihertf 


[778 


late  qiieeti  and  gorenitnent  now  uttered  mi§^ht 
be  puuislieil,  is  nolliinir  to  the  present  purpose, 
for  tbis  their  lordshipii  aecs  is  uut  the  fact  laid 
io  the  IvM. 

9(lly.*  The  law  is  plain  as  to  this  point,  that 
leasini^  uuikin;^  niny  l)e  by  slanderin||f  the  kin;^ 
pti^f'uitors,  but  then,  that  slandering  must  be 
in  the  rei^ipne  of  his  mujestte,  whose  officers 
puiAiie.  and  inu^tnotnrym>  from  a  fncl  uUeadg- 
cd  committed  in  liie  sucredinqf  reii;no. 

3tio.  Thisj  nrysos  Iruin  Uu'  disposiition  of  the 
couiiuun  law,  ~iouL-hiit>^  slanders  and  injuries, 
Hot  leusinif  iiiakinj||r  isi  nothing  but  an  injurious, 
scandalous  uiid  slanilerouit  speech  a^^'jinst  the 
snverai^ne  ;  and  so  is  by  our  lawiers,  particn> 
Jarly  by  sir  Geor<re  Mackenzie,  treated  under 
the  title  de  injuriii:  and  although  the  crime 
is  liig;lily  auc^ravatcd  by  the  quality  of  the 
])ei->on  asfainst  whom  it  is  comuiilted,  and 
the  punisl'.iiiont  an::oxed  to  the  crime  there- 
ftirc  mr.de  mt.ro  severe,  yet  it  still  retains 
the  nature  of  injurios.  And  by  the  common 
law  it's  expressly  dcienniijrd.  « injurianmi  actio 
tuque  he/e^Ii  neqiic  in  lia'rtMcm  datur"  L.  13 
hoc  tit. :  and  lib.  4,  tit.  12,  §  5  Institnt.  The 
emperor,  spcakin)^  of  rertain  crimes  says,  "Sed 
hu^redibns  hujus  mndi  actioni^  competent,  ox- 
cepta  injunaruin  actinni*,  sed  si  qua  alia  similis 
invenintiir,"  wlu*re  tlie  words,  "  Et  si  qua  ul'a 
jnveniaiiir' arc  uell  to  be  noticed,  &s  pUiinly 
^m'n'C'liendiiQr  the  present  pursuit,  which 
therefore  could  not  have  proceeded,  even  sup- 

Iiose  the  pursuers  had  lybi'lled  the  fact  to  have 
lecn  conimitted  as  an  otTruce  u^ninst  the  late 
queen,  which  is  very  obvious  they  hate  not 
done,  and    consequently  can  never  subsum 
upon  the  crime  of  ioasiii^  making,  nor  upon  no 


penalty  lyUelled,  docs  not  aryse  from  the  si- 
ieadf^ed  crime,  and  so  if  a  capital  punishmeBl 
had  been  concluded,  or  if  escheat  ol  moveabld 
and  lyiVcnt,  f»r  if  tiuscl  of  o(hce  hud  hren  8pe< 
cificd  to  Ih*  the  cousequeiK^  of  the  cnme,  thi 
pannells  wrrc  cit<'d  ti»  appear  and  prepare  tbti 
defence  a«^ain$i  the  conclusion,  which  they  an 
intirely  precluded  from,  by  the  method  whid 
the  pursuers  has  followed,  which  oo^bttob 
nicely  guarded  agfaiost. 

For  ahlio  the  leidges  are  absolutely  secor 
from  streeches,  and  extending  of  punishmeal 
of  crimes  under  the  present  constitution,  wbci 
they  have  persons  of  so  great  leaniinf?  and  in 
tegrity  to  lie  their  jndi^^e,  yet  precedents  are  1 
be  guarded  ai^inst  for  the  posterity^  of  pnMi 
rity,  and  the  subject  is  not  to  be  deprivnl  of  tli 
last  opportunity  of  defence  either  against  tl< 
crime  or  conclusion  therefrom,  and  the  panoel 
do  oppone  the  constant  cojtnm  and  prtdiqc 
in  labelling  of  criminal  inditementa,  where  tti 
particular  punislmieni  is  specitieil  in  the  CM 
I  elusion,  or  which  is  the  same  thing,  that  tti 
pannells  ou^ht  to  be  punished  with  the  pair 
of  law,  ffor  then  the  law  w  hidi  declares  th 
crime,  directs  to  the  particular  conclusion,  an 
the  ]>aniiel  if  he  is  not  prepared  to  detec 
against  the  conclusiDU,  is  to  blame,  and  not  tl 
imrsner;  but  \ihf  re  a  particular  |>ena1ty  if  er 
dea\oured  to  he  addc<l  at  pleading,  or  by  tt 
information,  as  in  this  case,  the  pannel  if  n 
more  bound  to  answer,  than  if  the  premisse 
of  the  sylogism  or  lybel,  from  whence  lii 
conclusion  is  drawn,  had  liccn  general,  od« 
»t  the  piu'Kuers  li:ul  coiuK:»ccndvd  on  the  particu* 
I'  lar  fuit  iiifrniiiij  the  crime  at  their  pleading, o\ 
iu  their  informulii'n. 


other  crir.ics  as  done  in  contempt  of  his  ma-        The  pannti  John  Oliphant  against  whom' 
jeslie  or  his  royal  authority,  and  while  at  the  :  separate  criuK!  is  laiil.  does  repeal  the  immul* 


tame  tymc  the  ly^el  evidi'ucrs  his  majostie  had 
not  surccfd  the  time  of  the  fact  Ivlnlled. 

And  that  the  lyhel  is  wrongou  Jy  led  in  this 
respect,  appears  from  the  other  parts  thereof, 
MheiP  it  is  said,  that  the  (Vetendor  now  st\les 
himsrlf  kii.Lj'  of  Scoihind,  by  the  name'  of 
J»mi.'s  thi*  8ih,  but  dors  not  say,  that  the  said 
I'rclt-r.d- r  liid  thus  st\lf  himsdf  the  time  of 
coiiiinittiiit:  the  fact,  and  yet  the  essence  of  the 
Clime  rsc^.iis  to  be  laid  in  this, that  the  pannells 
are  allrailffcd  to  have  given  the  pretended 
Prini-t^  i  1'  Wales,  tlif  s-anio  wroncfful  designa- 
tion, V.  hii'h  he  ii(«sui.:rs  to  hiinsilf,  and  thire- 
fbre  ongla  t<>  hate  Kuhsuiiu-d,  that  the  said 
|iicteuil(.d  Prince  ot  Waiis,  gave  himself  these 
f:'.\  les.  froiu  which  the  criiiie  is  inlerred,  at  tl)e 
tioif  of  oomioitiinif  of  the  f.ict  lylK'lle<l. 

Tlit^  lasi  dei't^tioe  as  to  this  pfiiiit  of  the  lybel 
was,  lii::t  there  is  no  particular  conclusion 
ai:aii:vl  t!te  pannells,  that  they  ou;^ht  to  be  pu- 
iiisiicd  with  this  or  Ihut  prnuliy,  which  s<'ems 
to  be  as  ri'quisite,  as  it  is  to  specific  the  fact 
from  \«hLiJce  the  couchiAion  arysrs,  because  if 
a  special  couclubion  is  ly belled,  and  that  con- 
clusion not  consonant  hy  the  law  of  the  land,  to 
the  fact  »!lc:Mlsrcd  to  infer  the  conclusion,  the 
liuDoells  have  opportunity  to  dispute  the  irri- 
tNncy  of  tlie  coiichtiioo,  antd  to  shew  that  the 


last  dtfi'ocp,  vhich  was  pn»prt*e«l  against tb< 
whole  lybel.  and  docs  not  pretend  to  disputf  tlK 
roievani'y  of  the  alhad^^id  crime,  therewith  I" 
is  charged,  only  il  may  appear  fiom  the  hbe 
ilsrif,  ihatiif  any  such  words  wt  re  «poke  by  bim 
which  he  absolutely  denyes,  it  hks  ilbne  in  « 
tumult  anil  m«>l>b,  which  he  was  en<leav«uiini| 
toqucll  and conipesce.  Thecrimeof  cnrsinjran* 
taking  the  blessed  name  of  God  in  vain,  iscer* 
tainly  very  h-Mnous  and  a  direct  violation  ol  tlH 
moral  law,  the  fountain  and  standard  of  allli* 
uhatsomevcr,  which  tho*  bv  no  law  of  aayni' 
tion  can  never  be  repealed,  yet  it  may  be  tinrt' 
by.  as  to  the  punishments  aui^mented  or  i*' 
stricted,  accordmi:  as  the  broach  of  that  Iswi 
more  or  lc*ss  obnoxious  to  ci\il  government,  in 
therefore  we  sre,  ti>at  in  all  nations  there  w 
different  penalties  annexed  to  the  breach  c»f  t^ 
seveial  articles  of  the  moral  law,  and  oflfrnM 
against  om*  nei^hlmur,  even  for  very  small  in 
juries  done  to  him  in  his  Gfoods,  a«  in  thecfl 
of  theft,  miM'C  severely  punished  than  these  A 
rectly  committed  against  the  law-giver,  th 
soveiaigne  1>ord  of  all  the  worM,  particoliri 
with  respect  to  cur&ing,  swearing  and  bhu 
phcming,  a<:  appears  by  Charles  the  2ml,  pirfM 
mcnt  1st,  session  1st,  cap.  ll»th,mtHied  ChiHi 
the  Snil,  ptrKament  Sod,  fcstion  d4|  cqi.  9lH 


for  drinking  iht  Pretender's  HeuUh* 


A.  D.  1715. 


[778 


'kieh  the  patinel  coDcludet,  that  the 
to  this  article  which  is  relevant,  ctnnot 
wudu&ioD  as  to  the  puninhmcot  he  fur- 
eiidetJ,  than  the  peualties  contained  in 
wa,  thouffh  the  crime  ^houkl  he  proven, 
D  truth  It  can  never  be.  In  retjiect 
\Stc, 
SuOscribitur^  James  Grahamb. 


4M  July,  1715. 


Iron' 


Oliphant,  Alexander  Watson,  and  Mr. 
llamiayy  present  baiUies  of  Dundee: 
Lyofiy   voun{rer,  of  O^il,  treasurer ; 
Thufnas  WiUSn^  vintner,  there. 

ted  ami  accused  Ml  in  die  precedenti. 

icr, — Sir  James  Stewart,  his  Majestie's 

*  and  Advocate  depute. 

trators  in  Defence. — Sir  James  NaS' 
r.  Charles  Gray,  and  Mr.  James  GrO' 
drocais. 

jords  JnMice  Clerk,  and  Commissioiiers 

siary,  having;  considered  the  lybel  at 
ince  of  his  inajefttie's  advocat  for  his 
k's  interest,  aj^ainst  John  Oliphant, 
Icr  Watjtf>n,  and  Mr.  Williann  Ramsay, 
baillies  of  the  town  of  Dundie ;  William 
ounjs^er,  of  Ocril,  town- treasurer;  and 
liiam  [So  MS.]  Wilson,  vintner,  there, 
;  with  the  fore)j[oin;jf  del>ate  thereupon, 
id  the  sairl  pannels,  all  or  each  of  them, 
io^  to  the  Cross  of  Dund  e  on  the  10th 
uwc,  1714  years,  and  their  drinking' the 
er's  health,  by  the  name  of  James  the 
clevant  to  inrcrr  an  arbitrary  punish- 
As  also  find  the  said  John  Oliphant 
\ng  Uinij  Georiye  in  the  terms  lybelled, 
e  20th  day  of  January  last,  separatim^ 
to  inferr  an  arbitrary  punishment 
the  said  John  Oliphant ;  and  repell  the 
fences  proponed  for  the  pannells,  and 
bem  and  the  l^hel  as  found  relevant  to 
wledLCe  of  an  assize. 
uhscrilfitur,    Au.  Cockburns,  I.  P.  D. 

ASSYSE. 

im  Martin,  of  Harwood. 
illiam  Meuzies,  of  Glaidstains, 

•  Dewar,  of  Fullertoun. 

:r  Murray,  of  Ilalmyre,  younger. 

—  Warronder,  of  Lochend. 

I  Scivwright,  of  Meirgatland. 

nder  Clark,  of  Glundarch. 

tm  Hart,  merchant  in  Edinburgh. 

mcc  Anderson,  mcrciiant  there. 

I  Louthian,  merchant  there. 

h  Reoch,  painter  there. 

nder  Burton,  glaxier  there. 

I  Johnstoun,  merchant  there. 

bsM  Campbell,  of  Kacken. 

t  Bull,  merchant,  in  Edinburgh. 

dure  assyie  being  all  lawfully  s^roni, 
A^BOti^  of  ibe  kw  in  the  contrair. 


His  Majettie's  Advocate  Depute  fw  pnibs« 
tioD,  adtluced  the  witnesses  after  deponing,  vis, 

Thomas  Dowie,  merchant,  in  Dundie,  aged 
twenty-six  years,  or  thereby,  maiTied,  so- 
lemnly sworn,  purged  of  malice,  prejudice, 
and  partial  council,  examined  upon  the  lybel 
and  interrogate,  depons,  That  upon  tlie  lOth 
day  of  June,  1714  years,  between  eleven  and 
twelve  at  night,  the  deponent  did  see  Aletaoder 
Watson  and  Mr.  Thomas  Wilson,  both  panuels^ 
at  the  Cross,  at  Dundie,  with  glasses  with 
wine  in  them,  and  heard  them  drink  a  health 
to  king  Jaoies  the  Eight ;  and  after  drinking, 
saw  them  throw  up  their  glasses  and  bottles  of 
the  wine;  and  that  Alexander  Wilson,  while 
drinking  the  said  health,  was  upoo  one  of  bit 
knees,  and  heard  the  said  two  persoos  repeal 
the  words,'  Here  is  to  the  health  of  king  Jamea 
the  Eight.  Causa  scientiis  patet ;  aad  this  la 
the  truth  as  he  shall  answer  to  God. 

Sic  SukKribiturf        Thomas  Dowu« 

Ad.  CocKBuaif. 

Alexander  Low,  merchant,  in  Doodie,  aged 
twenty-eight  years,  or  thereby,  married,  so- 
lemnly sworn,  purged,  and  intentMrat  ut  mpra  ; 
depones,  That  upon  the  10th  of  June,  1714* 
almut  eleven  a-c)ock  at  nig!)t,  the  deponent 
was  at  the  Meroat- cross  of  Dundie,  and  saar 
there  present,  John  Oliphant,  Alex.  Watson, 
Mr.  Vvm.  Ramsay,  William  Lyon,  and  Mr. 
Thomas  Wilson,  pannels;  and  did  see  them 
drink  a  health  in  glasses  of  wine,  and  heard 
them  name  the  health,  to  be  the  health  of  king 
James  the  Eight,  and  did  see  a  bottle  of  wine 
or  two  thrown  in  the  air,  at  the  place  where 
the  health  was  drunk,  when  the  same  was 
named.  Causa  scientia  patct  ;  and  this  is  the 
truth  as  he  shall  answer  to  God.  And  furder 
depons.  That  he  heard  every  one  of  the  said 
five  pannells,  name  the  health  of  king  James 
the  Eight,  and  saw  them  drink  the  samen  ; 
and  this  is  the  truth  as  he  shall  answer  to  God. 
Sic  Suburibitur,        Alex.  Low. 

GiLB.  Euorr. 

Wm.  Sriiilh,  taylor,  in  Dundie,  aged  twenty* 
nyne  years,  or  thereby,  married,  solemnljr 
sworn,  purged  of  malice,  prejudice,  and  partial 
council,  examined  end  interrogate,  depones. 
That  upon  the  10th  day  of  June,  1714  years, 
about  eleven  a-clock  at  night,  the  deponent 
saw  John  Oliphant,  Alexander  Watson,  Mr. 
William  Ramsay,  Wm.  Lyon,  and  Mr.  Thomas 
Wilson,  pannels,  u|K>n  the  downmost  steps  of 
the  Cross  of  Duadie,  and  saw  them  drinking 
healths,  and  several  healths  were  named,  and 
particularly  king  James  his  health  ;  but  does 
not  know  what  king  James,  and  does  not  know 
who  named  the  health,  nor  whither  it  was 
named  before  or  after  they  had  drunk  the  said 
health.  Causa  scientia  patet ;  and  this  is  Uia 
truth  as  he  shall  answer  to  God. 

Sic  Subscribilur,        Wm.  SMrm. 

H.  Calderwood. 

James    Miller,  weaver,   in    Dnndie,  aged 
twaaty  yaars4)r4lMniby,  iMWUurried,  solanuily 


^] 


1 GEOUGE  I 


Triai  n/John  OUphaut  a 


I,  pargcJ  of  malice,  prejudice  aotl  pnrtial 
Minvil,  elftinined  mil  interrogitle ;  ilt|iaae9,  I 
I  upon  the  30th  day  oC  Jsniiarf  lost,  rhe 
luent  bdnir  staniliiig  al  ihe  foot  of  llie 
B|*ee|i1e  ofDutiilie,  m  lien  ihe  (kIIi  were  ringing 
E.flh  ouca^iiD  of  the  thanks^iTing  lUy.  tor  tlie 
■  ISm;'*  scceuion  to  the  throne,  llie  deiianeDl 
1  did  ue  Jolm  Oliphftnl,  panoel,  at  the  foot  of 
I  tile  sail!  Ble«p1e,  sail  did  hear  him  lay  these 
[  words,  God  duiun  Wag  George  his  bluud ; 
[  «*w<i  tcienllft  palel ;  and  ibis  is  tlie  truth  as 
be  ahull  answer  lo  Gud ;  and  declarn  he 
Monot  write. 

Hie  SuUcriUlur.  J.  Hamilton. 
Andrcm  Barron,  serTilor  lo  Ihe  {{laver  trade, 
in  Duadie,  ai^d  thirty  years,  or  thereby,  ma^ 
ried,  solemnly  liworn,  uurcted  and  inlerrogat 
mttupra;  depuna  that  lia  was  at  the  lawn  of 
Dundie,  upon  the  SOib  day  of  January  last, 
the  day  B|>)>ointi'd  far  TlianksKiring,  on  ac- 
oounl  of  his  mnjeslies  BC£«Hiion  to  tlie  throne ; 
the  which  day  he  the  dupnoent  was  in  the 
«hurcli  yesrdallht  time  iv  lien  there  wei'eiitlicrs 
that  wentia  lo  the  steeple  and  toll  the  bell, 
■ndnhen  tie  Ihc  ilrponent  was  in  the  church 
jeani,  he  did  see  baillie  Ollphnut,  paonel, 
there;  ami  did  hear  him  say.  What  did  the 
people  mean  by  rio^iii^  of  the  bells?  Aud 
tliercnpon  further  sny,  '  God  damn  the  king 
«nd  tbem  both ;'  and  further  depons,  that 
before  the  lialllie  emitted  the  foresaid  cune 
•Od  exprpEUDii,  he  heard  the  people  telt  hini, 
tliat  Ihe  ringing  of  the  bells  was  in  hooour  of 
long  George  his  accession  to  the  throne;  and 
deiKwB,  it  was  at  the  foot  of  llie  steeple  ai  ibe 
door,  that  he  heard  people  telt  the  bnillie,  on 
wbai  occasion  the  bel^  tvcre  rung,  and  thai  it 
waaul  Ihesuine  place  lie  heard  llie  liai  llie  curse 
Ibe  king  as  said  ia.  Causa  scieiilia  putct  ; 
■nd  this  U  Ihe  trulh  as  he  shall  answer  lo 
Ood.  Sic  SubscTiiilar,  Andiiew  BAitaoN, 
Ui.  Erskwe. 
TbeLordsJnitiice; Clerk  and  CommisHonert 
•f  Justiciary,  ordain  the  assyse  presently  to  in- 
slose,  aud  lo  ri.-turu  iticir  verdict  lu-morrow  at 
^Iwelre  o'clock,  and  the  haill  Hi^ceu  to  be  pre- 
•cut,  each  under  the  pain  of  100  inerks, 
.,  Stk  July,  i71i. 

Snlrani' 
John  OUphnnl,  baillie  of  Dundie. 
Aleiiindtr  n'at$an,  baillie  lliere. 
JUr.  n~i//u'ui  liunjiny,  baillio,  there. 
Ifit^tani  £,yon,youQg«r,  ofOgill,   treonircr 
there,  and 

Jlr.  T/iomai  WiUoH,  Yintncr  ihare, 
ludicledand  accused,  u(  in  die  priutdtntt. 
The  said   day,  the  persons  ivho  past  upon 
''  te  of  iliesaidpauuells,  relumed  tlietr 

I  presence  of  the  said  kntla,  whereof 


I,  Jui'yi,  1715. 

I   The    abate    Assyn    having   enclosed,   did 

ftaboycc  air  WUIimb  Ueusies  of  CUidtUiu* 


lo  be  ibeir  chancellor  and  ArcliitaM  CmpWRi 
their  clerk ;  aud  having  considered  the  lyl>et 
at  the  instance  of  his  miijeaties  adrooale  lor 
his  highnesses  iulerest  auaiiist  John  Oliphanl, 
AlexaiiderWalson,Mr.  VVdliamRamiwy,  Wtl- 
liam  Lyon,  and  Mr.  Thomas  Wilson,  |raiiiieli, 
the  lards  justice  clerk  and  coroinissioDeis 
of  justiciary  their  iaterloquitor  thereon,  aiiil 
deposiliuns  of  the  witnesses  adduced  l>ir  ur«f- 
ing  thereof,  ihef  all  in  one  roicb  find  tlw 
Ivbdprnven  ngainitl  Alexander  Watson,  asi' 
lilr.  Thomas  Wilson,  two  of  the  panoels,  Ihsir  I 
drinking  king  James  ibe  eight  his  health,  plaiw 
day  and  year  of  God  lybelled.  And  finds  tl' 
proven,  that  John  Olipbani,  Mr.  Williaa 
Ramsuy,  and  William  Lyon,  the  olher  tbrca  ' 
panuells  did  drink  king  James's  ke«mi  tba 
fiirsaid  lime  and  jdace  lybelled  ;  as  also,  did  ill  | 
in  one  voicefGnd the  lyliel  prnven  against  Iba' 
said  John  Oliphanl,  viz.  his  cursing  kinf  j 
George  in  the  terms  of  llie  lybel  and  inleite* 
quitur.  In  witness  whereof  ihir  prcscola  art| 
subscribed  by  our  said  chancellor  end  ckrk  in  { 
our  names  place  and  dale  foresaid.  , 

Sic  SubicrUiiiur,  Wm.  Mexzies,  ChaBC. 
A.  CtHfaeLi.,  Clark, 

The  Lords  Ju»tice  Clerk  aud  Commitsiimnt  . 
of  Justiciary  delay  the  consideration  of  thenid'j 
verdict  till  Monday  next  al  nyne  -•-'--'- 

12HJu/y,  1T15. 

Jirfin  Olipliant. 

Aleiaiiiter  Ifotton,  and 

Mr.  IVn.  itnnnoy,  bailties  ofDuoJ 

William  l^on,  InwD  treasurer  th«n 

Mr.  'i'haaiai  Wilton,  vintner  (here.  2 

The  Lords  Jostioe  Clerk  and  Coaii 

of  Justiciary,  hating  coiteidered  the 

fiSByaer<:lurned  U)inn  lbs  5th  dav  of , 

slant,  against  the  said  John  O^pbaoV 

der  Watson,  Mr.  William  llamsay, 

Lyoii,   and   Mr.   Thomas    Ilamsay,   pni 

They,  iu    res|)ect  thereof  by  the  montb  •( 

Charles  Kin i-OES,  mocer of  court,   deprir«tbt 

said  John  Olipbaui,   Alexander   "'  ""' 

Mr.  William  Ramsuy,  of  their  ut 

of  Duudie,  aud  the  said  William  Lyon  of 

office  of  treasurer  of  ihc  said  burgh,  aadlt 

dare  the  said  Jubn  Olipbant  incapaUe  of  » 

joying  any  public  oSice  or  trust   wilhin 

said  burgh,  or  wilhin  ihsi  part  nfGrcall 

loin  call^  Scolland,  in  all  time  coming. 

declare  the  said  Alexander  IValson,  and 

Thomas  Wilson,  incajnbie   of  enjoyioff  t^ 

Kiblic  office  or  trust  wilhin  theEaid  burgba 
undie,  in  all  time  coming.  And  also  dedi 
the  said  Mr.  Wilham  Ramisy,  and  WilKl 
Lyon,  incapable  of  enjoying  any  public  ofl 
or  Irusl  within  the  said  burgh,  fur  the  since 
three  yeara  next  alter  the  date  heref 
ticklykc  tha  said  lords  fine  and  c 
the  said  John  Olipbant  in  the  sum  of  300  n 
8cnls,  and  the  said  Alexander  Watson,  ii 
sum  uf  lOOJ.  i^tcots,  and  the  said  Mr.Tboa 
>VilNii,  in  the  lum  of  100  uerk*  Scots,  n 


981] 


Tfud  ofOeorge  Rohertm. 


A.  D.  1715. 


r 


thnm^t  to  be  paid  to  his  majesties  receirer 
general  for  hik  highness  use.  And  ordain  the 
■id  John  Oliphant,  Alexander  Watson,  nod 
Mr.  William  liamsay,  William  Lyon,  and  Mr. 
Thonas  Wilson,  to  he  carried  to  the  tolhouth 
•T  fidiabnrgb,  there  to  remain  until  the  lOlh 
4aj  of  August  next  inclusivp,  and  the  said  John 
Obpbant,  Alexander  Watson,  and  Mr.  Thomas 
Winoo,  to  remain  thereafter  in  ttic  said  prison 
■dl  they  make  payment  of  their  said  res|>eG- 
liM  fines;    anu   ordain  the   magistrates  of 


Edinburgh  to  sett  the  persons  of  the  said 
William  Ramsay  and  William  livon  at  lib 
furth  of  the  said  Tolbooth  after  the  said  il 
and  also  to  sett  the  persons  of  the  other  t 
paunels  at  Hbcrtv,  after  elapsing  of  the 
day,  upon  pnxluclng  their  respective  discha 
of  the  said  fines ;  which  is  pronounced 
doom. 

SU  Subacribitur,  Ad.  Cockburn 

W.  Calderwood,  GiLB.  Eliot,  Ja.  ! 

KENZIES,  J.  Uamiltun,  Da.  ERSKn 


iSi.  The  Trial*  of  Mr.  George  Robertson,  Minister,  for  i)egl( 
ing  to  pray  for  the  King:  1  Geo  hoe  I.  a.  d.  1715.  [N 
first  published  from  the  Records  of  Justiciary  at  Edinburj 


Cnu  JomcuRTS,  S.  D.  N.  Regis  tenta  in 
prtttorio  burgi  do  Edinburgh,  undecimo 
die  mensis  Julii,  millesimo  septingente- 
siroo  decimo  quinto,  per  honorabiles  vinis, 
Admmum  Cockbum  de  Ormistoun  Jus- 
ticiariom  Clericam,  Dominos  Gilberturo 
Eliot  de  Uinto,  Jacobum  Mackenzie  dc 
Rovstonn,  Gulielmum  Calderwood  de 
Poltoo,  Magistroa  Jacobum  Hamilton 
de  Pancaitland  et  Davidem  Erskine  de 
Duo,  Commissionarios  Justiciarij  diet. 
K.  D.  N.  Regis. 

Curia  legittime  affirmata. 

Intran* 
Gtorge  Robcrisnn,  minister  of  the  meeting- 
house of  Killiechange  in  the  parocbine 
of  Logiereat. 

Indicted  and  accused  at  the  instance  of  sir 
Datid  Dalrymple,  of  Hailes,  baronet,  his  ma- 
joties  Adrocate  for  his  highnes's  interest,  for 
berime  of  not  praying  for  the  king.in  man- 
ner mentioned  in  tne  criminal  letters  raised 
H[aiBst  him  thercanent.  Maketh  mention,  That 
^oereby  an  act  made  in  the  tenth  year  of  his 
hie  majettie's  reigoe,  intituled.  An  Act  to  pre- 
vcatf  those  of  the  episcopal  communion  in  that 
pcti  of  Great  Britain  called  Scotland,  in  the 
carase  of  their  religious  worship,  and  in  the 
vieof  the  liturgy  of  the  Church  of  England, 
hii  enacted.  That  every  minister  and  preacher 
IS  well  of  the  Established  Church  in  that  part 
if  Great  Britain  called  Scotland,  as  those  of 
As  Epiicopal  Communion  protected  and  al- 
lived  by  that  act,  shall  at  some  time  during 
Ik  oercise  of  divine  service  in  his  respective 
tkmh,  congregation  or  assembi}',  pra^  in  ez- 
'  words  fur  her  must  sacred  majestic  queen 
and  the  most  excellent  princess  Sophia, 

and  dutchess  dowager  of  Hanover 
^ — , 

*  See  the  preceding  Case  and  tlie  two  fol- 
J^VHff  Caaei. 

t  BO  in  the  Record.  It  should  be  <  protect.' 
rjtafft  beKtolbre  adverted  to  the  strsntre  in  • 
of  the  Scots  Records,  which  how- 
omr  1  hat 0  tbonght  it  right  to  retain. 


while  living,  and  all  the  royal  family, 
their  excellencies  the  lords  justices  in  ooi 
in  pursuance  of  the  foresaid  act,  upon  th 
of  August  1714,  ordered,  that  hereafter  < 
minister  or  preacher,  whether  of  the  Estal 
ed  Church,  or  those  of  the  Episcopal  Cun 
nion,  shall  in  his  respective  church,  congi 
tion  or  assembly,  pray  in  express  word 
his  majestic  king  George,  his  ro^al  hi( 
the  Pnnce,  and  all  the  royal  family.  K 
theless,  the  said  Mr.  George  Robertson,  ' 
performing  divine  publick  worship  in  his  i 
ing- house  at  Killiechangie  upon  Snnda; 
5lh  of  June,  1715  years,  neglected  and  or 
to  pray  in  express  words  for  his  maiestie 
George  and  his  royal  highness  the  Frincc 
that  in  manifest  contempt  of  the  said  h 
pafliaraent,  and  order  of  the  justices, 
notwithstanding  he  was  formerly  convic 
amerciat  by  the  justice  court  at  Perth  in 
last  circuit  for  the  like  offence,  fibr  whi< 
ought  again  to  be  punished  with  the  pains  c 

Pnrnier.— Sir  Jamet  Stewart  his  MaJ 
Advocate  depute  and  Solicitor. 

Procurators  in  Defence, — Mr.  Jamet 
hame^  and  Mr.  George  M'Kenzie,  Advoca 

The  lyliel  being  read,  and  full  v  debai 
voce,  in  presence  of  the  said  lonls,  paniM 
assizers,  the  lords  justice  clerk  and 
missionersof  justiciary,  ordain  both  part 
give  in  their  informations  to  the  clerk  of 
the  pursuer  to  give  in  his,  betwixi 
Wednesday's  night  next  at  six  a  clock,  ai 
pannel  to  give  in  his,  betwixt  and  Fr 
night  thereafter  at  six  a  clock,  in  ordei 
recorded,  and  continued  the  dyet  of  th 
cause  till  Monday  next  at  nyne  a  clocl 
ordain  assysers  and  witnesses  to  attend 
each  under  the  paine  of  one  hundred  me 

Julif  Ulh,  1715. 
Information  for   sir  David  Dalrym 
Hailes  his  Majesties  Advocate, 

AGAINST 

Mr.  Oeorge  Boberlion^  minister  i 
meeting-  house  at  KiUiecbaogie,  in  the 
ofLogierate. 


7S3] 


1  GEOIIGE  I. 


Trial  of  George  Robertson, 


[7jj| 


The  said  Mr.  GeoT|^  Robertson,  being  in- 
dited for  omiitin^  to  pray  for  his  majeslie  king^ 
George  in  the  terms  of  the  act  of  the  tenth  of 
berl&ie  majostie  queen  Ann,  and  the  appoint- 
ment of  tlieir  cxtirllencieH  the  lords  jiMtices,  the 
Itt  of  August  last,  as  is  ut  more  length  con- 
oiintaiued  in  the  said  intliti'ment,  which  67-e- 
vitatis  cauia  is  licre  held  as  repeated. 


and  the  next  heir  to  the  croirn  nominalim^vad 
all  the  royal  f'aniily  in  general. 

The  proclamation  of  council  imports  bo 
more  than  a  pointin*;  out  ti>  the  subjects  die 
person  of  the  royal  family,  that  by  the  death 
tff  the  princess  Sophia,  was  become  next  heir 
to  the  crown ;  so  that  the  proclimation  of 
council  is  to  ite  understood  as  a  direction  to 


It's  needless  to  tnuible  the  lords  with  any  ^  those  concerned  who  the  |>erson8  are  that  are 

I  III  1  #*  ■  i  ■  I  A*  *«*  *  il"  a 


aitswer  to  tin*  aile<lgaoce  made  for  the  pai;nel 
anent  the  form  of  procedure  in  the  said  indite- 
ment,  as  that  the  said  order,  or  appuinlment  of 
the  justices,  was  not  given  out  with  thp  indite- 
inent,  &c.  That  haviug  been  ansvverctl  iu  !Vlr. 
Guthrie's  Case  now  dependin;^,  and  tiierefore 
shall  proceed  to  the  other  dufcuce^j  ior  the 
ptQiiel,  and, 

Inio.  It  was  alledgcd,  Hnt  the  act  of  parlia- 
ment of  the  tenth  of  qu'c n  Anne,  nor  the pni- 


to  be  prayed  for  nonunuiim^  in  obedience  ts 
the  said  act  in  the  tenth  of  queen  Add, 
rather  than  an  injunction  or  command  to  pray 
for  them,  that  standing  already  aeitleii  by  tbe 
said  aet,  to  whicli  obedience  was  due,  under  tht 
penalties  therein  contained. 

And  this  suificiently  ilhi^trates  tbe  nature  of 
the  order,  or  appoiuinienk  of  tbe  lords  justices, 
and  also  answers  the  objections  that  are  mads 
against  it ;    for  the  said  appointment  of  tht 


clamation  of  the  jlIi^licc^t,  could   nut  support    justices  only  directs  wh«>  the  persons  are  tbat 
the  relevancy  of  the  indilemtnt,  because  the  I  in  obedience  to  the  said  aet,  are  to  be  prayttl 


said  act  only  appoints  prayers  to  be  made  for 
ber  late  maje.-^lie  quesn  Anne,  the  princt-ss  So- 
phia, while  litiu'T,  and  all  the  rnyul  family. 
And  the  appdiutineiit  ui'  the  lords  jui>t:4*es 
cannot  be  loukt  upon  to  h»  other  th::u  a  re- 
commendation to  all  couri!:-nc'<l,  That  public  k 
prayers  should  be  niade  for  his  majestic  king 
George,  but  can  never  be  undiTiitoud  tti  b<.*  of 
the  nature  of  a  law  enjoining  comjilyancc 
therewith  under  n  penally  :  bc&idcs  that  no  pe- 
nalty is  contained  in  the  snid  |iroclamatiou,  or 
appointmtnt  of  the  justices. 

To  this  it  is  auivvcred,  Tiiat  in  regal rd  the 
soveraigne  in  law,  is  undi-rstood  never  to 
die,  so  all  nets  of  parliament  relating  to  titis 
order  as  sncli.  are  in  pcrprnnal  force  iind  ttfiii. 
gation  till  repealed  ;  so  that  the  act  of  the 
tenth  of  the  queen,  enjoining  her  ni:jestie  to 
be  prayed  fur,  retf  liids  his  preseut  tnajrstu; 
king  George,  her  siict^essnr,  us  vvdl  as  her  then 
majeblie;  so  that  the  act  is  t^liil  in  force  tiil 
repealled,  iu  so  tar  as  rcgatrdi  pruycis  lor  iLe 


Boveraigne. 


And  that  is  the  common  sense  and  nnder- 
•tanding  of  the  act,  is  evident  from  thi^,  that 
last  year,  npoii  ih('  death  uf  the  incist  e\eellent 
princess  Sophin,  electrpsN]  and  dntchess  dow- 
ager of  Hanover,  the  privy  eounell  of  (ireat 
Britain  did  not  think  any  new  act  of  parlia- 
ment necessary,  (which  nnyht  have  <  fisily 
been  obtained  the  parliament  being  then  sittinrr) 
for  continuing  ilie  force  and  ohli;>ation  of  the 
fbrsatd  aet,  hut  only  by  ^a  proelaination  on- 
pointintc  his  present  majestic  to  b^  prn}  ed  for 
under  the  title  of  elector  of  linmswirl;,  tho'  ho. 
was  not  nominalim  named  in  the  said  .let,  hut 
only  comprchen<led  under  the  general  1>>rnieuf 
the  royal  family  ;  and  none  nr^ver  doubted  hut 
tbe  said  appointment  of  the  counril,  after  the 
demise  of  the  said  princess  Sophia,  \ias  bindiiitp 
upon  the  whole  subjects  under  the  pcnnltics 
contained  in  the  forsaid  act,  as  much  as  ever 
the  act  itself  was  before  the  death  of  the  saitl 
princess    Sophia:    ffor,    as    has    been   ab(»\e 

noticed,  the  act  of  parlianient  lybelled  on,  re-     because  he  has  not  oliserved  another  pailof  lUi 
gairdiog  prayera  to  wi  made  for  the  sovcraigocy    law,  which  he  wan  alio  obliged  to  do. 

i 


ibr,  as  appears  by  the  order  or  appoiotmeat  of 
the  justices  itself,  coppies  whereof  are  hereto 
subjtnned.  whicli  are  in  tlicse  Mords,  after 
having  narruied  the  claims  of  the  said  act  uf 
nailiauic'Ut  appointing  prayers  to  be  made  for 
111  r  late  majesiio  queen  Anne,  anil  the  DUHt 
e\cellenl  princess  Sophia,  and  all  tbe  rojal 
family',  then  fallows  in  pursnance  of  tiiissct, 
uhiuh  excellencies  the  loitU  justices  iu  ooudqI 
are  pleased  to  order,  and  ii  is  hereby  oidereil. 
That  henceCorth,  every  such  minister  aod 
preacher  siiull  in  his  respective  church,  conjure* 
g.ition  or  assembly,  pray  in  expri*ss  words  fur 
iiis  most  sacred  mi:te>:y  kin;;;  George,  his  royil 
highness  the  I'linrcand  all  theroyal  family. 

Whereby  il  i»  plain,  that  the  said  act  wM 
nnder''ti:ud  by  the  lords  justices  to  be  still  in 
force  ns  to  all  ellecls,  sneing  their  order  is 
founded  upon  it,  isud  expressly  declared  D  be 
in  pwnnance  of  it,  so  that  tliis  order  of  tbe 
justices  is  not  a  new  act,  but  only  puttiog  ft 
former  aet  in  execution,  or  appuinliiig  tbe 
manner  and  orderof  observing  the  same. 

It  ^\as  further  alledged  for  tbe  panocli 
That  the  said  act  of  queen  Anne,  did  only  eo' 
join  the  observation  1  hereof  to  the  established 
ministers  of  this  Church,  and  such  of  theqni- 
copal  clergy  as  shonlil  take  the  Ivenclite  of  tht 
tolleration  granted  by  the  said  net :  hut  so  itis« 
thit  the  pannel  is  not  in  the  terms  thereof,  he 
never  having,  as  that  act  appoints,  prcseotd 
his  letters  of  orders  to  the  jnstices  of  the  peace* 
and  entered  the  same  on  lecord  by  the  clerk  tf 
the  said  justices,  nor  obtained  licence  ftf 
enefinga  meeting  house. 

To  which  it  is  answered.  That  this  delcMi 
mad.^  for  the  pair.iil  is  such  a  metaphtsicri 
qiiibl.'le  foundecl  upon  the  contempt  and  negM 
of  the  very  law,'  from  which  he  can  prMcii 
any  right  to  preach  or  exercise  any  part  of  tbi 
ministerial  fiinction,  that  no  regaird  can  behei 
to  it,  for  the  very  sum  of  the  defence  Id  othir 
words  is  this,  tii'at  the  pnnnel  cannot  be  pa- 
nishcd  for  not  observing  one  point  of  tbii  iw^i 


^  negkding  to  prdyjor  the  King, 


A.  D.  1715. 


[78fl 


ch  reMoning^  can  never  pais  with 
of  commoo  nnderstandbg,  much 
kirds,  who  at  first  sight  must  dis- 
lacy  and  weakness  of  such  an  ar- 
»Q  the  other  hand  it  would  be  oon- 
the  pannel,  tho  he  ought  not  to 
\m  the  bbert^  to  preach  without 
comply ed  with  what  the  law  re- 
irder  to  entitle  him  thereto:  yet 
jjQ^ht  fitt  to  neglect  that,  it  cannot 
if  he  take  upon  him  to  preach  or 
ine  publick  worship,  from  not  ob- 
\  the  law  enjoins  him  to  do,  open 
asion,  TJzt  to  pray  for  his  miyestie 
• 

h  a  defence  could,  with  any  shad- 
m  be  admitted,  of  what  peraidpus 
should  it  be  ?  And  how  should 
authority  of  the  gOTeniment  be 
on  by  erery  pretending  preacher 
'ed  upon  the  raith  of  and  in  obe- 
I  act,  to  preach  without  any  trouble 
ion?  And  when  he  is  called  in 
not  observing  what  is  therein  en- 
lls  his  judges,  that  be  is  not  obliged 
t  act,  because  forsooth  he  has  not 
ibe  same  by  embracing  the  bene- 
Ibo*  at  the  same  time  he  has  not 
iddow  of  a  pretence  for  exercising 
he  ministerial  function  within  this 
laud,  but  by  virtue  of  the  said  act: 
defence  being  meer  banture  and 
»  clioaking  to  every  man's  judge- 
leedless  to  insist  further  upon  it. 
hereof,  Sec. 
SubscribUur,        J  A.  Stewart. 

TioN  for  Mr.  George  Robertson 

AGAINST 

His  Majestie's  Advocat 

kir.  George  Robertson  is  conveened 
i\  process  before  the  lord  justice 
ommissioners  of  justiciary,  at  the 
lis  majesties  advocate  for  his  bigh- 
,  lybelling  upon  an  act  of  parlia- 
>  Annsp,  intituled  Act  for  prevent- 
mce  to  those  of  the  Episcopal 
,  &c.  whereby  it  is  provided,  Tnat 
?r  and  preacher,  as  well  of  the  Es- 
lurch  as  those  of  the  Episcopal 
,  protected  and  allowed  by  that  act, 

I  during  the  exercise  of  divine  ser- 
h  respective  church,  congregation 
,  pray  in  express  words  for  her 
tie  queen  Anne,  and  the  princess 

II  i\}e  royal  family,  and  every  such 
>reacher  neglecting  so  to  do,  shall 
»,  forlieit  for  the  first  ofience  the 
sterling,  and  for  the  second,  shall 
ose  the  benefite  of  ^ this  act,  and  be 
apable  of  ofiiciating  as  pastor  of 
al  congregation,  during  the  space 
ars;  as  also,  lybelling  upon  an 
ilamation  of  the  justices,  enjoining 
to  pray  for  his  moit  ezcelkat  ma- 
II, 


i 


jeitie  and  the  prince  of  Wales,  and  all  the  royal 
fiunily. 

Against  the  rdevancy  of  this  lybel,  it  wai 
allec^icd  for  the  pannel,  That  he  could  not  be 
convicted  open  tne  foroaid  act  of  parliament, 
nor  incurr  the  penalties  therein  mentioned,  by 
reason  that  hit  majestic  king  George  and  the 
prince  of  Wales,  were  not  by  the  act  ordained 
to  be  prayed  for,  and  the  panntel  prayed  for  all 
the  royal  family,  which  is  all  the  act  require! 
after  the  demise  of  the  queen,  and  death  of  the 
princess  Sophia. 

And  as  to  the  prockmstkm  of  the  justices,  it 
was  alledged,  primo.  That  the  said  proclamation 
being  no  pnUick  law,  by  the  form  of  all  cri- 
minal tryals,  a  copy  thereof  ought  to  have  been 
given  out  to  the  pannel,  or  put  into  the  derk'e 
hands  and  refemd  to  as  there  in  the  lybel, 
that  the  pannel  might  have  prepared  for  his 
defence,  neither  of  wliich  being  done,  he  wai 
not  bound  to  answer. 

2do.  Although  all  theanbjects  ought  to  give 
obedience  to  such  orders  and  proclamations  of 
the  justices,  or  the  king  and  council,  yet  such 
proclamations  have  not  the  force  of  an  act  of 
parliament,  as  to  particular  penalties,  unless 
where  some  law  or  act  of  parliament  does  an* 
tborise  such  penalties  to  be  inflicted  upon  the 
failzieing  to  give  obedience  to  such  orders  and 
proclamations  of  council. 

dtio.  As  the  pannel  is  informed,  the  procla* 
mation  of  council  contains  no  oertificatioa 
against  such  as  shall  not  observe  the  same, 
that  they  shall  incurr  the  penalties  m  the  fore- 
said act  of  parliament. 

It  was  anawered  by  the  pursuer,  That  the  act 
of  the  tenth  of  queen  Anne,  in  so  far  as  con- 
cerns the  prayers  to  be  made  for  the  soveraigo, 
is  still  in  force,  and  the  proclamation  .points  oui 
^only  the  successor  to  the  crown,  who  upon  hia 
accession  is  to  be  prayed  for  in  like  manner  as 
the  predecessor,  expressly  named  in  the  act,  so 
that  no  new  act  of  parliament  was  necessair. 
And  this  appears  from  the  proclamation  of  the 
queen  and  council  upon  the  death  of  princess 
Sophia,  whereby  his  present  majesty  elector  of 
Brunswick,  was  oroained  to  be  prayed  for 
under  that  title,  though  not  expressly  named 
in  the  act  of  parliament ;  and  it  was  never  ques- 
tioned but  such  who  contraveened  this  order  of 
council  were  lyablc  to  the  penalties  of  the  act. 

But  this  the  lords  will  perceive,  is  to  assert 
and  not  to  answer  either  from  law,  reason  or 
precedent.  The  act  of  pariiamcnt  annexes  the 
penalty  for  not  praying  for  the  late  queen  and 
princess  Sophia,  but  neither  that  law  nor  any 
other,  so  fares  the  pannel  knows,  impowers  the 
justices  to  ordain  the  successor  to  be  prayed  for, 
under  the  penalties  contained  m  the  law,  upon 
such  as  should  neglect,  neither  indeed  do  the 
pursuers  alledge,  that  the  pro^nation  of  the 
luilices  contains  any  such  oertitMalion,  and  the 
instance  given  of  the  former  proclamation  by 
the  queen  and  council  Umching  the  praying 
for  his  majestic,  under  the  Utie  of  the  elertnr 
of  Brunswick  after  the  death  of  j^nnerm 
Sophia,  is  nQAbg  to  lh%  f«rvw,>wiV«»  "^  ^ 


>»- 


787] 


1  GEORGE  I. 


Trid  qfO^rgi 


jtaoce  ooald  likewise  be  giveD  tbit  a  penoQ 
negleciing  to  pray  in  the  terms  of  that  proda- 
nation  had  been  Kkearise  convict  b^  the  sen* 
fence  of  any  jadieatory  within  the  united  king- 
dom, which  the  parsuer  has  not  alledged  upon. 
And  therefore  this  defence  stands  relerant  in  its 
whole  heads  as  proponed^ 

Thepannel  fortner  alledged,  that  hecoold 
not  be  oooTicted  npon  the  stataie  l^belted,  be- 
caose  jie  was  not  within  the  descnptioq  of  the 
■ame,  neither  being  minister  of  the  Established 
Church,  nor  havug  tlie  benefUe  introduoed  by 
llie  adt,  in  favours  of  the  ministers  of  the  Epis- 
copal Cummnnion,  and  this  oeems  very  evioent 
liom  the  penalty  enacted,  that  the  persons  con- 
'  open  the  hiw  should  forfeit  the  benefite 


thereof,  which  of  necessity  must  pre-imply, 
that  the  perty  to  be  convicted  was  intituled  to 
the  benefite  which  by  the  law  be  was  to  forfeit 
and  loose. 

To  this  the  pursuers  answered,  that  the 
preaching  or  pertbrming  divine  worship,  wilh- 
•nt  observing  the  requisites  enjoined  by  that 
law  was  unUvrfol  of  itself.  And  therefore 
the  (Mnnel  could  not  excuse  himself  of  the  neg- 
leet  in  not  praying  for  his  mijestie,  as  tkat  law 


Bat  this  is  not  to  argue  from  the  pursuers 
lybel,  to  which  the  pannel  is  called  to  answer, 
but  to  insist  on  a  new  lybell,  which  hitherto  hap 
not  appeared ;  and  to  which  therefore  the  pan- 
nel is  not  bound  to  answer.  The  single  quee- 
lion  here  is  whither  a  person  who  Is  nether  mi- 
nister  of  the  Established  Church,  nor  intitlcd  to 
the  benefite  of  the  Act  of  Toleration,  is  sul^jeded 
to  the  penalties  introduced  by  that  act,  only 
against  such  as  areministereof  the  Established 
Cnurch,  or  beine  ofthe  Episcopal  Cummunion, 
are  intituled  to  the  benefite  of  performing  divine 
worship  in  a  meeting-house,  and  its  very  ob< 
vions  trom  the  simple  positioa  vnthout  further 
arguing,  that  such  persons  cannot  be  convict 
upon  this  law,  and  the  pursuera  have  ly belled 
no  other.    In  respect  whereof,  fcc. 

Sk  Subtcribitur^         James  Grabamb. 


Intran* 


iSth  July,  n  15. 


Assize. 


Mr.  George  Robertson,  minitter  ofthe  meet- 
ing-house at  Killichangie,  indicted  and  ac- 
^ued  ut  in  die  precedenti. 

The  Lords  Justice  Clerk,  and  Commissioners 
af  Justiciary,  havingjoonsidered  the  lybel  at  the 
instance  of  his  mijesties  Advocat  for  his  hi(rh- 
ness  interest  against  the  said  Mr.  Geoi^e  Ro- 
liartsoo,  pannel,  with  the  debate  thereupon, 
they  find  the  said  Mr.  George  Kobertson  pan- 
nel his  neglecting  and  omitting,  when  pub- 
lickly  performing  divine  worship,  to  pray  in 
express  terms  for  his  maiestie  king  George  at 
the  time  and  place  lybelled,  relevant  to  inferr 
^arbitrary  punishment.  And  rmeil  the  haill 
Mbneas  proponed  for  the  pannell,  and  remitt 
inai  and  the  lybd  as  found  relevant  to  the 
feaowledge  of  an  aanse. 

fit  AdMTiltor,     AD.CQGiMari»LP.D. 


William  Waddell,  merohant  in  BdaA 
Alexander  Finlayson,  merehfnt  tlnra. 
Archibald  Murray,  merohant  thereu 
John  Thomson,  merchant  there. 
Robert  Philp,  merchant  there. 
James  Hitchelson,  jeweller  there. 
John  Tkylor,  merchant  there. 
David  Nicoll,  merchant  there. 
George  Beech,  merchant  there. 
Robert  Willison,  merchant  there. 
John  Miller,  merchant  there* 
John  Hntton,  merchant  there. 
James  Simpson,  merchant  there. 
John  Lesley,  merchant  there. 
Patrick  GiMon,  merchant  there. 

The  above  assize  being  all  lawfully 
and  no  objection  of  the  kw  in  the  contn 

The  Pursuer  fbr  probation  adduced  tl 
nesses  afte  deponing,  viz. 

Alexander  Robertson  of  FaskaRie  af 
years  or  tliereby,  married,  solemnly 
purged  of  malice,  prejudice  and  partial  e 
examined  upon  the  Ivbell  and  interrogi 
pons  that  be  was  at  the  meeting- booae  c 
liecbangie  upon  the  Sth  day  of  June  last 
a  Sunday,  and  did  bear  Mr.  Geoi;ge  Rol 
the  pannel  pray  in  English,  and  then  pn 
En^sb,  and  did  not  near  him  pmj^  thi 
dnnngthe  time  of  divine  service,  in  c 
words  for  king  George.  Depons  lliai  hi 
out  ofthe  meeting-hoase  immediately  aj 
English  sermon,  the  pannel  being  theret 
preach  in  Irish;  and  that  tliere  was  no 
time  betwixt  the  two  sermons  than  the  s 
of  some  verses  of  a  salro,  causm  scienti^ 
and  this  is  the  truth  as  he  shall  answer  t 
Sic  Subscribitur,  A.  Robekts 

Ad.  Cockbu 

Jumcs  SUwart,  son  to  Charles  Stev 
Balieaehan,  aged  30  years  or  thereby,  i 
ried,  solemnly  sworn,  pursued,  and  intcn 
ut  supra,  depones,  thai  he  was  presenl 
meeting- house  at  Killiechangie  near  Ijo{ 
upon  Sunday  the  6th  day  of  June,  and 
Mr.  Geurpre  Robertson  ])dnnel  say  praj 
English  tu  his  cong^gauon  that  day ,  bel 
English  sermon,  and  did  not  hear  him 
said  prayer  i>ray  for  king  Geoi]^  by  iiao 
|>annel  being  to  preach  in  Irish  in  the 
noon,  the  deponent  came  away  from  the 
ing-house  after  the  English  sermon  wai 
depons  he  did  not  hear  the  pannel  pray  i 
public  person  in  his  prayers  before  se 
and  depons,  that  he  heard  Mr.  Roberlai 
quently,  and  that  it  was  not  usual  for 
pray  for  the  king  in  his  public  prayer 
sermon,  but  in  bis  Irish  prayer  afier  a 
he  has  heard  him  pray  for  Idn^  Geei 
name.  But  it  was  before  he  received  ei 
at  Perth  in  May  last  Causaseiemim 
and  this  is  the  trulh  as  shall  answer  to  G 
Sk  SubterikUstr^         Jambs  8rw 

Gob.  Buqv 


U  far  negUdiitg  to  prajf/or  tkt  King, 
Embt  R^d,  indneller  in  Logicralr,  agetl  I 
mn  or  thereby,  mBrried,  tolemnly 
,  purged  ind  iolerrogMe,  ui  tapra,  it- 
itlai  be  *u  present  nithemeeiiiig-liousc  I 
HadlAAgM  upOD  KuDilaj'  Hie  Stil  day  oi' 
Ut,  UM  heaid  llie  p&iinel  Mr.  George 
nan  preach  and  pray  that  day  in  tlie  «»i(t 
g-bouie.  And  dcpons,  lliU  he  heard  the 
t.  GMrgfl  ItobertWD  in  his  prayer,  pny 
•npnam  in  aaihority  who  mm  upua  the 
Itliw,  aixf  fV  all  the  royal  famity  ;  but 
lOl  reneoiW  that  he  prajedfaV  kin? 
■  ty  name ;  (tejuins,  that  the  saiil  lermon 
tytt  were  in  IrJEh,  and  the  sard  itilne«t 
ndentanding  the  EnyK^li  langmge, 
idet  HoM,  itepntj  derh,  was  tworn,  that 
«U  ftithfally  interpreie  betwrii  him  and 
her  witnemea  in  this  procei*  and  the 
«bil  ffaould  be  a«ked  and  deponed,  ai 

" *er  loGud. 

eribitur,  Alex.  Ros«. 


1^  iod  waller,  in  Killiechangie,  aged 
Dupwartla,  mirried,  Bolemnlytworni 

4  iatero^ale,  ul  lupra,  liy  the  inter- 

feBote-Dntned,  depons  he  waa  at  the 
Ig  bmue  at  Killiechangpie  the  5th  day  of 
Im(i  and  heard  the  pauoel  Mr,  Grurge 
Mm,  preach  and  pray  that  day  iu  Iriah 
:  uid  meeting  huute.  And  deponK  lie 
him  pray  for  the  aiipreani  in  aiilhorily. 
WnNat  upun  ifae  royal  Ibron,  and  tur  all 
ftl  family,  hut  don  not  remetnber  thut 
tyed  fur  king  George  by  name.  Cama 
«  paltl,  and  this  ia  the  Iruth  as  he  shall 
r  to  Odd.  And  dqMni  he  canoot  write. 
fp  JltbtrititHr,         A1.EXANDEK  Host, 

^"^  W,  C*U>Ett1tOOD. 

wn,   indweller,    in  Logieraile 
r  lUerehy,  married,  solemnly 
bd  inlerroifato,  by  the  foreaaid 
tupra;  depont,   cunfnrmig  pnx- 
aiDUs,  reddens  eandem  causnm 
'  '■  la  the  truth  as  he  shall  i 
L  aod  deiWDB  he  cannot  write. 
AI.EXANPER  Boas, 
J.  Hamilton. 

19th  July,  171S. 


A.  D.  1715.  [790 

Indicted  acid  accused,  ul  in  diepracedtnli. 
The  |>n»Dn>  who  past  upon  the  tasize  of 
le  saJd  paiinci,  returned  their  verdict  in  pre- 
Dce  ot  the  >«id  lord*  ffbdwAf  du  icnor  fo^ 

EoiNBDaaH,  Juiy  18,  1715. 
Tbe  abor^  as^yB^hatiag  inclosed,  did  chovttf 
James  ^iniMon,  cnercliant,  their  chancellor, 
and  Robert  Fliilp,  ffiercbaat,  llieif  clerk,  and 
tiariiig  considered  the  lybel  at  tlie  instance  of 
his  lUajeslies  advocate  for  his  highnes  interest,  , 
against  Mr.  Geor[[e  Robertson,  panoel,  th« 
lords  juBlir«  clerk  and  conimitsionerB  of  jui- 
ticiary  their  iulerloquitor  Iherean,  and  depo- 
sil'ions  of  the  uilneases  adduced  ^r  proving 
thereof,  they  all  in  one  roice  Snd  Mr.  Geurgs 
Robetlson  not  (o  have  prayed  for  his  majeitif 
king  George  in  express  words,  but  finds  it 
proven,  that  he  prayed  for  the  topTeam  ia 
aulbority  who  stia  upon  the  royal  throne,  and 
for  all  tlie  royal  family.  In  witness  whereof  ' 
thir  present!  are  Bubwribed  by  me,  .lamea 
ShnpsoD,  chanccltoT,  andKobert  Phitp,  clerl^ 
in  our  nanies,  place  and  date  foreiaid. 

Sic  SttbKTliitur  ■■    '^ f-l— ' 


35f*  July,  1715. 
Inlren' 

Mr.  George  Robertion. 

The  lords  justice  clerk  and  Mmminiooertf 
ofjuaUdary,  having  considered  the  verdict  of 
aasyse  relumed  updn  the  19th  day  of  Jul^  ' 
instant,  against  ih^  said  Kr.  George  RoberU 
aoo,  pannel,  Ihey  in  respect  thereof,  by  thrf 
moutn  of  Chartes  Kinross,  rnacer  of  ooitt^' 
decern  and  ordain  the  said  Mr.  George  Ro-' 
bertson,  pannel,  tn  desist  atid  cease  Ironf 
preacbin^  or  exercising  any  part  of  his  nd- 
nistcHal  tunetion,  within  the  meetirig' bouse  ti  ' 
Killiechangie,  or  within  any  part  ofihe  paristfi 
of  liO^erail,  for  the  space  of  tbree  yeara, 
next  atler  the  dste  beieof,  under  the  penahy 
of  500  merks  Seals  fbr  ea<^  contravention, 
by  and  ailour  olKcrrance  of  this  present  sen- 
tence whicb  is  pronounced  for  doom.  ' 
Sic  SubKnbilur,  Ad.  CocKBim>lE.-> 
CtLi,  KuoT,  J».  Mackenzie,  VV.  Cai,- 
1,  J.  HAiiti.Tm,  I>.  EniiUHs.   ' 


T91] 


I  GEORGE  I. 


Trial  tf  Alexander  Stewart, 


[791 


493.  The  Trial*  of  Alexander  Stewart,  for  maintaining  the  Title 
of  the  Pretender :  1  George  L  a.  d.  1715.  [Now  first  pub- 
lished from  the  Records  of  Justiciary  at  Edinburgh.] 


CuBU  JusTiciARu  S.  D.  N.  Hegif,  Tenta  in 
praetorio  bum  de  EdinlNirflh,  Decimo 
Octafo  die  JueDsis  Julij  BtinesiuDO  Sep- 
tiogeutesimo  decimo  quiuto  Per  Hono- 
rabiles  Viros,  Adamuin  Cockburn  de 
OrmistouD  Justiciaram  Clericum,  Do- 
mioos  Gilbertum  EHot  de  Minto,  Ja- 
cobum  M*Kenzie  de  Royatoun  et 
Gulielmum  Calderwood  de  ]^lton,  Ma- 
ffiatroa  Jacobuin  Hamiltoo  de  Pancait- 
fimd  et  Dafidem  Erskine  de  Dan  Com- 
missionarios  Justiciary  Diet.  S.  D.  N. 
Kegis. 

Curia  legittimeaffirmata. 

Intran^ 

Alexander  Stewart^  drover,  in  the  Brae  of 
Forth,  now  prisoner  in  the  Tolbooth  of  Edin- 
burgh. 

Indicted  and  accused  at  the  instance  of 
■ir  David  Datrymnle  of  Hailes,  baronet,  his  ma* 
jesties  advocate  ror  his  highnles  interest,  for 
the  crime  of  asserting  the  Pretender's  title  in 
manner  mentioned   m  his  inditeroent  raised 

X'nst  him  thereanent ;  making  mention,  that 
re  by  the  laws  of  this,  and  of  all  other  well 
governed  kingdoms,  the  denying  and  question- 
ing his  majesties  just  and  undoubted  right  and 
title  to  the  crown  of  these  realms,  and  asserting 
tlie  same  to  belong  to  any  other,  or  owning  and 
affirming  the  right  of  any  other  person  to  the  title 
of  kin^  of  these  realms,  and  designing  them  as 
■uch,  m  prejudice  and  contempt  of  his  majesties 
foresaid  just  right  and  title,  and  challenging  and 
threatening  his  miyesties  dutifuU  and  loyal  sub- 
jects with  hostile  and  invasive  weapons,  to  deny 
and  refuse  his  majesties  said  just  right  and  title, 
and  their  alledgance  to  him,  and  to  own  the 
right  and  title  of  king  of  these  realms  to  belong 
to  any  other  person,  and  to  acknowledge  ailed- 
gTance  to  him  are  crimes  highly  and  severely 
punishable,  more  especially,  whereas  by  an  act 
of  the  parliament  of  Great  Britain,  made  in  the 
6th  year  of  the  reign  of  her  late  majestic  queen 
Anne,  intituled.  An  Act  fur  the  security  of  Iter 
majestie's  person  and  government,  and  of  the 
succession  to  the  crown  of  Britain  in  the  Pro- 
testant line,  it  is  amongst  other  things  enacted, 
that  if  person  or  persons,  shall  maliciously  and 
directly  by  preaching,  teaching,  and  advysed 
■peaking,  declair,  maintain,  and  affirm,  that 
the  pretended  prince  of  Wales,  who  now  styles 
himself  king  of  Great  Britain,  or  king  of  Eng- 
land, by  the  name  of  James  the  third,  or  king 
of  Scotland  by  the  name  of  James  the  eight, 
baa  any  right  or  title  to  the  crown  of  these 

*  See  the  preceding  and  foUowiog  Caacs. 


realms,  every  such  person  or  penoMy  aU 
incurr  the  danger  and  penalty  of  PremvaiMy 
mentioned  in  the  statute  of  Premunire  aiads 
in  England  in  the  I6tb  vear  of  the  reigac 
of  Richard  the  second.    Yet  iieverthclcaB»  ha 
the  said  Alexander  Stuart,  bhakiogf  off  attftar 
of  God,  and  regaird  to  his  majestiea  bwaaU 
authority,  and  in  contempt  of  his  just  and  aa- 
doubted  right  and  title  to  the  crown  of  thos 
realma,  did  on  the  lOth  day  of  June  171S 
yeara,  or  one  or  oUier  of  the  day  a  of  the  aid 
moneth,  betwixt  the  hours  of  ten  and  twelve  at 
night  or  thereby,  a  little  above  the  weigh  hooM 
of  Edinburgh,  on  the  high'atreet  thereof,  goiBj; 
before  a  considerable  number  of  iieople  with  his 
sword  drawn  hi  his  hand,  floorisuing  the  saas^ 
did  in  a  very  insolent  and  insuhing  manacr 
challenge  those  you  mett  with,  saying,  Whon 
are  you  for,  and  particularly  William  Aytoaa 
one  of  the  constables  of  the  city  of  Ediaborgb, 
asking  him  as  above  mentioned  with  hia  averd 
point^  at  his  breast.  Whom  are  yoa  for,  ars 
you  for  king  James,  and  adding  1  am  for  kinf 
James,  whereupon  he  was  presently  appre- 
hended, and  the  day  thereafter  upon  a  precog- 
nition* of  his  said  crime  taken  by  the  msea- 
trates  of  Edinburgh,  committed  himf  to  (bflr 
prison.    From  which  fa(  ts  above  lybelled,  heir 
guilty  actor  art  and  part  of  the  whole  or  unear 
other  of  the  crimes  above  mentioned,  which 
being  found  proven  by  the  verdict  of  an  affjiie, 
before  the  lords  justice  general,  justice  clerk 
and  commissioners  of  justiciary,  he  ought  to 
be  severely  punished.     And  |iarticnlarly  is  ike 
terms  of  the  said  statute  of  Premunire,  voofiini 
to  the  act  above  lybelled,  to  the  example  m^ 
terror  of  others  to  commit  the  like  in  tins 
coming. — Sic  Subtcribilury       J  a.  Stewait. 

Informations  ordered.    ■ 

July  J9r*,  1715. 

Information  for  his  Majesties  Advocate 

AUAINST 

Alexander  Slevart  drover  in  the  Brtc  of 
Forth,  now  prisoner  in  the  Tolbuoth  flf 
Edinburgh. 

The  said  Alexander  Stewart  being  iaditcJ 
and  accused  at  the  instance  of  his  majesty's  A^ 
vocat,  fur  the  denying  and  questioning  his  ns* 
jesties  just  and  undoubted  title  to  the  croai 
of  these  realms,  and  aasertiog  the  same  to  b^ 
long  to  the  Pn- tender,  who  takes  to  himrif 
the  title  of  king  Jamea  the  3d  of  England  ai 
Great- Britain,  and  of  king  Jamea  the  eight  if 
Scotland,  and  owning  and  affirming  the  r%ht 

*  As  to  precognition  see  vol.  10,  p.  789. 
t  So  the  Record,  see  p.  709. 


r  mtintalnitig  the  Tble  nfthe  Prttender-         A.  D.  1715. 


«r  tlie  Mill  Pretender  thereto.  And  ptTticu- 
iarly,  opon  the  act  made  in  the  giaHiainent  of 
CtiF«t  BriuiD  ill  tlie  eili  ymr  of  llie  rri)pie  uf 
ker  laleiiiBimlie  queen  Aiine,  entituled  An  An 
(»t  Uia  security  of  ber  Rnjeities  persoo  anil 
Kovrrainenl,  aodof'tlii'successiun  tuihe crown 
of  Briuin  in  ihe  Frutetlttnt  line,  a*  in  Ibe  said 
isditement  more  Cully  contains. 

Il  was  nflered  in  defence  for  the  >iannel. 
IhU  in  so  for  as  lh«  iodittinent  n  u  founded 

7Kt  tlie  said  act  of  parliament,  ol'  ibe  6lh 
queen  Anne,  the  lybel  did  not  subsume  in 
ik*  tpTtns  lliereof,  in  rc^aird  tliat  tbe  nords 
•f  Ihe  act  are,  that  if  any  person  shall  inali- 

«a(y  «nd  directly  by  preacbing,  leachioe,  or 
■M  sjieakin^,  declair,  mainlain  and  sllirm, 
k  wards  are  to  he  taken  jointly,  yet  the 
Milement  does  not  lybel  the  I'act  contained 
Ibwein.  to  be  done  msficioUBly  and  advvsedly, 
nnr  «aD  the  wards  Ijbelled  la  be  spoten  by 
the  pannel,  be  said  to  tie  a  declining,  maia- 
Wmdi;,  and  affirming. 

To  wliich  it  was  Buiwer^,  that  nliere  any 
fad  Of  irorda  in  themselves,  and  in  the  nalure 
and  propriety  tliercuf,  imply  malice,  llie  ad- 
dMoa  ul'  that  circumslsnce  lo  a  lybel,  that 
flw  came  was  tnaliciously  done,  is  altogether 
npfrflaous,  and  the  norda  ol*  the  act  can 
inport  no  more,  than  a  denying  of  his  ma- 
jttutt  rit;ht  and  title  lo  the  crown  of  the«e 
rcolmi,  or  asserting  the  same  (o  belong  lo  ano- 
Ihir,  wiihadesiifnetudeayaud  assert  at  sfore- 
aU,ffor  therein  consists  tbe  malice,  and  cannot 
I*  «lli*rwise  understood,  than  m  a  malirinus 
ndactinn  ngoiosl  the  soveraig-ne,  In  say, 
Aat  he  hai  so  right  to  govern,  or  that  any 
Other  thun  he  has  a  rik;hl  tu  u;ntera. 

Ho.  An  tu  the  words  *  declare,  maintain  and 
■firm,'  the  Ivhel  ia  sufliciently  relevant  upon 
Ibat  hcAil,  seciiig  wboioever  owns  Bny  other 
Mnon  (bao  his  present  raajestie,  as  kint;  of 
Ibcw  realms,  dot-s  expresisly  declare,  mainlain 
tot  A01rm,  tlinl  that  perH>n  htt  the  sole  right 
■iiillille  to  the  crown  of  tliesc  realms,  and  as 
iprt— ly  denys,  that  bis  prfsecl  majentie  has 
amy  right  or  tide  whatsoever,  seeing  (he  exer- 
ciae  orthr  regal  power  and  riglil  thereto  cannot 
bf  separate. 

It  was  furder  alleiliced  for  the  pannel,  that 
the  iodicimeut  did  not  proceed  in  the  terms  of 
the  «aid  ai't  of  parljiiiiienl,  the  said  act  requir- 
ing, that  no  (lersau  should  be  prosecute  for 
warila  sjuken,  unless  inrnrmaliun  thereof  were 
in*de  upun  usth,  within  three  days  ajler  the 
i*onli  were  emilted. 

To  which  it  was  answered,  that  the  indile- 
WttO-  bean  expressly  that  int'iirinatioii  was 
Ikketi  Ihrrror  by  the  magistrates  of  ICdhiburgh 
Ibe  very  nrxl  day  after  the  same  hapuenrd, 
■pm  which  tbe  pannel  was  imprianned,  and 
tiia  VK  auliicieol  to  suopori  the  iodiiement 
ia  ih*  tcrnu  of  the  laid  statute,  seeing  that 
AcaelB  of  parliament  of  Great  Britain, 
■)wmyM  to  tye  Understood,  lo  be  fully  pxec 
«bra  uhwrred  in  such  manner  as  is  coi 
*ad  Mnform  to  our  farms  and  manner 
«idan  ia  ili«  tika  oaiw,  mkI  14  being 


that  no  information  at  never  to  great  distance 
of  time,  in  mailers  criminal,  is  admiited  against 
any  |>eraon  in  England,  except  Ihe  same  be 
given  in  ujinii  oalh,  the  foresaid  clause  of  th« 
act  of  parhament  founded  upon  cannot  he  un- 
derstood m  extend  funler,  (ban  the  fixing  a 
precise  short  time,  within  which  intbrmaiion 
shall  be  eibihite  agaiiitt  pei-sons  oflending 
against  the  said  bc>.  Whereby  ita  plain,  that 
information  being  given  wiihin  Ihe  said  S|iBce, 
in  the  manner  thai  onr  law  prcarrib«s,  come* 
fully  tip  to  what  is  reijnired  by  the  said  act. 
And  il  were  absurd  10  think,  that  an  informa' 
lion  given  in  such  manner  as  to  be  a  sntGcieot 
ground  for  iinprisuning  ihe  offender,  shall  not 
also  be  sufficient  for  founding  a  pTOsecutioa 
against  him  t<>r  his  otlence. 

But  further  giving,  but  not  granting.  Ihtt 
Ibe  lybel  were  not  reletanlly  founded  U|iun  Ih« 
said  act  of  parliament,  yet  Blill  the  tact  aa 
lybblled,  is  sulEcienlly  relevant  upon  ihe  ge- 
neral grounda  of  ihe  laws  el'  this,  and  all  other 
well  governed  realms,  lo  int'err  no  arbitrarf 
pDnishmenI,  and  his  majesties  advocal  Ifainka 
tlie  iiiditement  might  stand  sufficiently  rele- 
vant upon  that  foot,  ds  well  as  ibe  aboTQ 
cited  act.     In  respecl  whereof,  Ste. 

Sic  Subtcribilur,        Ja.  Stewabt. 

Infdb)utio;<  for  Alexander  SiCKort    ^^_ 
nis  Majesiiea  Advocate.  ^^H 

The  said  Alexander  Slewnrt  is  eonfetl^P 
in  a  criminal  process  brlore  Ihe  Liirds  of  Jd«. 
ticiary,  at  the  inalance  of  his  tnajeslies  advo- 
oaie  lybelling  on  ihe  act  of  parhament  of 
Great  Britain,  Sexto  Rvginie  Anr>r,  entituled 
An  Act  Inr  the  securily  of  her  majesties  p«riOIi 
and  giivemmenl,  ftc.  Which  provided,  that 
whoever  mallcioiiily  and  dirertly  nhall  main- 
tain and  affirm,  that  he  who  niiw  styles  him- 
self king  of  England,  by  the  name  of  Jainea 
ibe  third,  or  king  of  Scotland  by  the  name 
of  James  Ibe  eiglit,  haih  any  nghl  or  title 
M  the  cmivn,  shall  incurr  the  penalty  nf 
Pnemiinire. 

Airainst  ihe  relevancy  iif  this  indilement  ai 
foundeil  ujmn  ihe  act  nf  pnrliamenl,  il  waa 
alledged  lor  Ihe  pannel.  that  Ihe  lyhel  doea 
nol  subsume  Tn  Ihe  terms  thereof,  ihul  the 
naniiell  did  innliciunsly  and  direclly  alfirni,  and 
by  advysed  speaking,  ili'l  iteelHre  manlain  and 
affirm,  any  penmn's  right  to  ihe  i-rown,  but 
only  made  use  uf  the  words  klnu  James,  which 
mold  not  tie  called  a  malicious  declairiog  ths 
Pretender's  right. 

It  wiw  answered.  Tbol  ihe  words  Tvbellei]  in 
their  own  nature  and  prn|iriety,  imply  malice, 
and  Iherelore,  it  was  aliogeilier  siiperflnnua 
to  Ivbel  that  Ihey  win'e ;  and  Ihnt  the  worda 
of  lite  acl,  can  import  nn  more  than  denying 
Ills  majesliei  right  and  ilile  in  Ihe  ••ruwo,  or 
asserting  the  same  to  lielong  In  annllier. 

S.  Thewords  *deeUre,maintainand affirm,' 
I  need  nol  expressly  be  contained  in  the  lybel, 
aeeini;  wboever  owna  mj  other  pctHn'a  right 


Wj 


Ttitl^AIaMMJer  Sfaearit 


aa  Uu  of  thoa  mlmi,  exeept  hit  prcMUt  i 


will  pcrmitl.  Tb*  tUtulie  intradaeca  a  aei 
erim^  and  the  lepalator  being  aeuiblF  that  i 
nifht  be  Ibe  rouadatHin  of  wrenl  prtmeea 
'  '     ■  and  trouUci 


be  mind  bj  anNuw  it,  and  bh- 
ir  aay  rfiJwable  laialdar,  «r  hf 
liffbl  and  urr,  apt  to  ra£e«iteM 
bom  itadf  aiiher  b^  appith  fc» 
Ibolith  lapeodta  ai  the  tonne; 


I  upon  this  account  fence  the  act  with 
aereral  exprcaaioaa  which  McmahMilntelj  u^ 
caawry  to  SuaaA  a  erimr  upoa  it,  aa  that  tbeae 
weMb  ara  not  i4le  and  of  ao  aignificatioB,  but 
ia  n-det  to  fhuod  Ibe  crime  meniiooad  ia  that 
act,  it  11  necesnry  that  it  iboadd  bear,  that  the 
paonel  uaed  worda  that  malicioanly  and  di- 
laetly  manlaia  and  aSrai  a  right  to  the  crown 


Idag  James  doe*  not  iapoit. 

Foe  if  tba  hgblator  had  meancd  anjr  audi 

thing,  it  bad  been  eaay  where  the  atatula  men* 

liMM  tba  preiendad  Krince  of  Walei,  who  now 

'  rha  faimeir  king  ot  Eii|^and,  bj  the  oama 

Jamaa  the  3d,  to  bare  capreaaij  m^e  tba 


y: 


Janaei 


be  worda  of  king  Jaroea  tba  3d,  ot  kiag 
the  8th  criminal,  bnt  tba  atolota  maana 


It  Ibe  peiaona  who  deiigoi  him- 
•df  ao  bath  a  right  and  title,  and  tfaeretore  the 
defence  atanita  rneranl 

It  was  foider  cfftred  fbr  the  paimel,  that  the 
Ijrbd  doN  not  bear  an  informatioD  t»  bare  been 
giicD  to  a  juitioe  of  paace.  wiihin  three  davs 
after  aach  words  liaJ  bean  tpaketi,  which  tna 
act  neceiaarily  reqiiirei. 

To  tbia  it  wai  anawered,  Ibat  the  iybti  hmn 
afracognitioD  to  baTC  Iwen  taken  by  the  ma- 
gulratoa  of  EdiDbiirf[b,  the  day  aAer  tfae  words 
were  apoke,  which  ia  liiScient,  and  the  acts  ^ 
Great  Britain  are  fully  aatiafied,  when  ritaened 
ia  Biub  a  maoncr,  aa  is  consistcDt  wilh  our 
ftrois  and  matiDer  of  procedure. 

But  tbia  i«  «tjll  la  lam  the  act  into  whAteTsr 
ritape  the  pursuer  pleaaea,  tba  words  of  the 
ataiule  are  ex^rra  and  universal  binding  in 
pnrsuita  of  thia  aort,  and  tba  law  ia  not  to  be 
satisfied  in  any  other  maaiier  than  what  ia  pre- 
acribcd,  and  tbarsfore  a  preeogaitioD  ia  not  *uf- 
fldent,  and  it  ia  carlaio,  thai  criminal  stamiea 
nether  ongbtDOr  can  bainsUy  extended.  And 
the  raaaon  why  an  infbrraation  ia  Tequirad, 
anetna  to  ba  that  tba  puniel  in  me  of  bis  bang 
fintnd  innocent,  may  have  aceeaa  againat  the 
iolonner  fhr  Ifaa  damnage  and  expnce  of  his 
aunst  proaecution,  and  therefore  aamng  the 
IvM  bear*  no  information  to  have  been  gim, 
the  defence  upon  tbia  part  of  the  act  of  parli^ 
ment  aecnu  w^  fbooded. 

It  was  like  wise -urged  for  the  panne),  that  at 
Ike  tiraa  lybelled  be  was  aeiaeil  with  drink, 
vhicb  saema  anfficiaBl  U  exonlpnta  any  foeliab 
mcpnaaiani  he  might  hare  bean  guilty  of.  ll 
ie  eartaia  there  ia  no    -      


.tetbedi     _     

to  work  upon  the  mind  by  dulling  it,  and  Bi4- 

iag  it  iem  Bt  for  any  rraiJiuable  iSinf' *' 

making  it  too  light  a 
mirtb,  which  ibows  it 

tares  or  nnre  loolith  r  ,  ^.  .  , 

and  thia  it  is,  which  makes  lawiers  cenider 
penoas  in  drink,  under  the  same  ela«  with  soch 
as  ua  furious;  aad  lherefi>ra  denaodiag  Ibe 
same  degree  of  corepaaoon  and  pity.  Tti* 
Gigas  in  bia  treatise,  dc  Crimins  'eK*  )h> 
jeitaliB,  aays,  "  Ebrielaa  mealia  exilvam  io- 
dndt,  El  ubi  eat  abrieiBs,  nbi  eat  fnnw."  Jbd 
therefcrc  biiagt  druakards  under  tb«  si 
of  tbataw;  I4aee.  •' De oflkio paw " 
aalis  forori  ipso  pnniaatnr."     TbM  ■ 

•aonlpation  tba  pannel  hope  will  be 

by  their  lerdtbipa,  Mpedally  sine*  drmdM 
exprcMooa  are  but  lilu  the  dream*  of  cUdiw 
wilhaat  designe  and  of  no  import,  aad  ersr 
attended  with  foHy,  bal  never  with  maHee  m 
dolp,wbicbisthesubetaiiceofancriiBca.  A^ 
Clarus  paragrapbb  finalt  qaaat.  60  nam.  II, 
cites  the  exampla  of  Piaiatnius  one  of  the  Eb 
moua  tyrants  of  Atbena,  who  when  btsewiMi 
inatigaU  him  to  came  kiU  a  drunken  maa  Im 

Eiwaring  FSprocbea  upon  bim,  en  aooaalsf 
ia  vuetty,  aiitw«red,  "  non  mafia  «d  M 
qn«m  si  quia  oUigatii  oecuba  m  at  ae- 
eurriaaat."  The  loBgue  is  annnndjncabK 
[See  p.  7651  at  any  time,  (  "- 
bard  to  make  everi 


io  ptwUia  Mtd 
riMgiMTaf 


The  lybel  only  eenc 
Begins,  there  needa  no  notice  to  ba  lakta  off 
any  thing  else  cnotained  in  the  iaditement.  la 
respect  wliereof,  3ca. 

SU  Sitliteribittir,  Gsa.  MicuKm. 


of  Jtuticlary,  liaving  considered  the  lybel  at  iba 
instance  of  bia  majestiea  Advocate  for  hi*  bigb* 
nea'a  btereat,  afaiiut  the  aaid  Aleauder  Suf 
art  pannel,  with  the  tbreeoing  debate  thoer 
upon  ;  Lbey  find  the  lybel  as  founded  OB  iba 
act  of  the  6(hyear  of  qoeen  Anoe,  intituled  io 
Act  for  security  of  ber  tnajestiea  person  tad 
gofenimeot,siulof  the  succession  to  Ibecnxra 
of  Gren  Britain  in  the  Protettaat  line,  not  rd*> 
raattoinferrtbepainof  Piwmunire  mentioHi 
in  the  said  act,  in  respect  the  lybel  dots  art 
bear  the  inrormaijon  to  be  taken  on  oa&  in  iba 
lerma  of  the  said  act,  but  ffinds  the  panoaf  af 
the  lyme  end  place  lybelled,  hit  Wing  ■ 
drawn  sword  in  iiis  bsDil,  and  challengbg  per* 
sons  with  whom  he  melt,  to  declare  (or  wboov 
they  were  far,  sod  declairing  bimseirtu  be  Ibr 
king  Jamea,  relevant  to  inferr  an  arbitrary  po- 
ttiahment,  and  repell  the  defencea  propour^ 
againat  that  part  uf  the  lybel  fbuml  relEvaati 
and  remitt  the  pannd  and  lybel  aa  found  rete* 
vant  to  the  knowledge  of  an  sssyee. 

iSk  SubicribUur,    An.  Cockbuuhb,  I.  P.  0> 


JttT  miAatrntkhf  tU  TVtfr  ^iSf  Praender.  A.  O.  17IS.  [TW 


rga  TbortiDni,  impobterer  there. 
en  BrawD,  wig-maker  there. 
I  Baillie,  bnwar  tbere. 
ei  BeUMD,  wrigKt  there. 
I  Chifc,  gluier  there, 
iam  Reocb,  wright  tliere. 
id  Rnuay,  nMrcbani  lliere. 
rici  Bmoe,  glazier  there. 
fc  hi^le,  wig- maker  there. 
I  ThoDUon,  massoD  thvre. 
■Kw  Tatttan,  wright  dMre. 
ni  DeoholiD,  wrigLt  there. 
I  Botten,  weaiar  there, 
•bore  aaeyH  having  indoHd)  anil  no 
n  of  the  law  in  the  contrair. 
HiyMtiea  Ad*  «cat,  Dej>ute  and  BolicitM- 
wtioa,  addaecd  the  witoenea  aftw  d*- 

Grmitt,  ■MreliaDt  in  Edidbargh,  aged 
t  ar  tberckj,  married,  mAttaait  awtn, 
tttatHm,  prqndiM  and  padial  eMuoil^ 
•d  ■poffl  the  ^bel  a«d  iMarMnU!,  dt- 
"hrihadid  mb  te  pannal  ilia  Bnw  aai 
rWkd,  with  adnurn  awmd  b  hia  haad, 
ioff  ittowanb  WiUiam  AyW'i  briMf, 
■d  him  rqiealaCTeraltiiMaatbaaa  woida, 
an  Ton  Ibr  f  but  doaa  not  remembar 
di  dbat  WilHam  Ajion  aaawend,  but 
ke  pwmel  rep);,  I  am  fiir  king  JaoMa. 
Kitntut,  he  waa  Mandiiig  at  the  paandi 
the  lime,  and  htmzi  and  aaw  aa  ha  baa 
I,  aod  thia  ia  tha  tralh  aa  be  aliall  an- 
Cad. 
i  SmbleribUur,  Johm  Gunt, 

Ad.  Gockbubms, 
on  At/ton,  merehaot  id  Ediabucgfa, 
>urtj  yean  or  Ifaercby,  married,  ao- 
■woni,  poi^;ed  of  malice,  prejudice  and 
council,  examined  and  iiitcrragale,  de- 
liat  upon  the  lOlh  of  June  lait  about 
a  cUx^  at  oi^t,  the  deponent  nir 
[et  Stewart  the  paantl  wiib  a  drawn 
in  his  band  upon  the  alreet  betbre  the 
KKiMa,  toward  the  Caatle-bill,  with 
wv  of  other  penMU  behind  him,  and 
aal  pomted  hi*  iwonl  Kveral  time*  to- 
be  deponent  aning.  Are  yon  for  him  t 
a  Ibr  hhn  ?  ont  dnei  not  remember 
■wertbepannelgnebiraaelfwhen  the 
It  aak«il,whomanooldfaebefor.  Cmim 
H(ef,  and  tldait  thetrudt  aabtfaboaM 
fa  God. 


attwalre  a  dock,  aad  Ibo  halH  fifteen  to  ha 
preacnt,  each  under  tbe  pain  of  loo  merki,  Uif 
MdMin  tbe  pannd !«  ha  oaitiad  badt  to  priton. 

JW/f  SMA,  int. 

AUtandtr  Sumarl,  priaoner  in  ifaa  Tolbaoth 
ofSdinbnrgh. 

Tbanidday,  tha  parMtna  iriia  pan  apan  Iba 
a^aa  o(  Iha  nid  panaal,  rnnraad  their  ver- 
diet  in  peaaeaae  af  iha  nid  lordn,  wharaaflba 
lanorftlbwa: 

EMOtfaoK,  t5tA/M^  irid. 

Tha  abora  aanM  havthg  laeloaatf,   mada 

chojn  of  Oobatt  Dtfiholma,  Wright,  toba  their 

cbawaUw,  and  John  BallHe,  brawar,  to  ba  tbdr 


hit  bigb- 

neaaaa  utarert,  agaiaat  AJeunder  Stawnrt  naa* 
■el,  the  Loida  JiiHiea  Oaii  and  Canttib- 
rianara  of  Joaiidvy,  Ibcb  hitarlbqulUr  tbew 
npoo,  and  depoaitlona  ofibe  wkoamnadihaeA 
nr  pnning  thereof,  all  in  oaa  mm  flMa 
pnren,  about  the  (yme  lybelled,  that  tba  pan* 
nel  bad  a  drawn  aword  b  hia  hand  flooMiW 
lowardi  WilKamAyton'fbKnatiaodAMhitDot 
prof  en,  that  he  named  king  Jamea.  In  wltnaaa 
whenof  Ihir  preaentB  areaabacribedl^  amwOi 
cbanceHor  and  clerk  u  our  uanea  place  and 


The  lorda  Joatice  Clatli  and  CamBi»< 
liunen  of  JuMiciary,  in  luipm  af  tba  ftra^ 
(oingTCTdict  of  aasvn,  nnikia'tha  pnana^ 
tnd  (HHntM  him  I'tam-tha  bir. 

5te  JnbtriNfar,    A».  CocCBVam,  1.  P.  B. 


With  RapeU  U>  tba  rflefadan  (ne  p^  1^ 

'dranhntMH  in  flnenaaita«  ofaffntt^  aaa 


inthiaConeetlanvo).  I5,p.004;  andtbaCaa* 
of  klMlaogMan,  aridBg"  tfoi  of  Iha  PoHeana 
mok — Id  p.  7H,  I'  bwa,  M  nanal,  ui  law  ini 
Aahuinityor  thanoardi  Upa*  loilHag.iMa 
Clat«^  I  dn  vol,  ia  h>e. dt,  Ihnl  anyMn 
ibaat  Vukunaa,    "'—^  '-  "-'-'—  •  — 


MtoK    Oig*  d»  Cri 

btfan«llMn-HNr: 


T99] 


1  GEORGE  I. 


Tfbl  ofGeddes  and  Cratofbord. 


[800 


494.  The  Trial*  of  James  Geddes  and  John  Crawfoobd  (Servants 
of  Lord  Southeskjf)  for  drinking  the  Health  of  the  Pretender, 
and  cursing  the  King :  1  George  I.  a.  d,  1715.  [Now  first 
published  from  the  Records  of  Justiciary  at  Edinburgh.] 


Curia  Justiciaria,  S.  D.  N.  Regit,  tenia  in 
Prettirio  Burf^i  de  Edinburgh,  figesimo 
quintu  die  meniiii  Jiilij  roillfsimo  •epttn- 
geatetiimo  decimo  qiiiiito.  Per  hooorebile* 
▼irtM,  Adamum  Cockbtira  de  OrmistonD, 
Jiisticiaritiiii  Clericum  DominosGilbertum 
Elioi  de  Minto,  Jacobum  Mackenzie  de 
Ri>y»toun  et  Giilielmuni  Calderwood  de 
Poit'in,  ei  NagistroH  Jacobum  Hamil- 
ton de  Paiicaitland  et  Davidem  Enkine 
de  Dun  Comniisiiionarios  Justiciarij  Diet. 
S.  D.  N.  Regb. 

Curia  legittime  affirmata. 

X  HE  said  day  anent  the  criminal  letters  raised 
at  the  instance  of  sir  David  Dalryronle  of 
Hailes,  baronet,  his  majesties  Advocat  for  his 
majesties  interest,  against  James  Geddes  and 
John  Crawibord  servants  to  tlje  earl  of  Soutb- 
esque— 'makeing  mention,  That  where,  by  the 
laws  of  this,  and  all  other  well  governed  realms, 
the  uttering  of  s|ieeches  tending  to  excite  sedi- 
tion and  afienat  the  affection  of  his  majesties 
person  and  government,  by  questioning  or  de- 
nying his  n^jeslies  just  and  undoubted  right 
and  title  to  the  crown  of  these  realms,  or  by 
setting  up  or  asserting  the  right  of  any  other 
person  thereto,  are  crimes  of  a  high  nature  and 
severely  punishable.  As  also,  that  by  the  law 
of  God,  the  laws  of  this,  and  all  other  well  go- 
verned nations,  the  curhinc;  of  his  majestie,  and 
imprecating  evils  upon  him,  the  cursing  and 
imprecating  evils  upon  any  of  his  subjects,  and 
threatening  evils  to  them,  for  their  just  and 
jutiful  owning  of,  aiid  adhering  to  his  un- 
doubted right  and  title  to  the  crown  of  these 
realms.  As  also,  the  importuning  and  pressing 
anj  of  his  majesties  leidges,  to  pertake  of  the 
■aid  crimes  above  mentioned,  and  violently  and 
cruelly  beating,  cutting  and  wounding  any 
person,  when  in  an  dutiful  and  inoffensive  man- 
ner admonishing  and  diswading  from  the  com- 
mission of  the  crimes  abo/e  mentioned,  are 
crimes  of  a  high  nature,  tending  to  the  dis- 
quiet and  dishonour  of  all  civil  and  well  esta- 
blished government,  and  severely  punishable 
especially  when  committed  in  an  open  insolent 

*  See  the  three  preceding  Cases. 

•f  The  earl  of  Southesk  took  a  part  in  the 
reoellion  of  1715,  for  which  he  was  attainted. 
He  escaped  to  France,  and  died  there  in  17S9. 
Bishop  Burnet  (Own  Times,  vol.  1,  p.  319,  8vo 
cd.  ori809)  relates  a  curious  anecdote  concern- 
ing  king  James  3,  when  duke  of  York,  and  an 
carl  of  oouthesk,  who  I  believe  was  grand- 
firther  of  the  torU  mtatioiied  ia  tho  text. 


and  insulting  manner  in  the  face  of  tbeauB« 
in  publick  places  of  towns,  and  at  the  time  of 
nublick  meetings  of  the  people,  from  iheneigfa- 
bonrhood,  in  manifest  contempt  and  defyaoee 
of  his  majesties  laws  and  authority,  to  the  scan- 
dal and  reproach  of  all  civil  government  and 
Christian  society.  Yet  neverUieless,  the  said 
James  Geddes  and  John  Crawfoord,  senrants 
to  the  earl  of  Southesque,  were  gailtj  acton 
art  and  part  of  the  haill  or  one  or  other  of  the 
crimes  above  mentioned.  In  so  far  as,  the 
said  Jolm  Crawfoord  and  James  Geddes,  did 
upon  the  tenth  or  one  or  other  of  the  dayes  of 
June  1715  years,  in  the  afternoon,  <;ometo  the 
town  of  Breechine,  where  many  people  from 
different  places  were  gathered  together,  upon 
occasion  of  the  Trinity  fair  holden  there  the 
said  day,  and  having  called  for  wine  out  of  the 
house  of  John  Knox  vintner  there  to  bis  doM 
head  in  the  public  street  of  the  said  town,  there 
and  then  in  the  view  and  hearing^  of  many  peo- 
ple, the  said  James  Geddes  ana  John  Craw- 
foord did  drink  the  Pretender's  health,  onder 
the  title  of  king  James  the  eight,  and  that  with 
a  loud  and  audible  Toice,  therd>y  setting  up 
and  aaserting  the  said  Pretender's  right  and 
title  to  the  crown  of  these  realms,  in  manili^ 
opposition  to,  and  denyal  of  his  majesties  just 
and  undoubted  title  thereto.  As  also,  the  said 
James  Geddes  and  John  Crawfoord,  or  either 
of  them,  did  imprecate  many  curses  upon  bis 
migestie  king  George,  the  Presbiterians,  and  ail 
the  friends  and  adherents  to  his  majesties  jait 
right  and  title,  fre<juent]y  imprecating^  that 
God  might  damn  his  majestie,  and  the  devil 
might  burn  him,  and  they  or  either  of  tbcm 
prayed,  that  many  evils  might  befal  tbem* 
selves,  if  they  or  any  of  them,  would  not  make 
collops  of  the  Presbiterians  and  all  his  mojestiei 
friends  and  adherents,  and  make  branders  of 
their  ribs  to  rost  their  souUs  on  in  hell,  asd 
would  ripe  them  up,  and  use  them  as  the  da 
the  swincy  and  many  other  such  malidous  ex- 
pressions, attended  with  horrid  oaths  curses  aoi 
threatenings.  As  also  they  or  either  of  them 
urged  and  pressed  severals  to  drink  the 
foresaid  Pretender's  health,  under  the  title  of 
king  James  the  eight,  publickly  tKmsting, 
that  they  would  go  and  drink  the  said  Pi«- 
tender's  health  under  the  title  of  king  Jamei 
the  eight,  at  the  Cross  of  the  said  burgb, 
though  they  should  be  hanged  for  it ;  and  ac- 
cordingly the  said  James  Geddes  and  John 
Crawfoord,  did  u^  to  the  Cross  of  Breechinea 
takeing  several  bottles  of  wine  with  them,  and 
there  publickly  and  before  many  spectatoiSi 
did  again  renew  the  drinking  of  the  said  Pk«« 


801] 


Cue  qfJokn  QibioH. 


A.  D.  V7H4 


cm 


tender^  health,  under  the  title  of  kinjB^'James 
Ihe  eight,  with  repeated  ciirses  and  impreca- 
tHMw  ajpdnal  his  nuijestie,  and  those  that  adhere 
to  his  lost  riffht  and  title.  Thereafter  the  said 
day,  the  saiil  James  Geddes  and  John  Craw  • 
fboni  went  from  the  Cross  to  the  bridfi^nd  of 
Braechine,  and  Ihett  renewed  their  drinkinjgf  of 
the  said  Pretender's  health  in  manner  fore- 
said, uoder  the  title  of  king  James  the 
cight«  and  when  admonished  and  reproved 
far  the  same  hy  a  hov,  called  John  LsLOimie, 
-tSB  to  Mr.  John  Lammie  of  Ijittlefithie, 
the  Mid  James  Geddes  and  John  Crawfoonh 
di4  cmeliy  and  in  a  barbarous  manner,  beat 
the  said  John  Laromie  with  their  hands  and 
feet  And  particularly  the  said  James  Geddes 
did  cult  and  wound  him  the  said  John  Lammie 
ia  several  places  of  his  body,  with  a  durk  or 
shaUe  to  the  great  effusion  of  his  blood,  and 
ia  OMiiifest  danger  of  his  lyfe.  And  also,  the 
fud  James  Geddes  with  the  forsaid  weaiion  in 
bis  hand  did  threaten  and  won  ml  some  who  of- 
iH«d.to  rescue  or  interpose  in  behalf  o^' the  said 
Jabo  lismmic,  from  which  facts  above-mention- 
ed, the  said  James  Geddes  and  John  Crawfoord 


or  either  of  them,  weregnilty  actors,  art  and  part 
of  all  or  one  or  other  of  the  crimes  above- nietf* 
tioned,  which-  being  found  proven  by  th« 
verdict  of  an  assize,'  before  the  lords  justice  g9» 
neral,  justice  derk  and  commimioners  of  jns« 
ticiary,  the  said  James  Geddes  and  John 
Crawfoord  onght  to  be  severely  punished,  to 
the  exsmple  and  terror  of  others  to  commit 
the  like  in  time  coming,  and  the  said  James 
Geddes  and  John  Crawfoord,  being  oft  and  di« 
verse  times  called  to  hare  compeared  this  day 
and  place,  aa  they  who  were  lawfully  cHed  for 
that  effect,  hwfnl  time  of  day  bidden,  and  they 
not  enterand  nor  appearand,  the  lords  jostice 
clerk  and  commissioners  of  justiciary,  oltomm 
and  adjwige  the  above  named  James  Gedde* 
end  John  Crawfoord,  servants  to  the  earl  of 
Soutliesque,  to  be  outlaws  and  fugitives  from 
his  majesties  laws,  and  ordain  them  to  be  put 
to  the  horn,  and  all  their  moveable  goods  and 
gear,  to  be  escheat  and  inhroiight  to  his  ma- 
jesties use,  for  their  not  com|ieBring  to  under* 
ly  the  law  for  the  crimes  al^ive  mentioned. 
Sic  Subtcribitur^ 

Ad.  Cockbuhme,  I.  P.  D» 


^i^* 


495.  Case  of  the  King  against  Gibbon  :*  SGeouge  II.  a.  d.  1734, 

Upon  an  Information^  in  the  Nature  of  a  Quo  Wauranto,  by  the 
King's  Coroner  and  Attorney,  against  the  Defendant,  to  she\^ 
by  what  Authority  he,  claimed  to  be  a  Freeman  of  the  Town 
and  Port  of  New-Romney,  at  the  Relation  of  William  Jarvis^ 
Tried  at  Kent  Assizes,  held  at  Maidstone,  the  6th  of  August 
1734,  before  the  Right  Hon,  the  Lord  Chief  Justice  Eyre. 


Mr.  Smith.  jVjAY  it  please  ypor  lordship, 
and  yon  goitlemen  of  thu  jury ;  this  is  an  in-* 
ftrmatioo,  in  the  nature  of  a  Uuo  Warranto, 
against  the  defendant  Gibbon,  to  shew  by  what- 
authority  he  claims  to  .be  a  freeman  of  the 
town  and  port  of  New  Romney,  in  this  county : 
aod  the  information  sets  forth,  That  the  town 
wmd  port  of  New  Romney  is  an  ancient  town 
and  port ;  and  that  the  mayor,  jurats,  and  com- 
iBOoatty  of  the  said  town  and  port  are,  and  for 
ten  years  last  past,  and  long  before,  were,  one 
bMly  corporate  and  politic,  by  the  name  of 
■aver,  jurats,  snd  commonalty  of  the  town 
and  port  of  New  Romney  in  Kent ;  and  that 
the  office  of  freeman  of  the  said  town  snd  port 
M  a  public  office,  and  an  office  of  great  trust  and 
pveamioeoce  within  the  same  town  and  port, 
CMceming  the  goo<l  rule  and  government  of 
le,  and  the  administration  of  public  jus- 
and  that  the  defen>lant  Gibbon,  of  tliesaid 
and  port,innhol(ler,  on  the  35ih  of  March, 
ii  the  se? enth  year  of  his  present  majesty,  and 
Mb  tbcnce  continually,  hitherto,  at  the  town 

*  Hee  Kyd  on  Corporatious. 
VUU  XVII.  I 


and  port  aforesaid,  hath  ased  and  exercised/ 
without  any  lawful  warrant,  the  said  office,  and 
claims  to  be  one  of  the  freemen  of  the  sama 
town  and  port,  and  to  have  all  the  privileges, 
liberties,  and  franchises  thereof;  of  which 
office  the  said  defendant  Gibbon,  for  all  tha 
time  aforesaid,  u|K>n  Iim  majesty  hath  nsarpcd, 
in  contempt  of  his  majesty,  and  to  the  great 
damage  and  prejudice  of  his  royal  prerogative^ 
and  against  his  crown  and  dignity  :  whereupon 
he  prays  process,  &c. 

To  this  the  defendant  has  pleaded,  that  the 
said  town  and  port  is  an  ancient  town  and 
port,  and  the  office  of  freeman  thereof  a  pnbiie 
oflice. 

And  says.  That  the  late  qnren  Elizabeth,  hy 
her  letters  patent,  dated  at  Northaw,  the  4th 
of  August,  in  the  5th  year  of  her  reign,  did  wiU 
and  grant  that  the  barons  and  inhabitants  of  the 
said  town  snd  port  (who  before  that  time  had 
been  incorporated,  hy  the  name  of  jorats  and 
commonalty)  should  Vor  ever  sfter  be  one  bofly 
incorporate,  by  the  name  of  mayor,  jurats,  anif 
commonalty  of  the  town  and  port  of  Neir 
Romney* 

3F 


803]  8  GEORGE  U. 

And  thai  tbey,  and  their  socoeitors,  and  all 
other  the  barons  and  inhabitants  of  the  said 
town  and  port,  their  heirs  and  successors, 
should  for  ever  after  be,  in  all  matters  what* 
•rer,  as  free  as  the  msyor,  jurats,  and  oom- 
DM>nalty  of  the  town  and  port  of  Sandwich,  or 
•oy  other  town  and  port  of  her  said  Cinque 
Ports. 

And  the  defendant  by  his  plea  further  sets 
forth  a  custom  in  $kmdwich,  one  of  the  said 
Cinque  Ports,  that  if  a  man  marries  the  dang- 
ler of  any  freeman  of  that  town,  such  dau^ufer 
beinff  born  after  the  swearinff  and  admission  of 
her  father  into  the  office  of  freeman,  and  beings 
resiant  and  inhabiting  within  the  town,  has  a 
right  to  be  sworn  and  admitted  a  freeman  of 
Sandwich. 

And  alleges  the  like  custom  in  Dorer,  ano- 
ther of  the  Cinque  Ports. 

And  that  the  sole  right  of  swearing  and  ad- 
mitting freemen  of  New  Romney  is,  and  at  the 
time  of  swearing  and  admitting  of  him,  the 
said  John  Gibbon  was,  in  the  mayor  and  jurats, 
or  in  the  mayor  and  any  two  jurats. 

That  the  defendant  Gibbon,  on  the  Ist  of 
May,  1727,  married  Elizabeth  Smith,  daugh- 
terofWilUam  Smith,  a  freeman  of  the  said 
town  and  port ;  and  thereby,  and  by  virtue  of 
the  said  liters  patent,  became  entituled  to  be 
sworn  and  admitted  a  freeman  of  the  said  town 
and  port;  and  bating  such  right  and  being 
So  entitled,  was,  on  the  25th  of  March  last, 
fworn  and  admitted  by  John  Coates,  the  then 
mayor,  and  Humphrey  Wightwick  and  Ed- 
vard  Batchelor,  then  two  of  the  jurats  of  the 
said  town  and  port,  being  there  assembled  in 
due  manner  for  that  purpose ;  by  reason  of 
which  he  says,  he  is  a  freeman. 

The  kin^if  replies.  That  Gibbon,  by  marrying; 
the  said  Elizabeth  Smith,  did  net  become  en- 
tituled to  be  sworn  and  admitted  a  fWwmon. 

To  which  there  is  a  demurrer,  for  (he 
opinion  of  the  Court  upon  the  words  of  the 
charter. 

So  that,  gentlemen,  the  first  issue  you  are  to 
try  is,  whether  the  sole  right  of  swearin^r  and 
admitting  freenien  of  the  town  and  port  ol' 
New  Romney  be  in  the  mayor  and  iurals,  or  in 
the  mayor  and  any  two  jurats :  and  if  we  prove 
to  you,  that  the  commonalty  hare  always  had 
and  exercised  a  eoncurrent  right  with  the 
mayor  and  jurats,  you  will  please,  gentlemen,  to 
find  for  the  king. 

Mr.  Marth,  May  it  please  your  lordship,  and 
you  gentlemen  of  the  jory  ;  i  am  counsel  tur 
the  f^endant  Gibbon.  You  observe,  by  the 
opening,  that  this  is  an  information,  in  the  na- 
ture of  a  Quo  Warranto,  against  him,  to  shew 
by  what  authority  he  claims  to  be  a  freeman 
of  New  Romney:  and  the  only  points  that 
come  before  you  now  to  be  tned,  are,  first. 
Whether  the  right  of  swearing  and  admitting 
freenien  of  this  corporation  be  in  the  mayor 
and  jurats,  or  in  tne  mayor  and  two  jurats  ? 
And,  secondly,  Whether  the  defendant  Gib- 
bon has  been  duly  sworn  and  admitted  a 
freeman  P    Ttiore  bdog  a  demorrer  as  to 


Case  of  John  Gihbmt 


[sai 


the  right,  that  is  to  be  determined  by  the 
judges  of  the  court  of  King  V  bench:  and  in 
order  to  make  out  this  right,  we  shall  produoa 
to  you  the  books  of  the  corporation,  as  wcH  as 
livm^  wimesses ;  whereby  it  will  appear,  tbat 
the  right  of  swearing  and  admitting  fireemtn  of 
this  corporation  is  in  the  mayor  and  jurats,  or 
in  the  mayor  and  two  jurats ;  anil  tibat  every 
one  of  the  present  members  of  the  eorporation 
was  sworn  and  admitted  by  the  mayor  and  jo- 
rats,  or  the  mayor  and  two  jurats :  and  by  an 
entry  in  the  same  books  it  will  likewise  appear, 
the  defendant  was  duly  sworn  and  admitted  a 
freeman ;  and  when  this  appears,  genthsmcD, 
you  will  find  a  verdict  for  the  defendant. 

Mr.  Lacy,  Mr.  Wellard,  please  to  prodoea 
the  corporation  books.  ( W  bich  were  prodooed 
aocordiugly.) 

Soij.  Darnell.  My  lord,  we  insist,  the  sole 
ri^ht  of  admitting  and  swearing  freemen  of 
this  cori)oration  is  not  in  the  mayor  and  jurtti, 
but  in  the  may  or,  jurats,  and  commonalty. 

L.  C.  J.  Eyrt.  It  is  swearing  and  admhtiiig. 

Serj.  DarndL  Gibbon  being  called  on  1^ 
the  court  of  King's-bench,  to  shew  by  what 
authority  he  claimed  to  be  a  freeman  of  the 
town  and  port  of  New  Romney,  has  deeswradi 
and  ihereny  waived  the  foundation  of  his 
claim. 

X.  C.  J.  What !  Is  that  waiving  it  ?  Wbit 
concerned  his  right  comes  not  now  in  issor, 
and  was  left  undetermined  by  the  Court.  K 
he  had  a  right,  the  question  is.  Whether  be  be 
duly  admitled  f  And  in  order  to  that,  he  must 
be  elected  :  And  then  the  question  is.  Whether 
he  be  admitted  according  to  the  constitotioQi 
of  the  town  and  port  of  New  Ronm^  P 

Serj.  Darnell.  My  lord,  a  right  is  here 
claimed  by  the  defendant ;  I  have  a  right  bj 
marrying  a  freemau's  daughter ;  and  if  1  btie 
a  ri^iit,  the  question  is,  as  to  the  method  of 
coming  to  this  right.  The  defendant  says,  tbe 
sole  right  of  swearing  is  in  the  mayor  lod 
jurats :  But  we  say,  though  they  have  a  right, 
the  whole  body  must  admit,  though  the  sweir- 
i  ing  be  by  the  mayor  and  jurats. 
I  L.  C'J,  Swearing  and  admitting  is  the  Sims 
thing, brother  Darnell.  Where  a  man  is  choKB 
mayor  of  a  corporation,  the  swearing  and  ad- 
mitting him  is  the  same  thing.  All  penotf 
are  admitted  by  swearing,  and  taking  the  osib 
is  the  admission.  A  man  admitted  is  to  bs 
sworn  c  and  there  is  no  corporation  in  the  kioff^ 
dom,  but  where  swearing  and  admitting  istla 
same  thing ;  and  yet  you  would  make  thea 
two  distinct  acts. 

Mr.  Lacy.  We  shall  prove  to  your  lordsUp 
and  the  jury,  that  the  sole  right  of  sweariag 
and  admitting  is  in  the  mayor  and  jurats:  saa 
the  first  instance  we  shall  shew  is  in  1679i 
Peter  Martin  was  ailmitted  and  sworn  by  tbe 
mayor  and  jurats. — ilead  the  entry  of  the  8th 
of  March,  1679. 

Witness  sworn  to  prove  an  Assembly -book. 

L.  C.  J.  I  thuik  it  proper  to  be  read  aia 
Court-book. 


■  upon  a  Quo  Warranto. 

ivfi8.  1670.  Romncy.      Ala 

f  of  the  najnr,  jiinila,  and  coiDuionalty 

>iro  ind  port  <>r  Me»  -  Itomucj,  in  ibe 

I  plmce  litrlil  there.  -^1  Car.  i,  Prnetit, 
ant,  mayat;  Tliomnii  Uurraut.  Jnlin 
,  Juha  Cockmao,  William  Grern,  nuil 
IG  RulloD.  Ireemcn  ol'  tlie  saiil  town  , 
lanln  ail  inliabitani  iiC  niir  mamher  ol' 
I,  in  Old  Uomntiy,  wu  elected  a  Irea- 
■nd  this  asiembly  dotli  appuint  him  tc 

II  ■  rreenian  liy  ilic  niajur  and  any 
itiof  this  cor])oralion." 

/.    Peler  Martin  ejccteil  aud  gnora, 

t,  1C79. 

IfartA.    Now  (e*J  bis  admiulun  and 

I- 

iotc  reads: 

^  cuurt  tiolden  Wore  John  Hiiot,  the 

and  junta  uf  Mme  purl,  16  Marcb, 
>eter  Martiii  tealilied  hi«  IVee  cooaeDl 
!ty\D\f  the  orders,  churleis,  and  oi'Jl- 

Sec.   of  tlic  Cinque  Pods,  aiid  of  tbia 

particular;  anil  is  hereby  UeclaJeU 
niited  a  rreeman  of  ibis  oorporalion; 
t  the  oaths  appoiDled." 


irBamney.  Whereas iheroayar.iurats, 
inoDally  ul'  the  iu«  ti  and  poti  nt  New 
t  afortsaid,  at  their  roininon  araembly, 
in  the  comiDOD  place  of  the  said  town 
t,  dill  elect  and  ehoose  Mr.  Stephen 
tting  free-born;  TboiuaB  Short,  bora 
elli  in  the  cnualy  of  Keol;  Kuberl 
bnrn  at  Bailie  iu  ilieciunly  of  Sussex; 

0  CoalL'S,  ifrazier  ;  all  fiee-hura,  lo  he 
of  the  iiiA  lotvD  and  jratt,  the  IStli 

Hay  lui :  Now  be  ii  retnembered,  thai 
irt  «l  record  bulileu  in  the  Oiiildhnll 
Uoe  town  ami  port,,lhis.3d  day  nf  De> 
,  Addo  Doitiini  1604,  the  said  Stephen 
'homu  Short,  Robert  Easton,  aiid  johu 
teslifyin|r  tiieir  free  consents  for  the 
V  aoii  niauUaiDin^  the  charleis,  fraii- 
iMreoi,  pritilc«[ea,  customs,  and  usages 
[linqTHs  Porta,  two  anfieni  towns,  and 
Knlwrs,  and  |Hitticutarly  of  this  luitn 
«f  New  Uuniuey,  buie  severally  taken 
l»  of  trcenieii  of  the  same  (own  and 
itrding  to  the  cuslomal  Ibtre,  anil  are 

1  inlu  the  I'raocblses  of  the  lowo  and 
pMid ;  anil  did  alsii,  at  the  aame  lime, 
n  tb«  aeteral  oaths  apiminted  by  an 
wrliBmenl,  intituled.  An  Act  for  abro- 
Iw  Ostlii  of  Alletiiaace  and  Supremacy 
iMBtiog  othsr  Oaths,"  dec. 

'iarih.  Read  iheeutry,  fol.  770. 
■•  Rumoey.  Atacuurt  uf  record, bolden 
jtulJhall  of  the  siuit-  lowu  and  port, 
I  of  Ala),  1093.     Wherras  the  mavnr, 

n  place,  on  Thuraday  the 


A.  D.  17M.  [SOS 

17lh  orHarch,  1697,  did  elect  Roben  Mascal), 
free-burn,  Thorais  Lancaster,  sod  Tboroaa 
Edwards,  free-horn ;  having  leiliQed  their 
free  consents  lo  observe  the  ancient  ord^ra, 
chai'trrs,  ordinances,  Ut.  were  then  admitted 
into  the  freedom  of  the  said  town :  He  it  ro- 
iiirtuhered,  that  the  said  Robert  Mascal^ 
Thomas  Lancaster,  ami  TIiuoibs  Edward*, 
haiintf  lenifled  their  free  consents  to  obaerre  i 
the  orilers,  Sec.  albiesaid,  have  tabeu  the  oath, 
according  lo  the  cuatomal,  and  are  sdmitled 
iulo  Ihe  irancbiBea  of  Ihe  town  and  port  nfore- 
*aid,  and  took  the  sereral  oatha  appoiuteil." 

h.  C.  J.   k  coart  or  record,  and  this  conit    ' 
held  before  the  mayor  and  jurats. 

Air.  Martfi.  My  lord,  there  is 
member  nf  tlie^mrporation  bul  is  s 
manner. 

Seg.  D(jrn«;/.    We  admit,  iDy  lord,  thai  00    ' 
tnanca.li  he  sworn  but  by  the  mayor  and  Jurats  j 
but  none  hut  freenien  can  consent  there  shall 
tic  freemen  among  them. 

L.  C.  J.  If  the  precedents  are  admitted  by 
ibe  other  side,  there  is  no  occasion  for  pro*in|[ 

Mr.  MortA.  My  lord,  if  they  adraitthem  ac- 
cording to  the  last  entry,  there  is  no  o 
but  if  not,  it  is  necessary  lo  cs"     ' 

L.  C.  J.  It  is  all  one  to  me  what  you  do, 
It  is  ailmilled  on  all  aides,  there  are  many  of 
these  entries  since  i679. 

Mr.  MiirtA,  Read  the  admiseion  of  Isats 
Ruttun  and  others,  7  February,  170S. 

AaociaU  reads  ; 

>■  New  Romney.  At  acourtof  record  hi 
in  the  Guildhall  of  the  same  town  and  port) 
the  Ttl>  of  February,  1703.  Whereas  tbt 
mayor  andjurals,  at  a  common  assembly,  elect" 
ed  the  seferal  persons  following  ■  Be  it  renieii 
bered,  the  persona  under-written,  le^iifyinj 
their  consents  to  observe  the  andent  orders, 
he.  have  taken  Ibe  oaths  of  freemen,  and  at* 
admitted  iulo  the  freedoms." 

h.  C.  J.  Who  are  the  people  admitted  7 

Auocinte  reads : 

"  Isaac  Rutton,  John  Bassell,  John  Mionil, 
John  Tooke." 


Aaixiote  reads : 

"  jKiie  13,  1715.  Whereas  the  Diayor  and 
jurats  did  elect  Nichnlai  Dumnt,  Isaac  War- 
ren. Daniel  Wartjuin,  and  John  Cosby,  lo  be 
freemen:  Be  it  remembernl,  that  they,  testify 
ing  their  ciinseot  lo  ubsetve  the  aocieut  ordcrsi 
&c.  are  admitted  into  the  frenluuia  uf  this  tnwn 
and  |>url,  Hod  took  the  several  oaths  sppiii 
and  sulncfibed  the  declaration  lollowing," 


Auociatt  reads: 
"August -iO.  1717.  Whereas  the  mayor  and 
jar«tB,utbelsiatiMmixwiiaaaeniUy,  did  elMt  J 


807j  8  GEORGE  II. 

the  trrenl  pmani,  whow  namci  >ic  hereunto 
■abwritird,  la  be  freemm:  Be  it  miMinb««l, 
Ihu  36tb  of  Aiiuutl,  1717,  itw  [mtmiu  andcr- 
writl<>n,  leitLlyin|>  their  coHMnt  to  ubserre  the 
■ncieat  order*,  fitc.  anH  t»kiag  tlie  oatbi,  nre 
■flniitled  ioLa  the  freedoma  o?  thin  town  and 
port.  "  John  Widcohb, 

'  ''  RiCUlRI)   HowitRP." 


Aaocinlcreaif: 

"  NoTcmbErlO,  _,  _. 
JDret«,  nnd  coramnnally  elected  Thi 
WD,  williiu  thiM  tuwu,  lu  Ite  a  freeman :  He  it 
reaiemlwred,  that  he,  tertifying  hiii  con«ent  to 
nbierre  the  uocirnl  onlers,  Ike.  anil  ttking  the 
oath,  ii  adoiitled  into  the  frcedoma  of  Ifaia  town 
and  port, 

"  Born  at  Lydd  in  Kent." 

Mr.  Lacjf.  Now  rend  the  admiision  of  Wil- 
liam Gray,  the  7th  of  June,  1731. 

"  Jupe  7,  1731.  Whereat  the  mayor  and 
jurBl*,  at  the  laal  election  of  mayor,  diil  admit 
WilKam  Gray,  a  freeman :  Be  it  remembered, 
lliat  he,  teMilyioff  Ilia  conannl  to  obserre  tbe 
ancient  orders,  kc.  hai  lakrn  tbe  oalh,  and  ia 
admitted  into  the  freedoma  of  this  town  and 

p"-" 

Hr.  Marsh,  My  lord,  we  lufamit  onr  cue 
berr. 

Seij.  Darneli.  Ttie  word  <  admitted'  is  ined 
both  at  the  cunimon  aiiemhiy 

£.  C.  J.  But  only  tliere  in  that  inslance, 

Seij.  Dararll.  May  it  pleaae  yoiir  lordship, 
and  yo  J  (rentlenneu  of  the  Jury ;  I  am  for  the 
king  Bt^iott  Gibboo  :  and  llii*  iisue  ia  only  a 
part  of  a  question  in  relaiion  to  tlie  franchiaea 
and  privllet,'es  of  the  town  and  port  of  New 
Jtonaney,  where  of  tale  tliere  have  been  many 
Ulicil  jirainicM  In  order  to  Dierthrow  the  con- 
atilutiont  of  the  town ;  and  thereupon  auplica- 
lion  was  made  to  tbe  Court  of  Kin^^'a- bench, 
in  two  aeverai  causes,  ■){ains(  Gibbon  aud  Dai^ 
by,  who  were  to  hhew  by  what  authority  Itiey 
^imed  tbvir  freedom!  ;  and  lliey  inaisted  ibey 
had  married  the  daughtera  of  freemen,  and 
thpretbre  had  a  ritfht  to  their  freedoms;  and 
alao  aeainal  one  Wifihtwick,  who  wai  to  shew 
hy  ivbat  authority  he  claimed  to  be  mayor  of 
New  llomnrj. 

Gentlemen,  the  election  of  the  mayor  de- 
pending on  the  righiofOibbon  and  Darby,  the 
L'ourt,^  rule,  directed  I  be  information  ai^rnat 
Gibbon  nrst  to  be  tried ;  and  if  he  had  no  right, 
Darhy  was  to  lake  the  fiite  of  that  trial,  aiul  lo 
diaclaim. 

Gentlemen,  as  the  cli-clion  turned  upon  the 
right  uf  Gibbon  and  Darby,  if  ihii  i'lsue  he 
fiiuDii  fur  tliein,  theu  WijThlnir.li  is  tbe  mayiir. 
Bni  inttef  i1  of  coming  to  tbe  qiieslioUy Whether 
a  man  haaa  right  to  a  fi*e«dom  by  marryint^a 
freeman's  daufchler  t  they  have  damurred : 
ajid  nnw  the  auertJ«o  is,  Whu  ia  to  adinit  tlia 
Awmenf  and  I  homUy  apprebend,  «y  ^K^, 


Cote  of  Mm  Gibbon,  pOB 

where  a  number  of  freeman  have  Ilia  fleaiaB 
of  a  town,  nobody  can  be  let  in  wilheolllMir 
consent;  liir,  if  the  mayiN'  and  jimli  are  I* 
admit  solely,  they  may  aet  op  aa  many  free- 
men at  they  please. 

Hy  lard,  and  genilemen  of  tbe  jmy.  A*  IM 
iiHtances  they  have  produced  outoflMasacB- 
Iily-boolu,  are,  I  humUy  apprabnd,  vtef 
strong  ia  our  favour ;  for  It  appius  fraai  tbe* 
instances,  that  when  tbe  boily  faara  agrHd 
upon  tlie  choicn  of  a  freeman,  ibe  majrar  aad 
juratt  Bwear  him;  and  I  take  tbe  awearinf  » 
be  a  thiii|f  nf  course;  but  the  adiaiMon  fa  ia 
the  whoii'  li'iciy,  aa  ap])etra  by  everj  iatlsaw 
they  have  rrail.  A  freeman  ia  elected  by  ik 
mayor,  jurats,  and  cummon^ty,  nod  then  MB 
ordered  tu  be  sworn  in  by  the  mayor  andjunlil 
sure  there  can  be  no  doubt  in  tbe  'questiia. 
Swearing  and  admitting  1  take  to  be  Unsacit 
thing;  tliey  are  synonymous:  wiihoat  aoeir- 
ii>X  nil  man  can  be  adiiiided  ;  but  Ibe  aweari^ 
doea  not  admit.  Suppose  twenty  frecoNa 
awom  in  by  the  mayor  and  jnrmta,  tbe  Iraa- 
cbifo  of  llw  tnwn  is  worth  nothing — 

L.  C.  J.  Vou  take  admitting  to  he  the  dw- 
tion;  it  is  not  to:  lint  admitting  In  tbe  eicrciM 
of  the  riifht.  Admitting  is  not  cnnfetriai;  iW 
right.  Tliu  defendant  has  a  righi  hy  liis  nMr- 
riagu :  admitting  muH  be  construed  Ibe  rt> 
ceiTing  hint  into  llic  office,  and  admitting  Mm 
tu  the  exercise  nf  that  ri^'ht,  aud  iber^raii 
aynonymnua.  You  co  npon  a  wmnr  'imat: 
who  were  the  persons  iptiiuled  to  aomiDidv 
the  oalh  of  otficcf 

Seij.  Daniell.   Admissi<m  gives  the  ri|hl, 

L.  C.  J.  I  think  it  would  be  proper  to  idMl 
tbe  issue  to  be.  Who  ought  to  administer  tht 
oalh  ? — 1  don't  understand  tbe  cuatona  of  iW 
Cinque  Ports. 

StQ.  Darnell.  If  tworn,  whether  duly  cktl- 
edf  or  it  sipnifiea  nothing. 

L.  C.  J.  I^inppose  Gibbon  to  hare  a  right:  n 
oath  administered  to  a  man  that  bas  nnrifkiii 
of  no  a>ail :  a  man  must  hate  a  right  la  ■■ 
oflice,  and  must  be  admitted  into  that  nffies  kf 
swearing ;  and  the  queslion  uow  ia,  Wbo  ii  la 
administer  that  oath  ? 

Ser}.  Darnrll.  We  are  lo  auppoittbeiighl 
of  Ihe  whole  bodv  to  elect  and  admit ;  or  lb> 
Court  of  Kiog's-bench  will  think  tbia  mstw 
not  irietl. 

L.  C.  J.  The  Court  of  Kiog'a-bencfa  «eaU 
Ihink  mea  trifling  fellow  to  try  tlie  right  af  Ibe 
election. 

«erj.  Darnell.  The  rule  ia,  tlial  Gib- 
bon's issue  should  be  tried  firat,  aad  Darbf 
abiite  llie  fate  of  that ;  to  which  Uicy  hate  4a> 

Serj.  Bayna.  May  it  pleaae  your  lotdsbip, 
sod  yuu  gentlemen  of  the  jury  ;  I  am  also  af 
couDtpl  iu  this  case  fur  the  king.  The  aeasa 
ofthe  Court  of  King 'a-bench  was,  in  relalioato 
a  right  set  np  by  tiybbon  and  Darby ;  aad  tka 

Suesliiin  wu.  Whether  a  pemoo  taarryiiig' a 
'eeman**  dangbter  waa  intiuiM  la  biafiM- 
dcra  7  And  the  Comt  waacf  opinicM,  ikat  aa|M 
priodpalljr  to  ba  triad ;  mi  m  Baka  aa  aa* 


809] 


ttpofi  a  Quo  JVarraido. 


A.  D.  1754*. 


[810 


oftlurwliole,  if  ^bboA  and  Darby  hid  a  riflrht, 
Wi^twick  was  to  be  mavbr ;  if  not,  tGen  Eltet 
wai  to  be  mayor.  But  they  have  evaded  thia 
qoeitioo ;  and  when  an  issue  was  tendered  to 
trv  (be  right,  they  demurred ;  and  thereby  the 
MB  rcaauo  of  granting  these  inforroations  is 
fstiidy  eluded :  and  now  the  question  is,  Whe- 
Ifacr  the  sole  ri^t  of  admitting  freemen  belongs 
li  the  oorporation,  or  to  the  mayor  and  jurats, 
wtB  the  mayor  and  two  jurats?  But,  gen- 
iBDen,  we  oontend  that  the  right  of  admission 

■  ia  the  court  of  assembly. ' 
'  The  geotienen  of  tbe  other  side  have  pro- 
teei  some  instances  to  shew  the  right  to  be 
k  the  mayor  and  jurats,  and  that  &ey  have 
icaiPdu^y  taken  upon  them  to  swear  in  some 
persQlM,  and  swearing  is  a  completion  of  the 
fsnoa'a  riglit  to  be  admitted. 

My  kml,  the  admission  of  freemen  |is  to  be 
■ade  OD  Lady -day  :  after  the  election  the  bell 
Irib;  and  the  persons  having  a  right  come 
Mie  the  general  assembly,  and  say,  they 
cUm  1»  be  iidmitte<l,  for  servitude,  or  as  free- 
Ion,  &e.  And  they  judge  of  these  facts,  and 
tbneupmi  admit;  though  the  freedom  is  not 
— pliltd  till  the  person  be  sworn. 

Gentlemen,  tbe  eviiiences  the  other  side 
hue  produced  go  no  higher  than  1679 :  where- 
H  we  have  instances,  long  before  that  time,  of 
dsMHODS  by  both ;  and  a  new  institution, 
hiely  practised,  we  humbly  hope  shall  not  set 
iiis an  ancient  custom.    Strange!    that  this 

Crerof  admitting  should  be  in  a  part  of  the 
J !  a  mayor  and  two  jurats  cannot  admit, 
Miry  to  the  general  assembly  ;  when  they 
Im  approved  a  claim,  the  right  is  to  be  com- 

Sl  by  Bweariug  before  the  mayor  and  jurats. 
'  are  two  distinct  rights;  and  we  shall 
ce  to  your  lordship  and  the  jury  unques- 
liMiUe  instances,  that  this  is  the  constant  use, 
Ar  the  jiersons  claiming  to  be  freemen  to  make 
iot  their  right  to  the  assembly,  and  af\erward8 
liW  sworn  by  the  mayor  and  jurats.  A  high 
nailable  ia  named  by  the  justices  in  sessions, 
tad  then  is  sent  by  them  to  a  justice  of  peace 
li  be  sworn  ;  as,  in  tbe  present  case,  a  freeman 

■  elected  by  the  common  assembly,  and  then 
iisnt  to  the  mayor  and  jurats  to  be  sworn : 
iMd  therefore,  ^entlefuen,  we  hope  you  will 
isd  a  verdict  for  the  king. 

Mr.  Wjfnne.  My  lord,  the  single  question 
Mwetbe  Court  of  King's-bench  was,  Whe- 
teGibbon  and  Darby  had  a  right  to  freedoms 
by  Marrying  freemen's  daughters?  By  the 
tics  ef  practice,  it  is  impossible  for  any  part 
tf  this  question  to  come  before  this  Court ;  the 
nUiquuil  proceedings  in  the  Crown-office 
tN*  shew  this ;  and  nothing  could  be  done 
k][ tbe  Court  of  King's- beoth,  tbe  pleadings 
tiiig  brought  into  the  Crown-office  alter  the 


My  lard,  it  ia  endeavoured  by  the  gentlemen 
|Mw  other  side  to  take  away  the  distinction 
wseo  the  admission  and  swearing ;  and  it  is 
He,  tbey  are  by  disiinct  bodies, 
^^tlenen,  the  claim  is  first  to  be  made  to 
^l^enUaisembly  on  (Ady-day,  vd  tolling 


a  bell:  when  that 'has  been  considered,  and. 
allowed,  and  admitted  by  tbe  general  body,' 
then,  by  delegacy,  it  lias  lieen  sent  to  the  mayor 
and  jurats  to  swear  the  person,  and  is  merely  n 
ministerial  act;  and  what  they  have  done  baa 
been  in  ease  of  themselves,  iu  delenpusy  to  them. 
It  will  appear  from  the  ancient  entries,  (their 
highest  entry  being  1679)  and  it  is  at  an  as- 
sembly of  mayor  and  jurats,  Peter  Martin  was 
ordered  to  be  sworn  by  the  mayor  and  two 
jurats ;  but  not  to  part  with  any  right  they  had, 
as  will  fully  appear,  when  our  evidences  are 
compared  in  pomt  of  time  with  the  others. 

You  will  please  therefore,  gentlemen,  to  con- 
sider, that  the  admission  is  the  act  of  the  general 
assembly,  but  the  swearing  the  act  of  the  mayor 
and  jurats. 

Serj.  DameiL  My  lord,  we  humbly  insist, 
the  sole  right  is  not  in  the  mayor  and  jurats. 

X.  C.  J.  I  am  of  opinion,  this  is  an  admissioD. 

Serj.  DameiL  In  all  the  instances,  till  1679, 
they  were*  admitted  at  the  general  assembhr ; 
and  in  1699  they  have  read  one  instance.  We 
insist,  therefore,  that  our  evidence  is  equally 
strong. 

Mr.  KnoKler.  My  lord,  we  have  a  rule  to 
produce  all  the  Corporation-books  at  the  trial, 
and  Mr.  Wellard  refuaes  us  the  books. 

Mr.  Wellard.  My  lord,  we  have  brought  the 
books  hither  at  a  great  expence.  Mr.  Wight- 
wick  must  be  paid  for  them. 

Mr.  Knawler.  Mr.  Wellard  has  had  fbnr 
guineaa  on  that  account. 

Mr.  WeiUtrd,  The  majror  has  been  at  more 
than  four  guineas  expenoea  already,  and  there 
are  several  other  chargea  to  be  paid. 

L,  C.  J.  Yon  should  agree  to  pay  what  the 
master  of  the  Crown-office  shall  think  reaaona- 
ble  more  than  four  guineas^  and  enter  into  a 
role  for  that  purpoae.  (Which  was  done  ac- 
cordingly.) 

Mr.  Hacy,  My  lord,  we  submit,  whether 
this  is  proper  evidence  on  the  issue  ?  the  plea 
is,  that  the  sole  right  of  swearing  and  admitting 
is,  and  at  the  time  of  swearine  and  admitting' 
Gibbon  was,  in  the  mayor  and  jurats,  or  in  the 
mayor  and  two  jurats,  of  the  town  and  port  of 
New-Romney;  and  the  issue  is  taken  upon 
that,  Jf ,  ohd  at  the  time  was—' 

X.  C.  /.  I  think  it  proper  evidence,  to  shew 
what  has  been  tbe  usage  by  the  books.  You 
must  prove  an  ancient  right;  for  Gibbon's 
right  must  be  determined  by  the  ancient  usage. 

I^Herea  great  dispute  arose  about  the  Corno- 
ration-books  between  Mr.  Wellard  and  Mr. 
Knowler,  &c.  Mr.  Wellard  being  in  fear  be 
should  lose  them.] 

X.  C.  J.  Give  them  all  in,  and  call  for  them 
one  by  one.  Yoo  have  them,  and  make  no 
use  of  them. 

Serj.  Darnell,  Fol.*-Kead  the  election  of 
mayor  an^urats—- 

Astociate  begins  to  read,  but  could  not  go  on ; 
when  the  Cbtef-Juitice  took  the  book  oat  of  hts 
hands. 


811] 


8  GEORGE  IL 


Cau  qfJahn  GibboHtf 


JL  C.  J.  Give  me  the  book ;  I  can  read  it. 
[Attempts  to  read,  but  does  it  verj  iiidistiiictly 
mod  with  j[reat  difficulty  ;  and  then  throws 
down  the  book,  not  being  able  to  go  on.] 

Mr.  Wetlard  reads :  *'  The  election  of  mayor 
and  jurats  of  the  town  and  port  of  New. 
Romney,  1571.  According  to  patent,  appeared 
John  Stevens  and  others,  in  number  fourteen ; 
by  their  consent,  Mercer  and  others  chosen 
jurats.*' 

X.  C.  J.  Admission  and  election  are  synony- 
mons.  Let  it  be  shewn,  that  any  person  was 
sworn  at  tliis  assembly  from  an  entry. 

Mr.  Wtfnne.  Read  the  admission  and  swear- 
ing of  John  Amersham. 

BIr.  Wellard  reads : 

**  So  March,  1571.  John  Amersham,  natos 
apud  admissus  et  jnralus  BAfranchu^\ 

Ih  C.  /.  Shew  that  he  was  elected  before : 
this  is  very  material  evidence. 

lierj.  JMrnelL  Read  tlie  entry  of  Thomas 
Bastard's  admission  in  1671. 

Mr.  Wellard  reads : 

"  Election  of  mayor  andjurats  of  the  town 
and  port  of  New- Romney,  1671.  According 
to  patent,  appeared  John  vJhessman,  and  Lau- 
rence Fane,  Thomas  Wall,  and  others ; 

**  Thomas  Bastard,  natus  anud  Yalden,  ad- 
missus ad  firanchis'  et  sol'  feod'." 

Serj,  JBayncf.  Read  the  admission  of  William 
Southland,  the  9th  August,  33  Elizs. 

Mr.  ITt/^ard reads: 

*<  Gulielmus  Southland,  natus  apud 
9  August,  33  Elizse,  admiss'  per  Major',  Jur', 
et  Com'  ad  I'ranchis',  et  sol'  mdefeod',  et  ju- 
ratus." 

Mr.  Wynne.  Read  the  admission  and  swear- 
ing'of  Thomas  Master,  auU  five  others,  Lady- 
day,  1579. 

Mr.  Wellard  reads: 

•(  Lady -Day,  1579.  Appeared  William 
Ilyett,  John  Chessman,  Richard  Boppen,  and 
others,  commoners  and  freemen  ;  were  elected 
and  chosen ; 

**  Thomas  Master,  admiss'  et  jur'  fol.'  feod'. 

**  Habbakuk  Thomas,  adni'  et  jur*. 

**  Qui'  Taylor,  adaiiss^  ad  franchis',  et  jur', 
etsoP  feod'. 

**  James  Gardner, — ^Thomas  Wymond, — 
Johannes  Southern,  adm'  et  jur'  et  sol'  feod'." 

Now  turn  to  the  admission  and  swearing  of 
John  Smith,  and  others. 

**  New -Romney.  Election  of  mayor  and 
jurau,  25th  March,  22d  James  1st,  1634.  Ap- 
peared Bedeil,  mayor ;  Lancaster,  and  others, 
commoners  and  freemen  ; 

**  John  ftSmith,  admiss'  ad  franchis'  et  sol' 
pro  jur.' 

**  Geo.  Labden,  adm'  ad  franchis',  et  sol' 
S«.  4rf.  et  jur'.  • 

*'  Daoiel  Duke,  admisa'  et  jar!.** 

8erj.  DarmeiL   Raad  the  enll^  of  ll»  W 
March,  16:{7.  *!- 

1 


<c 


[81S 

Election  25  March,  16S7.    Appeand  Fell, 
mayor ;  Lancaster,  and  others ; 

"  John  Plomer,  free  boniy  admiss'  is 
franchis'." 

N.  B.  It  does  not  appear  be  was  swnm. 

Seij.  Bay  net.  Read  on  the  entries  in  1659, 
1660,  and  1666. 

<'  25  March,  1659.  John  Wyfill  admittc4 
and  sworn. 

**  15  October,  1660.  Four  pemiw  admittd 
and  sworn. 

«  S9  May,  18  Car.  2. 1666.  Mmyor  and  jn- 
rats,  at  a  common  place ; 

'*  Richard  Strode  admitted  into  thefrancbiWr 
subscribed  the  declaration,  and  took  the  oath  if 
a  freeman,  according  to  tbecustomal." 

Mr.  Wj^nne.  Turn  to  the  admission  loi 
swearing  of  John  Gray,  the  2d  of  October, 
1699. 

Mr.  ITc^rd reads: 

«<  2d  October,  11  Wil.  3, 1609.  Mayor  ui 
jurats,  at  a  common  place,  coaunonflis  mi 
freemen; 

<'  John  Gray,  being  free-born,  was  adaiUid 
and  sworn  according  to  the  custooaal." 

Mr.  Knomltr,  Read  on  till  you  come  to  Mr. 
Fumese  and  Mr.  Papillon's  admiasiott  tad 
swearing. 

<<  4  July,  1683.  l^Iayor,  junta  and  cm- 
moaers,  at  a  common  pls«e ; 

"  John  W^alker,  free-born,  ThomaaEdnA 
Richard  Kent,  and  William  Pidd,  wereawon 
according  to  the  customal,  and  admitted  so* 
cording  to  the  election,  at  a  common  assembljt 

"  4  Nofember,  3  Q.  Anne,  1704.  Msycr, 
jurats  and  commoners ; 

'^  Walter  Whillield  admitted  and  sworn. 

<'  10  October,  1710.  Robert  Coates,  uajir« 
jurats  and  commoners ; 

**  Robert  Furncse  admitted  and  sworn  ac« 
cording  to  the  customal. 

*'  20  April,  17 13.  Mayor,  jurats,  and  CQB* 
mouers ; 

««  Edward  Watson  admitted  and  awom. 

<<  23  March,  1721.  Mayor,  jurata,  sal 
commoners ; 

*'  David  Papillon  admitted  and  awora  ac« 
cording  to  the  customal." 

Serj.  Darnell,  We  submit  it  to  your  lord- 
ship, whether  here  is  any  colour  to  say,  tbit 
here  is  a  right  in  the  mayor  andjurats  solelj. 

Mr.  Knowler.  M  v  lord,  on  the  28th  of  No- 
▼eniber,  1727,  John  Mascall  being  befoit 
chosen,  the  Court  made  an  order,  tM  ha 
should  not  be  sworn. 

L.  C.  J.  A  very  strong  evidence,  tbit 
the  right  is  in  the  mayor,  jurats,  and  eon- 
monalty.  They  have  siiewn  only  from  1979- 
I  desire  to  know,  if  they  can  ahew  any  ^"^^^ 
before  the  Restoration. 


Mr  WMirAfmdn 


*jt 


tttio^,  hare 
to  befrM* 
sned  toIafc« 

di  dMiHwd 
)d  juraU." 
s  hatF  not 
■dmitting. 
11  not  praT« 


A.D.17M.  [Sit 

comanncnBhaaMbMUaMaM  befoKihev 
had  the  tettin;  of  the  |Mnh  Tmir  lordship 
WH  \Ammi  to  M,  you  oM  nW  uiiltnMnd  (he 
CMlumof  Um  CiM|iM  Pwta  (  w^Ao  we  ftnd 
nMojF  imkM  HBlriM,  Am  thii  MwMrien  ihiMM 
b«  •ixmi  Meoi4i«f  ta  A*  AnM*  of  bralhtr* 
hMdwdghMMtliar;  whteh  to  U  oMRnMy  or 
pariHKWDt  or  Iko  Ch^M  Vmm^  wh^n  ibcy 
meet  and  make  ordcn  M  tata»)  ihey  fxtend 
to  -"-  --pTtTn  in  [ITtim  nf  mi|ili.  flitlui'nre,  »i) 
power,  If  not  1b  ponit  oTailtiwritj'.  Wc  hu|>e, 
niylord,tepnrtiMMd|l*«ia  evidence  theae 
actaorHMnUy;  aHdlMlNNM«w),  wedoabi 
tmtutlbo  jury  wW'flBd  Ibr  at, 

Mr.  IPaJiarrfMda: 


neeootend 
hecootraty 
Bod  Triti  de- 
^un  eariy 
i:k  u  isri) 
<D  :  and  the 
lo  be,  "  At 
a,"  thongb 
:he  persous 
■,  that  tbey 
ou  may  ai)^ 
,  ibe  entry 
ITD.  But  1  I 
her,  ihongifa 
ectiog,  yet 
brmed,  that 
the  mayor 


"TVeOU 

•'  NMr-BoaHey.Jienry  V\l. 
•*  Item,  it  ia  mb<,  that,  if  •  afenger  of  good 
■omeand  cwvonutaa'to^Mlli^f  within  lira 
town,  and  dirirrtb  lo  b*  a  Ikwinan  of  tfao 

I  town,  the  jdrala  Msy  gnM  the  I'nnchiaM, 
paying  to  Ibe  eonmow  m  Ibav  may  accord  ; 
and  wlien  Ih^  be  MMfdai,  Ik  Mil  be  char^ 
ID  a  boob,  for  MMiotHD**  ftvnchises  with 
hia  body  and  eatllo,  aad  Ibr  tt-he  trne  in  nil 
painti,asdfcrMbnpall1lM«MnBnnscoun>cl, 
and  to  be  obedhw  aa  eaitfcir  frcetuan  to  tb« 
GoniBoaa,  and  t*  lM««  i  fnfarplmot.  of  ibe 
price  of  40f.  within  the  tain,  «Wi:o  the  nest 
yeereiiMiliw,  by  whIdllM  oin-be  dhtmACd 
and   iofliified,  upon  pais  of  mftltuw  or  Ma 

,  fronchiie :  And  wbcB  ba  to  Ikoe  awoni,  llje 


)me  aDcient 
din^  to  I  he 
yao.  These 
I  lubmit  it 


1083  do  not 
e  ?  For,  if 
tiie  mayor 


rith  i 


;  and 


ariop  to  be 
,■  would  not 
ley  had  not 
tihem.  As 
lecustomal, 
apillon,  and 
lie  relermce 

Iwtnif  10  be 
and  tiiatlfae 


paper  of 
fur  (o  vilMnlb*  will  gnnt ;  anil 
all  hto  DhiUreo,  ftoriy  gBUaa  after  the  same 
day  of  grant,  way  dum  and  ewoy  the  fran- 
ofatoe  bytbenmegmt:  Bal,if  he  hateany 
ohUdran  bafoia  Ibaaay  ofmat,  or  else  ihat  he 
get  any  obild  wliwwlaa  Uiaa  In  tjionsal,  he 
ahall  not  ba*e  the  aama  frUHdiiae  hy  the 
granii.butif  bebeof  Bewgrant,End  it  is  lo 
wit,  diet  the  jtarata  may  wtt  grant  the  franchiie 
U  no  ftratiger-mtD,  if  he  bo  aot  reliant  wiihin 
tfae  fiaochiae." 

Mr.  £af)p.  Hy  lord,  tbe  jarat»  shall  grant 
the  franchiaea,  and  the  oommaaa  ere  lo  set  \.\\i; 
price. 

Mr.  Smitk.  Gmntlbcfraiwhiaes  must  he  to 
put  them  in  poaacaaien,  which  caniiut  be  till 
they  are  aworn ;  awl  tfait  eommans  ure  to  aet 
ihe  price. 

Mr.  Laey.  Mlhe  madem  entries  mention, 
according  to  the  Caatomal. 

L.  C.  J.  It  ia  taking  the  oath  according  to 
ibe  ciisioinal.    la  there  the  oath  of  nlfice  of  ■ 


Anodale  reads  the  fteaoan's  oath. 
Hr.  MariA.  Now  read  BDActofGbueattinQ: 
L.  C.  J.    We'll  hoTe  do  brotl>erliood   and 

gbueatliug:  I  know  notlung  of  it,      l«t  Mr. 

Town-Clerk  explain  it. 
Mr.  ir<»artf  t««d»- 


815]  S  GEORGE  II. 

■*  At  a  Brolberbood  held  at  New-Romney, 
Ibe  8th  of  Jaly,  1603. 

**  Whereas  there  are,  in  many  of  the  tofrna 
and  members  of  the  Cinque  Forts,  men  of 
wealth,  staid,  and  of  good  government,  direll- 
iBg  witliin  the  same,  who  enjoy  much  benefit 
•f  their  so  dwelling',  viz,  free  from  payment  of 
fillleenths  and  tenUis,  and  from  being  returned 
to  appear  at  assizes  or  sessions  in  the  county 
where  they  inhabit;  ami  receive  many  other 
privile^^es  and  benefits,  by^ reason  of  their  so 
mhabitmg  within  the  said  Cinque  Ports,  an- 
cient towns,  or  members,  which  otherwise  they 
could  not  enjoy ;  and  yet  refuse  to  be  freemen 
of  the  same  town  and  port  where  they  dwell, 
and  enjoy  the  said  benefit  and  privile^ifes ;  by 
reason  whereof,  divers  of  the  said  towns,  ports, 
and  members,  are  unfurnished  and  unprovided 
of  sufficient  and  able  men  to  execute  and  dis- 
charge such  offices  and  services,  as  tbey  art!, 
by  the  charters  and  customs  of  the  said  Cinque 
Ports, towns,  and  members,  bound  to  do:  It  is 
therefore,  at  this  assembly  fully  consented  and 
decreed,  that,  if  the  mayor,  jurats,  and  com- 
monalty, or  the  more  part  o^  them,  in  any  of 
the  said  Cinque  Ports,  towns,  and  their  mem- 
bers, (or  bailiff,  jurats,  and  commonalty,  where 
no  mayor  is,  or  the  most  part  of  theui)  shall 
think  any  inhabitant  or  inhabitants  dwelling- 
amongst  them,  and  in  that  port,  town,  or  mem- 
ber, which  such  mayor  and  jurats,  or  bailiff 
and  jurats  do  govern,  and  shall  by  the  more 
voice  of  mayor,  jurats,  and  commons,  (or 
bailiff,  jurats,  and  commons,  where  no  mayor 
is)  chuse  such  their  inhabitant  or  iuhabitants 
to  be  freeman  or  freemen  of  the  said  town 
w  here  they  so  goveni,  and  shall  call  the  said 
inhabitant  and  inhabitants,  so  to  be  chosen  a 
freemau  or  freemen  of  the  said  town,  to  their 
court- hall,  and  there,  in  full  and  open  court, 
acquaint  him  and  them,  so  chosen  to  be  free- 
man or  freemen,  of  their  said  choice  and  elec- 
tion* &nd  do  then  and  there  require  such  person 
01'  persons,  so  choKcn  for  a  freeman  or  fVeemen, 
to  take  the  usual  oath  of  a  freeman  in  that 
place,  and  he  or  they,  so  chosen,  shall  not 
then  and  there,  without  further  delay,  take  the 
said  oath,  and  become  a  freeman  of  the  same 
place,  shall  forfeit,  to  the  use  of  the  said  town 
and  corporation  w  here  such  default  or  neglect 
shall  happen,  a  fine  of  10/.  of  lawful  money  of 
England.  And  so  ot\en  as  the  mayor  and 
jurats,  (or  bail  iff  and  jurats,  whcreno  mayor  is) 
after  snch  election  or  choice  of  a  freeman  or 
freemen f  as  aforesaifl,  shall  in  full  court,  there 
to  be  holden,  proffer  the  oath  of  a  freeman 
there  used  to  such  person  or  persons  so  chosen 
as  aforesaid,  and  he  or  they,  to  whom  such 
oath  shall  be  proffered,  do  not  take  the  same 
oath,  and  become  a  freeman  as  oiher  freemen 
of  the  said  place,  shall  forfeit  for  a  fine,  to  the 
use  of  the  said  corporation  where  such  neglect 
shall  be,  for  every  such  neglect,  and  not  taking 
of  his  or  their  oath,  lOL  of  lawful  money  of 
England ;  to  be  levied  upon  such  person  and 
persons,  so  neglecting  to  uke  their  oaths,  as 
fines  in  the  said  place  are  naad  to  bo  kfisd." 


Case  of  John  Gibbon  f 


[sn 


Mr.  Lacy,  My  lord,  we  hnmWy  solmil,  wt 
are  intituled  to  tlie  sole  right.  Jnstanoes  hate 
been  produced,  to  shew  that  tbo  coauBsai 
have  a  right  with  the  mayor  and  jurats;,  for 
all  the  entries  they  have  produced  refer  to  lbs 
book  of  brotherhood  and  ghaeatling,  and  aft 
the  choices  in  that  book  are  by  the  mayor  ni 
jurats,*  who  are  to  offer  the  oath  of  a  freemio. 
Read  tlie  Act  of  Ghuestling  of  the  9Ut  iT 
July,  1668. 

Mr.  Wellard  reads : 


«c 


Brotherhood,  or  Gh nestling,  held  at  the 
said  town  and  port  of  Ncw-Romney,  IZlst  Jslji 
1668. 


«« 


Whereas,   by  a  decree  of  hrotherba^ 
made  in  the  year  of  our  liord  1603,  it  isca>. 
sented  to  and  decreed,  that  if  the  mayor,  junt^ 
and  commonalty,  (or  bailiff,  jnratM,  and  ooa> 
monalty,  where  no  mayor  is)  shall,  by  Bwjv 
voice  of  such  mayor,  jurats,  and  commons,  (k 
bailiff,  jurats,  and  commona,  where  nomajftr 
is)    elect  and  chuse   any  inhabitant .  or  is- 
habitants,    in    their    respective    corporatiiai, 
to  be  freeman  or  freemen  of  the  said  tosrs, 
and  shall  call  the  said  inhabitant  or  inhabi- 
tants,   so  chosen  a   freeman  or  freenn  flf 
the  said  town,  to  their  court- liallf  and  thcn^ 
in  full  and  open  court,  acquaint  him  and  tbn- 
of  such  election,  and  shall  then  and  then  is> 
quire   such  person  or  persons,  so  cboKS  t» 
take  the  usual  oath  of  a  freeman  in  that  pbei^ 
and  he  or  they  shall  not  then  and  there^  wilb- 
out  further  delay,  take  the  said  oath,  and  b^ 
come  a  freeman  of  that  place,  sitcll  forfeit  to  tin 
use  of  the  corjporatioo  where  such  default  tf 
neglect  shall  happen,  for  a  fine,  the  snoi  flf 
10?.    And  that,  so  olteii  as  any  inhabitant  ir 
inhabitants,  so  elected  freeman  or  freenieo  ii 
any  of  the  said  towns,  |K>rls,  or  members,  sbal 
refuse  or  neglect,  (the  said  oath  being  tm* 
dcred  to  him  or  them  in   manner  aforssaid) 
every  such  inhabitant  shall  forfeit  the  likenitt 
of  10/.  to  l>e  levied  as  in  tiie  said  decree  i* 
directeil,    and   as    by   the  said  dectve  my 
more  fully  appear.      Now,  for  that  this  sm 
sembly    doth    find    that   tlie   said   decrM  is 
not   so    effectual    to   compel    such    inhabi* 
tants  to  l>e  made  free  in  their  resitcctive  cor- 
porations where  they  do  inhabit,  but  that  seve- 
ral persons  do  evade  the  same,  and  the  {lensltj 
therein  contained,  by  refusing  to  appear  in  fall 
and  open  court,  whf>re  the  said  oath  is  to  be  re* 
quired  and  tendered,  as  aforesaid,  and  by  diren 
other  subtle  devices ;  wherefore,  for  preveotisf 
such  evasions  and  devices  for  time  to  cooc^ 
and  for  the  better  upholding  of  several  corpo- 
rations of  the  said  |M>rts,  towns,  and  membof, 
which  otherwise  may  cease  and  be  annihilateili 
it  is  now  by  this  assembly  fully  decreed  and 
ordereil,  that  the  said  penalty  of  10/.  mentioned 
in  the  said  recited  decree,  is,  and  shall  be,  by 
virtue  hereof,  imposed  and  levied  upoo  evcfy 
inhabitant  of  any  of  the  said  ports,  towns,  sc 
members,  who  shall  be  eUsctcd  a  freemsn  sf 
such  respective  corporation  wherein  lio  isinha" 
bitrat,  according  to  tbo  su4  aooicBl  dmto}  ift 


BIf]  uptm  a  Quo  Warranto.  A.  D.  17M.  [818 

X.  C.  J.  TheqvefltKm  is,  Whether  this  be 
the  due  maDoer  and  form  alle|^d  in  the  plea  f 

Mr.  Lacy,  We  have  a  right,  but  not  a  sole 
rigrlit. 

Serf.  DarnelL  You  ha?e  pleaded,  yoa  haf€ 
a  right  by  marrying  a  freeman's  daughier; 
and  that  the  mayor  and  jurats  have  the  sole 
rii^bt  of  Sfrearing  and  odmilting  you  to  th&t 
right;  and  that  you  were  sworn  and  admitted 


inhilitiitor  inhabitanii,  ao  elected, 
tell  idm  er  neiflect  to  be  and  appear  at  the 
■It  oeart  of  Reeerd  to  be  boMen  w  auoh  eor- 
rirpfloa  wbtfreiD  be  dwelletli,  apon  verbal  or 
Aer  evainooi  from  the  mayor  or  bailiff  of 
aeh  corporatioo,  to  be  made  by  himself,  his 
Bjeatt,  or  other  officer;  or,  upon  appearance 
I  such  court,  shall  refuse  or  neglect  to  take 
be  eirth-of  a  freeman  in  manner  afiiresaid :  and 


bst,  eo  often  aa  such  inhabitant  or  inhabitants,  j  in  due  fi>rm  :  therefore  you  were  admitted  by 

iflected  free,  shall  refuse  or  neglect  to  appear  the  mayor  and  jurats,  ivbo  bud  the  sole  ri«fht* 

saoy  court  to  beholden  in  such  town,  portf  or  8erj.  Baynei.    The   queHiion   in,    Whether 

JEWicr,  where  he  or  they  inhabit,  upon  like  they  were  duly  admiltfd  and  s\vi>ni  Itv  t.'oates 

fcwmnna,  as  is  last  above  mentioned,  or  ap-  and  two  jurats?    And  if  they  were,  tin*  ritfht 

taring,  shall  not  take  the  oath  as  aforesaid,  !  must  be  in  4 he  mayor  and  two  jurats  only. 

aud  every  of  them  shall  forfeit,  for  every  Read  the  plea. 

offence  contrary  to  the  intent  of  this  de-  j,       .  .         i  ^-ui     i     i          i  e 

nt,  tbe  like  .oni  of  10/. ;'  which  seven!  fines  ^*'«""«  "*•■•  ^''''*»  "  P'«»' "  '"•♦^'*- 

Ul  be  levied  by  warrant  under  the  seal  of  L,  C.  J.  That  he  was  admitted  in  due  mftn* 

ifiee  of  mayoralty  or  balliage  of  each  town  or  ner  and  form  ;  so  the  plea  is. 

Maker  where  tbe  same  shall  be  forfeited,  or  in  Serj.  Darnell.    My  lord,  by  the  plea,  he  al* 

iKh  other  manner  aa  fines  hi  that  place  are  '  leges  the  sole  ri<*>ht  to  be  in  the  mayor  and  ju* 

muBf  levied."  rats,  and  that  he  vns  admitted  in  due  manner 

lex  If  the  mayor  and  jurats  call  the  ?»«''"<»™;  T'^.k '""?*  ^i^/  ""e  mayor  aod 

■■■.  and  be  lefase,  ttey  may  it  •  fine  uimn  ^^  ^?»  ''""  '^f  f''  "K^  *•  _„   ,  .        . 

g^                        *      J       J                    i  Mr.  Wynne,    My  lord,  the  second  issue  is, 

«r.  £«y.   My  lord,  we  hambly  insist,  the  Z^^^^^'  """'"f  P  "^l?**  ^f  "'*  .''*'?•  "^  '" 

irisririit  of  swnriniF  and  admiuinir  is  in  the  ""*•"""'*•'  ■»''  fo>^m"    Tlie  rephcation  an- 

IHys?^  jurats,  or  fn  the  ma>or  and  two  ju-  'T/"'  '*'''•*  ^^^  "»  "°» '"l'?"'"^''  "'."*  "^^  j" 

SSr-Tbeir  evidence  is  of  admitting  at  a  com-  ^JJ-TU'A  ™  T.'.l.i'     if^  "  '"^"f  ' 

MO  assembly ;  and  tbe  issue  is  not  confined  to  l^'t.T'  .T'tt^'?      ".•"""* .?'  'T"!; 

tfrnayor  and  jurato  only.    The  first  evidence  S^!^   !^f ',;"Jl.^.r,     *       ''""»*'""""»  "^ 

M  k«n  with,  was  an  order  of  the  mayor,  >":;"  V   ^  *  w        k-.-.  •. .           i    j  w 

«    r*    ■  _.  *   „„.i,„  f„.  ,K„  »..,».  .»,»;..  Mf-  Murth.  We  submit  it  to  yourlordship, 

2!^!ii,?^T^^•  f"' "»« ,"'«J»r,'«'«'J"-  whether  the  second  issue  involvn  any  matt^ 

nklo swear  in  a  freeman,  and  they  did  swear    ^^i^u^^  rri  ^ .*^  ;..  u^«u    *i.     .  i -r 

ik  in  accordingly.     The   other'  erideiices  !["'^^':  J''*™!'riLS^fr'*'!-"^[^""''!f 

mare  of  instances  where  the  mayor,  ju-  ?"•.-.  f  .rV".  '^'^  i".^"  *"*  "'*  '*^?n'' 

hk,uA  commoaalty.  all  swore  in.   *And  we  "»'•«.•««<  H'e  fact  of  completing  remains  still; 

■Slit  it  to  your  lordship,  whether  the  e»i-  jnd  it  is  necessary  to  proTe  that  mue.   It  tnay 

^  of  swearioff  in  at  tlfe  common  assembly  ^,  '''»"?•"  '.■""Tlk   /  '^«P'*?'^'?'*»  "*  *« 

il  ^  a  concurr«,t  proof,  thai  the  sole  right  U  "  '^'  "?*  ?      . '      ,\                              '  ^^ 

■  ihe  mayor  and  jirats  ;  because  the  mayor  "^^  "'i"  ^  »'««''»'ely  necessary. 

tmA  ;...Na«.  "L.,-*  k»  ....*  ^}  »K«  ^..^^^^  — /«  M""'  Lacu,    Rly  lord,  tbe  first  issue  is,  Whe- 

lu  jurats  must  be  part  or  the  common  assein*  ,i^.  ^n  ^        "^     «         ^i  «i^»»  i«      i 

By?  and  if  so,  though  tho  commoners  ar«  not  **'  ^'^"^^  ;"»  ^      ""''  "''""*«' '"  •'"« 

pie,  yet  tbe  swearing  shall  be  construed  to  be  r"«''»V  "           ™                    """^  "  ""•  '*" 

EiAra  the  mayor  and  jurats;  Reddendo  tingula    •'"^  ^/t  r    ¥*    ^       4»     i ir 

Mn/i*.     YSur  lordship  sits  judge  of  l*i.i  ±,p:J-   J'  7" «!"  « *"»*  """""^  «"1  '^"' 

hS!^.iidtakesaiiae    itisnotlsjudgeof  ««>'«•  Ihey  had  a  right. 

jlj^jA^ *                     J     s      •  Mr.  Lflcy.    My  lord,  we  humbly  hope  we 

L  C.  J.  The  common  assembly,  as  mavor.  ''""  »'7".  V".**^™'  evidence,  that  there  i«  a 

ini..  and  commonalty,  cannot  hold  a  court  o  !"??ifrJL?„^V°  I^'^^IT,^'^  ^TJJI™.  \ 

M    An  assemkly'^can  act  only  as  that  as-  *"?  '^  '..  ^           P"      ' 

MiUy.    Ifa  select  number  Uke  upon  them  to  a?   T  'f    ,r.i.- «   .  •         u..  1 1  !..«•„  „i 

4i  ^iet  of  tbe  corporation,  that  will  be  a  roid  .  J?'  *""*•  ,!*•  !''*J?"^1?"*  '^^r.  iK.«  •    L 

j^.                         *^           '  a^instus,  will  It  not  be  true,  that  there  is  a 

Mr  JUortA     Mv  lord    the  second  issue  U  "^**^»  **  "°*  *  ^"*®  *^'*>''^*» '"  ^''^  ™">'^  ""**  J"" 

rfSiSSon  .^^^^^  «*»?  .An^**-  -o.  thedefondant  C^hbon  was 

fiTXrVril.^..  -«.i  ♦,«,.  ;.!..••.,  p  sworn  in  that  manner,  and  so  he  insists  niion  it. 

*LC.  rcTbSrpK  That  he  was  inti-  «.  Mar,k    My  lord  it  is  plain  there  was  . 

J*!  that  the  »«yor  and  jurats  had  a  right  to  ,7,  ,7.     „.^  ^     ^  ^  contradictory  evi.lence 

SMTi  Md  that  t*  w«  sworu  in  accordingly.  ,j  f^             j           ,  i^  ^   ,  ; ^^  j  j        , 

kHQ*  JJarneU,  The  detendant  was  not  sworn     u  ,*  .• .        -i         ^  . : . «  «*  ^o*  ..*  «i     -.« 

iiUAnkled  ai  by  the  plea  is  alie-ed.    Head  '^"*/*.""  '"TI^  ^"'^  '"  *"?  '"^  *^''''*  '^^     ^ 

JjT7               •'        *^           aucocu.     A%c«u  ^^^^j  ^^^yg^  ^^  bother  it  was  in  due  manner  and 

^^  form  ?    And,  if  we  prove  he  was  sworn  in  any 

•IhWafi  icaiij  Gibbon's  plea,  as  before  opened,  due  manner,  we  hope  the  jury  will  find  €»' 

VOL,  XVII.  tiQ 


819] 


8  GEOBGE  U. 


Case  of  John  Gibbon. 


[8S0 


L  C.  X  ft  raiut  be  ID  the  due  maiuier  you 
have  set  forth  by  voiir  plea,  which  muit  be  ac- 
cord'iDg  t6  the  right  asserted  to  be  in  the  issqe. 
We  must  Dot  suppose  there  are  two  rights.  It 
must  be  in  the  due  luaDoer  upon  the  construe^ 
tton  of  the  plea ;  and  I  shall  leave  it  upon  my 
own  sense  or  tlie  matter ;  I  shall  not  lump  it. 

Gentlemen  of  the  Jury,  this  is  an  informa- 
tion against  Gibbon,  in  the  nature  of  a  Quo 
Warranto,  for  exercising  of  the  office  of  a  free- 
nan  in  New  Romney,  to  which  he  was  not 
intituled ;  and  for  usurping  the  exercise  of  that 
office. 

To  this  he  pleads,  he  is  intituled  to  hold  the 
same,  and  to  exerctiie  this  office,  because  he 
had  married  the  daughter  of  a  freeman,  and  in 
ber,  by  the  custom,  is  intituled ;  and  that  the 
right  of  admitting  and  swearing  is  in  the  mayor 
and  two  jurats,  and  that  by  them  he  was  duly 
admitted  into  this  office.  To  this  plea  there 
has  been  a  replication,  which  ends  in  a  demur- 
rer ;  so  not  brouffbt  to  be  tried. 

The  king  re|£es,  that  tke  aole  right  of 
swearing  and  admitting  is  not  in  the  mayor  and 
jurats;  and  therefore  the  defendant  is  not  duly 
admitted  to  the  right  of  a  freeman. 

The  right  Gibbon  has  is  not  now  in  any  issue ; 
but,  supposing  he  had  such  a  right.  Whether  he 
ahould  oe  sworn  by  the  mayor  and  two  jurats, 
exclusive  of  any  other  people  ?  And  the  other 
ibsue  is  about  the  defendant's  being  duly  ad- 
mitted. If  the  mayor  and  Jurats  have  a  aole 
rijght  to  admit,  then  Gibbon  w  duly  admitted ; 
and  if  they  have  not  that  sole  right,  then  he  is 
not  duly  s^dmitted,  in  the  sense  of  this  plea. 

To  prove  the  sole  right  to  be  in  the  mayor 
and  jurats,  the  defendant  has  produced  several 
books ;  by  which  it  appears,  several  freemen 
liave  been  admitted  by  the  mayor  and  jurats 
solely.    He  particularly  instances, 

AUrch  8, 1679,  at  a  common  assembly  oi' 
tlie  mayor  and  jurats  and  commonalty  of  the 
town  and  port  of  New  Romney,  in  the  com- 
mon place,  Peter  Martin  is  elected,  and  ordered 
to  be  sworn  in  by  the  mayor  and  jurats. 

December  3,  1694,  another  mstance  of  a 
freetftan  admitted  and  sworn  by  the  mayor  and 
jurats. 

May  16, 1698,  another. 

Another  February  7,  1708. 

Another  June  13, 17 15. 

August  6, 1717,  one  Widcomb  and  another. 

November  18, 1727,  Thomas  Wilson. 

June  7,  1731,  William  Gray. 

And  there  are  other  instances,  the  18tb  of 
March,  1668,  and  the  22d  of  July,  1683. 

So  here  are  people  sworn  and  admitted  by  the 
mayor  and  jurats,  nut  the  election  is  at  a  common 
assembly ;  and  people  elected  have  been  chosen 
at  such  an  assembly,  and  must  be  so  elected, 
unless  they  have  another  right.  But  the  com- 
mon assembly  have  not  a  right  to  swear  these 
people;  but  the  sole  right,  Gibbon  says,  (for 
■wearing  and  admitting  are  synonymous)  is 
in  the  mayor  and  jurats. 

The  other  side  say,  it  shouUI  be  by  the  oom- 
MOH  aaaambly,  rather  than  by  th«  mayor  and 


jurats  only  ;  and  to  sliew  yoo  tbia,  thsj  hats 
called  for  several  hooks,  and  sliewo  aaoit  ia« 
stances  of  admitting  by  the  mayor,  jurata,  aai 
common    assembly,  than  by  the  mayor  aai 

i'urats  alone ;  and  many  instances  of  admilliag 
»y  the  common  assembly. 

And  this  swearing  is  a  prescriptive  right,  as 
du-ections  being  in  the  charter  about  lU 

And  the  crown.says,  that,  by  aocicat  MBg% 
he  ought  to  be  admitted  by  the  common  ss» 
sembly,  and  not  by  the  mayor  and  jorsto 
solely  ;  1679  is  the  only  admittance. 

But  they  instance,  at  Lady  Day  1571,  its 
common  assembly,  at  the  election  of  ma|« 
and  jurats,  several  people,  John  Amersbaa 
and  others,  were  admitted ;  *  admisaus  el  ji- 
<ratU8.' 

Soon  after,  1579,  at  another  ooromon  assem* 
bly,  Thomas  Master  <  admissus  ad  iraiiebis',d 
juratus.' 

In  book  N<*  7,  and  in  book  N*  4,  ia  so  dec* 
tion  on  the  25th  of  March,  2S  Jac  1,  and  then 
certain  men  were  admitted  and  awum,  oat 
Smith,  Labden,  and  one  Duke  paid  bis  9t.  4d. 

Another  instance,  in  1627,  of  a  persosid* 
mitted  and  sworn  at  this  oomnMm  assembly. 

By  their  admittance  I  understand  elected. 

Another,  in  1659,  admitted  to  the  finnehiit^ 
and  sworn. 

Another,  October  15, 1660,  four  pcrsow  ad- 
mitted to  the  franchise  then. 

Another,  May  29,  1666,  Richard  Stiids 
baring  taken  the  oath  of  treedom,  accordingti 
the  customal. 

October  2, 1699,  John  Gray,  free>boni,  WM 
admitted,  and  took  the  oath :  though  he  wn 
not  intituled  by  their  election,  but  was  free* 
bom,  yet  the  common  assembly  swore  him. 

July  4, 1683,  at  the  common  assembly,  Joba 
Walker,  free-bom,  and  three  others;  tbeyswoit 
him  and  the  others,  and  they  were  admitted. 

November  4, 1704,  Whitfield  was  admitted, 
and  took  the  oath. 

October  10,  1710,  Robert  Furaese  was  sd* 
mitted. 

April  20,  1713,  Mr.  Watson  admitted. 

Marrh  23, 1721,  Mr.  Papillon  was  adnittid 
in  the  sriiib  manner. 

Which  shews,  the  sole  right  was  not  m  tbi 
mayor  and  jurats;  because  the  common  assos* 
bly  exercised  this  at  the  same  tanoe,  and  did  it 
before  the  mayor  and  jurats. 

In  1679,  a  person  elected  was  ordered  ta  he 
sworn  by  the  mayor  and  jurats :  but  sure  tbff 
have  not  the  sole  right,  there  being  more  fia* 
oede'.its  against  the  sole  right  than  for  it. 

The  ancient  practice  has  been  to  iwear  tbca 
by  the  common  assembly,  and  no  modetn  pra^ 
tice  can  take  away  that  right. 

If  you  think  tlie  sole  right  is  in  the  martf 
and  jurats,  then  you  must  find  for  the  dcMl* 
dant. 

But,  if  you  think  it  to  be  a  concurrent  r%bl 
with  the  common  assembly,  then  the  ismm  ii 
against  the  defendant ;  for  the  mayor  awl  jnaH 
have  not  the  sole  right. 

The  seoond  issue  is,  Whether  the 


Case  of  Richard  EUes. 


K.  D.  17S4. 


rnt 


tad  jurats?   But  this 
;   for  mfler  the 

EiBfl  jams  TifM  ii  tet  fbith  to  be  the  tole 
ib4  fkm  dMMOt  9ky%  be  wis  duly  ad- 
it k,  he  «M  edinitted  aceordin^  to  the 
rifht  iHiiled  ea  bj  the  plea.  And  if  tlw  major 
■MJaralafaBfCBat  the  sole  ri|^t,  we  are  not 
Ii  MppMB  Ihqr  have  any  oiber  rig^t;  for  the 
irfMaat  haa  eanftacd  hinKelf  to  tbe  aole 
i^    Hci^^hnwaadnljadmilled;  1 


nutt  be  hy  the  right  aei  fMth  by  the  plea, 
which  is  the  lighi  of  swearioi^  aoMy  by  ^km 
mayor  and  jurats. 

The   question  therefore  is,    Wbfiher   fhm 
mavor  and  jurats  have  the  aole  ri;;ht  f 

If  you  find  for  the  king,  or  for  the  dt-fendaat, 
in  tbe  first  issue,  you  roust  find  the 
issue  in  the  same  manner. 

▼erdict  for  the  king  in  both  issnei. 


^ 


\ 


496.  Case  of  tbe  King  against  Richard  Elles  :*  8  George  II. 

A.  D.  1734. 

Upon  an  Information,  in  the  Nature  of  a  Quo  Warranto,  by  tbe 
Khig^s  Coroner  and  Attorney,  against  the  Defendant,  to  shew 
by  what  Authority  be  claims  to  be  Mayor  of  the  Town  and 
Port  of  New-Romnet,  at  the  Relation  of  Benjamin  Man. 
Tried  at  Kent  Assizes,  held  at  Maidstone,  the  6th  of  August, 
1734,  before  the  Right  Hon.  the  Lord  Chief  Justice  £}Te. 

Vr.  Knoarler.  MaY  it  please  yoor  tord* 
aftd  y9u  gentlemen  of  the  jury ;  this  is  ao 
tiaSi  in  the  natnre  of  a  wo  Warranto, 
the  defendant  Elles,  to  shew  by  what 
ky  he  daims  lo  be  mayor  of  tbe  town 
put  of  New-Romney :  and  the  infonna- 
larti  forth.  That  the  town  and  port  of  New- 
aii  ancient  town  and  port,  and  one 
re  ancient  ports  of  this  ktnffdom  ;  and 
harons  and  inhabitants  of  tbe  said  town 
mIfHt  are,  and  for  ten  years  last  past,  and 
k^  Idbre,  were,  and  hare  been,  one  body 
WpHBlii  and  politic,  in  deed  and  in  name,  by 
tbiiif  I  ofthe  mayor,  jurats,  and  commoiialty 
if  the  town  and  port  of  New-Romney,  in  the 
SMi^  oTKent ;  and  that  the  office  of  mayor 
if  thtaaid  town  and  port  is,  and  lor  and  during 
il  Aa  tiaie  aforesaid  hath  been,  a  public  office, 
ai  an  attee  of  great  trust  and  pre-eminence, 
~^*  'he  said  town  and  port,  touching  the 
government  of  the  said  town  and  port, 
tha  ndounistration  of  public  justice  %nthin 
ime  town  and  port;  and  that  Richard 
of  the  town  aim  port  of  New-Romney 
yeoman,  on  the  19th  of  April,  in 
i  year  of  his  present  majesty,  st  the 
and  port  of  New-Romney  aloresaid,  did 
«f  aad  a«etcise,  and  firom  thence  continually, 
tithe  tine  of  filing  tbe  information,  hath  used 
Jrtaawt'iitd,  and  yet  doth  there  use  end  exer- 
4m^  without  any  legal  warrant,  royal  grant,  or 
i%ht  whatsoever,  the  office  of  mayor  of  the  said 
tnmand  port,  and  to  have,  use,  and  ei^oy  all 
Btiea,  jRivilegca,  and  franchises  thereof; 
tbe  said  Richard  Elles  upon  his  mi^esty , 
snrped,  in  contempt  of  his  msjesty,  and  to 
Al  great  damage  and  prejudice  of  bis  royal 

*  8ai  3  Strange,  994;  and  Kydon  Corpo- 


prerogatire,  and  also  against  his  crown  and  dig« 
nity :  whereupon  he  prays  process,  &c. 

T6  thb  the  defendant  has  pleaded.  That  tha 
said  town  and  port  is  an  ancient  town  and  port, 
and  one  of  the  five  ancient  ports  of  this  king- 
dom ;  and  that  the  barons  and  inhabitants  of 
tbe  nid  town  and  port  are,  and  lor  the  space  of 
ten  years  last  peat,  and  loog  before,  were,  and 
have  been,  one  body  corporate  and  politic,  by 
the  name  of  mayor,  jurats,  and  oommonahy  of 
tbe  town  and  port  of  New-Romney,  in  tha 
county  of  Kent ;  and  the  office  of  mayor  to  be 
a  public  office,  and  an  office  of  great  trust  and 
pre-eminence,  as  by  the  information  is  sup- 
posed. 

And  that  the  late  queen  Elizabeth,  by  her 
letters  patent,  dated  at  Northaw,  the  4th  of 
August,  in  the  fifth  vear  of  her  reign,  did  will 
and  grant,  that  the  oarons  and  innabitanta  of 
the  said  town  and  port  (who  befbro  were  in- 
corporated by  tbe  name  of  jurata  and.  com- 
monalty,  as  she  was  mfbrmed)  from  tbeno^fbith. 


for  ever  should  and  might  be  one  bodv  in  it- 
adf  incorporate,  in  deed  and  naroe^  f>y  the 
name  of  mayor,  jurats,  and  commonalty  of  the 
town  and  port  of  New-Romney,  in  the  CMMitr 
of  Kent. 

And  thereby  made  and  ordained  John  Cheas- 
man,  then  one  of  tbe  said  jurat»«  mftrra*  of  the 
said  town  and  port,  to  ha%-e  and  rrmnae  that 
office  until  Lady-day  then  next  efi>oin|f.  if  ha 
should  so  long  live;  and  di.1  thcrrbx  nnlee, 
ordain,  approve,  and  conftrm  .lohn  tVrcker, 
William  Ipse,  George  Holt<^n.  I  Jinrencr  Famu 
and  Jefiery  Tomkin,  then  jo  rat?  ot  the  said  town 
and  port,  to  have  and  exerviM^  that  nfficr  dnm^ 
their  respective  lives,  in  mannor  and  form  as 
the  jurats  of  the  said  ton-n  betont  that  time  «z- 
erciaed  their  said  offices. 

And  thereby  wilM  a&d  grwia&^tli 


ess]  8  GEORGE  II. 

Lady- day  then  next  ensuing,  in  the  pariah 
Shprcb  of  Sl  Nicholaa,  withio  the  aaid  towD 
and  port,  ooe  of  the  jurats  of  the  aaid  town  and 
poft  should  and  oiii^Dt  be  chosen  mayor,  by  the 
Jurats  and  oonimonalty  of  the  aaid  toivn  and 
port,  for  one  whole  year  then  next  ensuiofif ; 
v^ich  said  jurat,  so  elected  to  be  ntayor,  if  ne 
•kould  be  present,  should  take  his  corporal  oath, 
for  the  due  execution  of  his  office,  hefore  his 
pre«lecessor,  in  hke  manner  and  form  as  the 
mayor  of  the  town  and  port  of  Sandwich  used 
to  take  it ;  and  if  such  person  so  elected,  should 
not  be  present,  then  at  the  next  court  to  be 
boklen  within  the  said  town  and  pert :  and 
so  from  year  to  year,  and  from  time  to  time^ 
the  mayor  shall  be  chosen  for  erer. 

And  that  every  one  of  the  jurats,  from  time 
Co  time,  from  thenceforth  for  ever,  should  be 
^oaep  by  the  commonalty,  or  the  mater  part 
of  them  ther^  present,  out  of  themselves,  in  like 
tnanner  and  inrm  as  before  that  time  they  had 
been  used  to  be  chosen  there :  yet  so  that  the 
jurats  at  one  time  should  not  be,  in  the  whole, 
above  tlie  number  of  twelve,  besides  the  mayor. 

And  the  defendant  by  hrs  plea  further  saith, 
That  upou  the  96th  of  March  last,  and  \oDg 
before,  he  was,  and  still  is,  one  of  the  jurats  of 
thesaul  town  and  |K)rt;  and  so  being  a  jurat 
as  aforesaid,  and  John  Coates,  esq.  then  being' 
nay  or,  and  then  one  of  the  jurats,  the  then 
jurats  and  commonalty  assembled  themselves 
l0{|;ether  in  the  parish  church  of  St.  Nicholas, 
within  the  said  town  and  port,  for  the  year  then 
next  ensuhig,  according  to  the  tenor  of  the  said 
letters  patent ;  and  lieing.  so  assembled,  then 
and  there,  at  that  assemmy,  the  major  part  of 
the  said  jurats  and  coraiuonalty  then  present 
there  (of  which  said  jurats  the  saul  John  Coates, 
the  then  mayor,  then  was  one,  and  present 
there)  cliose  him  the  said  Richard  Elles,  then 
being  one  of  the  jurats  as  aforesaid,  to  be  mayor 
of  the  said  town  and  port  for  the  year  then  next 
ensuing,  according  to  the  form  and  effect  of 
the  said  letters  patent :  and  the  said  Richard 
Ellos  being  so  chosen  into  the  place  and  office 
Df  mayor  of  tlie  said  town  asd  port  as  afore- 
aaid,  aAej^  his  said  election,  to  wit,  then  and 
there,  at  the  same  assembly  in  the  parish - 
churdi  aforesaifl,  he  the  said  Richard  Ellea  was 
duly  sworn  into  his  said  office  by  Robert  LoiUe, 
then  town-clerk  of  the  said  town  and  iiort,  be- 
fore the  said  John  Coates,  being  the  last  pre- 
decessor of  the  said  Richard  Elles  in  the 
office  of  mayor  of  the  said  town  and  port; 
and  the  said 'Richard  Elles,  then  and  there, 
t^  the  said  assembly,  took  his  corporal  oath, 
for  the  due  execution  of  his  said  office  of 
miayor  of  the  said  town  and  port,  before  the 
aaid  John  Coates,  his  last  prctlecessor  as  afore- 
said, the  said  oath  bciujjr  administered  bv  the 
said  town- clerk  as  aforesaid,  (tlie  same  being 
the  like  manner  and  form,  in  which  the  mayor 
of  the  town  and  port  of  Sandwidi,  in  the  said 
letters  patent  named,  at  the  time  of  making 
the  aaid  letters  natent,  was,  and  ever  since 
hath  been,  ami  been  used  and  accustofoed  to 
be  «w«rD  iiMff  ifce  said  oftce  of  oiayor  of  the 


Case  of  Richard  ElUs, 


[SX 


said  town  and  port  of  Sandvicb)  aeeenling  ta 
the  form  and  effect  of  the  letlen  patent  afore- 
said :  and  by  virtue  thereof,  the  said  Richard 
Elles,  atter  his  election  and  swear ijag  aforenid, 
upon  the  aaid  85th  of  March  last,  and  fnHH 
thence  continually  afierwarda,  until  the  time 
of  exhibiting  the  informaijon,  at  the  towi^  and 
port  aforesaid,  was,  and  still  is  mayor,  ai|4  by 
that  warrant  claims  to  be  mayor  of  the  aaU 
town  and  port ;  and  tpn^venes  toe  uanrpatiuNk 

The  king  replies.  That  the  said  Riebard 
Ellea  was  not  ono  of  the  jurats  of  the  aaidlewft 
and  port,  in  manner  and  form  aa  he  bath  al- 
leged by  pleading ;  ami  praycth  tkat  ihia  mf 
be  enquired  of  by  the  country ;  and  the  said 
Elles  prayeth  the  like. 

So  that,  gentlemen,  the  firat  issue  yiMi  eif 
to  try  is.  Whether  the  said  Richard  'Aln  wai 
one  of  tlie  jurats  of  the  town  and  post,  of  New* 
Romney,  in  manner  and  form  aa  be  hath  al- 
leged by  his  plea  P 

And  the  second  issue  is,  Whether  the  msjsr 
part  ef  the  jurats  and  commonalty  of  the  said 
town  and  port  did  chuse  the  aaid  lucbard  Elks 
to  be  mayor  of  the  said  town  and  pmt  lor  the 
year  tlien  next  ensuing,  according  to  the  forta 
and  effect  of  the  said  letters  patent,  in  nanner 
and  form  as  the  said  Elles  hath  aiao  vHeged  by 
pleadinff  ? 

Gentwmen,  the  third  issue  is,  Whether  tbt 
said  Richard  Elles  was  duly  sworn  into  tlie 
office  of  mayor  of  the  said  town  and  port,  in 
manner  and  form  as  he  hath  alleged  by  pkiai- 

i»Sf? 

And  the  fourth  issue  is,  Whether  theaiii 
Richard  Elles  did  take  hiv  corporal  oath,  hi 
the  due  execution  of  the  said  office  of 'osajor 
of  the  said  town  and  port,  according  to  the 
form  and  effect  of  the  letters  patent  aforesaid, 
in  the  manner  and  form  as  he  hath  alleged  bj 
pleading  ? 

And,  fifentlesnen,  the  fif\h  issue  you  arc  cp 
try  is.  Whether  the  manner  and  form,  in  whidi 
the  said  Richard  Elles  hatl-.  alleged  himsdf  in 
his  plea  to  have  been  sworn  into  the  office  of 
mayor  of  the  said  towu  and  |H>rt  of  New* 
Romney,  be  the  like  manner  and  form,  in  wbicb 
the  ma^or  of  the  town  <«md  port  of  Sandwicbi 
in  the  said  letters  patent  named,  at  the  time  of 
making  the  said  letters  patent,  waa,  and  ersr 
since  hath  been,  and  been  used  and  accustooed 
to  be  sworn  into  the  said  office  of  mayor  of 
Sandwich  aforesaid,  in  manner  and  form  asks 
hath  alleged  by  pleading  ? 

If  therefore,  gentlemen,  evidence  is  laid  be- 
fore you,  to  prove  that  the  defendant  £Uea,  h^ 
iiig  one  uf  the  jurats  of  this  town  and  port,  wsi 
duly  elected  and  sworn  into  the  office  of  mayor, 
then,  gentlemen,  you  will  find  a  verdict  for  hia* 

Seij.  Darnell  May  it  please  yoar  lonlshifL 
and  you  gentlemen  of  the  jury ;  I  am  couniJ 
for  the  defendant  Ellea ;  ood  you  will  please  le 
observe,  that,  by  very  great  art,  theao  issan 
are  all  turned  upon  the  defendant  to  prose. 
By  his  plea  he  seU  forth  the  oooelitiiliiiia  of 
the  towu  and  port  of  New- Romney ;  Ihal  ht 


p  a  Qui'  tfitrraitta, 

««fliceal'tiiayor,  tuid 

BiUI  uwa  Uir  oiitl»,     liul  the  otli^i  kitle  tuili 

■tci;  Ibnit  u|iDU  liini  by  |irnol':  Ibey  tav,  be 

WM  uut  a  jivut;  tliit  lliu  umJdi'  pnrt  uf  ibe 

jurat*  and  voniinoDKlly  >li<1  oat  chute  l>ii>i ;  aud 

ilien,  merely  to  rmilU|ily  JMuts,  aiul  tut  dclBv, 

•ajt,  you  acF  nm  Bjuni ;  tliemiyoriiariut'lue 

jiimU   mill  cuniiiwwlly  diJ  not  cliui*  juii; 

.1  <1iily  aworu  ;  llwt  1>«  ilid  nol  Uke 

line aotwiliDft  lo  the futm  ol'  lb« 

.  ilitl  ibc  rai]uii«r  unci  loriii,  in 

n    <        iJ  Hi«hu\l  £lLoB  is  ttllvi[ed  by  liia 

m.9  M>  ■•»  — >..rii  ialo  his  otfic«,  w  not  accord- 

^^Hh)  kni,  Biul  gealleiiucii  of  Ihe  jury,  lliere 
■BJUcI^  been  ■  Tcry  great  cootul  in  the 
jPBHrt  ol  Kiii(;V  beuoh  ulraut  tbe  officer*  a[ 
Ifcii  towu  1  and  Ibere  wer«  twu  candidate!  tor 
thii  ottc«  ol  miiyor,  one  Wigbtwick,  and  the 
4*fmUnt  Elle»  1  and  upon  ilie  poll  il  appureri, 
that  Ellei  bad  etetCD  roles,  and  Wijfbtwick 
lea  i  HI  tbal  EUes  wa*  obuEeo  uiayar  by  ilic 
B^jorily  (ifone  voice:  but  ibe  presiding  officer 
uut,  b*  ImA  ft  iiian  wbo  itu»  9|ipoiuicd  id  lake 
th(  poll ;  by  wbiob  pull  il  ippetred,  tliat  tiib- 
bw  and  Darby,  who  bad  nerarbern  allowed  lo 
ta  Ihicn*!),  Iiail  pulled  |  and  tben,  U|i(tn  lliat ' 
pott,  Umw  were  iwdve  voiw  for  Wiffbtwick, 
•nd  eleven  ttir  Clles:  upon  wbieb  ibe  uatb  of 
ofica  was  adniiuiilered,  and  boib  oujdidutet 

Goaileiueui  tin  ai)pl)culiun  lo  ibc  Court  nf 
Kia('»-b*ocb,  Hlle*  by  utfidaviiA  ntnde  it  ap- 
Mtr,  ibal  (iMibun  ami  Darby  biiit  no  ri|ibt  Ig 
fcixiaqia ;  un  wbicb  lb«  Coart  d^clarfd.  llie  I 
fnatt  wuulil  lurii  on  Gibbon's  ri|;ht;  mid  tben  . 
itMfoeMiun  wiB,  Whether  |<cnont  nxirTyini; 
CneiiKu'k  •taii|{hlet'»  bnd  a  HkIiI  to  freedums  !  , 
and  Darby  '*  ri|{hi  was  lo  abide  ih«  fate  of  that,  j 
B^  ibcy  lisTe  ilcclioed  ibi«,  and  turn  all  Lbe 
ilaiictiiol'proriDi;  upon  ua.  We  shall  < 
le,  (■vultemen,  I'litly  prote  every  one  of  , 
U>y(iubywilueK»PB(  iutbecourie 
_  dvocp,  you  will  hear,  Ketitleiiieii, 
vCreat  outns  oJ'  inonry  ntferedlu  engai^e 
bitten,  wlio  were  In  Ellca'a  iDteretil,  to 
KWieblwidi.  Wetball  prove  lu  you, 
m  that  lual.  WB»  ofTered  Ibr  one  vule, 
■DlargcwMimu  HMJOl.  for  another, 
w  n  procan  Wifrbiwkk  to  be  mayor. 
'R'thtiwcii'cuiiMianiMw,  seoUcnieu,  two 
n't  iMiwd  I'niui  lbe  L'onrt  it  hing's- 
■iliuit  ihcsQ  two  men;  for  Ibey  all 
anccd  there  wa»  ou  ri^ht  by  marrying  i  and 
lUMi  llie«  <wii  pei-inuK  were  nwoni  in  by  Tirtne 
«f  UWMf  HaudMiiu*'l>. 

If  Ittrrdixo.  ifcntlemen,  wealiew  lliera  was 
*  SMJniiiy  fur  Ellea  uyoa  tbe  poll  U  taken  by 
■tie  town-ilciki  nulwitbatandiug  the  pnckel- 
|ioUlb<y  baveKlupi  »u  hope  you 'if  lake  it 
upoDilo'iiUii  of  the  luwa'Hork'it  poll,  and  find 
■  ti-idiL't  r>ir  the  defeudalit  a(!cortlin|^y. 
J^j.  li^i/na.  M»y  it  plaaaa  your  lord- 
^*|hPiil  jtuu  iirniluuutii  uf  the  jury  1  Ian 
--  '  '  L«  caM  wUb  Ibo  dcfondast:  aad 
'  '11  t^Avied  by  the  Cuurl  of 
I)  order  (o  jtrocure  pcioa  ID 


RotoMv,  where  tlwre  warelw«aalingawyw«at 
uue  uuTUie  mii«  liuie ;  and  tbe  Cuail  framed 
IliiiiDlbciuaUoD,  tutry  which  of  lUi'm  was  duly 
elected.  Upon  tbia  tire  issues  aiejoioed:  tai 
lbe  first  issue  you  are  lo  try,  gen  lie  men,  la. 
Whether  £lles  wu  a  jurat?  Aud  we  shall 
■bew  be  was  flrsi  elected  a  freemuo,  and  then, 
ia  due  muoner  aod  form,  n  jural.  The  second 
isnie  is,  Whether  the  mayor,  ju»tB,  and  com- 
muoaliy  of  the  town  Biid  port  ofNew-Romney, 
did  vhuse  tbe  defendant  Elles  mayor  t  OeD-i 
tlvmen,  in  this  toBn,  we  see,lbereare  tweoly- 
one  voters:  Wight  wick  stood  in  opputitioa  lo 
HIlea;  the  town  clerk  took  the  poll;  and  on 
L-uitiDg  il  Up,  there  aiipeared  lo  be  for  £lles 
elerfo  rotes,  and  far  Wigbtwick  len  [  to  that 
Elies  was  duly  chosen  uiayor.  But  aqolbor 
putwa  pretended  to  take  Ibe  poll,  and  «et  down 
such  persons  as  he  ibougbt  fll,  and  amooMt 
them  Gibbon  and  Darby,  as  rolers  for  Wight- 
nick ;  and  that  cait  tbe  majorily  of  roiera  on 
WiKhlivIck:  but  Darby  and  Gibbon's  volM 
ought  not  to  bave4>e(iit  t^ken,  iheir  right  being 
li>  marrying  freemen's  daughters)  whereaf 
Ibere  is  do  such  cuMoni,  nor  ever  was,  nor  erer 
attempted  till  lbe  jeir  1738,  when  it  was 
set  up  by  thii,  Oibbuu  :  aod  ibt^renpon  (heCor-  . 
)>oratioti  ordered  il  lo  be  entered  in  their  bonks, 
ibat  bt  waa  aui  lo  w  admitted,  for  that  ibere 
was  uo  Eiirh  cuaioni ;  n  bich  we  sbill  call  out 
wilne«sc*,  and  fully  prove tn  you. 

The  lliir-l  isKue,  gentlemen,  is,  Whether  lh« 
defendani  EDes  was  duly  sworn  inKi  the  office 
wf  mayor,  in  manner  and  fo-  m  a«  by  hit  plea 
lie  liBlh  alleged  ?  Anil  we  shall  shew  you,  tl^ 
be  was  swurn  bjr  lbe  luwn-clerk,  before  the 
mavor- 

Tbe  fourth  issne  is,  Whether  EHes  took  bis 
corporal  oalh,  fur  |he  due  execution  of  the  office 
of  mayor,  according  lo  lbe  funu  and  effect  of 
tbe  tetterv  patent? 

Tbe  lillh  issue  is.  Wheiher  ihe  defeodaal 
Eiles  was  sworn  aci'ordiog  lo  the  manoer  and 
I'Drin  us  ilie  niuyor  orsaniluich  is  sworn.' 

Gentlemen,  we  shall  call  our  U'iinf>u<e«,  tnd 
make  it  plainly  appear,  thai  these  isiues  an 
for  the  deli'ndanl  Elles;  and  then  we  hope 
you  will  find  a  lerdictlur  biui  accvrdiiigly. 

Mr.  Mari/i.  Aly  lord,  in  order  lo  be  ajurat 
he  must  be  a  freeman. 

L.  C.  J.  Kyre.  Was  hea  JuralF 

Mr.  KninDler.  He  acted  as  ajurat. 

Keij.  Darnell.  His  sciiiig  at  a  Jurat  is  evi- 
dence, nrm  a  faciV,  ibit  he  wassfr««iusn, 

L.C.J.    Wdlvou  admit  be waa  ajurat? 

nir.  Mank.  Tbey  may  go  on ;  I  shall 
wake  un  bargxini. 

8eri.  Damcil.    Swear  Mr.  Loftie.  (Which 

Mr.  Marih.  What  do  they  call  bim  to  t 
Weobjei-tlohim. 

Serj,  Darnill.  To  pruva  an  aatetoUy-boob. 
Mr,  LofUe,  is  thai  tb^  tntry  of  Ellca's  «hctloii 
tobeajaratF— iji/yHT.  Yes.  — 

Serj.  Darnell,  (lead  it. 


887]  8  GEORGE  IL 

**  John  Tobke,  mayor.  At  b  eommoD  as- 
tmnbly  held  the  9dd  December,  1730,  mayor, 
rarats,  aod  comrooDaUy  duly  elected  Edward 
Batchelor  and  Richard  Ellea  to  be  jurats.*' 

Mr.  Laey.  The  election- day  is  the  25th  of 
March. 

X.  C.  J.  This  proves  an  election  the  23d  of 
December,  1730.    Was  he  duly  sworn  ? 

Serj.  Baynet,  YtB,  my  lord.  Read  bis 
iweanng. 

Attociate  reads  : 

**  4  Januaryy  1730,  Batchelor  and  Elles  took 
the  oath  of  jurats." 

£.  C  J.  Go  on,  issue  by  issne :  first,  Whe- 
dier  Elles  was  a  jurat?  They  insnt,  by  cus- 
tom, the  jurats  must  be  sworn  every  year : 
prove  it. 

Serj.  DarneU.  My  lord,  they  have  given  us 
notice,  that  every  qualification  of  the  jurats  wad 
fineemen  would  be  objected  to. 

Mr.  Knowier,  A  jurat  (so  MS.  Q.  mayor) 
it  said  to  be  an  annual  officer.  We  shall  prove, 
my  lord,  that  EUet  was  ehooen  ibr  the  year 
1734. 

L.  C.  J.  Mr.  WeDard,  yoa  most  not  talk 
more  than  necessary. 

Mr.  Marsh,  It  is  necessary  to  be  a  freeman, 
in  order  to  be  a  jurat 

Seij.  Darnell,  A  man  b  a  jnrat ;  is  it  ne- 
eessarjr  he  bea  fineeman,  in  order  to  be  qualified 
for  a  jurat? 

Mr.  Marsh.  If  the  entry  be  sufficient,  it  is 
needless  to  go  on. 

JL.  C.  /.  The  qualifications  of  a  jurat  are,  a 
jurat  he  must  be,  to  be  a  mayor ;  for  a  jurat, 
he  most  he  a  freeman. 

Mr.  Marsh.  These  points  are  oflen  disputed. 

X.  C.  /.  Dispute  what  you  will ;  but  he  was 
•wned  a  freeman  by  the  corporation  when  he 
was  made  a  jurat. 

Mr.  Marsh.  He  was  sworn  before  the  mayor 
and  jurats  only. 

L.  C.  /.  llie  entries  are  all  so.  Nothing 
has  been  read  to  shew  they  might  not  swear 
him.  If  he  was  sworn  by  the  mayor  and 
jurats,  that  must  be  proved :  we  had  nothing 
of  that  in  the  last  cause. 

Seij.  Darnell.  The  question  is,  Whether  the 
major  part  of  the  mayor,  jurats,  and  common- 
alty, did  duly  cbuse  him  mayor,  according  to 
the  form  and  effect  of  the  lettera  patent  ?  and 
in  order  to  prove  that  he  was  duly  chosen,  we 
are  to  shew  what  were  the  number  of  jurats 
and  freemen  that  voted  for  Elles ;  for  which 
purpose  1  shall  call  Mr.  LofUe. 

Mr.  Marsh,  We  object  to  Loflie :  he  was 
one  of  the  persons  who  voted  for  Elles,  and 
therefore  has  given  his  opinion  already. 

X.  C.  /.  I  never  knew  it  denied  a  corpora- 
tion-man that  voted  ;    he  is  a  legal  vntness. 

Serj.  Darnell,  Mr.  LofUe,  were  you  present 
at  the  last  election  of  a  mayor  for  Romney  ? 

l^U.  Yea. 

Sari.  Darnell,  Whare  was  it  made  ? 

L^k.  At  St  Nichotas. 


Case  of  Richard  EtleSf 


[8B9 


Serj.  Darnell,  What  number  of  fraamen 
were  present  and  voted  ? — Loflie,  Twenty-oae. 

Mr.  Lacy,  Are  you  town-clerk  of  Romney  f 
Do  you  keep  a  book  ?—'Lqftie,  Yea, 

Mr.  Lacy.  Where  is  that  book  P 

Lqftie.  Mr.  Wellard  took  it  away. 

Blr.  Wellard.  Here  U  is. 

Lo/tie.  Mr.  Wellard  and  Mr.  Wi|;litwick 
took  away  the  books,  and  Mr.  Wigbtwick  has 
entered  the  proceedings  of  that  day  hinaeUl 

X.  C.  J.  Are  there  any  entries  made  by  yoa 
of  the  proceedings  of  that  dajr  f 

Loftie.  1  have  a  copy  of  the  poll,  my  loid. 

X.  C.  J.  Why  were  they  not  entered  P 

Lqftie.    Because  Coates  insisted  I  shadd  . 
take  the  poll  according  to  the  minutes  tkey  hU 
taken. 

X.  C.  J,  And  you  did  not  think  it  right  f 

Ltfiic,  No,  my  lord ;  because  tbdr  had 
taken  Gibbon  and  Darby's  votaa,  wno,  I 
thought,  had  no  right  to  vote. 

S^.  DamelL  Yon  take  an  oath;  whatii 
thatoathP 

X^^i^  To  enter  faithfully  and  right  an  the 
proceedinga  of  the  corporation, 

X.  C.  J,  Yon  did  not  make  an  entry  of  thi 

Kll,  bocause  every  body  did  not  agree  la  it; 
t  you  took  a  copy  of  the  polL    Rend  the 
oath  of  the  town-derk. 

Aisociate  reads : 

Mr.  Knomler,  Read  the  poll  afam. 

Lqftie.  <«  Wightwiek  and  Elks— The  fain 
for  mayor— 

«  For  Wightwiek  .-—John  Contas,  m\. 
Wiffhtwick,  Batchelor,  Rutton,  Bassftt. 
Joabua  Coates,  Odiham  Coatea,  Wilson^  Haf- 
fenden,  Dree." 

Tlieae  were  all  that  voted  for  Wightwiek, 
but  Gibbon  and  Darby,  who,  1  apprehended, 
had  no  ri^^ht  to  vole ;  and  theretbre  I  did  not 
insert  tiieir  names. 

*«  For  Elles  .—Himself,  Robert ,  Maacall, 
Norman,  Tookey,  Smith,  John  Maacall, 
Weeden,  Langdon,  Loftie,  Benjamin  Ceb^ 
William  Gray. 

Mr.  Marsh,  Dai)>y  and  Gibbon  were  theis^ 
but  you  did  not  take  their  votes.*- Waa  nobody 
else  there  P  Did  not  Mr.  Papillon  and  Welisri 
send,  that  they  might  be  admitted  to  come  ts 
ezeroisc  their  franchise  of  voting  P 

Mr.  Lacy.  I  desire  to  see  the  poll-paper,  the 
very  paper  you  took  in  the  church,  Mr.  Lofhe. 

Mr.  Loftie  produces  the  poll-paper,  aa  before. 

Mr.  Lacy,  Did  not  you  take  another  list  m 
poUP 

Mr.  Lqftie  producea  another. 

Mr.  Laey.  He  took  one  list,  and  then,  by 
Elles's  direction,  took  another.    Read  it. 

Mr.  Loftie  reads  another  poll. 

*'  For  Wightwiek :— John  Coales,  esq. 
Wightwkik,  Batchekv,  Rntton,  Baasst 
Joshua  Coatea,  Odihnm  Coatea,  WUaoa,  Ha^ 
enden,  Dree,  John  Daihy,  Hbm  OiMiwii 
F^iikp,  WaUaid.''  . 

1 


™  vptin  a  Quo  Jf^arranto. 

tr  Ella  :—El\es,  lUwrl  MiMcnll,  Nor- 
I'Mkry,  Smith,  Joliu  Hnicall,  Weeilen, 
■Bi  Loftie,    Benjamin  C'ubb,  William 

»nL    Where  iloet  tkii  weinbly 
In  tbe  south  cliancel  or  Sl  Ni- 
usual);  kept 


.    Daractl.    If   Ibe 

it  thul  r 

if.  Shot,  to  prevent  people  coaling; 


0  liusincis. 
StmlA.  n'hich  ofibr 
;d<n>D  fintf 
tir.  The  latt-ddirernl. 


0  polls  did  yiin 


who  toleil  for  itiia  mayor.  Hr  hns 
hit  0|iimnD  ilreadj',  ami  therefore  I 
I  it  to  your  kiriUlnp,  whether  he  h  ■ 
tvirlenirci'  Or  ulberwbe  we  insist,  the 
•  taken  down  a*  pullers,  Ibat  tliey  are 
n  number  than  he  has  giien  an  account 
COotdinK  to  his  Iltt,  they  are  liulten; 
ere  niuit  be  lliur  vntea  more  added,  two 
ch  arepenoDB  not  numlieml  by  him. 
lord,  Darby's  and   GiblwnN  rights   ' 


M,  il  will  besufBcienl'reumn  Tor  |iultii)g 
oa  the  poll  fur  WightnieU  ;  and  then 
Btmot  be  mayor.  Besides  there  is  Mr. 
BB'fl  right,  u^io  was  not  in  Ihe  church, 
Nthc  duoT  WW  shut  within-side;  and 
I'allanl  was  also  a  freeman,  and  he  could 
KM  in,  Oie  duor  bein^  shut.  We  ahall 
rM.  ^tleinen,  iheir  qualiRcnlion,  nod 
ttj  could  nut  get  into  the  church  ;  that 
>nt  to  the  door,  but  there  was  no  ad- 
1  to  be  bad  ;  that  they  «ent  in  a  letter  to 
lyor,  and  demanded  udmillanre ;  and  if 
M  been  let  iu,  ibey  had  voted  Tor  Mr. 
wick;  and  they  bating  a  right,  and  aa- 
I  that  right,  tbete  voles  ought  10  be 
d  le  tbeui. 

h«  first  of  the  late  king,  there  was  Ihe 
r  ibe  mavor  of  Hylb«  tried  before  my 
iMKlMfirld  at  this  place.  Two  iiersons 
I  tboir  vut«s  nt  the  noli,  and  being  re^ 
kf  lb*  pmiding  officer,  the  Court  wa! 
uon,  Ihuj  were  good  fuirs.  Am)  itiere- 
m  bamfaly  ho|«  yoiir  lordship  will  allow 
M  be  good  voloi,  and,  in  conscijnence, 
»imy  will  find  liir  us. 
Laeit,  Tlip  istuc  now  before  your  lord- 
:,  wlietbcr  t1>e  major  pari  of  Ihe  jurat* 
■mmoaaUy  did,  or  did  not.ehnie  Ihcde- 
it  Ellea  mayor !  By  Lofttc's  pnll  it 
t,  thtra  werv  eleren  voles  far  Elles, 
•B  tot  WiKbtwich  1  wi  Ihal,  if  either  of 
nr  votn  diaallowed  by  liim  shall  apppar 
IDod,  Ihni,  gentlemen  of  the  jurv,  they 
pro**  ihcir  issue.  At  to  Hr.  F^pilh 
m  flf«nau,  admitted  and  sworn;  ■ 
I  hb  vote  waa  refused,  he  tendered 
nt  in  a  nota  in  writini;.  tianilyiDg  to  the 
*  Im  f»u4  lot  Wigbtwick,  and   " 


A.  D.  17S*.  [890 

therefore  a  gooil  vote.  And  as  to  Dnhy  and 
Gibbon,  we  Biibmjl,  uliL'thtT.  heiog  sworn, 
they  are  not  in  tbe  exercise  of  thi'ir  olfice,  and 
ought  to  be  allowed  good  votes.  We  shall  call 
our  wilitessea,  and  shew  the  entriea  efGibbon 
and  Dirby. — ^llr.  Lofiie,  look  upon  the  book  ; 
il  your  hand-wiitiug? 
IrtrtK.  Ves.  Itesds: 

"J.Cottles,  msjiir,     Beit  remembered,  at 

coan  of  record  betd  the  2jlti  of  Mai'cb,  IT34, 

e   corporaiion   Iibvidr   been   served  with   a 

writ   of  Mandamus,   riibbori  and   Darby,  de- 

raaoding  Ibeir  fn.'cdoms,  were  adiiiitied  and 

Mr.  Marih.  Where  is  Mr.  Papillon  and  Mr. 
Wellard's  entry  ? 

L.  C.  J.  Gibbon  and   Darbv  were  admitlcd 

fore  the  election  ? — Lafiir.  Ves,  my  lonl. 

Z.  C.  J.  Uow  caroe  you,  then,  to  refuse 
ibeir  votes  I 

Lnflic.  Because  I  thonght  there  was  an 
oriler  made,  that  they  should  not  be  admitted 

L.  C.  J.  Vi'vte  thev  elected  by  Ihe  maysr 

id  jurau? — Li>itit.  Never,  my  lord. 

Mr.  Wtllard.' Re&i  my  election,  and  ibcB 
read  my  swearing. 

Asuk'ihU  read* : 

"  Nicholas  Durrani,  mayor.  At  a  comtnM 
assembly  of  Ibe  town  and  port  of  New-Kom- 
ney,  in  ihe  common  place,  October  30,  1720, 
Nicholas  Durrani,  mayor,  Sec.  elected  Charles 
Wtllard,  an  inhabilant  and  town-clerk,  to  \m 
a  freeman  of  tliii  town  and  port ;  and  he  wSt'  i 
ordered  lo  be  sworn,  more  mito,  according  tft  j 
bi'olherhaod  and  ghuesthng."  ' 

"  December  ID,  1790,  he  was  awom  and 
admitted." 

Seij.  DariiWI.  Isihat iheasumMy-bookF  ,, 

Mr.  WtHurd.  Ves. 

SeiJ.  Damdl.  My  lord,  all  Ibe  enlries  0 
sweariog  these  people  are  in  the  assembly* 
book,  and  therefore  it  is  hut  a  del^ated  |>nwer>l 

Mr.  Lact/.  Head  the  mandate  tor   chusiag;! 
two  barons  to  send  to  parliament. 

AttociaU  rends : 

■•  Whereas  a  mntidate  for  chusing  im 
barouE  was  read,  Ihe  mayor  and  jural* "  ■ 

Mr.  JIforiA.    Read  Mr.  Tapillon's   eledittf^ 
and  swearing.  * 

Aaxiate  reads : 

*■  New-Romocy,  u.  mayor, 

comtnnn  assembly  of  tbe  sud  la»  n  aud  port  •! 
New-Romney,  held  in  the  coromuo  plaM 
there,  tbe  Q3rd  of  March,  1731,  elected  DarU 
Paniliou  a  freeman  of  ibis  town  and  pottfil 
nnd  he  was  sworn  and  admitted,  more  lotiU 
according  lo  brolherbuod  and  ghueslling." 
Mr.  JJo/J called  and  sworn. 

Mr.  Slarth.  Were  yon  prrseut  at  the  h 
election  for  mayor  f — DvJil.  Yes. 

Mr.  Mar,h.  Was  Mr.  I'apillou  there  t 

Daiiil.  Yes ;  but  he  wns  not  in  tbe  rbur 

Mr.  ilfariA,  Aail  bow  gum  be  nok  to  gti 


ggl]  8  GEORGE  II. 

D»d4.  BMDDse  iteiloor  wMloched. 

Mr.  MtTtk.  Did  he  Iry  to  get  io  ? 

Here  the  Chief  Justice  ■*■■  toU  by  ■  by- 
■twiiler,  that  a  pcrmn  vai  takiag  Notes  i  on 
WbicU  be  uked, 

X  C.J.  Who  is  it?— Who  emflnyed  you  ? 
Give  me  the  paper.  [On  which  if.e  Sole, 
were  deliTercl  to  him  -,  auil,  after  lurnrag 
tbem  o»er,  he  said,  with  Home  warmth,]  1 
**— Tfe  my  n»me  in  it:  whom  were  yon  em- 
ed  by  to  talie  thotu  Note*  ? 
■  -t-Und  Writer.  My  lord.  I  WW  em- 
conccmcd  in  tile  erent 


Cate  ofliUkard  Ellgs, 


■*"£, 


B  ilbdoM 


ployrd  by  4  gentli 
of  tbeae  iHuei. 

L.C.J.  Whof 

SKort'Mond  Wriltr.  Mr.Papillondesirertme 
to  attend  and  lake  Notes. 

Then  tiie  Chirf  Jiulice  called  crow  llie 
Court  to  Mr.  PapUlon: 

L  C.  J.  Mr.  Papillon,  here  ii  a  man  laLiii; 
Koles  that  laya  \ou  employed  h.m. 

Mr,  Papiltou.  Yea,  my  lord,  I  desired  him 
IB  allead,  and  lake  Nolca. 

L.  C.  J.  Who  is  he  M  obaerre  ray  uarae 
in  tereral  fiacta.  1  suppoae,  I  ahall  ntxl 
week  hai-e  my  name  in  fnnt. 

Ur.  PapilUm.  H^  lord.  It  *s  no  eommou 
rtorthaol writer;  it  is  Mr.  I  nerw 

knew  it  waa  a  crime  to  take  Notes  in  a  court 
wbereyowr  lord»liil>  lat. 

X.  C.  J.  Well,  1  hope  you  are  the  better 

Mr.  PapitloK.  1  think  I  em,  my  lonl ;  anil 
on  aome  occasions  they  have  boen  of  great 

X  C.  J.  I  am  ([lail  to  hear  that. 
Wr.  FapUlvn.   Yuur  lonlship  presides  here ; 
so  do  with  the    papers  what  your  loidihip 

^  T^.  J.  No,  no.  Now  I  know  it  is  done 
by  authority,  if  I  see  any  thing  in  print,  I 
shall  know  where  to  apply. 

Mr.  PapUlon.  It  is  no  rMison  to  snppoK,  it 
•lioulil  coine  from  me,  ifjuur  lordship  does  ; 
there  are  greai  numbers  now  taking  Notes,  as 
well  as  Mr.  and  it  may  =iurc  come  m 

well  from  any  of  Ihem.  Mv  w'J,  I  never  was 
a  libeller,  nor  ever  in  my  lile  eiicourBi;ed  s 
publication  of  this  sort.  We  are  all  lial.le  to 
accusations  of  Uiis  sort:  !  have  seen  oiany 
falsboods  jtrinled,  liut  never  thuught  llieni 
worth  iny  notiw.  My  lord,  I  am  not  an- 
■nerable:  do  with  the  ftotes  what  you  will. 

L.  C.  J.  No ;  Mioue  it  is  your  wnicr,  let  the 
man  have  his  paper,  and  go  on. 

The  Notes  being  out  of  the  Shorl-haoJ 
Writer's  pussession,  he  coulJ  not  take  dowu 
what  wassail). 

X.  C.  J.  There,  take  down  that,  anil  print 
it  too,  if  you  will ;  I  don't  rare ;  though  1 
don't  say  ii  i;  Uw,  uor  will  justify  it  asauch. 

Blr.  Papillo-i.  Here,  give  me  tiie  Notes  : 
let  my  lord  have  tTiem,  since  they  gif  e  offence. 

L.e.J-  No,  I  will  4M  haTe  ttiem.    Let 


\}tt  roan  have  his  paper  agan,  I 
by  authority. 

Mr.  Paor/ton.  My  lord,  pray  il"  wbai  yet 
please  witli  Ihem ;  cut  tbem  to  pieces,  MfW 
ibeiD  in  the  fire. 

X.  C.  J.  No,  no.    Let  hiin  go  on,  MDce  M 

'*]llr.  Fapilha.  Then  pray  kt  bim  goes 
without  reflectiona. 

Mr.  X«ey.  Pray,  Mr.  DoOd,  where  did  ihg 
atsentble  f 

Dodd.  They  went  from  Mr.  Coalea'a. 

Se>i.  VamtU.  Did  Blr.  Papillon  aid  Mr. 
Wellard  go  with  the  people  to  the  church  r 

Dodd.  No. 

Mr.  Martk.  Waa  Mr.  Papillon  thewF 

Dodd  Yes. 

Serj.  DarntU.  Why  could  nut  he  go  I* 
tlie  church,  as  well  as  Coates  and  the  nMJ 

Dodd.   1  do  not  know. 

Serj.  DarwU.  Did  yon  seethe  mayor  p 
from  the  house?— DodJ.   Yes. 

Berj.  Dame'/.  What  tiimdid  they  go? 

D<idd.   ittwo  o'clock.  , 

Mr.  Manh.  Is  that  i he  usual  time  F 

Dodd.  Yes.  .    ,   , 

Mr.  Marth.  How  long  was  the  doot  leclri 
hefore  Mr.  Papdion  and  Mr.   Wellardcame? 

L.  C.  J.  Did  (he  mayor  and  jurau  see  tbm 
coming  f—DiK'd.  I  do  not  know- 

Serj.  Darnelt.  Is  it  not  usual  to  lock  tk 
door  on  audi  occasions  ? 

Dodd.  Yes;  and  not  to  open  it  till  the  rite- 

"seri.  DarntU.  Did  Costes  or  ffigbtnid 
Jive  orders  to  shut  out  Mr.  Papillon  or  H'rf- 
iird  i^Dodd.  I  do  uol  know. 

Serj.  DjrnWt  Was  any  body  shut  oul  b(- 
sides?— CodJ.  Several. 

Mr.  KtumUr.   How  loitB  was  Mr.  Welhnl 
In  lonu  belure  the  election  1 
Dodd.  About  five  weeks. 
Mr.  Kuomler.  Whoee  house  was  he  st  iliim* 
that  time  ?—Do(/rf.  AtOihIiou's. 

Mr.  K»ot^Ur.     How  long  was  it  allK  ik 
door  was  shut,  that  Mr.  Papillon  and  Sir.  lin* 
lani  came  to  ap|)ly  to  get  in  ? 
Dorfiy.  .A  minute  or  two. 
ilr.KmB.Ur.    Why  did  they  not  ai^lj  " 
the  Juor-keeper  to  be  let  in  f 
Dodd.  I  <to  not  kuow. 
Hr.  Maril,.   Did  you  ever  know  a  fi«B»» 
reiiised,  lliat  came  and  applied  to  be  let  lO,  » 
little  after  the  door  was  abut? 
Dodd.  Yes. 

Skij.  Buynet.  Was  any  particular  mesnp 
sent  lo  tlie  mayor  by  Mr.  Papilluo  or  Sir* 
Wellard  ?—Dodd.  Not  tlial  I  know  of. 
Mv.  Wellard  awom. 
yit.Manh.  Mr.Wettard,yDu  werewithBr. 
Painllun :  Pray.  gi«  "n  acconiit  ol  his  goiaj 
10  church,  and  his  demand  W  tome  in. 

n'elbiTd.  I  tieiit  wHb  hjm  to  the  chwebi 
where  the  election  was.  In  order'to  volt  * 
Wightwick.  As  we  were  g»i«»f.^»r' * 
wiuieu  iut  enminedi  aod  dcMTCd  Wt  w  ■■ 


itpon  a  Qero  ll^arnmto. 
-4l^tH^  dttj  vere  rrcemeo;   bul   nn  lonn  no 
raiftOU  can  lie  *iJmitU!il  to  tolc  ;  and  llicreliin 
tkry  ware  tefuMiil  ty  llie  txiilt'. 

Out,  ^nllEmcR,  tl>cy  Itll  jf'ou,  we.  Iiate  doni 
lU  wc  CDuid;  we  teat  io  leture  lu  llie  nuij'ur 
Knl  came  in  tlic  cliurch  dour,  in  order  to  f^e 
ill,  and  were  rcCiisei] ;  anil  lhereti>re  their  toIel 
oivtit  Dut  to  tia  otijecti-il  tu,  as  llicj'  bUuiiI  on  the 

i'leate,  gcollemen,  la  nUerre  bnw  lliia  ^fia 
1|U  bem  cooked  uii  IJelweeu  ftli.  I'aptUori  aod 
Hr.  tVellaxl.  Wellard  t«!l>  >ou,  llic  lellcra 
were  wntUu  licrnre  ilioDer  oa  llie  day  of  tbc 
Meulian ;  they  are  nurd  fur  iwird  llie  Eune, 
Ivtkr  Tur  letter.  The  siibscriptloD  ii  exactly 
fai  Ih*  aame  words;  "We  reluseil  il,  Jobn 
CmIh,  ma^or."  Cuslegtiad  projioaeilittollie 
body,  and  iliey  reiuscd  it,  JIul  Coutes  i« 
Ur.  Hqiillua's  inlereat,  and  TOlcs  Tor  hint :  a 
ht  My  Uio,  We  refused  tiiia  ?  No,  it  is  only 
giT«  a  handle  ■>■'  coniplAial,  that  men  liave  been 
nojiwllj^  relosediBiKl  tLak  iherefure  llie  eleclioD 
!•  vuut:  ibuugh  I  uufer  yet  beurd  thai  a  ini 
wa>  to  be  admiited  to  vole  iiv  letter,  or  that 
tote  waa  to  b^  put  into  a  pocket. 

At  to  Uie  case  of  Hytlie,  the  men  were  si 
tuallv  lliere  at  ihe  poll,  and  oHered  Itieir  voti... 
ftr  Itw  candidates,  and  were  acluall)|  refused 
•y  ibo  presiding  officer  ^  and  if  he  reluees,  the' 
Mtaon  has  Im  coaiedy  :  but  1  uerer  befure 
Msrd  of  I  yotc  put  into  a  |kk±cI.  If  this  in  to 
b«  admitted,  there  can  be  uo  cwlaiiitv  in  any 
dcdiun.  A  corporate  budy  assembleci,  are  nut 
10  be  broke  id  upon,  aAei'  ibe  doora  are  locked, 
and  the  keys  tok^  io  (asluthellouseof  Com- 
aunt)  to  preveot  coDfueiou  ;  and  therefbrc  all 
rigtit  nf  toting  is  excluded,  when  tbis  body  it 
once  aasetnbled.  Beside*,  ihey  dined  with 
Coalea,  and  iniiibl  hate  gone  in  with  him,  anili 


Ibeteat  of  the  Ireemeu.iFthey  wnnld  :  bul, in- 
Htfltil  of  that,  for  parUcular  purposes,  they  aay, 
Tfo  ;  we  will  nnl  claim  it  in  |>ersun,  we  will 
diWnd  it  bj  letter. 

tlpon  ibe  nhule  circumtlaaces  of  lliis  ca^e, 

WB  bopc,  griiilemen,  it  baa  been  clearly  made 

ontloyou,  Ibal  Elles  had  the  majority;    Ihul 

Om  alrreu  ikiat  voud  tor  him  weii!  legal  votra, 

and  that  but  leu  legal  tolea  voted  fur  Wight- 

wkk;  and  therefore,  geullemeu,  that  you  will 

Sad  a  terdici  for  us. 

s..ri    f;.,„N,,,     My  io„j|  the  gentlemco  of 

-    ■■■■  li;jve  ^eavouted  tn  make  out, 

:  >  filers  were  excluded  ;  and  thai, 

I  '.irby  beio)C  sworn  in,  though 

,  I  led  by  the  aosembl}',  they  are 

Io  Lc   luekL'J  no  aa  if  ihey   had  giten  their 

ITbc  right  of  foiing  ii,  to  be  elected  by  (be 
■•jor,  and  jiiraU,  aod  comiiiuiially  :  bul  they 
mwn  natM'  elected,  or  duly  aworn  in,  hy  the 
■■yor  atiil  jiiimta  J  it  ttaa  done  by  Mandamus: 
apd  ibotigb  it  waa  agreed  and  reeolted,  at  a 
»>aiinoo  aaaoiubly,  lu  cuntecl  i(,  ytt  the  ma^vor 
uut  two  jurats  iwore  Iheiu  in ;  hdiI  Iberetore 
il  iraa  right  to  refuvd  ibem  their  voieii ;  and 
lb«o  UiTrc  in  plaiuly  a  luniutity  tor  EUet. 

1, »  u  Ml.  FapiUott  and  Wal- 


A.  D.  17S*. 
iord's  TOtes,  if  there  be  any  fnnd  or  C 
io  thai  matter,  their  rules  are  to  be  set  axide: 
«od  they  came  for  their  rit(iit,  alUr  the  churcli 
dooi'  was  aliul.  It  ts  agreed,  that,  on  the  ele«- 
tion  of  a  mayor,  the  keys  of  ihe  church  ar* 
luiddouo  on  Ibc  tuhle,  and  the  duors  areahtit; 
this,  genilemen,  is  ilic  constitotioa  of  the  town. 
The  cviilencM  It'll  you,  tbey  were  all  met  at 
Cualts's,  and  went  aller  dinner  to  cliurcb.  Id 
vole  for  Wightwick ;  but  the  mayor  wouldnot 
admit  liiem.  How  could  thai  create  a  disturb 
aiice  ?  But  he  did  nol  admit  Ihem  for  fear  of « 
illslurbsoce,  and  Ihev  were  kepi  out ;  and  oiqr 
part  of  (he  atsembly  are  to  be  excluded,  if 
Ihey  come  loo  late,  aa  io  the  lloaae  of  Coin- 


maiiner  as  if  they  had  toled.  And  Ibis,  geo- 
tlemeo,  we  admit,  is  law  in  the  Houseof  Com- 
mons, but  WM  Defer  determined  to  be  law  in 
any  of  the  courts  in  WestmiD«ter-hall:  it  la 
the  practice  (here,  but  neter  at  common  hw. 
fio  that,  genlleroeu,  there  is  a  plain  m^ority  of 
those  atisembted  for  tlie  <lefenilaQt  Elles ;  and 
Lherelure  we  hope  you  will  find  that  he  is  duty 
etected. 

Mr.  Kmmler.  My  lord,  Ibere  is  an  aiby 
iipoo  tbc  assembly -book,  where  Gibhon'a  aud 
Darby's  right  were  taken  into  consideration  by 
the  whole  body  ;  and  it  was  unanimously  re- 
solved, that  they  had  no  right ;  and,  to  make 
it  the  more  soleinu.the  mayor,  jurats, aod  com- 
monalty subscribed  it;  and  Coatea,  and  the 
others  who  admitted  them,  hare  also  subacribed 
II.     Ilead  lb*  enlr^  uf  the  1st  of  March,  179S. 

X.  C.J.  It  ligni  Res  nothing,  an  act  in  1118: 
Ihey  gave  their  Judgment,  what  signiflea  it  i 

Sir.  KnovUr.  Rrad  the  entry. 

Auoeiate  reads : 

*'  New  Romoey,  Msrcb  1,  1153.  Reciting 
(hal  (iibbon  and  Darby  had  threateaed  to  bring 

eir  Mandamus,  tn  he  admiited  to  the  frcedoin 

this  town  and  port ;  it  waK  retuNed  Io  returh 

conusel  nhall  adrise,  and  ihesuiilo  be  de- 
fended at  Ihe  charge  of  this  coqioratton." 

Mr.  Marth.    I  hope,  my  lord,  we  are  proper 

reply. 

L.  C.J.  You  are  not  regular  to  reply.  Yoa 
laid  down  a  rule  Ihe  beginning  of  Ibis  dreuit, 
aud  now  you  do  not  keeji  Io  il :  but  I  wiH  hrar 
you,  regular  or  irrqfular. 

Mr.  Marili,  My  Intd,  we  humbly  intist,  the 

It  entry  is  no  eiideuce. 

L.  C.  J.  You  are  ihv  master  of  ordsi ;  I 
submit  (D  yon. 

Mr.  Alan/i.  My  lord,  I  )ud  not  objcctul, 
butlliat  four  people  who  toted  far  Wigliiwick, 
lliat  liad  no  disijualiftcdtioD,  an-  lelV  out  of  ihoir 
poll,  by  their  ouu  eiidence  it  apjiwrs,  that 
this  was  upuuaTight,iolui«iagmarri«dal'ree- 
saQ'a  daughter ;  and  1  aubmil  It  to  your  liiid- 
iliip,  that  a  reuululjon  to  canteat  that  nifl'* 
iiirely  can  never  lake  ii  away,  especiallji  if 
iflerwardi  it  ajipaan  to  be  ■  ri)[hl  not  cou- 


839] 


8  GEORGE  n. 


Case  tfBiehard  EBetf 


[8fl 


L,  C.  J.    ft  should  be  a  custom  fmnred  at  a 

^foundation  for  tliis  rhr\u. 

Mr.  Marsh.  My  lord,  a  point  of  law  de- 
pend io»  on  the  demurrer,  we  submit,  whether 
your  lordship  will  not  save  it,  in  case  we  lay 
proper  evidence  before  ^our  lordship  to  support 
It:  for,  if  the  charter  puts  them  on  the  same 
freedom  with  Sandwich,  and  <he  custom  there 
IS,  that  the  daug^htej  nf  a  freeman,  by  marry- 
inpf,  entitles  .the  man  to  a  freedom  ;  then  it  will 
be  a  point,  whether  the  charter  warrants  thai 
custom  P  A  pretence  of  rit>fht.  however,  they 
bave ;  the  entry  of  Gibbon  and  Darby  is  by 
their  own  officer,  and  they  were  sworn  in  by 
the  fnayor  and  jurats. 

And,  my  lord,  it  is  admitted  on^all  Rides,  that 
Mr.  Papillon  and  Weilard  are  freemen  ;  and  if 
they  did  all  they  could  to  got  into  the  chiirch 
ana  vote,  then,  my  lord,  we  humblv  insist, 
they  are  as  much  voters  as  if  they  had  been  at 
the  poll,  and  were  actually  in  the  case  of  the 
men  of  Hythe  mentioned  before. 

Therefore,  (j^entlemen,  if  the  mayor  told  Mr. 
Papilloo  and  Mr.  Wellard,  that  if  they  came  to 
the  church,  they  would  not  be  admitted  ;  and 
said  to  Mr.  Papillon,  You  aru  our  member,  do 
not  insist  upon  it;  and  when  they  offered 
themselves  to  vote,  refused  them ;  we  humbly 
insist,  they  are  as  good  voters,  as  if  they  had 
been  at  the  poll,  and  actually  voted. 
^  And  as  to  Gibbon  and  Darby,  they  had  this 
right  by  marrying,  and  were  warranted  by  the 
charter. 

X.  C.  J.    It  is  not  regular. 

Mr.  Lacy,  My  lord,  the  gentlemen  of  the 
Otlier  side  object  to  the  fact  laid  by  us  in  point 
of  law,  that  we  do  not  come  up  to  what  we 
contend  for  by  our  plea,  as  to  the  sole  right : 
but  if  Darby  and  Gibbon  had  a  right,  other  than 
by  election,  where  they  are  sworn  in,  1  would 
Aubniit  it  to  your  lordship,  whether,  till  dis- 
qualitied,  they  are  not  in  the  complete  exercise 
of  that  franchise?  There  may  be  rights  that 
come  not  in  by  election.  Mr.'Serjeant  Darnell 
says,  that  the  majority  of  those  present  are  to 
chuse  the  mayor :  but,  my  lord,  if  we  did  all 
we  could  to  get  in,  as  has  been  fully  uroved  to 
year  lordship  and  tlie  jury ;  we  humoly  insist, 
we  are  entitled  to  a  vote  as  much,  as  if  we  had 
been  actually  present  at  the  poll,  and  had  given 
our  votes. 

It  bas  been  said,  that,  when  the  business  is 
begun,  ntibody  is  to  interfere :  but,  my  lord, 
ive  were  present  by  letter  before :  and  if  they 
read  it  not,  that  was  not  our  fault. 

Mr.  Smith.  My  lord,  we  admit,  that  all  per- 
sons are  to  be  chosen  by  a  majority  of  freemen 
•present ;  and  we  humbly  insist,  Mr.  Papillon 
and  Mr.  Wellard  were  present  in  point  of  law  ; 
and,  in  fact,  in  the  House  of  Commons  it  never 
vas  otherwise. 

My  lord,  in  the  case  of  Ashby  and  White,* 
the  question  was,  whether  an  action  would  lie 
for  refusing  a  vote?  It  was  resolved  that  it 
woald,  because  the  common  remedy  in  the 

f  See  ii  in  this  CoIlectioD,  toI.  14|  p.  695. 


I  House  of  Com  inons  would  g[ire  no  rdief.  As! 
I  the  authority  of  the  men  ot  H^the's  case  wh 
fully  with  us :  Darby  and  Gibbon  being  a^ 
I  mitted,  we  apprehend,  when  they  voted,  tbcy 
'  were  in  the  exercise  of  their  franchise,  and  ue 
therefore  frood  votes. 

L.  C.  J.  Gentlemen  of  the  jmy,  tbe  qoei- 
tion  upon  this  issue  is,  whether  the  deftrait 
Elies  was  duly  elected  by  a  majority  of  tk 
jurats  and  commonalty  of  the  town  and  poittf 
New  Uomney  ?  And  it  appears  from  tbe  cfi- 
dence,  that  21  freemen  being  asSctnUel, 
Wightwick  had  10  voices,  Elles  had  11 ;  «i 
that  two  people  were  present,  whose  vola 
were  not  taken.  Darby  and  Gibbon.  It  wastt 
the  25th  of  Ma*-ch  ;  and  these  two  people  wen 
admitted  bv  the  mayor  and  jurats,  on  prodofr 
ing  a  Mandamus,  which  is  a  pcecept  from  • 
superior  court ;  but  that  confers  uo  right,  Mr 
piend*^  the  thing,  if  there  be  no  evidence  of  a 
prior  right. 

They  tell  you,  on  one  side,  that  Darby  and 
Gibbon  being  sworn  in  by  the  mayor  and  ja- 
rats,  they  are  put  iii  posKussion  of  their  orooe, 
and  are  to  be  regarded!  as  people  that  have  a 
right  in  the  election  of  mayor:  but,  ucleai 
some  such  right  (>e  proved,  such  as  birth,  elec- 
tion, or  some  other  right,  the  Mandamus  con- 
fers none. 

But  they  tell  you,  this  is  a  particular  right, 
supported  by  a  partirotnr  custom  :  and  there- 
fore the  question  is,  Whetlier  this  admittanes 
can  give  a  right? 

Now,  admittance  and  swearing  can  give  oo 
right,  without  a  previous  right.  A  Mandamns 
may  be  brought,  when  tiie^  were  never  elect- 
ed; and  such  admittance  will  do  nothing  of 
itself. 

But  no  such  custom  has  been  proved,  and 
the  cor|>oration  has  protested  a^iost  it ;  and 
therefore  Darby  and  Gibbon  had  no  right  to 
vote. 

But  they  say,  Mr.  Papillon  and  Wellard  bad 
a  right ;  and  if  one  more  vote  be  added  to  the 
poll,  then  Wightwick  had  it. 

They  were  certainly  freemen  ;  but  yet  tliey 
could  not  send  in  their  votes  bv  letter,  or  vote 
otherwise  than  personally  ;  they  must  be  cor* 
poruUter  con^ret^ati. 

Mr.  Papillon  was  tuld,  the  mayor  would  not 
admit  him — Wliattheoi?  Sliould  h«>  not  then 
have  endeavoureil  to  go  in  with  the  rest  ?  I 
think  he  ought,  if  he  will  give  his  vote ;  there 
can  be  no  reasonable  excuse. 

The  mayor  having  told  him,  they  would  not 
admit  a  foreiirner  ;  they  tell  you  they  sent  in 
letters,  and  did  what  they  could  to  get  \\\. 

But  they  have  not  done  what  they  could : 
for  they  should  have  attended  the  mayor,  and 
gone  to  the  church,  and  got  in  with  him  and 
the  rest:  but  they  do  not  come  till  after  the 
church -door  is  shut;  and  the  evidences  all  say, 
that,  after  the  church -door  is  shut,  nobody  can 
be  admitted ;  and  that,  when  they  go  in,  tbey 
lock  the  door,  take  up  the  keys,  and  then  WH 
body  is  ever  admitted.  If  they  do  not  come  in 
time,   therefore,    Ibey  endnde    thansBlfCiu 


Ml] 


upon  a  Quo  Warrafdo* 


A.  D.  1734. 


[842 


IWy  moat  be  there,  and  come  at  the  usual 
tnne ;  and  if  thej  did  not,  the y  exoludcd  them- 
aehree :  and  is  the  hiw,  or  the  method  of  eleo- 
to  be  changed  lor  them  T 
Mr.  Pftpillon's—  (I  would  not  insinuate — ) 
idiog  the  letters  is  attended  with  odd  drcum- 
ccs.    The  letters  are  given  to  Wightwick, 

he  is  to  delirer  them  to  Coates ;  then  they 

art  refused  by  the  assembly ;  and  aflerwards 
Ikm  letters  are  returned  into  their  hands  again, 
with  a  note,  **  We  have  received  this  letter,  and 
il  has  been  refused." 

Gentlemen',  I  think  the  letter  will  do  no- 
.Aiag ;  they  were  wrong  in  their  judgment ;  and 
BOC  eomiog  in  time,they  ought  not  to  be  let  in, 
my  more  thim  any  bocjy  else.  A  man  cannot 
MM  in  his  TOte  by  letter;  be  must  be  present 
in  the  a«embly. 

A9d  therefore  neither  of  these  four  gentle- 
~~  had  any  right  to  vote,  in  my  opinion ; 
then  the  majority  is  tor  £UeS|  and  he  is 
^■ly  elected. 

Tcvdict  for  the  defendant. 


Seij.  Darnell,  My  lord,  the  neit  issue  is, 
ihat  he  was  not  duly  sworn. — Mr.  Loflie,  0o 
you  know  whether  Mr.  Elles  was  sworn  in 
major  of  Romney  f 

LaftU,  Yes ;  he  was  sworn  in  by  me  in  the 
chnteh,  in  the  manner  as  other  mayors  are 


Mr.  AfarsA.  As  to  the  oath  to  be  taken  by 
the  nayor,  you  are  only  ministerial :  did  not 
the  nayor  say  to  you,  VVightwick  was  the  man 
that  was  to  he  sworn  in  mayor  ?  Did  not 
Coates  tell  you,  *'  I  administer  the  oath  to 
VTigbtwick,'^  and  strike  Elles's  hand,  off  the 
hook.? 

Laftie.  No,  not  that  I  heard. 

Mr.  Lacy,  Did  not  he  order  you  to  swear 
Wwhtwick  ? 

Juifiie,    He  ordered  me  to  swear  the  mayor. 

Mr.  Lacy.  Did  be  not  order  you  to  swear 
Mr.  Eiles  P 

Lqfiic,    Not  to  my  knowledge. 

Mr.  Smith,  Did  Coates  say  who  he  thought 
was  mayor? 

Loftie.    Yes;  he  said  Wightwick  had  the 


'^rc': 


C.  J,  Where  two  people  are  sworn  in, 
the  right  must  be  in  the  man  that  had  the  pos- 
•esak>n  of  the  staff. 

Mr.  Batdielor  sworn. 

Mr.  Manh,  Were  you  present  in  the  church 
the  day  the  mayor  was  chosen  ? 

Batchel4n-  Yes. 

Mr.  Manh,  What  declaration  was  made  by 
Coatea,  as  to  tbe  person  chosen  mayor  ? 

Baichelor.  He  told  the  town  clerk,  Wight- 
wick was  mayor ;  and  said,  *'  I  would  have 
joo  set  down  Darby  and  Gibbon  as  voters 
Mr  Wightwick,"  and  called  them  over :  but 
lioAia  would  not  set  them  down,  because  it 
•faion  hia  ladinatioB.    Coates  give  the 


staff  to  Wightwick;  and  said,  «  I  resign  this 
to  you ;  you  shall  be  the  mayor ;  you  had  tbe 
most  votes.'' 

Mr.  Manh,  Who  then  called  for  the  oath? 

Batchelar,  The  old  mayor. 

Mr.  Manh.  Did  be  call  on  any  one  to  admi- 
nister the  oath  ? 

Batchelor,  Yes;  be  bid  Loflie  administer 
the  oath  to  Wightwick  ;  and  then  Wightwick 
and  Elles  laid  their  hands  on  the  book,  and 
Coates  said,  He  wonki  swear  Wightwick  only» 
and  shoved  Elles's  hand  off  the  book  twice. 

L,  C.  J.  Read  the  clause  in  the  charter  that 
relates  to  the  cbusingofamayor;  the  ques- 
tion being,  Whether  the  mayor  or  town;-clerfc 
should  administer  tbe  oath  ? 

Auociate  reads : 

"  The  said  late  queen  by  letters  patent  grant- 
ed, that  on  Lady  Day,  in  the  chanoel  of  St. 
Nicholas,  one  of  the  jurats  should  be  chosen 
into  tbe  mayoralty  for  the  year  ensuing,  and 
should  take  his  oath,  in  manner  as  the  mayor 
of  Sandwich  takes  it." 

L.  C,  J,  The  mayor  mustadminister  the  oath. 

Ser}.  Darnell.  My  lord,  the  oath  is  always 
read  by  tbe  town-clerk ;  and  I  humbly  appre- 
hend, It  is  taking  the  oath,  when  it  is  read  by 
him  Inpresence  of  the  mayor. 

L,  C,  J.  The  mayor  must  consent  to  the 
oath ;  he  is  the  judge,  whether  the  proper  per- 
son be  sworn,  or  not.  Tbe  oath  b  to  be  admi- 
nistered by  the  old  mayor ;  and  it  appears  it 
was  against  his  consent;  he  thought  another 
elected,  and  struck  Elles's  hand  on  the  book. 

Seij.  Darnell,  Suppose  a  man  to  take  an 
oath  to  qualify  him  for  an  ofiioe ;  shall  a  jus- 
tice of  the  peace  refuse  it  ? 

L,  C,  J.  Can  a  man  take  an  oath  that  is 
not  administered  to  him  ?  The  town-cleork  has 
no  more  to  do  with  it  than  you  or  I.  A  man 
is  guilty  of  perjury,  if  a  clerk  will  administer 
an  oath,  when  a  court  forbid  him.  Besides^ 
the  mayor  delivered  the  ensigns  of  his  power 
to  Wightwick. 

Benjamin  Cobb  sworn. 

Mr.  Manh,  Were  yon  present  at  the  deotion 
of  the  mayor? — Cobb,  Yes. 

Mr.  Manh,  Did  you  see  the  oath  adminis- 
tered?—CoW.  Yes. 

Mr.  Knomler,  Was  Elles  sworn  ? 

Cobb.  No. 

X.  C,  J,  Did  not  the  mayor  deliver  his  staff 
into  the  hands  of  Wightwick  ? 

CM,  Yes,  my  lord.  ^ 

Mr.  Langdon  sworn. 

Mr.  Lacy.  Were  you  precieiit  at  the  election 
of  tbe  mayor? — Langdon,  Yes. 

Mr.  Lacy.  Was  the  oath  administered  to 
Wightwick? — Langdon,  Yes. 

Mr.  Lacy,  Did  Coates  make  any  objection 
to  the  swearing  Elles  ? 

L,  C.  J,  Did  Coates  think  Elles  was  chosen 
mayor  ? — Langdon,  f  believe  not. 

JL  C.  /.  Who  did  Coates  think  was  mayor? 


MS]  S  GEOttGE  IL 

Langdon.  My  lord,  he  said  Wi^j^twjck  was 
mayor,  on  account  of  Darby  and  Gibbon. 

Mr.  Marsh.  Did  VVightwick  take  tlie  staff, 
or  did  Coates  deliver  it  to  £lle8  P 

Langdon.  Wightwiok  had  the  staff,  and 
went  home  with  the  staff. 

Mr.  Wynne.  Did  Elles  walk  as  near  thej 
.staff  as  the  other. 

Langdon.  1  believe  he  did. 


Base  qfUickard  ElUi. 


[M 


Mr.  Gray  sworn. 

Seij.  Bayna.  Were  you  present  at  the  choice 
•f  mayor  ?  Did  Coates  say  any  thio^,  or  strike 
Ellcs's  hand  off  the  book?  Was  you  nearP 

Gwy.  I  was  present  ^  he  nerer  touched 
bis  hand. 

Mr.  Lacy.  Did  not  Coates  order  Wightwick 
to  be  sworn  P 

Gray,  i  do  not  know  he  ordered  any  body  to 
be  sworn. 

L.  C.  J.  Had  Wightwick  the  staff  io  his 
hand,  when  he  was  sworn  ? 

Gray.    No. 

L.  C.  J.  Where  was  it? 

Grmy.  it  lay  down  upon  a  tomb-stone. 

L.  V.  J.  I  take  it,  he  ordered  the  mayor  to 
beawom. 

Gray.  I  do  not  know  hn  thoughts. 

Mr.  Marsh.  Is  it  usual  for  the  mayor  to  have 
the  staff  in  his  hand,  when  swofs? 

Gray.  I  do  not  know. 

Mr.  Marsh.  Whom  did  he  n»me? 

Gray.  1  heard  him  mention  nobody. 

Mr.  Lacy.  Whom  was  Wightwick  declared 
navor  by  P 

Uray.  'By  Mr.  Coates. 

Mr.  Laey.  When  did  the  mayor  say  thisP 

Gray.  At  tiie  time  of  tlie  election. 

Mr.  Lacy.  Mr.  LofUe,  was  yon  near  Coates, 
when  the  mayor  was  sworn  ?  Did  he  strike 
EUes's  hand  off  the  book? 

Loftie.  Not  that  I  saw. 

Mr.  Thokey  sworn. 

Mr.  Lacy.  Were  you  present  at  the  election 
of  the  mayor? 

Tookey.  Yes ;  I  was  ?ery  close  to  Mr.  Coates. 
I  did  not  hear  him  declare  Wightwick  mayor, 
or  see  him  strike  Elles's  hand  off  the  book. 
He  mentioned  Wightwick,  and  said,  Wight- 
wick should  be  sworn. 

Mr.  Marsh.  Did  he  order  him  to  be  sworn, 
or  deliver  to  him  his  staff. 

Tookey.  He  said,  he  should  be  sworn  ;  bat  I 
did  not  see  him  deli? er  his  staff  to  him. 


Blr.  Halfenden  awofn. 

'  Mr.  Marsh.  Were  yoa  present  at  the  awnr. 
ing  Mr.  Wightwick  mayor  ? 

Halfenden,  Yes,  I  was  praeent,  and  mr 
Coates  shove  Eiles's  hand  from  the  bosk.  I 
heard  him  say  he  would  not  swear  Elles,  sad 
saw  him,  after  swearing?,  deliTer  the  staff  It 
Wightwick ;  and  I  saw  Elles's  hand  atmokiff 
twioe. 

Mr.  Marsh.  Did  Elles  walk  eren  with  4e 
mMyotf'^Halfenden.  I  cannottell. 

Mr.  GUfbon  sworn. 

Mr,  Manh,  Were  yon  present  at  tlie' awnv- 
ing  in  the  mayor  by  Coates  ? 

GMim,  Yes;  he  gave  ordevs-to  take  Ik 
poll ;  and  after  it  was  taken,  he  aaiied,  Wb 
was  mayor?  Loftie  told  him,  Ellea;  Wllan 
said,  Wightwick.  Then  Coatea  aaitl,  ifal 
Wightwick  wasfchoeen  mayor,  and  sbmiM'li 
sworn;  and  then  Coates  deli?ered  the  staff  H 
Wightwick.  I  saw  it  delivered,  and  sawCoslH 
shove  Elles's  hand  off  the  book,  and  heard  Ida 
say,  "  Mind,  I  swear  Wightirickmayer." 

Mr.  Marsh.  We shalltrouble  your kwdihip 
no  more. 

L.  C.J.  (Gentlemen  of  the  jury,  theifeitioa 
on  this  issue  is,  whether  the  detendaot  Blhi 
waa  sworn  mayor  or  not  ? 

It  must  be  done  by  his  predaceasar. 

Loftie  says,  that  Coates  ordered  him  to  avear 
the  mayor,  and  that  he  read  the  oaCk  :  V  tkh 
was  done  by  Coatee's  order,  then  he  was  wd 
sworn. 

But,  if  it  was  done  contraiy  to  his  order,  aal 
he  dedared  another  man,  and  shoved  BllBi% 
hand  off  the  book,  and  said,  **  Take  notieft,  1 
swear  Wightwick  mayor,"  and  not  the  ether, 
and  ddivmd  the  staff  to  him,  and  iKd  aH  be 
could  to  oppose  the  swearing  Elles ;  thenEUs 
was  not  sworn  mayor. 

The  town -clerk  cannot  swear  the  major; 
and  the  evidence  is  strong  that  Coates  opposed 
swearing  Elles.  The  man  that  has  the  riabi, 
)ie  is  the  man  that  roust  be  sworn ;  bat  noasDOt 
the  former  mayor  can  swear  him. 

The  question  therefore  is,  whether  hewn 
sworn  by  a  proper  aathority  ? 

If  you  thmk  him  sworn  by  a  proper  autba- 
rity,  and  that  Coates  meant  that  Ellca  sbsald 
be  the  mayor,  then  you  must  find  for  biro. 

Bat'  if  you  think  he  meant  Wightwick 
sbonM  be  sworn  mayor,  then  yoa  nraatlbdftr 
Wightwick. 

Verdict  for  the  Ring. 


dmtfltaug  MUnw 


A^ihvim. 


[m_ 


(97.  CaaeoTHnrirrnfooBf^^nniidfi;  agaiort  the  Mayor,  Jurats 
md  Gomraofud^of  tiieTowo'acd'Ftoit'Df  HiftSTiifGB,  in  tbe> 
Counly of  Siuacjtt  DefeaJantot  IOGsohobiII.  a.  d.  17S6* 

>t  (he  nt-    Jalitae|dtw«rf«ilM  oT  01 
,  1736,  iKfnre  ilie    oftlto  «W't««B  «b4  pnt,  bi 
«  F%ilip  he  rd  HarilnictMs    MMt4hHWr,'nd  allBtMD  p^iiw  •  rcuamU* 
konlCUcf  JoMicaor  hit  Miu«»(^'a  C^'*"''    flMjMto  MWlfcd'aJ  ■mm  MtotbepllM 
tf'UagVbvwh,  msHMiilirauBfbr  ad-    nri'«0g»'«raMcr  die  fiwmai  of  tb*- laif 
-aiMv  O*  FMnliff  M  bo  ■  pRomn  of 
■MttaMtiopomMMBoT  ■  MMem  thtre ; 
•Uibc  -  - 


li>gB  lAv  TriMtjIVnn,  1736, 1 


niihelMimiliMaovtiMir  retivi 


MMleaiu 


-- dag^  Bli  tlMKii|MM  iwite  b  joDCd.] 

rlUAS  befeK  our  lord  tlie  king:  a[  West- 
^Mt^tf'BilluT  Term,  id  ibe  gibyearof 
l^rtitB  cf  Mir.iovereigii  lord  George  (be  2J, 
■JhftgnM  of  Ood,  of  Great  Uriuia,  France, 
pjllJ^.  Ui^,  defender  of  ibe  liuUi. 
It  Ibe  Pleas  of  tbc  Kjn^-noU. 


t,  (hat  ii 


MillMi  Mlbday  ef  NHcmEer,  in  tlie  eth  year 
Uk  BrijpBofflatMMfcigDlord  George  tlie 
i,  Inr  Iba  graoa  of  God,  ol'  Great  BHtaiii, 
|MM,Md;Mafed  UDfe^tetateoftbe  Uth, 
mAmmknU  hr4. A^W,  at  Wattni 


j;t,JB.hi>  county  of  Suuex, 
li  inibeea  wwda ;  imi  ii  to  lay, 
1  M,  bj  ibe  KTELCe  of  God,  of 
tfVnaot,  and Irelaod  king,  it- 

J  fitib;  latbe  Dit}or,jur«ls,  aitd 

al^  tf  the  town  and  port  of  UMlittg», 
Viva^Mjuf  Sanex,  greelio);:  Whereii»tbe 
MiftMMi  «M  port  is  an  ancient  town  and  port, 
M^Wkof  IW  fire  ancieiil  porta  of  thii  ktaff- 
4nc  aat  wheteas  (bere  is,  and  lime  out  ufi 
iMib^kbie*,  a  cerUin  OBdent  and  laud- 
lUtfrntan,  iwed  and  approved  witliin  the  «aid 
%lk-M4'P«n,  tbat  every  persoD,  bein^  the 
dliAMUDCany  freeman  of  (liciaid  town  aad 
(■^MtbarawithJo  the  wid  town  and  port, 
**'  ''       ' '  '    '  □  and  swearing  of  bia  fatlte* 


TMm  tatn.  lOJO.     Ann.  353.  369.  and 
M  enCoiyoralioiu. 

■m  Ibta  BoroDffh  of  Haeiinon  arose  Hie  Oue 
rfWward  c.  Tfiatcher,  (S  Term  R^.  61)  in 
MUlitinademMitbatwbereapcnaii,  beniK 
i^pMMMB  of  a  corporate  vmet,  aecejited 
Mkr  oOca  incooipalible  Oienwitb,  tbe  (of 
teiBea  br mch acceptai»» became  Tactnt. 
MmIo  tiiHit  wemitobeii 
L.4*  tbe  office  lail  accepted  b« 


..S  Burrow,  1615;  andKydon  Cor- 
,'toI.  1,  chap.  3,  §  3.    ltw»  also  de- 
la  Baward  V.  Tbatcher,  that  the  offices 
tai  towa  derk  of  Hottingt  were  ia> 


tatnteCfMtt  MriWHM  by  ym  t»  be  adiaMeir 
mtwmtmt'tan  Hmjkta  aad  office  of  oM  of 
Ibe  ftewieC  the sriJ'Wra  and  pert,  aeeerd^ 

ilVtSlllB'tariMlflfllMSBU  tr 


WB^ 


tbe  iaU  leini  and  pert,  tni  wae  bora  whbii- 
lhe»M  to««  and  port;  after  Ibe  aABimw 
and  iwgwhui  of  Wt  flillHr  lote  tbe  phes 
and  olHte  i.I'  one  of  ibe  freefBOD  ef  Itar 
snid  towD  aud  port?  aBd  wberea*  the  mi& 
Henry  Moore,  by  vktoe  tbeieof,  and  npenpgy- 
\ag  a  reasoMble  fine  aeeetilhig  lo  the  aid  ca»* 
toni,  ought  by  you  an  le  be  attnhWd  and  «mM 
into  the  place  and  eflaeofoneef  Ibe'fienrin 
ofihe  said  town  Bnd'parti  ytl  yen,  weU  knew- 
iag  the  premiBsee,  M  eel  iegeidfa|;  yonrdiH* 
intliUhehnlf,  havenot  lejrel  admitted tbcMM 
Henry  Moore  into  lb*  BBid  phe«  aad  Office  ef 
oneol'thc  freemen  of  Ibe  eaid  town  aad  perl'E 
nor  hare  yon  adatinUaKd  Ibe  oUba  to  tb» 
sRii)  Henry  Mooro,  lAicb  are  le  tbat  cai* 
awnBy-adiBlnhmwd  aad  tdnn,  riAoagbyett 
often  bare  been  reipiMted  ao  to  do,  by  AenW 
Hoary  Meeref  bol  fane  refined,  and  yet  d« 
reftieej  te-adnrit  and  wfittK  tbe  said  Bnn* 
'MooT»  iatolbeaald  plaiee  andofficeor  enew 
'tiie  freenen  of  tbe  saldloini  UK)  port,  allbongta 
,|Im  aaU  Henry  Heere  baa  tendered  to  yjn  w 
ireaMnable  fine  on  that  behalf ;  in  centenlptDf 


of  liim  Ibe. 


«M  Htary  Hoore,  andte 
r  of  Wa  estate  ae  we  be*) 


iDjury  or  US  estate  ae  we  have  bseftjir- 
formedrronhiscoinriiiMton:  wethareKm 
being  williof  tbsl  One-  mi  speedy  joifce  btf 
done  to  the  said  Bmmj  Mbere  in  this  behalf 
fii  It  iiriiasniielili)  iln  iiniwuiidjTin  lij  firinlj 
iMSiniog,  tbeli  immedlalely  after  tbe  feeuptof 
(MiotR  writ,  yea  dwwiilioaldetay.nMntfar 
nld Henry  Hedt^-pafiof  a  reaaonMe  fine^ 
^Aaiti  or  oaie  to  Iie«ABitiedj  tbe  Slid  Henry 
Hdote  into  tbe  said  place  and  vffien  of  ooMif 
Ibe  ftenoNa  of  tbe  sdd 'town  and  port;  to 
witii  an  tbe  liberHee,  pritilegn,  ' 
.enolnmanls, and covmedilies, tn  a. .<«_.« 
Ibe  ssidtewB  and  port  bdoi^g  attd  apptr- 
taiuBg  }  an^  tbtt  yon  adminitter,  or  catac  to 
be  administered,  to  Ibe  aald  Heory.Moore,  tbe 
oatha  wbieb  are  in  tbat  case  oraalV^  adminis- 
tered and  taken  acccrrding  to  the  said  'onstonr ; 
or  shew  to  ns  eanse  to  the  contrary  thereof; 
that  the  same  complsiBt  mtj  not;  by  your  d*- 
&idl,  be  repented  to  ns;  And  boir  yon  shsll 
fcmmeatodthit  eu^wrltj  w«hnih  «.yv9b^ 


847] 


10  GEORGE  11. 


Cote  of  Henry  Moore. 


[648 


US  at  Westminster,  on  Friday  next,  after  tbe 
octave  of  St.  Hillary,  returning  then  to  as  this 
our  writ.  And  this  you  are  not  to  omit,  upon 
peril  that  may  fall  thereon.  Witness  Philip 
lord  Hardwicke,  at  Westminster,  the  S8th  day 
of  November  in  the  9th  year  of  our  reign." 

Upon  which  said  Friday  next  after  the 
octave  of  St.  Hillary,  before  our  said  lord  the 
king  at  Westminster,  the  said  mayor,  jurats, 
and  commonalty  of  the  said  town  and  port  of 
Hastings,  in  the  said  county  of  Sussex,  return- 
ed the  said  writ  as  folio weth  ;  that  is  to  say, 
**  The  answer  of  the  mayor,  jurats,  and  com- 
monalty of  the  town  and  port  of  Hastings,  with- 
in mentioned,  to  this  writ,  appears  in  a  certain 
schedule  to  this  writ  annexed  :  We,  tbe  mayor, 
jurats,  and  commonalty  of  tbe  town  and  port 
of  Hastings,  mentioned  in  tbe  writ,  hereunto 
annexed,  do,  according  to  the  command  of  the 
said  writ,  humbly  certify  to  our  sovereign  lord 
the  king,  that  there  is  not,  nor  timeout  of  mind 
bath  b^n,  any  such  ancient  and  laudable  cus- 
tom, used  and  approved  within  tbe  said  town 
and  port,  that  every  person,  being  tbe  eldest 
son  of  any  freeman  of  tbe  said  town  and  port, 
and  born  within  tbe  said  town  and  port,  after 
tlie  admission  and  swearing  of  bis  father  into 
the  place  and  ofBce  of  one  of  tbe  freemen  of 
the  said  town  and  port,  hath  a  right,  in  respect 
thereof,  and  also  upon  paying  a  reasonable 
fine,  to  be  admitted  and  sworn  into  the  place 
and  office  of  one  of  the  freemen  of  tbe  said 
town  and  port,  as  in  the  said  writ  is  alleged : 
and,  for  this  cause,  we,  the  said  mayor,  jurats, 
and  commonalty  of  tbe  said  town  and  port  of 
Hastings,  have  nut  admitted,  nor  caused  tu  be 
admitted,  neither  ought  we  to  admit,  or  cause 
to  be  admitted,  Henry  Moore,  in  the  said  writ 
named,  into  the  place  and  ofHce  of  one  of  tbe 
freemen  of  tbe  said  town  and  port,  together 
with  all  tbe  liberties,  privileges,  franchises, 
•moluments,  and  commodities  to  a  freeman  of 
the  said  town  and  port  beloiigiiK;  and  apper- 
taining; neither  have  we  administered,  nor 
caused  to  be  administered,  nor  ought  we  to  ad- 
minister, or  cause  to  be  administered,  to  the 
said  Henry  Moore,  tbe  oaths  which  are  in  that 
case  usually  administered  and  taken,  as  by  the 
said  writ  we  are  commanded  t-i  do." 

And  hereupon,  upon  tbe  same  Friday  next 
*  after  the  said  octave  of  8t.  £Iilary,  before  onr 
said  lord  tbe  king  at  Westminster,  en  me  as  well 
the  said  Henry  Moore,  in  tbe  said  writ  and 
return  named,  by  Henr^'  Mastermun  his  attor- 
ney, as  the  said  mayor,  jurats,  and  commonalty 
of  the  said  town  and  port  of  Hastiutrs,  in  tlie 
said  county  of  Sussex,  in  the  same  writ  and 
return  mentioned,  by  Henry  Wairoiid  tlieir  al- 
tomey.  And  tbe  said  Henry  Moore,  having 
had  Oyer  of  the  said  writ  and  return,  saitii, 
That  tor  any  thini;  above  alleifed  by  them,  tiie 
said  mayor,  jurats,  and  commonatiy,  in  their 
said  return  to  the  said  writ  of  Mandamus,  bo 
the  said  Henry  Moore  ought  not  to  be  barre/l 
from  having  a  peremptory  writ  of  Mandamus, 
in  order  to  be  admitted  and  sworn  into  the  said 
plioe  and  offiot  of  one  of  the  freeineii  of  the 


\ 


said  town  and  port;  becaase  he  laith,  thit 
there  is,  and  time  out  of  mind  hath  been,  nch 
anrient  and  laudable  custom,  naed  md  ap- 
proved within  the  said  town  and  port,  that 
every  ueraon,  being  tbe  ekiest  son  of  any  frpe- 
man  or  the  said  town  and  port,  and  bom  within 
the  said  town  and  port,  after  the  admission  aud 
swearing  of  his  father  into  the  place  and  offiis 
of  one  of  the  freemen  of  tbe  said  town  Md 
port,  hath  a  right,  in  respect  thereof^  and  slis 
upon  paying  a  reasonable  fine,  to  be  adoultid 
and  swoVn  into  the  pkice  and  office  of  one  sf 
tbe  freemen  of  the  said  town  and  port,  in  did- 
ner  and  form  as  in  tbe  said  writ  of  Mandaaoi 
is  above  alleged.  And  the  said  Henry  Mqsis 
prayeth,  that  this  may  be  inquired  into  by^tbs 
country ;  and  the  said  mayor,  jurals,  andcoo- 
monalty  pray  tbe  like. 

Mr.  Clarke,  May  it  please  your  lordibip, 
and  you  centlemen  of  tbe  jurjr ;  Henry  Moois 
is  tbe  ptaintifT;  and  tbe  mayor,  jurats,  sad 
commonalty  of  tbe  town  and  port  of  Hastings, 
are  the  defendants.  And,  gentlemen,  this  ii  s 
Mandamus,  directed  to  the  defendants,  the 
mayor  and  jurats  of  that  town  and  port,  to  ad- 
mit and  swear  in  the  plaintiff  Henry  Moore 
into  tbe  place  and  office  of  one  of  the  freemen 
of  this  town. 

And,  gentlemen,  the  Mandamus  aels  forth, 
That  the  town  and  port  of  Hastings  is  an  sn- 
cient  town  and  port,  and  one  of  tbe  five  ancieot 
ports  of  this  kingdom  ;  and  that  there  is,  sad 
for  time  out  of  mind  has  been,  a  certain  aad 
ancient  laudable  custom,  used  and  .approved 
within  that  town  and  port,  that  every  penoo 
being  tbe  eldest  son  of  any  freeman  there,  sad 
born  within  the  said  town,  after  the  admiswm 
and  swearing  of  bis  father  into  tlie  place  sod 
office  of  one  of  the  freemen  of  the  said  towa 
and  port,  has  a  right,  in  respect  thereof,  sod 
also  upon  paying  a  reasonable  fine,  to  be  ad- 
mitted and  sworn  into  the  pUce  and  office  of 
one  of  tbe  freemen  there,  according  to  the 
custom  of  that  town  and  fiort. 

Gentlemen,  tbe  Mandamus  further  sets  forth, 
That  the  plaintifl*  Henry  Moore  is  tbe  eldest 
son  of  Samuel  Moore,  one  of  the  freemen  of 
the  said  town  and  port,  and  was  bom  withia 
the  town,  after  tbe  admisbion  and  swearing  of 
his  father  into  tbe  place  and  office  of  freeman; 
and  that  the  plaintiff,  by  virtue  tbereotj  and 
upon  paying  a  reasonable  fine  according  to  tbe 
custom,  ought  to  have  been  admitlctl  andswon 
by  the  defendants  into  the  place  aud  office  of  a 
freeman ;  but  that  the  defendants,  contrary  to 
their  duty  in  this  case,  have  refused,  and  sull 
refuse,  to  admit  and  swear  him,  nltbongh  be 
has  teadered  to  them  a  reasonable  fine  on  thit 
behalf. 

And  this,  gentlemen,  the  defendants  are  laid 
to  have  done  in  contempt  of  the  king,  to  ths 
great  damage  and  gi  ievance  of  tlie  plamtiff,  aod 
to  the  manitesi  injury  of  his  estate. 

And  therefore  the  writ  proceeds  to  conmaad 
the  defendants,  immeiliately^  upon  tbe  plain* 
tiff's  paying  a  reasonable  fine^  to  adoMIVii 


00] 


vpM  a  Qfio  Warrmto. 


A.  D.  178& 


[850 


him  into  the  place  of  a  fi-eeDum,  or  to 
ahew  cauie  wb j  tbey  do  not 

To  this  writ,  gpentlemen,  the  mayor,  jurati, 
mod  eommonalty  have  retiirued  ror  answer, 
That  there  neither  is,  nor  for  time  oot  of  roiad 
kai  been,  any  such  ancient  and  laudable  cus- 
tom, used  and  approred,  within  the  town  and 
port  of  Hastinipt,  as  is  alleged  in  the  writ ;  and 
tbia,  they  say,  is  the  reason  they  have  not  ad- 
aiitted  tlie  plaintiff. 

Gentlemen,  upon  this  issue  is  joined ;  and 
Ike  only  question  vou  are  now  to  try,  is.  Whe- 
ther there  be  such  a  custom  in  the  town  and 
Ert  of  Hastinffs,  as  the  plaintiff  has  laid  in  the 
andaraus?  U  therefore,  gentlemen,  eridence 
ii  laid  before  you,  that  there  is,  and  time  out 
of  aund  has  been,  such  a  custom,  you  will 
please,  gentlemen,  to  find  a  renlict  fur  the 
plaintiff. 

Sir  Thomoi  Alm^,  May  it  please  your  lord- 
ship, and  you  gentlemen  of  the  jury  ;  i  am 
aba  of  counsel  of  the  same  aide  with  the  plain- 
tiff; and  you  will  please,  gentlemen,  to  oh- 
aer?e,  that  the  single  issue  you  are  to  try  is, 
whether  there  now  is,  snd  time  out  of  mind 
baa  been,  an  ancient  and  laudable  custom  in 
Iha  town  and  port  of  Hastings,  in  the  county 
of  Sussex,  that  ever^  person,  being  the  eldest 
80a  of  a  freeman  oi  the  said  town  and  port, 
and  bom  within  the  said  town  and  port,  after 
the  admission  and  swearing  of  his  father  into 
the  place  and  office  of  one  of  the  freemen  of 
liw  aaid  town  and  port,  hath  a  ri(;lit  in  respect 
theraof,  and  also  upon  paying  a  reasonable 
Ana,  to  be  admitted  and  sworn  into  the  place 
and  office  of  one  of  the  freemen  of  the  said 
town  and  |>ortP 

This,  gentlemen,  is  the  issue  you  are  now 
to  try  ;  and  it  will  not,  I  believe,  be  necessary 
to  trouble  you  with  an  account  of  the  Cinque 
Porto,  and  tbeir  pri? ileges  and  customs. 

But,  gentlemen,  the  matters  of  proof  we 
■hall  lay  before  you  will  be  of  three  kinds. 

And  the  first  which  offers  itself  to  your  con- 
sideration, arises  from  a  very  ancient  record, 
called  tlie  Customal ;  which  is  a  rery  ancient 
deed,  without  any  date;  it  being  an  usual 
tfain^  for  ancient  deeds  and  evidences  to  be 
without  any  date ;  and  this  Customal  is  the 
vole  and  law  of  alt  the  Cinque  Ports. 

Gentlemen,  this  Customal  is  so  old,  and 
goes  so  far  back  as  the  year  1573 ;  it  contains 
59  Articles.  Our  rii;ht  arises  upon  this  Cus- 
tomal ;  and  therefore  I  will  beg  leave  to  read 
Ihe  title,  and  some  pnssawfes  out  of  it,  to  you. 

**  Hie   sequuntur  Consuetudines    Quinque 
#irtnom,  et  enrum  Membmruui,  ^  tem|iore 
aon  extat   memor'  bom'  usitat*  et  ap- 


Gentlemen  of  the  jury,  the  words  we  ground 
mr  right  upon  are  these : 

Art.  34.  **  Possnnt  Majores  et  Jurati,  Hallivi 
to  Jurati,  el  Jurati,  in  quolibet  Portu  et  Mem- 
km  obi  M«oret  Ballivus  de  coiumuni  elec- 

1  taerit,  inunesentia  Commuaitatis, 

et  facera  lioeros  thbos  modia : 
VOL.  XVII. 


'*  UttO  Bodo,  per  NaUvitatem  infra  Liber- 
tatem  snam,  ai  pater  suus,  tempore  nativitatin 
•ue,  fuit liber: 

**  Alio  mode,  per  Libernm  Tenementam  per- 
qnisit' : 

•<  Tertio,  per  Emptionem. 

**  Et  nound',  quod  nnllus  gaudebit  liberta- 
tem  alicujus  Portus,  sire  Membri,  quousqne 
aacramentum  auum  preestatit,  quod  esse  debet, 
k  die  illo,  usque  ad  finem  vitn  snse,  bonus  et 
fidelis  Domino  nostro  liegi  AnglisB,  et  here- 
dibus  snis;  statutsque  et  libertates  Uuinque 
Portuum,  et  spedaliter  illius  Portos  sive  Mem- 
bri ubi  commorstor,  pro  posse  suo  niaintene- 
bit ;  obediensque  Majori  et  Juratis,  Balliro  et 
Juratis,  vel  Juratis,  semper  erit ;  semper  pa- 
ratus  tam  ad  scottand'  et  lottond',  si  quse  tozat' 
pro  communi  utilitate  fuerint,  quam  in  armis 
pro  defensione  inimicorum  Domini  Regis,  eum 

Ker  Gubematores  ipsius  Portus  sive  Membri 
abueritin  mandatis;  etquod  non  audiat  ali- 
quod  ad  deteriorationem  libertat'  predict',  aire 
ad  reprobationem  Majoris,  Ballivi,  et  Jurato- 
rum,  ubi  commoratur,  vel  eorum  alicujus,  nisi 
ipse  inde  eis  daUt  notitiam.  Sic  se  adjuvant 
sancta  sanctor',  6ic, 

**  Possunt  Majores  et  Jurati,  Ballivi  et  Ju- 
rati, et  Jurati,  in  quolibet  Portu,  6cc.  recipere 
et  facere  liberus  tribus  modis :  t 

**  Uno  modo,  per  Nuiivitatem  infra  liberta* 
tem  suam,  si  pater  suus,  tempore  uativitotis 
suw,  fuit  liber'* 

That,  gentlemen,  is  the  point  we  ground 
our  right  upon ;  the  first  right.  If  a  person 
be  the  eldest  son  of  a  freeman,  and  bom  within 
the  said  town  and  |»ort,  after  the  atlmiasion 
^nd  swearing  of  his  father  into  the  office  of 
one  of  the  freemen  of  the  said  town  and  port ; 
we  say,  such  eldest  son  is  intituled. 

«^  Alio  modo,  per  Liberum  Tenementum 

perqui«it\ 
"  Tertio,  per  Emptionem.'* 

So  that,  gentlemen,  by  this  S4th  Article  of 
thin  Customal  you  see  what  the  ancient  law 
anil  usage  was ;  that  the  eldest  son  of  every 
freeman,  under  these  circumstances,  is  inu« 
tuled  to  his  freedom :  and  therefore  we  say, 
that  the  plaintiff  Henry  Moore,  as  the  eldest 
son  of  Samuel  Moore,  has,  and  he  is  un- 
doubtedly intituled,  under  this  right,  to  his 
freedom. 

And,  gentlemen,  as  this  Customal  mentions 
three  distinct  methods  of  making  free,  viz.  by 
birth,  by  a  freehold  tenement,  and  by  pur- 
chase ;  so  it  has  made  a  manifest  distinclion 
between  the  freedom  acquircil  by  birth,  and  by 
either  of  the  other  two  ways. 

For,  gentlemen,  the  fine  that  is  paid  by  the 
son  of  a  freemnn,  upon  his  hein;r  admitted 
and  sworn,  is  only  6n,  Qd,  That  is  the  rea- 
S4inablr  fine,  that  is  always  paid,  when  a  man 
is  intituled  as  the  plaintiff  is :  but  all  other 
persons,  whether  they  are  made  free  by  a  free- 
hold or  by  purchase,  they  always  paid  13s.  44/. 
or,  however,  always  more  than  the  pcrsoa 
who  was  admitted  as  the  ahlctt  son  of  a  fttc* 
man. 

SI 


S31]  10  GEORGE  II. 

BIy  lorrl,  and  srentlemen  of  the  jory,  trben 
■you  lisive  beanl  tliis  Custoir.al  (which  we  shall 
lay  beiore  \ou)  read,  we  shall  then  read  to  yoa 
flume  biitiirredv  ut'  entries  out  of  the  corpora- 
tion-Lor»ks  ;  t'roiii  whence  it  will  appear,  tliat 
the  eldest  sons  of  frecineD,  under  the  circum- 
citances  of  the  present  case,  have  heen  alwayR 
admitted  ;  and  from  whence  there  will  result 
»o  uniform  and  clear  a  testinionv  in  support 
of  the  plaintiiT's  right,  that  we  defy  the  gen- 
tlemen of  the  other  side  to  produce  one  entry, 
in  any  of  the  corporation  books,  to  contradict, 
or  at  least  to  impeach,  our  entries. 

Gentlemen,  these  are  old  entries,  many  of 
them  in  queen  Elizabeth's  ti me ;  and,  there- 
fore, they  are  not  so  exact  in  the  stile  as 
niudern  entries  usually  are.  Sometimes  the 
sou  is  said  to  be  admitted,  *^  Quia  pater  ejus 
Jilier  erat,  et  ip^ve  natus  fuit  infra  libertatem." 
Sf onetimes  the  stile  is,  *^  Q,uia  maximus  natu 
filius."  And  sometimes,  **  Uuia  iilius  liberi 
bominis." 

And«  gentlemen,  by  coroparinjir  the  times 
nf  their  fathers'  admissions,  and  the  births  or 
baptisms  of  the  persons  admitted  (which  we 
shali  prove  to  you  by  authentic  copies  from 
the  pariah  ret^ister- books  in  Ilastiufifs),  it  will 
appear  to  you  to  be  the  most  cle:tr  and  stroo^)^ 
caae  that  ever  came  before  a  ju\y. 

(jentlemen  of  the  jury,  aoothcr  part  of  our 
evidence  will  arise  from  livinjif  wituesves ; 
\t  ry  ancirnt  men,  who,  by  their  own  knuw- 
\e6^e  and  observation  for  50  or  60  years 
toji^ethcr,  and  by  conversing;  with  their  ances- 
tors, many  of  whom  lived  to  he  eighty  and 
ninety  years  old,  will  prove,  that  this  has  dI- 
wavs  been  the  custom,  that  the  eldest  son  of  a 
frcetnaa,  burn  uithin  the  liberties,  and  alltcr  his 
fatlior  v/.'.s  made  free,  has  always  been  intituled 
to  his  frecdfKii ;  till  the  otiier  day,  when  the 
ri:;hts  of  the  town  were  t;>  be  ])laycd  into  a 
narrower  compass,  and  no  man  was  to  lie  inti- 
tuled to  his  freedom,  but  at  the  will  and  plea- 
sure of  the  mayor  and  jurats.  And  these  wit- 
iiessss,  i^entlemen,  are  not  only  ancient  men, 
but  persons  free  and  disinterested  ;  not  a  lew 
men  disl'ranchised  to-dny,  to  serve  a  particular 

Eurpose,  and  be  made  free  a^^ain  to-morrow: 
ut  our  witnesses  arc  men  of  f^reat  age  and 
experience,  not  interested.  We  doubt  not, 
^ therefore,  gentlemen,  when  you  have  heard 
our  evidence,  that  yon  \^i\\  be  of  opinion,  that 
the  plaiutitr  has  an  undoubted  ri^ht,  as  trie 
ehlebt  son  of  a  freeman,  and  find  tlic  custom 
for  the  plaiuiiflf  acc<»r(iin&;ly. 

Blr.  Slrunge.  May  it  please  your  lordship, 
and  you  gentlemen  of  the  jury  ;  I  am  also  of 
counsel  for  the  plaintiff*:  and,  my  lord,  this 
case  has  been  so  fully  and  clearly  opened  by 
the  gentlemen  who  have  gone  belrre  uie,  that 
1  shall  not  take  up  any  of  your  lordship's 
time  in  stating  any  of  the  circumstances  in  the 
plaintiA^'s  case ;  aud  I  shall  beg  leave,  gentle- 
men,  only  to  observe,  that  the  single  question 
BOW  to  be  tried  by  you  is,  \%hether  the  custom 
in  the  town  and  port  of  IJastings  be,  that 
cwry  pvboui  bun^r  ib«  eldest  ion  of  a  lrc«iiiaii 


Case  of  Henry  Moore f 


[S5f 


of  the  said  town  and  port,  and  bom  therr, 
afler  the  admission  and  sweartpg  of  bb  fatbtr, 
has  a  right,  in  respect  thereof,  and  also  upcn 
payioflr  a  reasonable  fine,  to  be  admitted  into 
the  office  of  one  of  tlie  freemen  of  the  said 
town  and  port  ?  For,  gentlemen,  if  this  be  tbe 
custom  there,  the  plaintiff  Noore  is  witbia 
every  part  of  this  custom. 

In  this  case,  gentlemen,  three  things  are  ts 
be  proved : 

First,  That  the  ptaintiff  be  the  aon  oFa 
freeman  that  was  admitted  and  sworn  into  tbt 
franchise  of  this  town. 

ISecondly,  That  he  be  bom  within  the  liber- 
ties of  the  town. 

Thirdly,  That  he  be  born  nnder  this  cir- 
contstance,  after  tbe  time  of  his  father't  swear- 
ing and  admission  into  this  fiecdom. 

And  we  shall  apply  ourselves  to  lay  befon 
your  lordship  and  the  jury  such  an  evideocr, 
as  shall  fully  make  out  toe  custom,  that  ibt 
eldest  son  of  a  freeman,  bora  within  iba 
borough,  is,  upon  paying  6t,  Bd.  as  a  rea- 
sonable fine,  to  be  admitted  and  awom  into  iba 
freedom  of  the  town. 

My  lord,  and  gentlemen  of  the  jnry,  (iit 
particular  evidence  we  shall  by  belbre  yoa, 
has  been  minutely  opened  to  you ;  and  I 
would  beg  leave  only  to  obserre,  that,  as  I 
humbly  apprehend,  the  custom  now  insiiied 
on  by  the  plaintiff  is  a  sort  of  common  rig;bl 
of  all  the  subjects  of  England,  there  bebg  co 
corporation  in  the  kingdom  (1  might  say,  upoa 
the  face  of  the  eardi,)  but  where  tbe  sons  of 
freemen,  born  after  their  fathers'  freedom,  are 
intituled,  according;  to  the  several  usages  of 
the  resoective  boroughs  where  they  claim 
their  freedom ;  so  J  do  not  know,  1  own,  of 
one  instance,  that  I  ever  yet  heard  of,  to  tbe 
contrary. 

But,  my  lonl,  as  we  do  not  rely  on  that 
general  custom,  but  on  the  particular  evidence 
which  has  been  opened ;  we  shall  begin  with 
an  old  record  in  1573,  as  ancient  as  the  oM 
Customal  of  the  Cinque  Ports.  We  shall 
then,  gentlemen,  read  to  you  tlie  entries  of 
persons  who  hare  been  admitted  as  sons  of 
freemen,  for  near  200  years  past ;  and  tbca 
produce  to  you  several  ancient  living  wit- 
nesses, ^ho  will  s|>eak  to  the  usage  and 
custom,  and  will  prove  to  you,  that  it  has 
been  so  time  out  of  mind :  and  then,  gentle- 
men, we  hope,  that  upon  hearing  these  records, 
and  the  opinion  of  the  old  witnesses,  yOtt  will 
find  a  verdict  for  the  plaintiff. 

Mr.  Marsh.  Mv  lord,  we  had  a  rule  for  In* 
specting  tlic  corporation -books;  therefore  tbey 
are  not  in  our  hands  :  hut  we  have  taken  ao- 
thcntic  copies  of  the  old  customal  and  entries 
on  btamp«,  which  \fe  are  ready  to  prove* 
Swenr  IMr.  Craosion. 

Alt.  Gen.  (Sir  John  Willes).  My  lord,wt 
have  the  original  in  our  hands  ;  and  if  wa 
produce  the  original,  they  cannot  read  their 
copy.  But,  my  lord,  we  say,  with  great  inb* 
mission  to  your  lordshipi  that  iJio  original  itaitf 
is  uo  evideuctf* 


853] 


Upon  a  Quo  Tfarrafito. 


A.  D.  1736. 


[854 


Lord  Uardwitke.  Mr.  AttiHtiey,  tome  li^ht 
shoold  be  (pven  what  it  is,  and  then  1  sbali  be 
able  to  jndi^ 

Mr.  Strange,  If  your  lordship  pleases,  we 
may  as  well  pro?e  our  copy. 

L4>rd  Hardwicke,  If  the  original  is  beie,  I 
cannot  read  the  copy. 

Mr.  Cranston  sworn. 

Mr.  Strange,  Where  had  you  that  book  ? 

Cranston.  From  the  town -clerk  of  Hastings. 

Mr.  Marsh,  Where  was  it  kept  ?  Among 
the  corporation -books  and  records  r 

Cranston,  Yes. 

Mr.  Marsh.  Turn  to  the  34th  Artkle. 

8ir  Tho.  Abney,  My  lord,  it  is  an  ancient 
book,  kept  amonif  the  other  records  of  this 
eoqKwation  ;  ana  I  never  knew  a  trial  of  this 
iDml,  but  the  ancient  books  of  the  corporation 
were  always  read. 

Alt.  Gen.  My  k>rd,  I  humbly  submit  it  to 
vour  lordship,  that,  as  they  open  it,  such  a 
book  ought  not  to  be  read  in  eviaence ;  besides 
that  there  are  several  other  objections  to  it. 

My  lord,  they  open  it  as  the  Customal  of  all 
the  fcinqne  Ports,  but  not  as  the  Customal  of 
this  borough  in  particular :  and,  my  lord,  thb 
Mandamus  takes  no  notice  of  any  privileges 
that  betong  to  all  the  Cinque  Ports ;  and  there- 
fore  the  Customal  they  ought  to  produce,  should 
be  the  Customal  of  tnat  particular  town  :  bat» 
to  ahew  that  this  will  be  evidence,  they  should 
make  it  appear,  that  there  is  one  concurring 
eustoro  throughout  the  whole  Cinque  Ports. 

And,  my  lora,  though  there  are  some  general 
ctmtoms  which  do  affect  all  the  Cinque  Ports; 
yet,  with  great  submission  to  your  lordship,  I 
must  beg  leave  to  insist,  that  this  particular 
Customu,  in  case  it  could  be  read,  no  more 
affects  this  corporation,  than  the  customs  of  a 
county  affect  every  particular  borough  or 
hundred  in  that  county.  lu  order  to  make 
this  evidence,  they  should  prove  one  concurring 
costom  throughout  all  the  Cinque  Ports. 

But,  my  lord,  if  tliat  were  so,  I  submit  it  to 
your  lordship,  that  this  cannot  be  rcsd  as  evi- 
dence. 

The  gentlemen  of  the  other  side  say,  that 
it  is  an  ancient  record,  because  it  is  without 
a  date ;  and  therefore  it  is  ancient.  And  this, 
my  k»rd,  would  have  been  proper,  if  they  had 
bad  the  old,  ancient  Customal  itself  to  produce. 
And  I  submit  it  to  your  lordship,  that  they  mtut 
cither  produce  that  Customal,  or  shew  that  it 
cannot  be  come  at,  before  this  can  be  read. 
This  ia  only  an  entry  in  the  corporation  'books, 
in  the  year  1573,  of  an  ancient  Customal.  i 

Thia,  mv  lord,  is  what  they  would  offer  to 
yeor  k>rdsnip  and  the  jury,  as  evidence :  it  is 
aaly  a  oo|>y;  and  it  it  be  only  a  copy,  I 
kambly  insist,  they  ought  to  produce  the  cri- 
nelft'or  shew  that  they  cannot  come  at  it. 
OBt  I  Mieve  they  will  be  at  a  loss  to  shew, 
k  wee  ever  entered  at  all  by  the  corporation's 
enier :  finr  there  is  an  entry  just  before  this,  in 
Ike  jeer  1573«  of  a  mortgage ;  there  are  abun- 
ef  ■enps  put  tog^er,  which  nothing  at 


all  can  be  made  of;    some  in  1609,  some  m 
1593;    a  hundred  things  gut  together,  and 
entered  at  different  times,  by  nobody  knows 
who.    2fon  constat^  but  this  pretended  Cus- 
tomal may   be   sewed   into  the   book ;    for 
there  is  nothing  entered  in  this  book,  that  can 
be  given  in  evidence.    If  it  was  the  Corpora- 
tion-book, there  would  have  been  other  entries, 
of  the  manner  of  electing  freemen,  officers  of 
the  corporation,  and  members  to  serve  in  ptr- 
Lameut,  and  other  corporation-affairs :  but,  be- 
cause it  is  founil  among  the  corporation -papers, 
therefore  it  is  to  be  given  in  evidence ;    though 
found  amongst  a  medley  of  a  hundred  sorts  of 
trifling  things,  in  no  wise  relating  to  the  corpora- 
tion, and  that  belong  to  God  knows  who.  In  the 
book  there  are  copies  of  mortg^sges.  not  oi-c  of 
them  from  persons  who  stood  indebted  to  the 
corporation  in  one  farthing;  an  account  of  a 
rental  of  a  noble  lord's  estate ;  the  resolution  of 
the  judges  upon  the  statute  relating  to  the  poor  ; 
a  hundred  miscellaneous  things  got  together, 
nobody  knoll's  bow,  or  why :  my  lord,  I  say, 
when  it  appears  in  this  light  before  your  lord- 
ship, I  submit,  that  as  it  does  not  at  all  ap|>eac 
what  this  medley  of  a  hundred  things  are,  be- 
cause it  is  found  amongst  some  |iapers  in  the  cus- 
tody of  the  town-clerk,  and  tliere  is  one  thing 
which  relates  to  the  custom  of  all  the  Cinque 
Ports,  and  a  hundred  other  things  not  relating 
either  to  them  or  to  this  borough,  whether  it 
be  any  evidence  at  all.     I  submit  it  therefoie 
to  your  lordship,  in  the  first  place,  that  as,  upon 
the  face  of  it,  it  appears  to  hu  only  a  copy  of  e 
thing ;   and  as  it  appears  that  tinng  does  not 
relate  to  this  borough  in  particular ;  and  as  it 
does  nut  appear  what  book  this  is,  nor  how  it 
came  amongfst  the  books  of  the  cur|mration  ; 
and  as  it  is  only  a  collection  of  useless  miscel- 
laneous papers ;  I  think  it  ought  not  to  be  read. 
Lord  Uardwiclic.     If  I  could  get  off  trom 
reading  this  book  lawfully,  yet  from  the  nature 
of  this  cause,  1  must  look  upon  the  book.    In 
cases  of  this  nature,  I  think  if,  prima  facie^ 
proper  to  be  read  in  evidence.    Tiiere  may  be 
objections  to  the  reading  it  of  different  kinds; 
some,  from  the  nature  of  the  custody  in  \y  liicli 
it  has  been  kept ;    souic  intrinsical,  from  the 
book  itself.    Those  from  the  nature  of  the  cus- 
tody, when,  where,  and  how  lung  it  has  been 
kept,  are  proper  against  reading  it  at  all :    but, 
when  they  arise  from  the  book  itself,  it  is  im- 
|N)ssible  to  say  it  should  not  be  read ;  because 
the  Court  cannot  judge  whether  it  be  proper  or 
no,  till  they  have  heard  it.     1  think,  therelbre, 
it  must  be  read.     If,  upon  reading,  there  ap- 

Iiear  to  he  any  material  ohjfction^  to  the  book, 
[  will  hint  them  to  the  jury,  when  1  come  to 
sum  up.  ^ 

Alt.  Gen,  My  lord,  we  submit  it  to  your 
lordship,  that  it  is  torn  and  defaced,  and  in  many 
places  not  legible. 

Mr.  Strange,  Why  did  not  you  keep  it 
lietter  P  This  book  has  not  been  in  our  cwitody. 
If  you  do  not  take  proper  care  of  your  cor|>o- 
ration- books,  are  we  to  be  prejudiced  by  your 
neglect  ? 


10  GEORGE  II. 


859] 

XiOrd  Hardwicke,   Is  that  a  true  copy  f 
Cranston.  It  is,  my  lord ;  1  eicamiiieo  iU 

Atsociute  reads : 

**  Ilasiin^,  S5.  QO  xApril,  1667.  lo  pablic 
court  caine  Thomas  Loveli,  jun.  eldest  son  of 
William  Lovell,  late  jurat,  deceased,  and  prayed 
the  fraDchise  of  this  town  ;  to  which,  for  his 
fine  of  6$.  Qd,  he  is  admitted,  took  his  oath,  and 
kissed  the  mayor^s  right  cheek,  inore  solito." 

Mr.  Manh,  To  prore  that  his  father  was  a 
freeman,  shew  the  entry  of  the  6th  of  Septem- 
ber, 1636.    Is  it  examined  ? 

Crantton,  Yes. 

Auocialc  reads : 

**  Hastings,  s«.  Memorand',  qaod  6th  Sep- 
tember, 1636,  came  William  LoTell,  and  prayed 
to  be  admitted  into  the  freedoms  of  this  town 
and  port,  and  took  the  oaths,  more  solito,  and 
was  admitted  accordingly." 

Mr.  Strange,  My  lord,  his  father  had  been 
four  years  a  jurat,  when  the  son  was  baptized.— 
Read  the  certificate  of  the  10th  of  February, 
1640.  Is  it  a  true  copy  ?  Did  you  examine 
it  ? — Cranston,  I  did. 

Auociate  reads : 

*'  1640,  February  10th.  Baptized  Thomas, 
ibe  son  of  William  Lovell,  jurat." 

Mr.  Filmer,  My  lord,  the  next  instance  is 
William  Batcbelor,  eldest  son  of  James  Batche- 
lor.  He  was  admitted  the  2d  of  May ,  1669. — 
Read  that.  Is  it  a  true  copy  ?  Did  you  exa- 
mine it  ? — Cranston,  It  is ;  I  examined  it. 

Associate  reads : 

'*  llastiii;;s,  ss.  2  Mali,  22  Car,  2di,  1669. 
At  this  election  and  assembly,  William  Batchc- 
lor,  eldest  son  of  James  Batcbelor  eldest, 
freeman  above-named,  at  his  humble  request,  is 
also  made  a  freeman,  and  admitted  into  the 
franchise  of  this  township,  for  his  tine  of  a 
demi-mark,  and  thereunto  sworn,  and  kissed 
the  mayor*s  cheek,  moresolitOy^'  &c. 

Mr.  F'dmcr,  My  lord,  he  was  baptized  the 
17th  of  July,  1630— Read  that  certificate.  Did 
you  examine  it  ?  Is  it  a  true  co])y  ? 

Cranston.  It  is. 

Associate  reads . 

«' July  17,  1036.  Baptized,  William,  the  SOD 
of  James  Batcbelor." 

Mr.  Filmer,  My  lord,  his  father  was  admit- 
ted nineteen  years  before,  17th  September, 
15  Jac.  1, 1617. — Read  his  admission.  Is  it  a 
true  copy  ?  Did  yon  examine  it  ? 

Cranston,  1  did ;  it  is  a  true  copy. 

Associate  reads : 

*'  15°  Regis  Jacobi  Imi  Jacobus  Batcbelor 
admissus  est  ad  libertatem  hujus  villoe  et  oscu- 
lavit  malam  dextram  Majoris,  more  selito,  pro 
fine  suo  13«.  4(/." 

This  James  was  the  father,  and  he  paid  a  fine 
•f  13i.  4d,  because  he  was  not  admitted  as  the 
•on  of  a  freeman.  He  wu  Miiiiitted  by  a  free- 
koldi  or  by  purchaw. 


Case  ofHenrif  Moore^ 


[SW 


Mr.  Clarke,  My  lord,  the  next  indancewv 
shall  trouble  vour  lordship  with,  is  Wdliim 
Parker,  jun.  lie  was  admitted  the  9tb  of  Mtj, 
1670,  for  a  fine  of  6s,  Qd. — Read  his  admisuus. 
Is  that  a  true  copy  ?  Did  you  exanaine  it  f 

Cranston,  Yes ;  I  examined  it. 

'<  Hastings,  ss.  9°  die  Mali,  39  Car.  S,  167a 
Assemblat'  tent'  ibidem  coram  Majore  tiUc  ct 
portus  Hastings  nraedict'. 

**  William  Parker,  jun.  eldest  son  of  WiUiain 
Parker,  jurat,  came  here  in  court,  praying  b» 
freedom,  &c.  which  is  granted  bim  for  a  Urn- 
mark ;  took  his  oath,  and  kissed  the  major's 
cheek,  more  solitOf**  &c 

Mr.  Clarke.  My  lord,  we  have  a  certificiteof 
the  son's  baptism,  the  14th  of  Auptst,  16li 
— Is  it  a  true  copy  f — Cranstots*  It  it. 

Associate  reads : 

«*  14  August,  1644.  Baptized,  Williin.tbB 
son  of  William  Parker." 

Mr.  Clarke,  We  shall  now  shew  year  Joid* 
ship,  that  his  father  acted  as  a  freeman  ox 
years  beibre  the  biitb  of  the  son,  and  as  a  junt 
two  years  after. — Is  that  a  true  copy  P  Did  jot 
examine  it  ? — Cranston.  It  is. 


Associate  reads : 


ta.  14^  1638.  Ad  banc  diero  Johannes  Btiipy 
electus  est  in  offic'  Mojoris  hujus  vlUsepmboc 
anno  sequent* " 

Lord  Hardwicke.  Wiio  was  present? 

" per  voces  horura  liberomm  bomimtv 

villce  preedict',  videlicet,  Nic.  Staplus,  Bk, 
8taplus,  Wil.  Goldhani,  Wil.  Chapman,  Jobto- 
nis  Sar^nt,  sen.  Wil.  Turpine,  Ric  Wbedcr, 
Johanius  Harys,  Wil.  Di^hton,  Tho.  RainoUs 
Sam.  Gawen,  Geo.  Fletcher,  Ric.  Wyotcr, 
Hen.  Lasher,  llumf  Blinkcme,  Jo.  Hitbrt 
Mich.  Lasher,  Phil.  Girdler,  Wil.  LuDiTonl, 
Geo.  Easton,  Ric.  Sarc^nt,  Sack.  Franks,  J^ 
Sargent,  jun.  W.  Parker,  Jo.  Wynter,  Rtf* 
Marshall,  Tho.  SteVenson,  jun.  Jo.  HollTbooe, 
llo.  Phillip,  Dr.  Ellis,  Mnrci  Pontes,  Wil.  Lo- 
▼ell,  jun.  et  Jac.  Batchelor :  Qui  quidefi 
Major  sic  elect'  sacrameutum  suum  jpntM 
corporale  ad  offic'  illud  exeroend'  prout  deo4| 
more  solito,"  &c. 

Sir  T.  Ahney.  The  next  person  we  thll 
trouble  your  lordship  with,  is  ■ 

Serj.  Etfre.  Was  any  body  eUe  admitted  ^ 
that  time  ^ 

Sir  T.  Abney.  There  were  nine  made  free. 
My  lord,  the  next  is  John  Fantley.  He  wu 
admitted  the  5th  of  December,  1674. — Is  it  t 
true  copy  P  Did  you  examine  it  ? 

Cranston.  I  examined  it ;  it  is  a  true  copy. 

Asiociate  reads ; 

«*  Hastings,  ss.  5  Decembris,  1674,  96  Cv. 
2di,  Assemblat'  tent'  ibidem  coram  filmsit 
&c.  villce  et  portus  Hastioga  pr«licl\  in  pwoa 
cmia  f  euit  Johaimes  SalmoO)  elpelii  r ' 


mj 


nra  fl  Qko  ^lUfdMfOr 


A.  D.  17Sd. 


h^jwvniB;  JihMMiFiBflty. jw.  rt  WBlwl- 
■■•6eMwrkjm.«t'riaMUiiiiliir,*dlier(,|it«- 
dW  SaloMB  BM  13i.  4A  at  prndici'  Fanllcj 
A.M.ak  pnidiel^O«UMrC«.U.qaUfiluMn> 
|ilr'  «ar*'  Bbw' ;  fd  amnm  Aamutibdan- 
■■inrBliiii,  m  BMtuD  dolniD  Ui^orii  awiilk- 
Mntat,  man  ■orii^"&c, 
Sr  r.  Jlmy.  H;  lord,  Iha  ikthn  of  Faader 
dtted  a  ftMOwn  the  8ih  of  JniyTlSse. 
iba  MD  iru  b^tiacd  the  ]3tb  of  D«- 
ittlurty-fonr  jMnbaTore  b« 

MU,  which  ma  th«511idf 

.  1074.— Bod  tba  certiacUe  at  bii 
U  ti  •  trw  oopj  r 
-   Itk^ 

*ni  Willi.  «■  13  IlMembv,  1640.  B^- 
tai,  JabiTutfer,  Ibe  aoo  of  John  *iid  SUr- 

BrT.Jfauy.  W«ih>nDowriiew jvnrletd- 
tkip,  ibai  liis  faibor  ma  admhtBd  lo  hia  frn- 
tem  ifaemhol'Jiiiy,  IMS, IhirtMn  vmib bafiira 
Ihe  tiinh  of  bis  Km.— Beid  tba  tktim 
HO.    Is  il  a  true  copj  f  Did  yoa  a 

Crosttoa.  1  iliil. 

JuDciote  reads; 

"  flBBilDi^,  n.  JnUi  8,  l0tO.  JVhamea 
Tulky  a<)iniBsu«  cat  «d  libcMtem  hqus  jUkt, 
fm  fine  13;.  id." 

8nj.  £yr.;.   Theratha  flna  ia  ISt.  4A 

Sir  r.  .dt^'iey.  TUab Iba fittber. 

Strj.  £yr<.  That  ia  «  very  malarial  4Uar- 
ate.  Tbesoa'iifttie.ial)«.  acf.  but  B*ei7  body 
ihuiiadiuiitcd  Ly  aoy  other  right,  paya  for 
kntaelSi.  id. 

Wi.  Strange.  The  fioe  of  Si.  SJ.  ia  a  ptrti- 
HlnindulL'ence  to  the  MD*  of  freaoten,  and  all 
tibm  paid  i:i;.  4d,  or  Bma.—Vty  tord,  the 
but  ioitaiice  is  (Ulip  Bayley,  the  ddeat  aoD 
•r  JohD  Bajley.  Ha  wai  adlniUed  the  lOlh 
«f  April,  l(i9l  ;  lie  waabofnthe  I4th  ofHay, 
lUg.— R^iid  his  adnumioD.  Did  yon  eza- 
aine  it  f  la  il  a  trne  copy  F — CraiMfm,    Il  i*. 

Auofiaie  reads: 

"  Ayii\  10,  1091.  ft  W.  aod  Har,  Haating;!, 


tS0ff 


ffiiyar  of  llnKtinj,-s,  for  ni*  flna  af,fl(.  M.  wai 
■dcniued  to  ilie  I'reedom  of  tbia  lowu  and  port, 
br  Thomas  ly>Tdl,  mayor,  Edward  Hilwardi 
liieharil  Walls,  and  Joho  Medhonl,  jorati ; 
vtratDok  his  oath,  and  kincdlhe^yo^B  right 
tbtrlk.  more  solilo,  and  abo  Icwk  the  oatba  of 
•BegiaDce  aoil  supremacy." 
Mr,  Stmge.  We  ahall  now  pradaee  the 
">icei<iryorUt  Uutbm,  wbieh  waa 
'May,  1600. 

.  ltwa«UM»thofHay,1667. 

H,  atnmge.  Bead  the  certificate  of  the 
^UfXt  lM7,of  Hiilip  Bayley'a  baptiam. 
"a  atamiae  it  f  la  it  a  true  copy  t 


-  Hay  19, 1M7.  Baptiaed,  Philip,  Ihaaoa 
of  Jahn  Baylay  and  Anna  hia  wife." 

Mr.  Slramgi.  My  lord,  we  thall  now  read 
the  copy  of  the  eotry  of  the  88th  of  April, 
1C50 ;  whirdby  it  will  appear,  John  Bayley 
hia  lathar  waa  then  a  rrreman. — la  it  a  true 
oopyf   DMy 


Cnaaton 


e  copy. 


!aof  Ibcai 


AuocUlt  reada : 

"  BaMinga,  u.  The  election  of  the  mayor 
ef  tha  towD  and  port  oF  HaMinge,  the  SSlh  day 
of  April,  1650,  in  the  coarl-hall  of  the  aama 
town,  aeoordingto  tha  nae  and  cuatom  thereof 
Hme  ODt  ef  mind  ntcd,  &c. 

"  At  thia  dav  waa  choara  Thoma*  Delrn 
into  the  offioe  or  mayonlly  of  the  x 
tar  Ihe  year  cnaaing,  by  ilie  vuccl 
fracman  of  theaaid  towD  fulloviDg:— 

Hr.  Strange.  Who  wai  preaentF 

" That  i*  to  aay,  of  Richard  Wheder, 

WiUiara  DiRhlan,  Richard  Sar^enl,  len.  Pliilip 
Girdler,  John  Ladwr,  William  Barber,  Hark 
PoDlea,  Jamca  Batdielor,  Daniel  Dowae, 
Jamea  Laabcr,  gem.  Drew  Riciiardson,  Tho- 
maa  Janet,  joEnlSpey,  finmuel  Smershall, 
Joho  Fyaaradn,  Ricbard  StevcntDB,  Jamea 
BedBmei,  Willbm  Geerey,  Robert  Bartey, 
Tbomaa^yd'er,  Daniel  Stevens,  .Tnlin  BrunneT, 
John.Bayley.jon.  Thamaa  Penbuchle,  Edward 
HildriiV,  Sinion  Waters,  Jamea  Chowe.  Ralph 
Baraicb,  John  Sboeanitb,  John  Fanlley, 
PMarSlaabyiHMlb." 

Hr.  Maah.  Hy  lord,  the  next  inatanee  ia 
Jeremiah  Redaoiea.  Be  was  admitted  the  lllb 
of  January,  1S91.— Look  out  that.  Did  yoa 
examine  it  r  Isit  atme  copy? 

CrnitBM,    Itii. 

jfaMCM<0  reads : 

••Haalinga,  u.  Hemonndnm.  The  lllh 
day  of  January,  1691,  before  Mr.  Mayor,  si- 
eiated  by  Philip  Loiell,  Joho  Stefens,  and  Dr. 
Peter  Fiat,  iurata,  came  Jeremiah  Redamea 
and  Philip  Girdler,  and  craved  to  be  admilteit 
into ibo fraedom  of  this  town  aad  port;  and 
they  were  accordingly  admitted  into  tha  free- 
dom, and  look  the  oath  of  a  freemaa,  and  also 
the  other  oaths,  aad  kiwed  the  mayor's  ri^hl 
cheek.  More  (oJilo  f  and  fnr  a  fine  paid,  via. 
Philip  Girdler,  a  mark ;  aod  Jeremiah  Re- 
damea, beioff  tlie  eldest  aon  of  a  freeman,  half 
a  mark  ;  which  waa  ixir'  to  the  cbsmberlain." 

Mr.  AfanA.  My  lord,  tbe  lime  of  hii  bap- 
tiam waa  Ibe  9d  of  Jauuary,  1655.--Read  that 
certificate.  Have  you  examined  it  f  Is  it  a 
truecopyf — Crontton.  Ilia. 

ilMocidte  reads: 

"  Bastings,  u.  January  3,  1655,  Jeremiah, 
the  SOD  of  James  RedameB,  was  baptised." 

Mr.  Aforti.  Hy  lord,  James  Redanwa  was  a 
^aeman  io  April  1649. 

Hr.  Clarke.  My  lord,  the  next  inataDce  i* 
Thomss  Boyoe.    Ha  was  admitted  as  en  eldest 


-863]  10  GEOUGE  11. 

Lun)  HarAaicke.   You  mult  ihew  J< 
u  bom  after  ibe  t'llber' 


Cote  of  Henry  Meore, 


fSN 


iryou  would  npulv  this  ioUa 
Mr.  Ctarki.     My  lorJ,  t 
James  ReJames.tlie'   ' 


will  bticff  Ihal 

,  .    .  hI  as  a  freeman 

the  3Stb  of  April,  1649,  six  ;ean  before  tbe 
•on  wai  born. — Look  out  that  eotrjr.  It  it  a 
true  copy  7 — CraH$laa.  Iti*. 

"  IJasliog:!,  u.  The  eleclinn  of  tlie  mayor 
of  the  town  and  port  of  Histtni^,  tbe  98th  day 
«f  April,  ICSti,  in  the  cuurt-hnii  of  tbe  lame 
town,  accordinep  to  tbe  use  and  custoco  there 
litre  out  of  miod  uted. 

"  This  day  waa  chuseo  Thomas  Delves  into 
the  office  of  mAyoralty  of  the  same  luwu,  for 
(be  yeur  eoiuini;,  by  tiie  *oice«  of  these  free- 
men  of  the  said  tnnn  ;  that  is  to  «aj,  of  Ri- 
chard Wheeler,  &c.  James  Redainea,  &c."  ut 

Heij.  Evre.  Read  il  a^aio. 

Lord  hardaicke.  Il  w  only  mendoned  aa  a 
-fact. 

Mr.  Clarke.  My  lord,  the  neit  instance  is 
Thoma)  Boyce,  admitted  as  an  eldest  son  the 
SGth  of  December,  1691.  lie  hki  baptised  the 
»dnf  August,  1671. — lUad  bis admissioD.  Is 
it  a  true  copy  ? — CraaiJon.  it  ii, 

Auoeiale  reads: 

■'Hasiinga,  u.  Memorandum,  That  the  S6th 
day  of  Ueoetnber,  1601,  befiireMr.  Mayor,  aa- 
■isted  by  Thomas  Lovell,  Philip  Lo*el1,  Jolm 
Siereiu,  and  Dr.  L'eter  Fiat,  jnrata,  came  Tlio- 
tnaa  Boyce,  jun.  Kichard  Bruadbridge,  Benja- 
min Meadow, and  Tho<na!i  Wheeler,  and  craved 
to  l«  ailuiilted  into  the  frcetlom  of  tliis  loun 
and  port ;  and  they  were  nccordingly  admitted 
into  the  frecMlcim,  and  tooii  the  oaths  of  free- 
men, and  also  the  oaths  of  allegiaoce  to  thpir 
niaje«lies  king'  William  anil  queen  Mary,  and 
kisited  tbe  mayor's  right  clieeb,  more  toliCu; 
and  ior  a  line  paid,  *iz.  Thomas  Boyce,  jun. 
■ud  Richard  Broedhridse,  beiii^  frreoK^ii's 
eldest  suns,  paid  each  6f.  ad.  and  Benjimin 
Heado»  and  Thomas  Wheeler,  13i.  4c/.each  ; 
which  wan  exlraet'  to  the  chamWrlain.  And 
fiirasmurh  as  the  said  Thomas  Bovpp,  jnn. 
Bichard  Umsdhriilire,  and  Beiijamiii  Meadow, 
*n  not  yet  boiiNc- keepers,  their  friends  lia»i! 
undertaken  and  promised  for  tliom,  that  tliey 
aball  pay  witut  scut  and  lot  Khalt  he  assessed 
upon  thein,  also  wntch,  wanl,  and  Ksrcli,  ami 
do  all  duties  incumbent  npun  IVfimen,  viz. 
Tlinatat  Boyce,  for  his  son  Thomas  Uoycf, 

KD.  and  John  Stevens,  son  of  llcnry,  Ihr 
tchard  Broadliridge  and  Benjamin  Mcadotr." 
Mr.  Clarke.  My  lord,  he  was  baptized  the 
3d  of  Aus[UEt,  Kin.  Read  tbe  cerliiicata  of 
Lis  haptliim.  I*  it  exaiuiued  f 
Crantlon.     Yes, 

AttBciaU  reads  : 

"  Uastinifs,  u.  1671,  Ang^ust  3il,  bajilized, 
Tbamis,  the  sou  of  Thomaa  Uoycc." 
tHi.  Strange.    Mow  leul  tba  ftduiiasioa  of 


Thomas  Boyce  tbe  hiber.    Did  jog  e 
it  t  is  it  a  true  copy?— tfr.  Craatfoa.  It  ii. 

<■  Hasting  •«.  Aasemblat'  lent*  ibidciD  Vf 
die  Norembris,  anno  rconi  regis  Doatti  Carali 
secundi,  Aaglm,  Sec.  15*  1603. 

"  Hastings,*!.  Heiaorand', quod  5' die  Df- 
cemhris,  hoc  anno  prRdict*,  venerDUt  Tbswt 
Boyce  el  Willielmus  Genoer  cor«ia  majnn  el 
Juralls  in  plena  curia,  et  pet'  seipsna  ad  fibers 
tem  hn^us  vilis  admitii ;  et  admitlunliir,  it 
osculati  sunt  malatn  destranj  Hajoria,  et  n- 
cramentum  suum  tunc  ibidem  prwstiterapt, 
more  aoliiu,  pro  fioe  ulriusque  eoriuD  ISi.  4^* 

Wr.Cljrkt.  My  lord,  Ihe  acxt  iDstaaeeii 
Steplien  Peregne.  He  was  admilted  the  lltk 
of  Auirust,  1716;    baptized  Ihe  39th  of  Jui> 


May,  108:1.    Read  tin  sod's  adniani 
il  a  Iruecoiiy?  Have  you  examiMditf 
Cranttua,  les. 


AaoeiaU  rewls ; 

"  Hasting  u.  Cur'  tent'  ihidetu  nudeeiiw 
die  August),  aoDo  regni  Regis  nostri  Gcorpi 
Imi  Bls|friB  BritaoniB,  Bk.  teriio,  enno  ITIt> 

'■  Memorandum.  Tlie  11th  of  AiifOB, 
Stephen  I'eregoe,  jun.  was  iwoin  a  freeman  ef 
this  town,  tiurt  loUlo,  i/e.  at  the  Bel]  ian  i» 
HaSiogs  l>efure  the  mayor  and  jurats,  and  «iJ 
Gt.  ad.  fine,  as  bein^  the  eldest  son  of  a  Ree- 
and  the  reason  of  his  heinif  now  smta 


t-  fivre. 
T.  Abntg.  8iqihen  I'ereftoe. 
J^rd  H^rdirickc.  Wliat,  is  tbe  fine  St.  Sd.? 


cop. 


:  the  eldest  si 
rertificale  of  his  baptism. 
?  Did  yon  examine  il  T 
aiiiton.  I  did. 


AiMKiate  reads  : 

»  Jaouary  39,  1690.  Baptized,  Slepb«a,llii 
ion  of  Stephen  a  ad  Maripiret  I'erfgoe." 

Mr.  Clarke.  The  lime  nf  liii  falher'y  li- 
mission  was  the  13lh  of  Mny,  168S.— Ko' 
that.     Dill  you  esamiue  il  >'  Ik  it  a  Irue  cuiif  ^ 

Cramtoa.  It  is. 

AMociale  reads ; 

"  llas(ia^s,M.  12  May.  1GI33.  BeloTCtht 
mayor  and  jurats,  caiar  ^iicphi'ii  I'eregoe,  ifi 
prayed  lo  be  udmilled  into  Ihe  frvcdnni  of  lb 
town  and  port;  whereupon  he  is  admitted  to 

Mr.  Filmer.  Hy  loni,  Benjamin  MeldoKi 
admiiled  Ibesih  of  .Uay,  17-^1,  ia  the  neH. 
Rrad  his  admission.  Did  yonexannelbMt 
Ik  it  a  true  copy  t — CVaFUton.  Yes. 

Aaoeialc  rends  ; 

><  Ilasiinsv,  tt.    .\t  Ihe  cnnrl  of  record  Mi 

theeih  of  Ainy,  1791,  Henjnnirn  Headoir,j[ri. 

was,  wilh  the  unanimou;  coiiw:nt  anil  appiMS- 

lion  of  the  luajor  and  jurats,  msits  a  InmH 

U 


asq 


-  Upon  a  Qw  IVarrmto. 


Se^.  Eyre.  By  tb«  nnaniminit  consent  or 
Alt  mavor  and  jilriti,  he  wu  msde  free. 

Mr.  Fi^cr.  Hy  iurd,  lie  was  ba|rti>ei1  (he 
Uih  of  Aui^tt,  1097.  IleaJ  the  MrliBcatc. 
Did  j'Ou  namiiM  it  ?  I*  it  k  true  copy  I 

OanitDA.  Itil. 

Attofiate  mda  : 

"  IIa«ihigi,  u.  9S  Aesiist,  1C9T.  Baptized; 
Bt^anun.aan  of  fienjioiin  aod  Meadow.'' 

Ur.  FUmtr.  My  lord,  hia  father'*  admiiuon 
m  the  a&tb  of  December,  1(191,  six  yean 
brfire  Uie  Urth  of  the  fon.  Head  that.  Did 
j«D  examine  it  P  la  it  ■  true  copy  F 

Crouton.  I  did. 


"  Haalinga,  m.  Meinnranilnm,  36  Decern- 
her,  lG9i,  before  31r.  Ithijor,  amiiated  by 
TboDiaa  IJofdl,  Philip  Lovell,  Jobn  Stephrns, 
ud  Dr.  Peter  Fiat,  came  Hiouias  Boyce,  juii. 
Kicbard  BnudbridKe,  Benjamin  Meadow,  and 
Tboniaa  Wheeler,  and  craved  to  be  adinitted 
■to  the  freedoms  of  ihis  town  aud  p;irl ;  nml, 
kA  the  oatlia,  and  nere  admitted  according- 
ly," pTMit  tupra. 

LkJi  Hardmicke.  Whatdo you  read thatfor? 

iit.SlraKge.     My  lonl,  to  shew  that  Beo- 

jnin    Meailow    was    a    freeman    ao    many 

£n  before  the  birlh  of  Benjaoib  Heodow, 
«UaM*on:  He  came,  ami  [irayed  lobead- 
luUed,aad  took  the  oath*.  My  lord,  our  neil 
HMOa  ■  John  Barley.  He  is  not  inentioiied 
hit  entry  ta  the  eliU'st  sod,  but  as  tlic  con 
•fw^aman,  ttbo  was  free;  aod  fiomtheoce 
w'mht,  that  the  man  had  no  niber  toni. 

U^  Harditickc.  Who  ix  that? 

Mi.Strangt.  Jahn  Barley,  my  lord.  He 
■MadmiUeil  ic  May,  1G0».  Wc  cbuse  to 
Mllieni  loKCther,  tmitigb  we  are  now  tfone  a 
MMtod  years  hack.  lUail  his  idniiBiiaii. 
IW you  examine  it?  Is  it  a  trne  copy  ? 

Crantoii.  Yes. 

JUBcUle  reads : 

".HsMmoB.ii.  6ari  Jactbj  1°  1608.  Memo- 
'.  nwian,  That  on  tlie  7th  of  Hay,  hoc  amo, 
JAa  Barley  and  Richard  Kempiall  were  ad- 
ailtid  |0  the  frsedom  and  lilierly  of  this  town, 
Utwere  awom,  and  kiased  Mr.  Mayor'ariglil 
4|Ai  more  toiito ,-  wlioae  fines  appear  upon 
Mtheadi." 
'  Mr.  Strmge.  See  the  Bae  of  6t.  Sd.  paid  by 

Jbuiiatt  reads : 
I      ^"John  Barley,  Hislings,  quia  pater  sans 
^     kr  howa,  iileo,  secundum  consueludtDcm, 
Ui  nils  est  Si.  9d. 
"  Kempsalt,  13t.  \d." 


ft.Bd.f 

brd  BMrimeke,  Wbil  WU  Kempsalt'i  fatS 
TOU  XVII. 


'    A.  D.  ItSe.  [808 

Mr.  Strawgr.  ISi.  4d.  my  lord.  Now  read 
bia  ccTtifieate.  {]a*e  yon  examined  it  f  Is  it* 
triMCOpyP — CraiulOH.  It  is. 

AuociaU  reads : 

"HatllngH,  u.  19  May,  1588.  Baptized, 
John,  ibe  SOD  of  John  Barley." 

Scrj.  El/re.  Mr.  Cranslnn,  you  xay  you  hsFC 
(Xamiiml  the  resiftcr ;  Did  not  you  find  bd 
elder  brother  of  tEi«  John  Durlcy  ? 

Crantton.  No. 

Mr.  Strange.   BIy  lord,  we  shall  now  shew, 

at  Ills  fatli«r  acted  at  a  freeman  anno  1561. 
Read  ihe  eotry.     la  it  a  true  copy  J 

Cramlon.  It  is. 

Aaociate  reads: 

"  Hastings.  Election'  Ballivi  lent'  ibidem 
die  Aprilis,  viz.  die  Dominica  prox* 
post  [lock-day,  snno  tertiu  Elizip,  nunc  Re- 
giniE  Aot;!'  a.  n.  1561.  Ad  qiieni  diem  eleetui 
est  ad  officiinn  Balliri  tUIx  (iiml'  pro  hue  anno 
Tho.  Wyks,  per  >ocea  et  Dominaliooem  Edw. 
Aywooil,  Bliipwri|[ht,  Hen,  Taugbl,  Wil. 
James,  Johaaoia  HeniljtiK,  Ed.  tSinylh,  Hen. 
tiiinyth,  Jubaonis  Barley,  Thn.  Lake,  Johannis 
Hoitands,  Wi).  Cresey,  Rob.  Payne,  Itic. 
White,  cooper,  llohannia  Slanbynooth,  Tho. 
Palmer,  Sleph.  Dallery,  Hcd.  Bossam,  jobao- 
nis  Smylh,  Tho.  Lasher,  Ric.  Down,  Al. 
Bocher,  JobaDiiia  Aiiateo,  Tho.  Malcbyn,  Jo^ 
lian nis  Horsey,  Wil.  Stevens,  Johanuia  JeAeryi 
Rob.  Taught,  Wil.Cburche,  JohauDiiBosaam, 
sen.  Johauaii  Stryde,  Alani  Morris,  Tho.  Chat- 
field,  Alani  Partridge,  Bob.  Grare,  Tho.  Har- 
rison, Will.  Lonketl,  Tliomce  Mott,  JohaDirii 
Sargent,  et  JobaimiB  Uerle." 

Mr.  JlfarM.  Hy  lord,  the  nt^  instance  ii 
William  Guldham.  He  was  aduiiued  tba  iMf 
of  May,  1609. 

S'nT.Ahtu^.  HUgreatgTandsoiiisjastbjr, 

Mr.  Mank.  Read  (he  entry.  1*  it  exB< 
mined  P — Crantton.  Ye*. 

Aaocialt  reads:  .» 

>'7Haii.7''Jac.lmi,  IGOB.  Hastiof^siSej^ 
limo  (lie  Msii,  hoc  anoo  seplimo  Jacobi  Regis, 
WilJielmuB  Goldham  adtnistus  est  ail  liberta- 
huJusTillte,  et  sacrampntu'm  prMtiliiCor- 
oscutatuB  est  malam  oextram  Ma< 
solito;  et  finis  ejus  pro  admiswniM 
sua  oisenatur  ad  6i.  %d.  quia  filius  liberi-ho- 

Mr.  JUarsA.  Now  look  out  Ihe  certificate  of 
his  baptism.  Have  you  ekamiaed  ilF  Isit« 
true  copy  ? — Cratutan,    Jt  is. 

"39  November,  1534.  Baptized,  William, 
the  son  of  John  tioldliani," 

Mr.  Marth.  My  lord,  he  was  admilted'a 
freeman  Ibe  ISIh  of  April,  1575,  nine  years  be- 
fore the  birth  ofbisson.— Ilend  Ihe  faiher's  ad- 
mission.    Is  it  elamitied  P — Crantton.  Yes. 

Auociatc  reads : 

"  Haslinifs,  u.  Memorandum,  quod  15° 
Aprilis,  1575,  Ricbamlttt  Vteo&\M,N^^^o^ai>»» 

3K. 


867] 


10  GEORGE  IL 


Cate  of  Henry  Moeffif 


tSGft 


Coombes,  Ricbardos  £dboroiigb,  Jobaones 
Goldbam,  et  Wil.  Mycbdl,  jon.  admini  aant 
ad  libertatem  vitlee  praedict\  et  Aicti  aant  liberi 
hotniues  secaoduin  usura  et  consuetadinem 
Tillae  prsedict',  et  feed*,  etsol'oscul'  Ball',  &e." 

Serj.  Eyre,  Does  it  appear  wbat  tbe  fiaa 
was? 

Mr.  FUmer.  No.— My  lord,  tbe  next  in- 
stance is  John  Sargent.  He  was  admitted  tbe 
14tb  of  July,  1610.— Read  tlie  entry  of  his  ad- 
mission,   fs  it  a  true  copy  f-^Crantton,  Yes. 

Asiociaie  reads : 

*^  1610,  Hastingps,  m.  14  die  Julii,  hoc  anno 
octavo  regni  Regis  Jacobi,  Johannes  Sargent 
admissus  est  ad  libertatem  bujus  Tilke,  et  sa- 
cramentum  pnestitit  corporale,  et  osculatus  est 
inalam  dextram  Majoris,  more  solito ;  et  finis 
ejus  pro  admissione  sua  est  6s.  Hd,  quia  pater 
^us  liber  erat." 

Mr.  Fitmer,  My  lord,  be  was  baptized  the 
9  Ist  of  November,  1568.  Read  tbe  certificate. 
Js  it  a  trne  copy  ? — Cramtoru  Yes. 

Associate  reads : 

^*  Hastings,  ss.  91  November,  1568.  Bap- 
tized, John,  tbe  son  of  John  Sai^ent." 

Mr.  Filmer,  My  lord,  April  3d,  1561,  his  fa- 
ther acted  as  a  freeman ;  that  was  seven  years 
before. — Read  the  entry.    Is  it  examinea  P 

Cranston,  Yes. 

Associate  reads : 

«<  Hastings.  Elect'  Ballivi  tent'  ibidem 
.  ^e  Aprilis,  viz.  die  Dominica  prox'  post  Hock- 
day,  anno  tertio  Domiuae  Elizee,  nunc  Reginas 
Angliae,  &c.  a.  d.  1561.  Ad  ^uem  diem  elec- 
tus  est  ad  officium  Ballivi  villas  praedict'  pro 
fioc  auno  Tho.  Wyks,  per  voces  et  nomina- 
tionem  £dw.  Aywood,  shipwright,  et  (inter 
alios)  Johannis  Slargent,"  nt  supra, 

Mr.  Clarke,  My  lord,  the  next  instance  is 
Thomas  Raiuolds.  He  was  admitted  the  C7th 
i^Iay,  1622, — Read  his  admission.  Have  you 
^X^mineil  it  ?   Is  it  a  true  copy  ? 

Cranston,  it  is. 

Associate  reads : 

**  Hastings,  ss,  Cur^  tent'  die  S7  Maii, 

4623,  coram  Roberto  Lloyd,  secundum consuc- 
tud'.  Memorandum,  quod  ad  hanc  cur'  Tho  • 
mas  Rainolds,  filius  Melcbioris  Raiuolds,  liberi 
liominis  hujus  villae,  venit  et  petit  se  ad  liberta- 
tem bujus  villas  admitti ;  et  admittitur,  et  sa- 
4n*amentum  suum  more  solito  preestitit,  et  raa- 
tara  dextram  Majoris  secundum  usum  oscula- 
ius  est,  pro  fine  sno  inde,  dec." 

Serj.  Eyre.    Is  there  any  thing  mentioned 
^hat  the  tine  was?— Mr.  Clarke,  No. 
Loi-d  Hardifficke,  It  is  pro  fine  suo, 
Mr.  Clarke,    My  lord,  he  was  baptised  the 
I5th  of  December,  1601. — Read  the  certificate. 
Ill  it  examined  ? — Cranston,  Yes. 

Associate  reads : 

»•  Hastings  u,  1601,  December  15th.   Bap- 
''^y  Thomas,  tbe  son  of  Udcbior  Rainolds." 


Mr.  Clarke,  Yfe  shall  now  aheiTf  that  hn  fa- 
ther  acted  as  a  freeman  tbe  17th  of  April,  1597. 
— Read  that  entry.  Did  you  examine  it  f  Isil 
a  true  copy  ? — Cranston,  It  is. 

Associate  reads : 

<*  Hastings,  ss.  Elect'  Majoris  Filhe  prs&t' 
tent'  ibidem  die  Dominica  prox' pott  Hock- 
day,  viz.  17°  die  Aprilis,  anno  regni  noatne  Ik* 
minee  Elizas,  Dei  gratia  Angliasi  Frandn,  et 
Hibemise  Regins,  tidei  Defensor '» &c.  trioesi- 
mo  nono,  1597.  Ad  banc  electionero  Rk. 
Lyfe,  Major ;  Tho.  Lake,  Ric.  Calveii^y 
Riog.  Ferrys,  Ric  Frank,  Ric.  Frencbe,Mar- 
tinus  Lyfe,  Jurat* ;  liberi  homines,  JohauMi 
Coonev,  Marcus  Sarsent,  Tho.  Htepbensoi, 
Willielmus  Byshop,  Willielmus  Coombe^  Ric 
Hackwood,  Johannes  Durant,  Johannes  Hsr- 
sey,  Tho.  Young,  Rob.  Jenkin,  Ric.  Fid^ 
Tho.  Colgat,Tho.  Mannington,  Rob.  Milb,  Jo- 
hannes Brett,  Ric.  Porter,  Johannes  Knight, 
Steph.  Porter,  Ric.  Burckam,  Johannes  Fissa* 
den,  Martinns  Harrison,  Melchior  Rainokbi 
Michael  Stunt,  Nic.  Staplus,  Bemardus  Boras^ 
Petrus  Hurry,  Johannes  Bailey,  Rob.  Parkei." 

•*  N.  B.  At  this  day  Richard  Lyfe  wai 
chosen  mayor,  and  Melchior  Rainolds  town* 
clerk.'* 

Sir  T.  Abney.  My  lord,  we  shall  next  by 
before  your  lordship  and  the  jury  otherlo- 
stances  of  persons  admitted  as  eldest  fons  sf 
freemen,  and  born  within  the  borough.  Tbs 
first  of  them  was  admitted  in  1610. 

Lord  Hardwicke,  That  comes  under  tbt 
first  head. 

Sir  T.  Abney,  My  lord,  we  shall  shew  tfait 
they  were  the  eldest  sons  of  freemen.  Wc 
begin  with  Thomas  Streat. 

Mr.  Strange.  And  boru  within  the  borough. 

Sir  r.  Abncy.  Thomas  Streat,  my  lord,  wtf 
admitted  the  29th  of  April,  1610.  He  wH 
born  within  the  borough  tbe  31st  of  Marcb, 
1580.  So  that  he  was  thirty  years  of  ase^ 
when  he  was  admitted. — Read  the  entry  of  oil 
admissioii.  Did  you  examine  it?  Isitatnif 
copy? — Cranston,  Yes. 

Associate  reads : 

*'  Hastings,  ss.  29  Aprilis,  1610, 8  Jac.  1. 

**  Quinto  (!ie  M.iii,  hoc  anno  8^  Jacobi  Reffi^ 
venit  Thomas  Streat,  maximus  nata  fiuoi 
Thoraae  Streat  defunct',  nuper  unios  liberorm 
hominum  hujus  villus,  et  petit  se  admitti  ad  li* 
bertatem  hujus  villce ;  et  \>er  Major'  et  Jvnt 
antedictos  ad  missus  est,  et  sacramentum  ptm* 
stitit  corporale,  et  osculatus  est  malam  da* 
tram  Majoris,  more  solito ;  et  finis  ejus  pn 
admissione  sua  est  6s.  Sd.  quia  pater  suos  UDtf 
erat,  secundum  consuetudinem,"  Sec, 

Sir  T.  Abney.  Now  read  the  certificate  sf 
bis  baptism,  the  31st  of  March,  1580,  to  sbev 
that  he  was  bom  within  the  borough.  Is  it| 
true  copy? — Cranston,  It  is. 

Associate  reads : 

•*  Hastings,  a.  31  March,  1580.    l^esu^ 
day  baptiz^,  Thonutfi  tbe  iOB  tf 
Streat.'^ 


^^Q  upnn  a  Quo  Warranta- 

IjotA Uardmickt.  WhatreglsWislliatacaiiy 
«f  i  now  It  ovuiea  In  be  mure  oeccMsry  tu  >*K  F 

Criuu'fK.  M;  InnI,  ll  \n  a  true  cnjiy  of  ihr 
pari«h-rr);iitcr  of  Hutmip. 

Mr.  Slrangc.  My  loni,  llie  oexl  is  Willimm 
Lorell.  Hia  futhur  was  iioi  nnty  a  rteciiiaii, 
but  a  iural,  lie  ms  aJmitteil  tlie  OlU  gf  Seji- 
tmlMT,  1036. 

J/f.  Gen.    Vnu  go  backnanis  bu>)  furwnrds 


Ml-.  Slraniir.  Vi 


Ml*.  WrRn^c  We'licort'^uliirly  on;  yoii  will 
Mlbekble  Ui  folluw ns— Id-iit  the  eiilrv  ol  tlip 
M  or  Scpteinlm-,  1636,  at  the  ailmiisiun  uf 
miKam  I<ov«ll,  jiin. 

Mt.  Gen.    You  must  prove  ^Villinra  Lovell 

Ilhlher  «rns  a  Ireemnn ;  you  read  liiia  bclbre 
Ed  Hard/fkke.  What  is  tbo  lime  of  Wil- 
[Lmll'a  admission? 
fr-AroBge.  My  lord,  tiieSLb  of  September, 


torU  Harda-Uke.  Tlie  aoih  of  April,  166T. 
Ibomu  the  ton  of  William  Loiell,  was  ail- 
mioti. 

Kt  T.  Abnry.  Aod  now,  my  lord,  wo  rend 
1^  fUbet'id  uilraitlauce,  Ihe  eih  of  September 
U9a. 

ImxA  llardu'icki.  You  did  not  read  il  beCore  ? 

8if  7".  AbM<i.  My  lord,  we  read  him  before, 
«1  a  jural. 

Ur.  Strangt.  My  lorit,  il  lias  been  read,  lo 
iliciT  Ibal  the  father  iras  a  IVeeman  at  ibe 
lto«  af  the  aan'a  biriti.— Uead  il  again.      Did 

MCnmine  il  ?  Is  it  a  true  copy  ? 

"■    niton.  Yes. 


tMaa&ugt.  u.  6.   Se])tembEr,  1636,  Wit- 

n  Lo*e1l,  jun,  eldest  ion  of  bin  fallier,  jural, 
■ho  ia  non  made  free  of  ibis  corporaiioo  for 
Of-  64.  fine,  took  hia  onth,  and  kissed  tbe 
■nyor'i  right  cheek,  more  lolilo,"  jcc. 

Ut.  Sirangc.  Now  prwluce  ihe  register  of 
the  Sill  December,  1039.     Is  it  a  true  copy  f 

Cramton.   Yea. 

AttetiaU  reads : 


Mr.  itarih.    yiy   lord,   tbe  neit   liistance, 

«Bd»T  Ibi*  lirail,  ia  Thomas  Prank.     He  ifas 

iteittti]  the  S6ih  February,  1662.— Read  his 

"*    '  Did  you  examine  il  ?  la  it  a  true 

■       Y*i- 

Aaociale  read*: 

"  IIa«iiiii,'«,  (!,  Auvmbiat'  in  Aula  Curial', 
K  Peljrnafii,  15  Car.  !(.  166«.  At  this  aa- 
■Cftibly  alio,  Tbooias  Oawen  and  Thomas 
Prauk,  upon  ibeir  prayer  io  that  behalf,  are 
Bdmitttil  10  the  sereral  freedoms  of  this  lown 
ll  port,  for  their  tcteral  finea,  viz,  Thomas 
^U  I3i.  id,  and  Tliumos  Frank  6t.  Qd.  ha 
'  a  thlcai  twi  of  K  iVeeman  bcre ;  who 


A.  D.  1736.  [870 

■Ito  took  Iheir  ai-Teral  oaihs,  sod  kisied  ih« 
maycir's  ri);ht  cheek,  nOre  soUto,"  So:. 

Mr.  MuriA.The  6th  "f  May,  1634,  be  «-ai 
baplixed,  my  lord.  — Head  tbe  certificale.  Did 
yon  examiucil?  Is  il  a  true  copy  F 

Cranslan.  1 1  is. 

"  Haslin;;s.  j..  6  May,  1632.  Baptiied, 
Thomas,  tbe  sou  uf  Frank." 

Mr.  Clurke.  My  lonl,  the  next  instance  i« 
Iloberl  Snrifent.  'He  waaaJmilled  the  I'iih  of 
May,  1663. — Itead  the  odmisaion.  Is  it  a 
ti'Uecopy .'— CroiK/on.  Yes. 


of  this  town,  aeaman,  upon  hia  humble  a 
made  free  orihef'ranchiMmentoflhis  town,  and 
look  hia  nath,  and  kissed  tb«  mayor's  right 
cheek,  more  lotilo,  &o.  His  Sue  jiaid  is 6i.  hd. 
lie  was  eldfit  son  of  John  Sargent,  hia  father, 
late  freeman  of  Ihis  town,  deceased,  Gee." 

Mr.  Filiner.  My  lard,  be  was  haplixed  the 
3d  of  Norember,  lUOl.— Read  tbtt  ctrtlGciite 
of  his  baptism.  Is  thai  a  Irne  copy  J  Did  you 
examine  il  f—Cranilon.  It  is. 

Juociufe  reads: 

"  HastinKi,  ii.  3  NoTember,  1604.  Bap- 
tized,  Itoben  Sargcnl,  son  of  John  Surgent." 

Seij.  El/re.  He  was  fiOy  years  old,  and  up- 
wards, when  he  was  admLlied.  If  he  had  a 
right  as  an  eldest  sun,  how  came  he  not  tu 
claim  il  before  ! 

Mr.  Strange.  The  entry  tell*  you  he  waaa 
aeaman ;  till  be  left  Ihc  sea,  il  was  not  worth 
Ins  while  tu  lake  up  his  freedom.    • 

Hr.  Clarke.  My  liinl,  the  next  inslaace  ii 
ThoiliHS  Stevensuil.     He  was  admitled  (be  2Mb 


Jnoeiale  reads: 

"  Hasting,  m.  SS  April.  1667.  Before  Wm. 
Parker,  esq.  mnyor)  Philip  Girdler,  Samuel 
Smersball,  Wm.  Luiisford,  and  John  Hyde, 
jurats;  came  Jamea  Shinj^jeton  and  Tboroaa 
SleteDsnn,  aod  prayed  lo  be  admilled  lo  the  li- 
berty andfranchijesof  ibis  town;  and  bv  the 
Haid  mayor  and  jurats  then  presenl  are  inere* 
unto  admilled;  who  there  upon  took  the  oalh 
accustomed,  kissed  ibe  mayor's  right  cheeky 
more  lulUo ;  and  cilber  ol  ihem  ara  i»  pay,  lia. 
Ihe  said  James  a  mark,  and  the  saidThomaa 
half  a  mark,  be  being  tbe  elde<il  sod  of  hia  fie 
ther  Richard  Stevenson,  a  late  freeman  oflliia 
town,  deceased,  to  Ihe  present  rhan)berlaia  of 
this  town,  for  such  Iheir  admittance." 

Mr.  Clarke.  Now  look  out  the  certificale  of 
hishaptism.  Readthat.  Didyuucxamineit.' 
Is  it  a  true  copy  f — Craniton.  Vea. 

Auociote  reads: 

"  llaalings,  ji.  164Z,  November  6.  Rap> 
tized,  Thomiii,iOo  of  HicbitnliilvTeMOtt." 


4791  10  GEORGE  O, 

Auaaate  retdi ; 

"  8  Febniai-y,  1603-4.  At  tbii  cnurt 
Uwhstl  Peabuckle,  mi  craved  to  be  tdi 
inU  Ibefranchise  of  this  town  ind  port ;  which 
«u  grtoled  him,  anil  he  a«KirdiDgly  look  the 
Mlhi  Iherebj  rFquireil,  and  kiued  the  mayor'a 
cheek,  more  telito  ;  and  for  hii  fine,  lieing 
the  eldeit  sou  of  a  freeman,  paid  6j.  Bd.  &r(r' 


Rpail  ihecertifi- 


•peak  t( 
Robert  1 


Mr.  Strange.    Mylord,  fai 

of  September,  IG68,  anil  wai 

old  when  he  was  made  tree. 

eate  of  liii  bapiisHK 

Cra/ulvn.   V«(. 

Auoeiute  reailK  : 

■■  Hutinf[8,  (1  SI  September,  1668.  Bap- 
tised, MicbEkel,  the  aon  of pBubuckle." 

My  lorJ,  the  next  inalaDce  we 
.0  (and  we  stmll  read  but  seien  more)  n 
FelUws,  adiuilled  Ihe  17ih  of  February, 

1693.  Read  hisadmiBsioD.  Did  joDexaiuiue 
Jlf 

Cramlon.  Yes. 

Aatxiale  reads  : 

••  Memorandum,  That  the  inh  February, 
1C9S-4,  before  John  Medhum,  esq.  mayor; 
John  Hide,  Tliomaa  LoTet],  Fhilln^  LotgII, 
John  Stereni,  Edward  Milward,  and  Dr.  Peter 
Fiat,  Jnrali ;  in  open  court,  came  Robert  Fel- 
lows, tea.  Mark  Meadow,  and  Auslia  Lacbet, 
and  craved  to  be  admitted  into  the  francblse  of 
Ihii  town  and  port ;  which  was  ^^raoted  them, 
and  they  accordingly  took  the  oaths  thereby 
required,  anil  kissed  the  mayor's  cheek,  more 
tMlo  ;  and  for  their  fines  did  Keverally  jiay  as 
followelh  ;  the  said  Robert  Fdbwa,  being'  the 
eldest  son  of  a  freeman,  paid  6s.  Bd.  and  ihe 
said  Mark  Meadow  and  Austio  Lacket  paid 
13».  id,  each,  exlr'  camerar'." 

Mr.  ilarth.  He  was  baptized  the  Itt  of 
July,  1656.  Read  tlie  copy  of  the  regiiter.  Is 
it  a  true  copy? — Crantton,  Ye*. 

/ItHviate  reads: 

"  Hastin<;s,  ti.  July  1656.  Firrt  day  uf 
this  monili  Robert  Fetluwa  wan  baptizeJ,  the 
SOD  oFGeoj-ge." 

Mr.  Fihair.  My  ford,  thenexHs  John  Ilua- 
wy.     Reud  his  aitmisiioii.  Is  it  examioed  ? 

Cranitoa.  Yea. 
-    Atsociate  reads : 

"  Mcmoraiidiiru,    The  5th  day  of  January, 

1694,  bcfiire  Mr.  Mnyor,  and  three  jurats,  i 
there  cauic  Jelfery  Glvde,  John  ilussey,  jun. 
soil  Henry  Barry,  and  craved  to  be  admitted 
into  the  Ireedom  of  thia  town  aud  port  of 
Masting^;  and  they  wereaccordiuglyadmilted 
into  tJie  freedom,  and  took  (he  oaths  o'f  freemen, 
and  also  the  other  oaths,  and  kissed  the  mayor's 
ri^ht  check,  tnort  io/i(o,  and  for  their  fines  paid 
seTcrally  as  tullows,  viz.  the  said  Jeffery  Glvde 
13f.  id.  the  said  John  Uuasey,  being  the  eldest 
•on  of  a  freemui,  6t.  Bd.  and  ihewiil  Henry 
Sury  13t.  Kf,  atr"  camertr'." 


Case  of  Henry  Moare, 

Mr.  Fitmer.    Hy  lord,  li«  wa«  IB 
April  1680.  Read  theregicter.  la  it« 

Cratuloa.  It  ie. 

Aaociale  reads : 

'*  Baitings,  u. 
tized,  John,  the  so 


Mr.  Clarke.    The  neirt,  my  lord,  b  Jaha 
Geery.     He  was  admitted  the  35ili  ofOcMbcr, 
1707.    Read  his  admisaioD.    Is  it  examiiiedf 
Cranston.  Yes. 

AucciattreBdt: 

'>  Hastin^^B,  it.  35  October,  1T07.  At  iht 
aame  court  Richard  Hudson,  John  Geety  &' 
Johannis,  et  Thomas  Gyles,  were  iwom  free- 
meu  ofthia  town  and  part,  for  their  aeTenlfian 
following,  viz.  Richard  Hudwn,  13t.  4J.  Joha 
Geery,  as  eldest  son  of  a  freemsD,  6t.Bi.ui 
Thomas  Gil«  13i.  id.  tnare  tolito." 

Mr.  Clarke.  He  wai  baptized  the  nth  if 
April,  1683.  Read  the  certificate,  fait  en- 
mined  F — Craiuton.  Yes. 

Auoeiate  reads : 

"  Uaatinics,  a.  April  9,  1683.  John,  lbs 
■on  of  John  Geery,  and  Elizabeth  hia  ivire,wit 
baptized." 

Sir  T.  Abnty.    My  loni,  tlie  next  insttnee  ii 
William  tihurter  and  Jacob  Funttey,  ai 
the  11th  of  August,  1722.    Read  tbeadn 
Ii  it  a  true  copy  ? — Crantton.  Yea. 

.(jfiociate  reads: 

"Hastinn.u.  11  August,  1723.  Mr.Jafat 
Mtad,  William  Shorter,  John  Harmaa  ud 
Jacob  Fantley,  were  admitted  and  sworn  fnr- 
men  and  comturons,  by  the  mayor  and  setat\ 
of  the  jurata,  accordinjf  in  the  ancient  ciKKM 
and  use,  for  their  i«Teral  fines fidlowing;  Wil- 
liam Shorter,  as  ehlest  son  of  a  f'reemao  6i.  Id. 
John  Mead  ]Si.  id.  Jolin  flarman  &(.  Od.  mi 
Jacob  Fantley,  as  eldest  ion  of  a  freemuf 
6*.  8d." 


bis  certificate.    Is  it  examined  ? 


Auoeiate  reads : 

Hai)tin[;B,  n.  Juna  !9,  16119. 
of  William  Shorter." 


Willi 


Baptized, 


Sir  T.  Abney.  My  lord,  ne  have  many  mors 
entries,  not  distinguishing  bctivetn  sons  and 
eldest  sons :  but  we  shall  not  trouUe  yw 
lordship  with  thetn,  but  go  to  our  living  «il- 
aesses. — Call  Uobtrt  Evemden. 

Robert  Evemden  sworn. 

Sir  T.  Abrtei/.  How  old  are  you  ? 

Evemden.  Sixty -five  yean  old. 

Mr.  Laci/.  Was  your  r<Lther  ■  freeman  «f 
Hastings  J—Evernden.  No. 

Sir  T.  Abney.  Where  were  you  bocn  f 

Evemden.  At  Roberlsbridge,  IS  milts  ftMB 
Hastings ;  but  I  have   livM   Gftj  ynn  is 


npon  a  Quo  Warrantt. 
\ty.    Wlint  do  you   kninv  of  Uie 
Minfa,  ai  to  wlint  rbhi  itie  eldest 
m  liBVfl  to  itieir  freetfums  ? 
I  l)iit«  heinl  genUeineD  soy— I 

jy.  Who  ha»e  you  heard  siiv  F 
I  hnic  licaril  Air.  Tbomoa  Atoore 
ore,  w)ia  were  IidUi  jiutices  of 

H^  toni,  here  Jia  mao  prompls 

r.   Let  lum  go  on  the  otber 


My  lent,  I  kptiiehcnd  this  is  doI 

.  Yao  My,  yon  IWeil  fifty  years 

Rnd  kDew  ThDmas  Moore  and 
I  juilicca  of  the  prace,  and  jurats  ; 
'  iuid  the  jury  an  nccouiit,  what 
•rd  tlietn  say  in  ri^lalion  to  the 
t  tons  of  t'reeinen  to  be  free. 

i  h«Brd  them  say,  thni  llie  eldest 
um  li«d  a  right. 
<c.  tVherc  must  they  lie  boro  f 

Born  in  lonu,  to  he  sure. 
|e.    Whether  mtiit  Ihey  be  born 
itliers  were  made  free,  or  after  ? 
They  niiiiit  be  born  in   their 

[c.    What  fine  do  Ihey  nsualty 
iden.  Six  and  eight  pence. 
».  Hid  you  e»er  know  an  eldest 
(DMi,  during  the  50  years  you 
tiaitings,  renued  ? 
Seme  did  not  r«)uire  it. 
ft.   Was  any  tmdy  denied,  that 

•lit? 

mickt.  ItetHily  tells  you  what  he 

Mrei  lay. Yuu  «ay,  ynu  bad 

inn  with  John  Moore,  and  he  was 
■at  did  he  tell  ynu  ? 
r  He  told  rae,  thai  the  eldeft  son 

itfht. 
^atikc.  vim  John  Moore  ajuratf 

Yec,  tny  lord. 

wieke.  And  these  two  men  told 

I.  Yea.  my  lord. 
;c.    How  long  ago  ia,  it  that  (hey 
^—Ei)enden.  lc«uontu^lt. 
«.    But,  according  to  your  me- 
ng  du  you  think  it  may  be? 

It  was,  I  hetiete,  in  the  la^t 
or  queen  Anne's,  tttat  they  spoke 
tell  in  a  year. 
B.    Have  you  seen  them  lately  F 

No. 
<$.  WitfaiD  SO  or  30  years  ? 

\t». 

rDid  both,  or  one  of  them, 
And  bow  lon^  is  it  since,  ac- 
librstof  your  remeinbrance  ? 
fAboat  ten  or  a  dozen  years  ago, 
\e.  Had  you  any  converutiun 
t  frwuuan  about  tliis  right  ? 
Yts,  with  Kobrrt  Banholomew. 
E.  Was  he  a  freeman  ? 

t^  b«CB  JDiiyor. 


A.  D,  1738. 

Mr.  Slrangt.  What  bare  you  Iieard  hiin  say 
about  tbis  right  ? 

Evcrnden.  I  have  heard  bim  say,  the  eldest 
son  of  ft  freeman  had  a  right. 

Mr.  J/jiriA.  Do  you  know  Dr.  Fiat  ?  Dor- 
ing«o  many  years  as  you  lived  in   Hosliiig^ 
du  you  remeniber  him  to  say  any  thing  about'  • 
the  rii,'hl  of  eldmt  sons  ? 

Hscrniicn.  He  has  been  ileud  some  time. 

Mr.  JfiiriA.  What  was  he? 

Hvtrrtdcii.  He  ivas  a  doctor,  and  mayor  or    ' 
(lie  town.  ' 

Mr.  Murth.  Did  he  ever  say  any  thing  W 
yuu  abonilhis  ri^ht? 

i^rcrnikn.  No,  nut  that  I  remember. 

Mr-  Ulraage.  During  the  60  years  yoit 
lived  in  Hasliugs,  what  was  the  general  re- 
port there  concerning  the  right  of  eldest 
aaua,  that  what  they  infonned  you  about  it 

Eieradctt.  I  never  heard  any  body  say  but 
that  tbt^y  had  suvh  a  right. 

Mr.  Clarlie.  How  oU  were  Robert  Banho> 
lomew  and  the  two  Aloores  when  you  heard   ' 
lliem  say  this  ?  . 

Evtrndtn.  Tliey  were  very  ancient  men. 

An.  Gen.  You  know  nottiingof  your  ow* 
knowledge ;  it  is  nuty  by  hear-say  ? 

Evcrndcn.  No. 

All.  Oca.  What  ilid  you  hear  them  say  ;  it 
Wa^  iinly  in  general  f 

Evcrndcn.  That  the  eldest  son  of  b  freeinai 


Sen,  Was  it  to  the  eldest  son  of  a  frea- 
generully,   willioot  cooliuiug  it  to  being 
to  any  particular 

it  the  eldest  son  of 


bom  within  Ibe  borougb. 


Bvernden.  They  said, 
a  freeman  had  a  right. 

Alt.  Gen.  Are  yon  cure  they  confined  it  to 
llie  eldest  eon  of  a  Irecman  ?  Did  they  say 
nothing,  that  all  the  sons  had  a  riKbti' 

'y\t.  Strangr.  If  all  the  sons  bare  a  right, 
then  an  eldest  son  has. 

Lord  HardaUhe.  Air.  Everiiden,  you  said, 
they  muaE  be  born  in  the  town  during  th« 
fathers  freedom  ;  did  Thomas  Moore  or  Joba 
Moore  say  whether  they  nuisl  be  born  if 
Hastings,  or  al^er  their  fathers  freedum  ? 

Evernden.    No,  rny  lord. 

Lord  Uardwicke.  Then  why  did  you  sBJ 
that? 

Evemden.  They  said,  tlinl  the  eldest  son  of 
a  freeman  hod  a  right,  if  any  body  had. 

Several  Coanicl.  Ay,  if  any  body  had  ! 

Lont  Hardai<ke.  What  is  the  right  of  frae^ 
dom  ? 

Evemden.  None  at  all,  but  by  the  electiOK 
of  the  mayor  ni^d  jurats. 

Sir  T.  Abvtu.  Tliey  are  glorious  felloin! 

Air.  TMiy.  Did  Aloore  say  any  ibiDg  of  i«> 
sideuce  ? — Eiernden,  No. 
John  Couttnt  ii 

Mr.  Sfran^r.  How  old  are  you,  Mr.  Cai- 
zetis  ?— Cutiic'ii.  About  sixty. 

Ht.  Straimc.  H'bei*  werv  joulwnf 


^IJ  lOOEOROE  11. 

Sir  7.  Ahney.  My  lord,  the  next  ii  RicbarJ 
Walter.  He  was  admitted  the  8th  of  Januanr, 
1669.     Read  his  admissioii.    IsitexamiBoaP 

Craruton.    Yes. 

AtsocifUe  reads : 

*'  Hastings,  sx.  8  Janoarj,  1660.  In  full 
court  then  also  holiien  hefbre  Mr.  Mayor  and 
bis  brethren,  came  Richard  Walter,  and  prayed 
the  enfranchisement  of  this  town  ;  who  being 
the  eldest  son  of  his  father  Simon  Walter,  a 
freeman,  is  thereunto  admitted,  for  his  fine  of  a 
demi-mark  ;  and  in  like  manner  Robert  Boy- 
Jcetl  and  Robert  Philip,  for  theijr  se? eral  fineaof 
a  mark  a -piece;  who  all  took  the  oath  accus- 
tomed, and  kissed  the  mayor's  cheek,  more  m- 
iito." 

Sir  r.  Abne^.  My  lord,  he  was  baptised  the 
J^th  of  December,  1641.    Is  that  examined  ? 
CranttOH,  Yes. 

Auociate  reads : 

**  Hastings,  ts.  5  December,  1641.  Bap- 
tized, Richiird  Walter,  son  of  Simon  Walter." 

Lord  Hardwicke.  Let  me  see  it ;  it  is  Wal- 
thers.    Who  do  von  call  next,  Mr.  Strange  ? 

Mr.  Strange.  My  lord,  William  Genner.  In 
1674,  he  was  admitted.  He  was  born  the  6th 
of  June,  1G47. 

Alt.  Gen,  Why  do  not  you  keep  your  own 
order?  We  never  know  where  we  are.  You 
read  that  before. 

Mr.  Strange,  Ue  is  in  the  same  paper  with 
John  Fantley,  who  was  read  before.  Read  tlie 
admission  again,  the  5th  of  December,  1674. 

Associate  reads: 

^'  Hafitintfs,  ss,  5  Decembris,  1674,  26  Car. 
5Kdi,  coram  Major'  et  Jurat'  in  plena  curia  venit 
Johannes  Salmon,  et  pcMit  libertatem  liujusvil- 
lie  ;  Johannes  Fantley,  jun.  et  Willielmus  Gen- 
ner, jun.  et  udmittuutur,  scilicet,  preedict*  Sal- 
mon pro  13«.  4d,  et  |»rcedict'  Pantley  6«.  Sd.  et 
firoedict*  Genner  6s.  3d,  quia  filii  sen'  patr'  eor' 
iber^ ;  qui'  oinncs  fecerunt  inde  sacramentum, 
et  malani  dt^xtram  Majoris  osculaverunt,  more 
tolito,"  &c. 

Mr.  Strange,  My  lord,  he  was  baptized  the 
6th  of  June,  1647.  Read  the  Hastings  regis- 
ter ;   there  are  two  parislies.    Is  it  examineid  ? 

Cranston.  Yes. 

Associate  reads : 

**6  June,  1647.  Hastinjrs,  ».  Baptized 
William,  the  son  of  William  Genner,  a  jurat* 

Mr.  Strange,  This  falls  within  the  first 
Lead. 

Air.  Marsh,  My  lord,  the  next  instance  is 
Richard  Sartrent.  He  was  admitted  the  13tb 
of  Murch,  1676.     Is  that  examined  ? 

Cranston.  Yes. 

Associate  reads: 

><  Ila8tint:s,  ss.  12  i\!arch,  1676,  29  Car.  3. 
Befbre  Mr.  Mayor,  Mr.  11} de,  and  Mr.  Tho. 
Lovell,  jurats,  in  the  court- hall,  came  Richard 
fiargent,  eldest  son  of  Ricliard,  and  psiyed  his 
freedwBB ;  whiok  was  graatad  bim  by  ue  iNid 


Can  of  Henry  Moarif 


[811 


3f 


nayor  and  jurats,  for  his  line  of  dt.  8d.  aod 
then  and  there  took  his  oath,  and  kiHei  tkt 
majTor'i  cheek,  more  solito," 

Mr.  Marsh.  My  lord,  he  was  bora  the  S6di 
of  Dec.  1624. 

Lord  Hardvicke,  His  father  is  not  said  then 
to  he  a  freeman. 

Mr.  Sfranf^e.  My  lord,  it  is  only  said,  "Bt 
chard  Sargent,  eldest  scm  of  Richard." 
.    Mr.  Marsh.  My  lord,  be  was  born  the  26A 
of  Dec.  1624. 

Lord  Hardwicke.  Can  you  shew  his  ftthir 
to  be  a  freeman  ? 

Mr.  Marsh.  It  is  only,  **  eldest  son  of  B* 
chard  ;"  if  he  be  a  stranger,  they  mentHH  thi 
father  to  be  so ;  and  the  fine  ih  6s.  8d. 

Lord  Hardwicke,  If  the  father  be*a  freeoBii^ 
you  should  shew  it. 

Wlr.  Strange,  Now  and  then  a  town  dak 
stitches  a  few  thin^rg  together—— 

Mr.  Filmer.  My  lord,  tlie  next  inatanes  ■ 
Thomas  Gawen,  admitted  the  Slst  of  Jkt, 
1677.    Read  it.    Is  it  examined  ? 

Cranston,  Yes. 

Associate  reads : 

«'  Hastinj^s,  ss,  21  Dec.  1677.  By  and  hs- 
fore  Thomus  Carlton,  mayor ;  Thomas  Lofdi, 
and  Thomas  Dyne,  jurats,  in  the  coort-b4 
being  present  at  the  seat ;  JamesBatchelor,  jsi. 
Thomas  Gawen,  eldest  son  of  Thomas  a  frie 
man,  Mark  Phili|is  and  James  Moore,  noa 
their  instant  suits,  are  admitted  to  the  fresma 
of  this  town  and  port,  for  their  several  fiiici,il 
u|M>n  their  heads  appeared ;  who  tbereofoi 
took  the  oath,  aud  kissed  the  mayor's  righl 
cheek,  tnorc  solilo.  Gawen  Qs,  Qd,  Datcbdflr 
antl  Philips  ISs.  4d.  each." 

Mr.  FUmer.  My  lord,  he  was  bom  in  Hast- 
ings, the  27th  of  August,  1653.  Read  tbe 
certificate.     Is  it  examined  ? — Cranstoti.  Yes. 

Associate  reads : 

**  Hastings,  ss.  August  27, 1653. 
Thomas,  the  son  of  Thomas  Gawen." 

Mr.  Clarke.  My  lord,  the  next  is  TlioDftS* 
Bayliffe.  admitted  the  2tstof  Nov.  1678.  lU^ 
his  admission.     Did  you  examine  it  ? 

Cranston.  Yes. 

Associate  reads : 

**  Hastings,  ss.  At  a  court  held  the  Sltt  ^ 
Nor.  1678,  30  Car.  2,  appeared  Thomas  BaJ'" 
lifle,  seaman,  eldfst  son  of  Thomas  a  freenn^* 
for  his  fine  i»f  6s.  Sd.  and  Andrew  Skeelb 
man,  for  his  fine  of  13s.  4d.  upon  their  eai 
prayer  and  request,  are  adiiiittrd,  at  this 
sembly,  to  the  f Veedom  and  franchise  of  tl^ 
town ;  vt  ho  both  took  the  oath  accustonie^ 
and  kissed  the  mayor^s  right  cheek,  more  s^' 
lito,*'  See. 

Mr.  Clarke.  My  lord,  he  was  bora  in  Basl^ 
ings,  Jan.  14,  1637.  Read  tlie oeitifioats.  tM 
it  a  true  copy  ? — Cranston,  Yea. 

Associate  reads : 

•«  Hastings,  ti.  Jan.  14,  USST. 

TbauM^  tha  Mt  of  TtmM  ItoyUflb." 


tat] 


iftm  a  Qtf  0  WarrmHo. 


JL  D.  1796. 


[874 


Srr.JlMy.  Mt  kvd,  the  nnl  invlaiice  is 
Bcoiy  CbMbif.  He  was  admittei  tke  irth 
•TDec.  1679.  Read  hb  edmiMkm.  Dili  you 
fnmiiie  it  ?— CrflJulM.  Yes. 

Jtwciate  rmls : 

**  HastingB,  fs.  IS  Dec.  1679,  SO  Car.  9.    In 

[  M  court  then  and  ih«re   holden,   Henry 

CiOBibes  m  made  free  and  sworn,  bein^p  ekdettt 

IM  to  bis  father,  a  fireeman,  deceased,  for  Ct. 

9Lmon  9olito.'* 

'  Sr  r.  Abney.  The  certificate  of  his  birth  or 
iiifkm  is  the  18tb  Sept  104S.  Is  that  exa- 
rAdF— Creni<oa.  Yes. 

JlMKiafe  reads : 

«  Hastings,  si.  18th  Sept  164S.  Baptized, 
BifT,  the  SOB  of  George  Cooaabes." 

Hr.  Siramge.  My  lord,  the  next  is  Mark 
BaOey,  admitted  the  SBth  of  NovembcT,  1691. 
Bead  his  admission.    Did  you  examine  it  ? 

Crwnston.  Yes. 

Auociate  reads . 

^<  Memorandum,  That  the  SBth  day  of  Nov. 

1691,  before  Robert  Phipps,  mayor ;  Thomas 

iBfcU,  Philip  Lovell,  John  Stevens,  Dr.  Peter 

VSst,  and  John  Medhnrst  jurats ;  came  RichanI 

Hams,  Nicholas  Danvel,  Mark  Bay  ley,  and 

ttchard  Hart,  all  inhabitants  of  this  town,  and 

Marately  craved  to  he  ailmitted  to  tlie  fran- 

fhit  of  this  town  and  port ;  and  ihey  were  ac- 

wdiDgly  admitted  into  the  freedom,  and  took 

ibe  oaths  of  freemen,  and  at  the  same  time 

hok  the  oaths  of  fidelity  to  their  majesties  kini? 

Vliam  and  queen  Mar} ,  and  kiwed  the  mayor's 

Ml  cheefc,  fnore  to/if o;   and  for  a  fine  pHid, 

1V.Sicbard  Adam»,  Nicholas  l>anyel,and  Ri- 

chvi  Hart,  each  V3s.  4d.  and  ^larfc  Dvyley, 

ha|  the  eldei^t  son  of  a  freeman,  6$.  Bd.  exlr* 

ti  toe  chamberlains." 


Xr.  Strange.  Now  read  the  certificate  of  his 
kpmm.    Ik  it  examined  ? — Cran$ton.  Yes. 

Amciale  reads : 

**HasiinKv,  st.  39  Nay,  1664.  Baptized, 
Ihrk  Bayley,  the  son  of  Mark." 

Mr.  Manh.  My  lord,  the  next  instance  is 
I^iid  Bniadbridgfe.  His  name  has  been 
ncstioned  before  ;  but  your  lordship,  1  believe, 
Im  sot  taken  him  as  an  eldest  son.  He  wa.s 
idouited  the  26ih  of  December,  169t. 

Lord  Hardwkke.  1  have  it;  Ue  was  admitted 

Mr.  FUmer.  My  lord,  the  next  is  Robert 
lirtbolomew.  He  was  admitted  the  26ili  of 
•Nm.  1693.  Read  the  entry.  Did  you  exa  • 
^AHii?-^Cranston.  Yes. 

Ameiate  reads : 

**  Hastings,  sf.  memorandum.  That  the  36tb 
fcyof  Nov.  1692, before Petei-  Fiat,  esq.  mayor ; 
KttM  Lovell,  John  Stevens,  Edward  Mil- 
*^,  and  John  Medhurst,  jurats  ;  came  Ro- 
^  Bartholomew,  and  craveil  to  be  admitted 
■••Ihe  freedom  of  this  town  and  port;  and  he 
^•fleardbg^y  admitted  into  tlie  treedem,  and 
"4  the  oath  of  a  freemaD,  and  also  the  other 


oaths,  and  kissed  the  mayor's  right  cheek,  mori 
tolito ;  and  for  hut  tine  paid  6«.  8d.  being  th< 
eldest  son  of  a  freeman,  extr^  earner ttr\** 

Mr.  FUmer,  He  was  baptized  the  10th  o: 
January,  1654.  Read  the  certificate  of  hii 
baptism.     Is  it  examined  ? — Cranston,  It  is. 

Auociate  reads : 

**  Hasting,  «s.  10  January,  1654.  Ttiistlaj 
baptized,  Robert,  son  of liartboloiueM .' 

Mr.  Clarke,  My  lord,  the  next  is  llioma 
Hide,  admitted  the  1 1th  of  Murcb,  1603  Reai 
that.    Did  you  examine  it  ? — Crumion,  Yes. 

Associate  reads : 

"  Memorandum,  Tlie  11th  of  March,  1693*9 
before  Peter  Fiatv  esq.  mayor ;  John  Hide 
Thomas  Lovell,  and  Philip  Lovell,  John  84e 
vens,  Edward  Milward,  Robert  Phipns,  un 
John  Medhurst,  jurats ;  came  Thomoii  ilide,  c 
this  town,  eldest  son  of  a  fret*mau,  and  crave 
to  be  admitteil  into  the  freedom  of  the  aai 
town  ;  and  he  was  accordintrly  aduiittetl  inl 
the  freedom  of  the  same  lov»  n  ;  and  took  tli 
oath  of  a  freeman,  and  also  the  other  oaihs,  an 
kissed  the  mayor's  cheek,  more  sofilOy  and  Ik 
his  fine  paid  6«.  8d,  rx/r'  cumerar\'* 

Mr.  Clarke.  He  was  born  the  lOlh  of  Mard 
1667.  Read  the  certificate  of  his  baptisa 
Did  you  examine  it  ?— Crcin«/o/i.  Yes. 

Associate  reads :  * 

<«  Hastini^,  u.  10  March,  1667.     This  da 

Tliomas  Hide,  son  of  Thomas  Hide,  was  bai 

tiaed." 

Sir  T.  Ahney.  My  lord,  the  next  is  John  Spa 
row  He  was  admitted  tlie  3d  of  l\4iruar 
1693.  Fie  was  born  the  6th  iif  A|)ril,  160y.- 
Itead  his  ailinission.     Is  it  a  true  copy  P 

Cranston.  Yes. 

Associate  reads : 

*^  Memi>randum,  That  tlie  .Sil  of  Kebriiar 
A.  D.  16i>3-4,  before  John  Medbunil,  c« 
mayor;  Thomas  Lovell,  l^>l»erl  IMiipiM,  ai 
Dr.  Peter  Fiat,  Jurats  ;  came  John  Nparrot 
jun.  and  John  Fellows,  jim.  nnil  ernvfd  tu  I 
admitted  into  the  freedom  of  thin  Utwu  and  ytr 
which  was  acrordii  ;{ly  ^milted  lolhem,  «i 
tliey  tmik  the  oaths  thereby  reipiirpd^aiid  kM« 
the  mayor's  check,  more  solito,  «ad  fitf  t\it 
fines  paid  as  folloua  ;  tin-,  nuui  Joliu  H^mm 
beintf  the  eldest  son  of  »  freciMSiJ,  tli*"  ^uiii 
6s.  8d.  aial  tluisaid  John  Fellow*,  f4s,  id,^*i 
camerar*  more  solito.** 

Sir  T.  Abnetf.    lift  was  ba^ix«'4  Ch«-  Otfi 
April.  160R.     \it^\\  the  fA-ruUfAiifr .     U  |l« 
aminetl  ? — Cranston,  Ve». 


Ap*^.   MA 


I 


Associate  reotU : 
**  Ua»tiu|(s.  sg    u 
John,  the  mni  of  ^—.m. 

Mr.  Strnnf^r.    Mv  IvrT    m*^  ^^ 
Michael  Vt^iht)4^V^'    H-  •»  j 
of  February ,  Mry^     ll«^  ^m^ 


8S3]  10  GEORGE  U. 

Sir  r.  Abney.    Did  you  nefer  bear  joor 
Bother  say  any  thiug  about  it? 
Mn.  mite.  No.  ^ 

Anne  Sargent  sworn. 

Mr.  Clarke,  Do  you  know  the  town  of 
Hastiofcs  f — Mrs.  Sargent,  Yef. 

Mr.  Clarke.  How  old  are  you  ? 

Mrs.  Sargent.  T  am  sixty- tliree  years  old. 

Mr.  Clarke.  How  long  have  you  lived  in 
HastiDgs  ? 

Mrs.  Sargent,  I  have  lived  there  always^and 
was  bom  there. 

Mr.  Clarke,  Have  you  heard  any  discourse 
conoeroing^  the  right  of  freedom  in  that  town  P 

Mrs.  Sargent.  I  have  heard  Mr.  John  Ste- 
vens, who  was  several  times  mayor  of  Hast* 
iugs,  say 

Mr.  Clarke,    Is  he  livhig  or  dead  P 

Mrs.  Sargent.  He  is  dend, 

Mr.  Clarke.  What  did  he  say  cooceroiDg 
the  right  of  freedom  ? 

Mrs.  Sargent.  Tliat  it  belonged  to  the  eldest 
sons  to  be  freemen. 

Mr.  Clarke.  Have  yon  heard  any  body  else 
say  so  f — Airs.  Sargent.  No. 

Mr.  Clarke.  Have  not  you  been  married? 

Mrs.  Sargent.  Yes. 

Mr.  Clarke.  Have  not  you  heard  your  hus- 
band say,  that  it  belonged  to  the  eldest  sons  to 
be  made  free  ? 

Mrs.  Sargent,  Yes,  he  has  said  the  same. 

Mr.  Clarke,  Was  the  common  repute  during 
your  time,  that  the  eldest  sons  had  a  right? 

Mrs.  Sargent.  Yes. 

Mr.  Clarke.  Was  it  ever  disputed,  that  they 
bad  that  right? — Mrs.  Sargent.  No. 

Mr.  Clarke.  And  you  heard  Stevens  the 
anayor  say,  that  the  eldest  sons  had  a  right,  se- 
veral times? — Mrs.  &ir^eii^  Yes. 

Sutannah  Medhurst  sworn. 

Mr.  Filmer.  How  old  are  you,  Mn.  Med- 
hurst? 

Mn.  Medhurst.  I  am  56  years  of  age. 

Mr.  Filmer.  Have  not  yon  been  Mrs. 
mayoress  ? — Mrs.  Medhurst.  Yes. 

Sir  T,  Ahney.  Wlio  have  the  right  in  Hast- 
ings to  be  freemen  ? 

Mrs.  Medhurst.  All  the  sons  of  frc^emen. 

Sir  T.  Abntj/.  Has  not  the  cddest  son  a 
right  ?      • 

Mrs.  Medhurst.  Yes;  I  have  heard  my 
husband  ssv,  they  could  Qot  deny  him. 

Sir  T.  Abncif.  Ha?e  yuu  beard  him  say  so 
more  than  once  ? 

Mrs.  Medhurst.  Yes ;  T  have  heard  him 
•  say  so  often. 

Sir  T.  Abntjf.  Pray,  Mrs.  Medhurst,  during 
your  time,  was  it  the  common  reputation,  that 
,.  the  eldest  son  of  a  freeman  had  a  right  ? ' 

Bin.  Medhurst.  Yes. 

Sir  T.  Abuey,  Where  were  they  to  be  born  ? 

Mrs.  Medhurst,  In  the  town  ;  it  was  not  so 
-  noch  dented  then;  if  il  was  rc^uired|  they 
.  vpuUdiiU 


Ctue  of  Henry  Moore, 


[8M 


Sir  T,  Abney.  Have  you  eter  knewa  an 
eldest  sou  denied  ?— Mrs.  Medhmnt,  Yea. 

Sir  T.  Abney.  When?  Was  it  within  tutslj 
years? 

Mrs.  Medhurst.  I  cannot  say  when. 

Att.  Gen.  How  many  years  is  it  suwe  tbt 
first  eldest  son  was  denied,  that  you  know  ol  .* 
Was  it  twenty  years  ago  ? 

Mrs.  Medhurst,  I  do  not  know. 
-   Att,  Gen.   Mention  the  name  of  an  ddesi 
SOD  that  yon  know  has  been  denied  ? 

Mrs.  Medhurst.  The  eldest  ton  of  Mr.  Med- 
hurst. 

Att,  Gen.  How  long  ago  is  that  ? 

Mrs.  Medhurst.  I  cannot*  tell. 

Lord  Hardaicke.  Is  your  htiaband  livings 
Mrs.  Medhurst? 

Mrs.  Medhurst.  No,  my  lord ;  my  hnshisi 
has  been  dead  a  great  many  years. 

Lord  Hardwiehe^  Did  you  ever  know  asf 
body  denied  before  ?  Was  it  in  your  bnsbsnd^ 
mayoralty  that  this  person  was  denied? 

Mrs.  Medhurst.  No. 

Lord  Hardwicke.  Was  it  before  or  after  yeir 
hittband's  death,  that  Mr.  Medhurst  wu  de- 
nied? 

Mrs.  Medhurst.  It  was  since  my  bnshifid^ 
death,  my  lord. 

Seg.  Skinner.  You  have  a  husband  BOir, 
have  you  not? 

Mrs.  Medhurst,  I  hope  so,  and  a  gBsdas 
too. 

Serj.  Skinner,  Yoo  will  be  lady  maysM 
again  then. 

Serj.  Eyre.  Mrs.  Medhurst,  I  wonM  tA 
you,  whether,  when  you  first  knew  IlastiD||i» 
they  did  not  admit  every  body  on  payment  »• 
fine  of  6i.  Qd.  ? 

Mrs.  Medhurst.  I  do  not  know. 

BIr.  Strange.  BIy  lord,  we  shall  trouble  jeer 
lordship  with  but  one  witness  more.  Caft 
Thomas  Colebrand. 

I'homas  Colebrand  sworn. 

BIr.  Strange.  You  are  not  a  freewin  ^ 
Hastings,  are  you  ? — Colebrand.  No. 

BIr.  Strange,  Have  not  you  been  appRStifle- 
there  ?  How  old  are  you  ? 

Colebrand.  1  am  about  80  years  old,  tid 
was  apprentice  there  about  60  years  ago. 

Vlr.otrange.  Have  you  been  acquaistei 
there  erer  since  ? 

Colebrand.  Yes ;  I  live  about  sixteen  mAm 
from  Hastings,  and  go  to  and  fro  firsqucadf 
there. 

BIr.  Strange.  Do  you  know  what  is  tk 
usage  or  custom,  as  to  the  admitting  of  free* 
men? 

Colebrand.  Yes  ;  that  freem^'s  eldest  sosi 
were  intituled  to  freedoms. 

BIr.  Strange.  Were  they  to  be  bom  wilbia 
the  town  ? 

Oflebrand,  I  never  knew  nor  heard,  tbit 
being  born,  within  the  town»  or  atadistaao^ 
made  any  difference. 

BIr.  Strange,  Had  you  any  discoarat  wilb 
any  audant  p«>pla  about  \Um  nattn  t 


IS5] 


upM  a  Quo  Warranto* 


A.  D.  17S8. 


\m 


CoUbrand.  YeB. 

Mr.  Strange,  What  account  did  jo«  receive 
romtbem? 

CoUbraniL  That  the  eldest  soDiaf  frcemeny 
MiW»  had  a  right  to  freedoms. 

Lord  Hardwicke.  Who  have  yoa  heard  lay 
»? 

CoUbrand.  Old  Waller,  the  town-^lerk. 

Lord  Hardwkke,  Who  have  you  beard  say 
»  besides? 

CoUbrand,  One  Thomas  Lovell,  and  Tho- 
IM  RaiuoMs ;  he  was  a  mayor ;  and  I  have 
kud  Uie  mavor  and  jurats  say  so  several  times. 
—I  am  not  able  to  stand. 

Mr.  Strange,  My  lord  will  give  yoo  the  li- 
beitv  to  repose  yourself  upon  that  stool. 

CoUbrand,  I  remember  one  Medburst  de- 
■ended  his  freedom. 

Lord  Hardwicke,  How  long  ago  was  that? 

CoUbrand,  About  €0  yearsi 

Lord  Hardwicke,    What  passed  upon  that? 

Mr.  Strange,  Was  he  the  son  of  a  freeman  ? 

CoUbrmnd.  Yes.  I  cannot  recollect  what 
te  dispute  was ;  but  they  put  him  by  at  first 

Mr.  Strange,   What  was  the  reason  given  ? 

CoUbramL   I  do  not  know;  1  was  not  b 


Hr.  CUrke,  You  say,  be  demanded  his 
ftecdom ;  Do  you  know  upon  what  right  he 
.^oaandedit? 

Lord  Hardvicke,  How  came  you  to  know 
Ihsl  Medburst  demanded  bis  freedom? 

CoUbrand.  My  uncle  Lovell  was  then  mayor, 
aibeteld  me  so. 

AU,  Gen,  My  lord,  the  witness  speaks  to  a 
laiHlar  custom  only ;  I  submit  it  to  your 
miipy  whether  this  evidence  of  a  particular 


Lord  Hardwicke.  I  think  it  is  evidence  to  a 
iBMral  right,  and  not  to  any  particular  cus* 
M    WGat  did  vour  uncle  Lovell  say  ? 

CdArand,  That  it  was  an  ancient  right, 
iWt  freemen's  eldest  sons  should  be  made  tree. 

Lord  Hardwicke,  How  came  there  to  be  a 
iMa  aboot  this  matter  ?  Did  your  uode  Lo- 
wIleH  yoo  any  thin^  about  it? 

CoUbrand,  He  said,  that  Medbunt  came 
nd  demanded  his  freedom. 

Lord  Hardwicke,  How  did  you  know  after- 
vinb  that  Medburst  was  made  free  ? 

CeUbrand,  Because  I  afterwards  saw  him 
SBODg  the  freemen,  at  the  election  of  one 
•Ibsts  to  be  a  member  of  parliament.  He 
Mod  in  the  election. 

Mr.  Strange.  This  Rainolds  was  old  Rain- 
dU  the  town-clerk,  who  was  admitted  the  37th 
^May,  1662.    He  is  the  15th  man  we  spoke 

8r  r.  Abnev.  My  lord,  the  13th  of  March, 
W4|  this  John  Medburst  was  admitted. — 
«4d  the  entry  of  his  admission,  is  it  a  true 
ifi|y7— Craiu/on«  Yes. 

iaoctsfe  reads: 

,  *  Hsstiugs,  «i.  March  13,  22  Car.  2, 1674. 
tt  ndl  com  then  and  there  bolden,  before  the 
W  mpt  nd  jnimtSi  came  John  Medburst, 


ekieal  son  of  Nwholas  Medburst,  tate  a  freemen 
of  Hastings  aforesaid,  and  prayed  to  be  made, 
free  of  the  liberties  of  this  town  ;  wbereunto  he. 
is  admitted,  took  his  oath,  and  kissed  the 
mayor's  cheek,  more  toliio^  and  paid  6f .  Qd.  to 
the  chamberlain  for  hia  fine." 

Sir  T,  Ahnty,  My  lord,  we  shall  not  trooble 
your  kMrdship  to  give  any  further  evidence. 

Att,  Gen,  May  it  please  your  lordship  and 
you  gentlemen  of  the  jury  ;  I  am  counsel  in 
this  case  with  the  defendants :  and,  notwitli- 
standing  the  long  evidence  you  have  heard,  we 
doubt  not  but  the  defendants  will  make  it  sp- 
pear,  to  your  entire  satLsfiictioii,  that  they  have 
no  other  view  in  defending  this  suit,  but  as  by 
their  oaths  they  are  obliged  to  support  the  an- 
cient rights  of  the  corporation,  and  prevent  in- 
novations there ;  of  which  this  pretended  right 
of  the  plaintiff  will  appear  to  be  one.  •  And, 
gentlemen,  the  single  question  you  are  now  to 
try  is.  Whether  there  be  such  a  right  in  the 
town  and  port  of  Hastbgs,  as  the  plaintiff  haa 
set  fortli  in  the  Mandamus,  as  the  foundatioB 
of  his  claim  to  be  free  of  this  town  and  port, 
which  he  insists  belongs  to  him  ?  And ,  gentle- 
men, as  the  whole  depends  upon  tliis.  Whe- 
ther he  has  proved  the  right  in  the  manner  ha 
has  laid  it  in  the  Mandamus;  it  will  be  proper, 
to  state  the  custom  to  you,  and  then  to  observe, 
how  far  tlie  evidence  that  has  been  given  hj 
the  plaintiff  has  supported  his  right,  as  it  is 
Uid  m  the  Mandamus  ? 

And,  gentlemen,  as  the  plaintiff  has  laid  it, 
four  things  are  necessary  to  give  a  roan  a  right 
to  a  freedom  in  Hastings : 

Ist,  He  must  be  an  eldest  son.  It  is,  *  every 
person,  being  the  eMest  son  of  a  freeman—' 

Sdly,  He  must  be  born  in  the  town.  '  And 
born  within  the  said  town  and  port.' 

3d1y,  It  must  be  after  the  admission  and 
swearing  of  his  father.  For  it  is  said  in  the 
Mandamus  that  the  plaintiff  has  a  right  iu  re- 
spect thereof ;  and  also, 

4thly,  Upon  paying  a  reasonable  fine,  to  be 
admitted  and  sworn  into  the  place  and  office  of 
one  of  the  freemen  of  the  said  tovin  and  port. 

So  that,  gentlemen,  these  four  things  are  set 
forth  in  the  Mandamus,  and,  as  they  allege, 
must  concur,  and  are  necessary  to  give  a  man 
a  right  to  a  freedom  in  Hastings :  for  it  is,  in 
respect  thereof,  and  also  upon  paying  a  reason- 
able fine,  that  he  is  to  be  admitted  anil  sworn 
into  the  place  and  office  of  one  of  the  freemen 
of  the  said  town  and  port. . 

If  therefore,  gentlemen,  any  of  these  four 
things,  which  they  have  laid  as  necessary,  or  if 
one  of  these  things  laid  as  necessary,  they  have 
failed  in  the  proof  of;  for  the  right  they  lay  is 
in  respect  thereof;  my  lord,  I  say,  if  every  one 
of  these  things  are  necessary — ^They  are, 

1st,  That  he  be  the  eldest  stm  of  a  freeman. 

2ndly,  That  he  be  born  after  his  father's 
freedom. 

3dly,  That  he  be  bom  within  this  town. 

And  the  next  qualification  is<|  \v^\k  "^vj'vs^^  % 
I  reasonable  finie. 


867] 


10  GEOftGfi  II. 


Cmc  of  Hennj  Mooftf 


[SS8 


These,  gfontlemen,  are  the  fbor  thlog^  tbey 
have  tbougbt  proper  to  lay  as  neceasary,  \n 
order  to  be  admitted  a  freeman  of  thb  town  and 
port 

And,  my  lord,  I  hanibly  apprehend,  they 
have  i^iYen  no  proof  at  all  of  three  of  them ; 
of  one  of  them  tliey  ha?o  pTen  but  a  Tery 
cligfht  proof;  and  of  one  of  the  facts  every  evi- 
dence they  hare  proiluced  has  given  a  direct 
proof  to  the  contrary. 

And,  my  lord,  there  is  one  thinff  more,  which 
is  absolntely  necessary  in  order  to  lie  free  of  this 
borou([b,  that  they  have  not  taken  in  at  all ; 
and  that  is,  that  he  must  be  resident  within  this 
town ;  and  as  they  have  not  made  that  part  of 
their  custom,  they  mnst  iindoobtedly  fail.  I 
said  before,  that  they  had  not  made  restdenoe 
a  part  of  their  costom ;  and  we  shall  fully  prove 
residence  and  inhabiting;  within  the  town  to  be 
absolutely  necessary,  and  shew  that  they  have 
laid  a  foundation,  hy  their  own  evidence,  that 
this  is  necessary. 

My  lord,  I  would  benf  leave  now  to  consider 
their  evidence  which  has  been  brought  to  sup- 
port this  right  of  the  plaintiff. 

And  the  first  thing  they  have  offered  to  your 
lordship  and  the  jury,  is  a  writincr,  which  they 
Ikre  pleased  to  call  the  CustomaT;  of  which  I 
admit  it  may  be  a  copy,  as  they  have  set  it  out. 
And,  my  lord,  your  lord&hip  hinted,  that  books 
of  this  nature  should  be  read  in  evidence,  be- 
cause the  Court  could  not  sec  whether  it  was 
proper  to  be  read  or  no,  till  they  had  heard  it ; 
which  supposes  (as  I  humbly  apprehend)  that 
we  are  at  liberty  to  object  to  it. 

/Vnd,  my  lord,  1  would  submit  it  to  your 
lordship,  that,  considering  how  it  comes  before 
the  Court,  and  the  part  they  rely  on ;  what 
bad  company  it  keeps,  and  what  it  is  said  to  be, 
only  an  entry  of  a  Customal ;  that  it  is  no  evi- 
dence at  all,  or,  if  it  be  any,  not  of  the  thing 
they  briug  it  to  prove.  They  open  it  as  only 
an  entry  of  some  old  Customal;  and  the  an- 
cienter  it  is,  the  better,  provided  it  had  been  the 
old  Customal ;  but  this  is  not  the  thing  itself, 
hut  only  an  entry  in  the  books  they  produce ; 
and^  it  is  verv  improper  to  have  a  Customal  of 
the  Cinque  Forts  entered  amongst  other  things. 
It  wduld  have  had  great  weight  and  honour, 
had  it  been  kept  in  some  proper  place.  It  does 
not  appear,  but  this  may  have  been  sewrd  in, 
by  the  fraud  of  an  ofiicer  of  the  corporation. 
It  is  not  the  anrJent  instrument,  but  only  a 
copy;  and  it  docs  not  appear  how  it  might 
Cdtiie  there.  I  would  therefore  submit  it  to 
your  lonUhip,  whether,  without  they  give 
an  Account  that  they  have  msde  search  for  the 
original,  this  is  any  evidence  at  all  of  what 
ihoy  bring  it  to  prove  P 

Dut,  gentlemen,  if  it  be  evidence  at  all,  t 
submit  it  to  your  consideration,  that  as  it  is  but 
an  entry,  and  considering  what  coroiuiny  it  is 
found  in,  that  it  can  have  no  weight.  If  it  had 
hern  found  in  an  ancient  corporairan-book, 
amongst  old  entries  and  anthentie  records  (»f 
the  ciiqioration,  it  would  have  oome  befhre  the 
Court  and  you  with  some  autlnn^.   But,  as  it 


if  found  amongst  a  hundred  lueocllueaiu 
things  no  way  relating  to  the  oorporalioo,  co« 
pies  of  leases,  the  resolution  of  the  jodgea  upon 
tiie  statute  of  queen  Elizabeth  relatrng  lo  the 
poor,  amongst  many  misoeihiiieoiM  things; 
and  very  prolNibty  this  might  be  Mw«d  in  the 
middle  of  the  book,  for  it  begins  in  the  SOOth 
page ;  I  isay,  considering  the  company  it  keeps, 
and  the  trifling  thinsv  it  is  foooa  amongsl,  it 
can  have  no  weight ;  I  submit,  it  ia  a  bosk 
that  can  have  no  authority  at  all. 

But,  gentlemen,  if  it  be  any  dridence  ataU ; 
I  submit  it  to  yon,  that  it  can  be  no  evidenee 
of  the  matters  in  dispute.  It  it  not  sakl  to  be 
the Coslomal  of  Hastings:  that,  gentlenien,  we 
shall  read  to  you :  and  though  there  may  W 
some  eencurring  customs  which  relate  to  all 
the  Cinque  Ports  in  general ;  yet,  anIeH  thty 
can  shew  the  same  custom  to  be  in  all  the  rniti, 
a  custom  that  relates  to  the  right  of  all  esa 
have  no  weight  in  this  particuUr  borougb.  To 
have  made  this  evidence,  they  ahouhl  bare 
proved  by  ancient  charters  aud  records,  that 
there  is  a  concurring  right  in  all  the  Cin^ 
Ports  to  the  election  of  freemen. 

But,  gentlennsn,  we  shall  la  v  evidence  before 
you  quite  to  the  contrary.  VVc  shall  shew  yoa 
a  cOjiom  relating  to  eldest  sons  in  other  pOTb, 
quite  liifferent  from  this ;  whereliy  it  wiU  ap- 
pear, there  are  distinct  rights  in  all  the  poitf) 
and  that  it  was  never  pretended  there  was  sm 
uniform  right  amongst  them ;  though  if  tfiii 
Customal  he  evidence,  there  must  be  a  genoil 
right  of  all  the  Ciuqne  Port^,  But,  gentle- 
men, taking  it  as  evidence  of  the  matters  in 
dispute,  even  then  it  is  far  fVom  proving  mostcf 
the  tlHogH  they  have  laid,  and  but  a  ivy  sligkt 
proof  of  what  they  rely  on. 

First,  Here  is  a  negative  implied:  "Ph- 
sunt  Majores  et  Ballivi,  &c."  Af\er  havis; 
set  forth  the  particular  persons  having  a  rigbtt 
it  tfocB  on  and  says,  the  eldest  son  of  a  freemao 
may  be  admitted,  and  that  there  are  three  wtvi 
of  admitting  him : 

**  Possunt  Majores  et  Jurati,  BaHivi  et  Ja- 
rati,  &c.  recipere  et  facere  liberos  triboi 
modis ! 

<'  Uno  modo,  per  Nativitatem.*' 
They    are  qualifications  rather  than  rtghti'. 
Possunt,  &c.    They  may  admit,  and  there  ii 
no  distinction  made  between  the  eMcat  fon  vi 
the  other  sons. 

<*  Alio  modo,  perLib^^lmTenellleDtlnDft^ 

quittit' : 

"  Tertio,  per  Emptioncm." 
Such  a  man  has  no  right;  and  yetthesam 
words  are  used  to  those  who  c«mie  in  hyt 
freehold,  or  by  purchase,  aa  to  those  who  sit 
to  he  made  free  as  eldest  sons ;  and  therefot 
it  is  no  evidence  of  the  right  of  an  ekiest  9ti> 
Docs  it  say,  the  eldest  sons  of  freemen,  bon 
af^er  their  father's  freedom,  or  within  ibis  li- 
berty,  that  they  shall  be  free  ?—^ 

Lord  Hardwicke.  **  Uuo  modo,  per  NUi« 
vitatem  infra  Kbertatem  suam,  ai  pMerMii 
tempore  nativhatb  auta,  fuit  liber. " 

Att.  Gen.    Vy  lord,  I  aik  pardaa;  itt«r« 


SS9] 


upon  a  Quo  tf'arranlo. 


tbc  oUirr  wajr ;  but  I  submit  thai  fl  is  no  eri- 
dcoCB  of  tfae  elthnl  laa.  it  does  not  tuy.  "  |>er 
N>livrtai«nr '  ot'  th*  eliltnt  eou  ;  iC  be  W  any 
CM  bora  alt*r  Iiix  beiiii^  admined  into  ilie  Crcc- 
rtnni,  be  bail  d  like  ri^l  Willi  th*  eUvil  wti. 

lioril  Uarilwirkt.  *■  Per  NktitiUtem  infia 
libntalMti  Dimin  " 

Mr.  airangt.     Williio  liia  rnocbiw. 

I^Hd  Harduitfkt.  1  wMD  ihiukini^,  ifhetber 
il  r*l«tMl  to  ttx  traeilBm  ot'lhe  Taiher. 

Alt.  Cru.  My  lord,  il  is  the  "  LibertBlsm" 
•f  tbe  five  tnittit,  anil  not  of  thiti  particnlBr 
InrM.  Tsldiat;  of  ili«  i;eueral  priillef^of  ilie 
Ciaqu«  fnrtii  i>>  un  iinc«rtiiin  evidence  of  wlml 
|b*y  contend  tat.  My  lord,  it  got&  on,  and,  wi 
far  w  it  in  an  Biitbucity  estahlitbed  in  all  the 
pMli,  il  Mj'B,  He  IB  to  bihf  an  oalh  to  maiutain 
Ih*  hbrrli^B  of  tbe  lire  porlE,  and  specially  uC 
that  port  "  iiU  MKnniarainr.''  It  iDyiibwn, 
^  the  riKiQilBttDn  of  bcinit  tVee,  llmt  residviice 
is  absoluielv  neocHary  ;  he  Muiiot  be  >diniil«d, 


TliiB 


lord,  i 


As  (bundatHin  we  |^  upon,  anil  1  humbly  np- 
pndMnd  \te  shall  «i(ab!iiti  it  by  a  very  oirou^ 

My  lunl,  I  rrclton  that  tbe  351h  Article  idey 
barn  rf».|  eniiicly  ile«troyH  tbe  credit  of  ibis 
hook.  The  «n>r<l«  are,  ■■  Gt  ijailibet  ((audere 
tanrfrnB  libtrtnlera  UuhK)n«  Porluiiin  per 
Cnipliunem,  inrcniel  qiniaor  inaniicajitores  re- 
•imtt*  (Ic  ninnHHii  M  Hineuiii  pnemlu'  iKrim- 
ffcod',"  They  bate  not  sh^ivn  that  ibiB  Ar- 
Mebaseter  been  oitnidied  with:  thi'y  bnta 
nnrr  prviliiced  a  time  that  Bneb  "  Manucap- 
tofn"  liBie  br«n  giyra,  nr  ihni  they  were  eter 
icqmred  of  any  penim  :  aiiO  Iberi'llBn-  it  ap- 
p«*ri,  tbit  tbii  nrelFDded  CuitoniKl  Imb  been 
■Itray*  onpitdeml  as  a  linllad,  aa  I  woiitil  voii- 
(Mcr  II ;  for  th?y  would  hiite  observed  it,  if  il 
Iwl  h^M  tbe  amient  iait :  and  as  they  bc^D 
iHth  (hi*  point.  I  tiuhmii  it  to  ynur  lordabii*, 
Amt  H  shoald  not  he  left  nut  of  tbe  case ;  lie- 
wUf,  ft  Isnroeisary  that  they  be  iteidenl  wiib- 
In  tb«  boruujfh. 

My  hM ,  and  ([enlleinen  of  the  jnry.  ns  to 
the  ef  ideni.'G  that  ha*  been  p^eo  frntn  ine  eti- 
IrieB  rt-ad ;  io  comidering  Ibis  cortiDntinn,  one 
gnera)  obKrvaliun  may  lie  made,  that  they 
■WKTery  weakargvownt,  if  any,  of  what  they 
af«  tfM^bt  to  prove. 

Mjr  MM,  ihe  MiiDdiiiDUS  admit!  a  preierip- 
tim  ;  and  in  makiDg  out  a  cuntom  in  ibe  ciiBe 
«f  a  horoDicb.  they  Bhoiild  (;■*"  '<■  ^idi^oce 
■Mre  aacieni  entriea  ihan  any  of  these  Ihat 
'have  been  reail.  They  hnie  gone  no  fiirllier 
4Mk  llian  leos.  although  in  the  book*  tben; 
JW*  Buch  oltler  entrin.  Ii  may  be  uid  by  the 
nen  of  the  other  »ide,  thai  goinf  back  n 
I  greDt  way  back ;  and  if 


belnr 


;  but 


'luiBitely  for  Ihem,  ^hat  In  tliis 
~  r«  regular  entries,  from  the 
>  this  linie  where  ibry  hove 
bejphi ;  and  tliete  is  no  io- 
irone  clnhnRx;,  or  any  Min/ 
m  rti^i  ot  an  i4de«l  ton  ;  anil 
wck  for  !tO0  ynn  bofure 


A.  D.  nSG.  £890 

ihry  begin;  which,  I  humhiy  ap^trebetid,  will 
be  a  Btiting ubjeeiion  tn  every  entry  they  bav« 
i-cad.  A  iiraaf  from  1608  is  hot  a  sligfal  evi- 
lipnce  of  an  aDcicDl  eiiilorn  :  and  aa  they  bate 

Cved  aooiher  diflerenl  ciislofn,  and  ihere  hi* 
n  an  intermiisioR  for  ao  many  years,  thi* 
applicniion  of  tbe  pUintifTs  ran  ju-oceeil  finia 
nothing  elBe  but  tlie  satne  liiii[iaiii  spirit  thai 
DOW  prevail*  in  ibe  corporaliim.  Prom  1691 
M1716,  they  have  proiloced  do  fuolsle|is  of 
this  right,  for  S5  years  IngeUuT.  Can  il  be  be- 
lieved there  was  any  right,  when  fur  S5  ycara 
tM>  eldest  son  ever  claimed  a  riiflil ;  1  any, 
tvhen  it  appears  nobody  ever  ulniiued  it  during 
that  tune,  or,  it' they  did,  that  tliey  were  re- 
fnaedP  And,  my  lord,  if  they  were  refusod,  it 
ia  a  stronger  evidence. 

Mr.  Slrmgt.  Vou  are  mislakea.  Hr.  At- 
torney ;  there  was  John  Oeery  adinated  the 
SSibofOcintier,  1707,  and  Joliii  llustey  the 
9th   of  Janaary,  1C94 ;  and  we  have  sevetat 

All.  Gen.  My  lord,  they  have  divided  their 
evidence  iulo  three  parts.  In  ilie  Ursl  viaukc 
ibev  have  given  no  evidence 

I'.nnI  Hardtcitke.  That  thin,  time  out  ol 
minri,  baa  been  the  oustoin. 

Alt.  Gen.  My  Inid,  1  wonlil  conaiJer,  botv 
far  their  e*ideooe  nuppoiU  the  ri|{ht  the  ptatii- 
tiff  has  laid  in  the  lUamlainua,  and  h  hat  they 
fanve  proved, 

And,  will)  great  ■ubmimtinn  Io  your  lordship, 
I  mu9l  insist,  that  tbey  Imve  proved  no  more, 
Mian  thnt  eldest  aoni  ol  trvemen  bare  bernud- 
mriiH  for  a  fine  id  fy  ad.  tor  tlie  eniriea  aH 
are,  un  their  praying  to  be  admitted.  Attd,  my 
lord,  it  is  iiu  wonder ;  liir  we  shall  ibew  your 
loriUbip»eTeral  hundred  iDstauuus  of  persona 
who  were  adniittHl  during  the  litne  Ihese  free* 
men  were  admitted,  who  wrre  younger  sona, 
for  their  (ioes  of  Oi.  M.  ouil  they  hate  pro- 
<1uctd  but  14  instaucra  of  eldest  aonsi  thev 
have  shewn  tbey  were  •dmitlcd,  and  proteiil 
the  fine  paid  by  them  to  be  6i  Hd.  >\  e  have 
other  ioBtaiicefl  of  sons  who  pHid  lit.  4d.  And 
t  herefbre  Ibey  might  as  well  ssy,  aincc  Ihere 
ia  proof,  that  evury  body  paying  ISi.  4d.  has 
OB  good  a  right  to  b«  adaiitted  as  the  ehlest 
SOD  ofa  freemni) ;  fir  il  is  upon  paying  1-ti.  id. 
and  tbe  eideat  ion's  admiraion  is  upon  paying 
(It.  Sd.  and  if  it  be  an  argument  of  a  right,  it  m 
a  ri^bt  by  payinif  6i.  Sd.  and  evciy  body,  from 
their  own  aocoonl  of  the  matter,  has  ttie  Mme 
right  for  131.  id. 

My  lord,  in  any  of  the  entries,  there  ic  no  di»- 
tiDciiua  made  in  ibu  arfniisnoii  between  Ui« 
■ooa  and  others ;  tbey  all  oome  and  pray  Io  be 
admilted ;  aumxtiiues  it  i«  n|Hin  makiag  it  ihek 
humble  reiiueH,  flnmeiinies  upon  their  eanwal- 
ly  beseeching,  that  they  ar«  to  be  made  ft«a. 
Thoy  all  ask  to  UiewiiDe  laannnr,  wlietlier 
thny  an  sons  or  no,  and  are  matte  Iree ;  Mid 
Iherelbre,  ou  ibcirnivnunlrHa,  it  apneoralu  be 
afarourifrantml  lo  eldest  son*  ••  welt  as  otfarra, 
n|H>n  their  atkinf  that  ikey  might  have  it  ; 
■nd  Iheretore  they  nrc  indulged  with  a  laMtr 
(inc.    Tbey  r«ly  much  ou  lfa«  liiiti  of  4lv4|^' 


Sgi]  10  GEORGE  U. 

huU  if  it  proves  any  ibinsr,  it  is  (as  I  liambly 
apprehend)  an  ar{|umenta(;ainst  them. 

My  lord,  in  tlie  next  place,  they  haf  e  laid 
the  custom  to  be,  That  this  eldest  son  be  bom 
within  the  town,  after  the  admission  and  swear- 
ing oFhis  father ;  then  it  is  that  the  son  is  to  be 
admitted.  But  1  do  nut  remember  that  any 
one  of  their  witnesses  has  confined  it  to  this 
(I  ask  imrdoii  if  I  liave  foi^ot) ;  but  they  said, 
some  of  them  expressly,  that  the  being*  born 
after  the  father's  admission,  or  within  the  town 
of  Hastings,  or  out,  made  no  difference.  But 
they  hufe  endeavoured  to  supply  this  from 
their  entries,  by  saying,  that  they  arc  men- 
tioned in  the  entries  as  eldest  sons,  and  there- 
fore they  were  admitted  fur  6s,  Sd, :  But  Uiis 
infers  nothing. 

Gentlemen,  we  cliall  shew  you,  both  by 
entries  and  Jiving  witnesses,  that  there  has 
been  no  distinction  made  between  the  eldest 
tons  and  other  sons.  It  was  no  indulgence 
therefore  to  them  ;  but  the  same  to  the  other 
sons  of  freemen  as  well  as  the  eldest. 

And,  my  lord,  we  have  many  entries  in  the 
books,  where  only  the  sons  of  freemen  are 
mentioned,  without  taking  any  notice  ef  the 
eldest ;  which  i'ully  proves,  that,  if  the  point 
rested  upon  their  bleiug  eldest  sons,  and  born 
within  the  borough,  alter  the  admbsion  and 
•wearing  of  the  iatiiers,  they  would  have  been 
particularly  entered  so  in  the  books,  and  is 
a  strong  presumptive  evidence  against  this  pre- 
tended right  of  the  plaintiff. 

Aiy  lord,  we  have  some  instiinces  where 
they  are  called  the  youngest  sons,  and  were 
admitted  for  their  fines  of  6s.  Qd,  upon  their 
coming  and  humbly  praying  that  they  might 
he  admitted  into  the  franchise  of  this  town. 
That  therefore  being  added,  strongly  shews, 
jLhat  they  had  no  regard  at  all  to  what  the  gen- 
tlemen of  the  other  side  principally  contend  for, 
the  right  of  eldest  sons. 

Besides  this,  gentlemen,  we  shall  produce 
to  ^ou  many  living  witnesses,  very  old  ones, 
who  will  prove  to  you,  that  the  mayor  and 
jurats  (the  charter  ticLng  silent  in  this  matter) 
bave  time  out  of  mind  admitted  persons  at  their 
pleasure,  and  this  has  been  the  ancient  custom. 

And,  gentlemen,  as  their  entries  go  no  fur* 
ther  hack  than  1008,  so  their  living  witnesses 
^0  not  make  it  a  jot  the  better.  They  do  not 
say  there  is  a  right  in  this  borougn,  in  one 
instance,  of  their  own  knowledge ;  they  do  not 
say  a  word  of  any  distinction,  whether  they 
are  born  after  the  admission  and  swearing  of 
the  father,  or  within  the  borough  ;  and  one  of 
them  expressly  contradicts  it.  The  evidence 
they  have  given  is  nothing  but  a  tittle-tattle 
discourse  of  what  they  have  heard,  that  the 
eldest  sons  of  freemen  had  a  right. 

Therefore,  gentlemen,  as  to  the  point  in 
question,  as  they  have  entirely  failed  in  their 
entries,  and  us  the  living  witnesses  they  have 
brought  to  support  it  say  little  or  nothing  to 
tlie  nurpose,-— one  of  them  says,  when  he  de- 
tircu  his  freedom  liimseify  the  town  clerk  an- 
nrarwl  the  mayor,  Sir,  yoa  may  do  u  you 


Case  of  Henry  Moore^ 


im 


please.  He  did  not  ask  him,  whether  be  was 
bom  within  the  town,  or  atler  his  fatJier  became 
free,  and  mentions  a  fact  strong  to  the  contrary. 
And,  as  some  of  their  evidence  cooaes  down  so 
low  as  1729,  one  of  them  tells  you,  that  nhea 
one  was  made  a  justice  of  peace,  the  eldest 
son  of  a  fi-eeman  came  to  the  court,  and  de- 
manded his  freedom,  and  was  absolutely  re- 
fused ;  and  that  he  did  it  nine  years  ago,  soma 
of  them  say  aliout  twelve.  So  Uiat,  gentlemeot 
their  living  witnesses  give  but  a  slight  evidence 
of  one  part  of  their  custom  ;  and  as  to  the  other 
part  they  have  given  no  evidence  at  alL  But  w« 
nave  many  old  witnesses,  %vho  will  give  voar 
lordship  and  the  jury  no  wrong  views  of  the 
manner  of  admitting  freemen. 

My  lord,  we  shall  begin  with  the  Customil, 
which  is  said  in  the  title  to  be  the  Cuttomtlsf 
this  town;  where  the  fullest  directions  are 
given  as  to  the  manner  of  electing  freeneB, 
and  yet  there  is  not  a  word  said  of  the  right  sf 
the  eldest  son. 

We  shall  then,  by  reading  many  entries  oat 
of  the  corporation -hooks,  shew,  that  no  notiet 
at  all  has  been  taken  of  eldest  sons,  in  distine- 
tiou  to  other  sons ;  but  that  they  have  all  been 
admitted  promiscuously. 

And  then  1  shall  trouble  your  lordsliip  to  ny 
no  more;  but  call  our  living  witnesaea,  wlio 
will  fully  prove  to  your  lordship  and  the  jury, 
that  the  mayor  and  jurats  have,  time  out  of 
mind,  admitted  freemen  at  their  pleasure;  and 
that,  besides  being  the  eldest  lOD  of  a  five- 
man,  and  bom  wilnin  the  town  after  the  ad- 
mission and  swearing  of  the  father,  be  has  i 
right  in  respect  thereof,  but  it  must  be  on  ano- 
ther condition,  as  necessary  as  any  of  the  former, 
upon  paying  a  certain  fine.  The  Mandaniw 
goes  on  and  says.  And  also  upon  paying  a  rea- 
sonable fine ;  and  the  writ  commands  the 
mayor  and  jurats  to  admit  him  upon  payings 
reasonable  fine.  So  that,  my  lord,  1  Ukeil, 
by  the  writ,  that  fine  is  to  be  as  ooccssary 
in  order  to  the  person's  being  admitted,  as  any 
of  the  other  qnalifications  mentioned  in  the 
Mandamus:  And,  my  lord,  1  humbly  appre- 
hend, they  have  proved  it  a  certain  fine,  in^eid 
of  a  reasonable  fine. 

My  lord,  a  copyholder  lays  a  custom,  to  be 
admitted  to  copyhold  lands  upon  paying  a  rea- 
sonable fine :  It',  upon  the  proof,  it  comes  ont 
to  be  a  certain  fine,  he  must  undoubtedly  fail ; 
for  in  copyholds  there  is  a  known  distinctioa 
between  a  reasonable  fine  and  a  fine  certain. 

And,  my  lord,  I  humbly  apprehend,  that,  in 
point  of  Uiw,  cases  of  copyholders  are  parallel 
with  the  present. 

There  is  as  much  a  distinction  between  a  fine 
certain  and  a  reasonable  fine  in  the  present 
case,  as  in  the  case  of  a  copyhold. 

My  lord,  they  have  fully  proved  6f.  8i<.  to  bt 
constantly  paid,  which  is  a  certain  fine,  upoa 
every  admission  of  an  eldest  son.  The  mayor 
cannot  contend ;  if  they  offer  that  fine,  tncj 
have  a  riffht  to  be  admitted.    They  therefon 

have  fail^  in  this  point  \  it  it  not  a *^^ 

but  a  certain  fine. 


tSS] 


upm  a  Quo  jyamttdo. 


A.  D.  17SI- 


Uy  )drd,  ID  llie  atxt  ptace,  we  ihall  Mlleri- ' 
deuce  to  prove,  that,  trilhout  resilience  irilhiii 
Um  bnrouKli,  no  onecancTet  be  admilleil  a 
fraeawii  ol  this  lonn  and  pari :  anil  1  lake  this, 
my  loril,  to  be  a  general  rule  in  most  curpors- 
tioas ;  It  being  unreasooattc  thai  any  man, 
who  jots  not  reside  iu  tlie  boroii([b  o>  nhicb 
ba  i*  free,  sbouIiJ  have  a  shtie  in  coDiluclins; 
Ilia  aflrairs  of  that  Imrough.  AdiI  altbougE 
ibc  cbarteT  19  silent  lo  this  affair,  yel,  my  lorit, 
hMide*  the  geaersl  rcaaoa  of  the  ibiag,  we 
iball  Kliew  vDur  loriliihip  and  the  jury  a  by- 
inr  made  •fiOTe  ti>o  buixlrei)  years  ago,  by 
wUcb  it  UttectareJ,  that  if  any  uoeRho  was  a 
freeman  removed  out  of  the  borough,  aiul 
■boiilil  dwell  out  o(  llie  towu,  bqcIi  freeman  lost 
■U  hi*  rif[ht.  ApJ  we  sliall  prove  by  several 
aaaeai  living  wilncsses,  that  residence  within 
the  borough  was  always  necessary,  aud  tlial 
Ihii  ban  been  ihe  coastant  usage. 

tiy  lurd.  upon  ibe  whole  circumslaDcex  of 
dlia  cue,  we  heg  leave  to  insist,  that  they  hate 
Ml  proved  ibree  parts  of  the  custom,  as  lliey 
.  b^c  laid  it  in  ibe  Mandamus }  and  lbal,aBlo 
At  liiurth  part,  they  bare  proved  directly 
,A>  Contrvf  :  and  llierelbrr,  gentlemen,  we 
boM  yon  will  find  a  verdict  liir  the  defcuilauls. 

Stfj.  SkinBtr.  Uav  it  please  your  lordship, 
and  you  geuilenien  of  the  Jury :  1  am  also  of 
couiuel  with  the  defendants:    and  Mr.  Atior- 


to  you  l>y  the  gentlemen  of  the  Other  siile,  as 
.  w<Ji  u  in  stating  the  cvideoce  vre  are  to  lay  b«- 
fecc  jou,  that  I  need  say  lillle. — 

Lord  Hardaicke.  Yon  are  not  going  to  slay, 
Mr.  Strange,  I  hope:  we  are  now  coming  to 
a  meter iai  part. 

ScTJ.  Skinnrr.  My  lord,  the  right  the  plaia- 
fiff  has  laid  in  the  fllandnmus  is,  tbat  every 
m,  being  the  eldest  son  ol  a  freenisn,  born 
■  Um  town,  after  the  admission  and  swear- 
irWi  ftlber  u>io  the  office  of  freeman,  has 
1)  in  ramect  thereof,  and  alau  upon  pay- 
KaMDaule  iine,  to  be  made  tree  :  end 
K  bat*  endeavoured  to  prove  this  riglii, 
T  )|y  producing  an  old  book,  called  the 
— 1,  as  an  evidenco  of  tbis  right:  but  it 
IS  BUlliority  ;  it  has  no  dale  ;  and 
~H,  Ibey  say,  is  an  evidence  of  its  antiquity, 
bol  nilhout  toy  foniidatioD  from  the  book: 
dWK  are  several  entries  entered  pi  iur  to  it  j  it 
ll  sot  paged  regularly  ;  it  is  Id  ilic  middle  of 
die  boob,  and  yet  it  is  marked  ful.  1.  And 
If  we  liwk  into  the  thing  itself,  it  tel1«  us  there 
•ft  Ibrce  ways  of  makmgJVce,  viz.  by  birth, 
if  bam  within  tlic  town,  aud  after  the  swearing 
end  •dmimi'in  of  the  father ;  b^  the  ')inrchnse 
«r  a  frra:bold  ;  and  by  redemption. 

My  lord,  they  have  shewn  some  instances 
aflbe  fint;  hut  as  to  the  second,  they  bate 
ihewn  no  purcboscr  ufa  freehold  that  ever  was 
^^1*-  Awe  i  aud  we  shitll  prove  itiaiiy  persons 
Mthz  in  the  town  that  bavo  frcehulds,  that 
J**«r  wncsiaile  Oee. 

^^Rm  next  eridetice  tbey  have  given  is  from 
~  '  V  (pf  suss,  wbo  liaiebMn  made  free  as 


tSM 

COM  orrreemeii ;  and  this  tliey  wonid  have  ua 
take  BSD  proofof  ihei'usloiD. nTarighliiilh* 
eldest  son,  born  aflHr  tlie  tVeedoui  of  the  father, 
Iv  be  made  free :  for  they  say,  it  is  in  respeM 
ibemof ;  that  he  must  lie  the  son  of  a  l>«eiuai)w 
aud  horn  after  bis  failirr  was  made  free.  And 
all  the  instances  they  have  produced  of  tliis 
BioooDt  to  no  more,  tlian  tlist  such  a  une  was 
admltteil,  being  the  eldest  son  of  a  frcoiuau, 
not  because  he  was  an  eldest  son,  and  born 
after  bis  taihor  was  made  free. 

My  lord,  they  have  produced  copiea  taken 
out  ol  the  register- books  in  tlastiags,  by  whicb 
i(  appears,  when  these  ions  were  baptized  :  but 
itiBnotgirenasateasoaiu  any  of  these  entriaa, 
tbat  he  was  admitted  into  the  Irecduai,  becauaa 
he  was  born  there;  though,  in  fact,  it  might 
be  so,  and  that  is  the  right  they  coDlead  for. 

Hy  lord,  I  submit  It  to  your  lordship,  tbat, 
ns  to  the  fine,  uulbing  conclusive  can  be  drawa 
from  thence,  that  there  i<i  an*  right  in  Iba 
eldest  SOD  of  a  freeman.  The  Oae  paid  bv  him 
isUt,  8J.  'quia  pater  suua  liber  est;'  uiatia 
the  reason.  Ho;  he  is  not  adiiiilted  Into  tha 
Trredum  because  his  father  was  a  freeman  ; 
but  lie  is  ad^iiiled  for  6t.  8d.  aot  because  hia 
ftaher  was  a  frceniao.    Thix  tliercrore  does 


they  read,  James  Lasher,  among  alt  Uieentries, 
was  admitted  upon  any  other  terms  Ihanhia 
humhlu  peiilion  and  prayer  to  be  made  free. 
He,  indeed,  instantly  required  the  freedom, 
and  by  the  consent  of  all  he  was  admitted.  In 
all  the  other  iiislooces  it  is  said,  at  his  humble 
request  and  desire  he  is  ailmilled  :  nnhody  in* 
sitted  on,  or  demanded  ibis  tighl. 

My  lord,  as  tiiey  bite  laid  the  right,  there. 
is  a  fiirllier  qualification  necessary,  viz.  oa 
paymeut  of  a  reasonable  fiue :  and  I  submit  it 
to  your  lordship,  that  they  have  proved  it  a 
line  certain  ;  anil  that  therefore  nothing  is  leQ 
to  the  mayor  and  jursta  iu  this  affair,  but  la 
ad  mil  the  ]>erB0nupon  paying  Qi.  Sd.  andclamt- 
ing  his  freedom. 

But,  my  lord,  we  lay,  a  furl  her  qualificatioa 
is  shsoliilely  necessary,  and  thst  is  residence : 
and  thi»  appears  from  an  entry  in  tbis  very 
C'lislamal  lliey  hove  produced.  And,  tny  lord. 
nobody  is  ever  admitted,  but  nn  taking  an  oaili 
10  observe  tlie  si atities.  nrdem,  and  by-laws  of 
the  borough  vhi  ciwiiioralvr  ;  and  iherefbra 
the  person  admitlol  into  the  treedoui  must  be 
comiiiorant  In  the  place  of  w  hirh  he  is  fre^ 
And,  my  lord,  by  a  by  law  of  tbe  19th  of 
April,  the'lStli  of  queen  Elizabeth,  they  were 
not  only  to  be  comiiioraul,  but  to  continue  to 
live  there;  and  ifany  one  admitted  «ent end 
lived  nut  of  the  town  a  year  and  o  day,  he  «  a* 
(o  be  excluded  from  any  privilege  or  freedom 
within  that  borough:  and  this  by-law  baa 
been  contiantlv  oMerved ;  aud  yet,  tny  lord, 
the  plainlilT  Aloore,  tliey  do  not  «o  much  ss 
vrelend  that  he  js  resident  within  tbis  borough. 
We  contend  not,  whether  the  sons  of  freemen 
are  intituled  to  I'reedums ;  but  we  any,  that 
freemen's  ions  and  foreigners  arc  in  the  lamf 


8993 


10  GEORGE  II. 


Cau  ofHenrjf  Moore, 


[9W 


be  read.— Read  the  entr>'  of  John  Hall,  ad- 
luiited  for  a  fine  of  20t. 

Ix>rd  Hardiiicie.  Don't  go  into  the  reply, 
before  tliey  are  i^une  thniucirli  ihedtftriire. 

Att,  Gen.  What  hr  >l.  i*.  ihat? 

Crantton.  O.'itfofthe  (or|»oratiori  l>ook8. 

Ait.  Gta,  Yuu  ha'!  It  \rr,\n  the  f>WD- clerk, 
from  amonif  liie  reconin  ot  the  iuv«  n  ? 

C'unston.  Yes. 

Mr.  Manh,  What  i>ook  is  that,  Mr.  At- 
torney ? 

Alt.  Gen.  It  ia  the  Custom al  of  Hastings; 
that  \&  -i  trtansldtinn. 

Mr.  Marsh.  Wlial  lansruacfeis  it  in  ? 

Ait.  Gen.  It  ia  in  ul.!  French. 

Mr.  Strange.  Tiiat  bound  up  with  ours  is  a 
tran»»Iation,  and  thai  you  say  is  the  original. 

Att.  Gen.  I  Mieve  so. 

Mr.  Strange.  (Luuksupon  it.)  ThisCustnmal 
is  fiilse. 

Alt.  Gen,  It  is  a  translatiuB,  and  may  be 
wrong  translated. 

Mr.  Strange.  We*ll  see  that 

Att.  Gen,  Read  it. 

Blr.  Ho/»f^itrpads-*(ThecopyiooId  French.) 
'*  The  nNu<;e  of  Hahliii(j^  time  out  of  miud — 
<*  Die  Maii,aono  HO  Klizae— 

Aft.  Gen.  Read  that  relating  to  the  making 
of  a  freeman. 

Mr.  Holmes  redLiin: 

'*  If  a  foreigner  resides  in  Hastings  for  a  year ' 
and  a  day,  he  may  come  befurc  the  bui'itf  and 
jurats,  and  be  admitted  to  the  freedom  upon 
taking  an  oath.'* 

Att.  Cen.  In  order  to  he  admitted  a  freeman, 
be  is  to  8iay  u  year  and  a  day. 

Serj.  Ej^re.  Have  y<iii  hniked  o?er  that  book, 
Mr.  Holmes?— Mr.  Ilolmes.  Yes. 

8t'rj.  Kifrc.  in  order  to  be  u  freeman,  be  is 
toc(»mo  and  res»ide  a  ycar'nnd  ^ly  ;  and  it'  he 
be  of  a  good  conversulioo,  then  he  is  to  he  ad- 
mitleil. 

Serj.  Kyre,  Is  there  any  o:her  custom  in 
thut  litMik  relating  to  making  of  fteeinen  t 

Holmes.  No. 

Serj.  Eifre.  Read  the  entry  of  the  3(ith  £d< 
ward  3. 

Associate  reads : 

**  Memorandum,  quod  in  pleno  hundredo 
tent'  apud  Hastings,  viz.  die  liominica  prox* 
ante  festum  .Annunt*  beats  Marite,  anno  regni 
Regift  Edwardi  3tii  k  Con(f  36to,  ct)ram  BalP 
€1  tot*  Communitat*,  Williehiius  de  Bourn,  et 
Johannes  HP  «jus,  recep*  sunt  ad  libertat*  de 
Hastings,  ct  dederunt  commuuitat'  unam  pipam 
Tini,  de  quo  satisfec'.*' 

Lord  Hardtvicke.  That  is  the  admission  of 
particular  persons.  Is  there  any  fine  in  that 
admission  f 

8eij  Ej/re.  A  pipe  of  wine,  my  lord. 

Att.  Gtn.  We  shall  shew,  niy  lord,  a  con- 
curreut  proof  of  Gf.  nd.  paid  as  a  line  certain. 

LMd  Hardwkke,  Can  you  shew  any  admis- 
tioiis  of  per«>na  who  wer«  eldest  iou«|  nitbout 
paying  any  fioe  at  all  ?     * 


Att.  Gen.  Mv  lord,  it  ii  improper  to  call 
such  an  one  au  eldest  son,  if  the  fatlier  had  no 
other  St  n. 

L«  I .!  Hardwicke.  There  two  pertoos  were 
admitted :  !iui  in  that  entry  uekber  is  mention- 
ed to  be  the  son  cf  a  freeman. 

Att.  Gen.  It  is  for  a  pipe  of  nine;  that,  id  j 
Irrd,  '8  one  of  the  "ii^hts  ihey  admit  upon.— 
Hi.'ad  the  adntissi'''.!  id*  William  Oibdeo,  fbl 
147.  He  \«as  bdnutifj  the  7tb  of  May,  the 
7ih  of  James  the  ist. 

Associate  iru(\»: 

**  Hastli.gs,  M.  Ad  fts^^MiDllat'  tent'  ibidem 
7^  die  Maii,  7'  Jacobi  Re$:i8 primi,  Gtdielaoi 
Cobden  admi^sua  est  ad  lihertatem  huj'.is  vUbo^ 
et  sacramentum  suum  more  solito  pne&titit,  ct 
osculatus  est  malain  deztram  Mujorii  secoa- 
dum  usum,  pro  fine  suo ;  (}uia  filiui  liberi  ho- 


» 


mmis. 

m 

I/>rd  Hardvickc.  Tlie  Ciiftomal  of  the  6fe 
ports  does  not  fix  what  the  fine  shall  be. 

Mr.  Strange.  My  lord,  proving  that  all  Uie 
sons  are  admitted,  is  proving  that  the  eldeft 
son  is  admitted. 

Lord  Hardwicke.  You  have  laid  it  *  hi  re- 
spect thereof,*  which  you  need  not  have  dooe. 
I  cannot  imagine  wliy  it  was  laid  so,  *  in  respect 
thereof.* 

Serj.  iv:yre.  Turn  to  fol.  147.  Read  the  ad- 
mission o)  John  8and,  the  14th  of  July,  the  8ik 
of  James  the  Isl. 

Associate  reads : 

''  Hastings,  *s.  14  Julii,  8  Jac.  1,  in  pleoi 
Curia  venit  Johannes  Sand,  et  (»eiit  libertdtrm 
hujus  vitlue,  ct  ad  missus  est  ad  hbertatem,  qutf 
paier  suns  liber  erat,  et  sol*  6<.  8</.  et  fecit  iu«Ie 
sacramentum,  et  oscular  it  malam  daxtram  Ma« 
joris  more  solito.** 

Mr.  Strange.  We  may  admit  many  of  thfie 
entri'*8,  Mr.  Attorney,  if  you  will  tell  6s  (of 
what  purpose  you  read  your  entries  ufer  a^n. 

Att.  Gen.  These  were  admitted  as  toai of 
freemen.  We  read  them,  to  sl>cw  a  differfot 
cubtom  from  what  you  have  laid.-^Read  Na- 
thaniel Lasher  the  son.  He  was  admiitedt 
'  quia  filius  hberi  hominis.'    Turn  to  fol.  17^ 

Associate  reads: 

*«  Hastings,  ss.  1613,  11  Jac.  1,  SdMartTi, 
hoc  amWy  came  Nathaniel  Lasher,  son  oi'HtDH 
Lasher,  jurat,  before  Mr.  Mayor  and  bis  bi«- 
thren,  and  prayed  lo  be  admitted  to  the  liberty 
and  freedom  of  this  town  ;  and  was  admiUcSi 
sworn,  kissed  the  right  cheek  of  Mr.  Mayor, 
'  more  solito,  pro  fine  6s.  3d.  quia  filius  Ubcn 
*  bominis,*  *'  ic 

Att.  Gen.    Turn  to  fol.  179.    Read  JoU 

Isted. 

Associate  reads  r 

*'  Hastinifs,  ss.  1614.  *  Dccimo  qaarto  di* 
'  hoc  anno,'  came  John  Isted,  and  enxfd 
to  lie  admitted  to  the  lilierty  and  freedooi  if 
this  town ;  and  by  Mr.  Mayor  and  hiabralhitf 
was  admitud,  tod  aworD,  and  kand  tht  f^ 


901] 


vpon  a  Quo  Warranto* 


A.D.  1736. 


[902 


cbeekof  Air.  Mayor,  '  moresolito,  pro  fine  6s, 
«  8dL  doaUxat,  qma  filliis  est  liberi  huiniois  hu- 

•jus  Tlllffi.'  " 

Lord  Hardwicke.  Wbst  meD  do  yoa  admit 
Aere? 

Att,  Gen,  My  lord,  we  admit  mf»n  as  the 
•OM  of  flreenieD,  and  that  pay  6s.  Bd. — Sow 
lead  the  entry  of  the  3  Ist  of  March,  1688,  of 
Ike  admission  of  James  Batcher,  jun. 

Serj.  Byre.  James  Batcher,  jan.  son  of  bis 
6tber. 

'  Hr.  Strange.    That  is  just  the  same  as  you 
md  before. 

8erj.  Skinner.  Read  William  Lot eUL 
'  8ir  T.  Abney.  We  read  that. 

.  JiKicMi/e  reads: 

"  Hastings,  IS.  March  31,  1638,  14  Car.  1. 
Atthiscourt,Jame4  Batcher,  jun.  son  of  his 
fiitber,  a  freeman,  is  now  made  also  free,  for  his 
fine  of  6<.  Sii.  took  his  oath,  and  kijsed  the 
Bsyor's  right  cheek,  more  soUto^^*  &c. 

8eij.  Skinner.  1  beliere  we  must  trouble  the 
4octor  once  more. 

Att.  Cen.  Mr.  Carlton,  you  told  me  you 
ftid  lifed  all  your  time  in  Hastings,  except 
iboat  fourteen  years ;  you  say  vou  have  been 
it  their  elections ;  pray,  who  nas  the  right 
Is  be  elected  a  freeman  of  this  borough  durmg 
joor  time  ? 

Carlton.  Those  whom  the  mayor  and  jurats 
pletse. 

Att.  Gen.  Has  not  the  eldest  son  of  a  free- 
MB  a  right  to  be  admitted  ? 

Cariton.  No ;  if  there  had  l>ocn  such  a  cus- 
tBi,U  would  never  have  been  denied. 

Att.  Gen.  Did  you  ever  know  any  body, 
Ikitwas  an  eldest  son,  insist  on  this  right? 

Carlton.  Yes;  one  Everoden  insisted  on  it, 
iidwasrefuse<l. 

Att.  Gen.  How  long  is  that  ago  ? 

Carlton.  It  was  l^fore  1  was  a  freeman, 
iboat  35  years  ago. 

Att.  Gen.  So  you  sny  Evernden  demanded 
bit  freedom,  and  was  denied ;  Oo  you  know 
tUiof  your  own  knowledge? 

Carlton.  1  have  heard  it,  but  do  not  know  it. 

Att.  Gen.  Who  have  you  heard  it  spoke  by  ? 
An  the  persons  dead  or  living  ? 

Carlton.  I  have  heard  it  by  some  persons 
iriag. 

Ait.  Gen,  Was  it  the  general  reputation  in 
tbetowB,  that  this  Evernden  had  no  right? 

Carbon.  Yes ;  he  was  looketf  on  as  an  im- 
pdeat  fellow,  for  coming  and  demanding  it. 

Alt.  Gen.  Did  you  ever  know  any  body  ad- 
mitted upon  this  right  ? — Carlton,  No. 
.  Att,  Gen.  Howlong  have  you  been  a  jurat? 

Carlton,  Ever  since  the  year  1701. 

Att,  Gen,  That  is  35  years  ago.  Did  ever 
(Bj  body  before  this  Evernden  come  and  de- 
tad  to  be  admitted  as  an  eldest  son  ? 

Carlton.  I  do  not  know  any  one. 

8^.  Farker.    Suppose  the  eldetit  son  of  a 

^Man  apply  to  the  mayor  and  jurats  to  be 

•od  they  think  fit  to  admit  him ; 


how. do  the  corporation  proceed  on  that  occa- 
sion? 

Carlton.  They  apply  to  the  mayor  and  jurats 
separately  at  their  liouses,  and  ask  that  favour 
of  them  ;  and  if  they  consent,  then  they  come 
to  the  court-hall,  and  ask  it  of  tbeni  again. 

Serj.  Parker.  What  follows  upon  that? 

Carlton.  Then  the  mayor  asks  the  gentle- 
men, if  they  consent,  and  are  satisGed,  and 
whether  they  are  willing  the  person  should  be 
made  free ;  and  then  they  put  it  to  the  vote. 

Serj.  Parker.  Do  tliey  make  any  distinction 
between  the  eldest  and  youngest  sons  ? 

Carlton.  No ;  the  majorii}*  determines  whe- 
ther the  man  shall  be  made  free  or  no. 

Serj.  Eyre.  If  any  other  person  applies  to 
be  made  free  who  \n  not  a  son,  what  steps  da 
they  take  then  ? — Carlton.  Ju^t  the  same. 

Serj.  Eyre.  You  are  the  eldest  son  of  a  free- 
man, are  you  ? 

Carlton,  Yes;  butnot  born  within  tlie  town. 

Sir  T.  Abnty.  Mr.  Carlton,  did  you  know 
John  Geery  ? — Carlton.  Yes. 

Sir  T,  Abney,  Was  not  he  admitted  to  the 
freedom  in  your  time  ? — Carlton.    Yes. 

Sir  T.  Abney.  Was  not  he  the  eldest  son  of 
a  freeman? — Carlf.on,  Yes. 

Sir  T.  Abney.  Did  you  know  John  Oliver, 
John  Chambers,  Benjamin  Stevens,  Philip 
Stevenstin,  William  Shorter,  and  Jacob  Fant- 
icy  ? — Carltoji,    Yes. 

Sir  T.  Abney.  Have  not  all  these  persons 
been  ailmitted  in  your  time,  as  eldest  sons  ? 

Carlton.  Not  because  they  were  eldest  sons, 
but  because  the  mayor  and  jurats  thought '  tit 
to  admit  them. 

Sir  T.  Abne^.  You  said  you  did  not  know, 
but  you  believed  Evernden  was  refused  ;  pray, 
do  you  believe  or  fancy  any  other  person,  who 
was  an  eldest  son,  was  ever  refused  ? 

Mr.  Strange,  Do  you  remember  Boy kett  the 
dissenter,  that  applied  to  be  admitted  to  his 
free<lom  ? — Carlton,  No. 

Mr.  Strange.  Do  you  know  no  enquiry 
made  by  the  town  clerk,  whether  he  was  the 
son  of  a  freeman,  or  not  ?-^Carlton.  No. 

Mr.  Strange,  And  u|)on  admitting  freemen, 
you  say,  that  is  the  only  (piestiun  put  by  the 
mayor,  Gentlemen,  are  you  satisfied  ?  and  if 
any  ol)jects,  he  puts  it  to  the  vote  ? 

Carlton.   Yes. 

Mr.  Munh.  Do  you  remember  Tho.  Lovell  ? 

Carlton.  Yes ;  he  was  mayor  several  times. 

Mr.  Marsh,  l^o  you  remember  Mr.  Waller, 
the  town  clerk? — Carlton.  Yes. 

Mr.  Marsh,  How  long  is  it  since  he  was 
town  clerk  ? 

Carlton.  Since  1  was  upon  the  liench. 

Mr.  Clarke,  Do  you  remember  nothing  ot 
Boykett  ?—Car/<o«.  No. 

5lr.  Clarke.    Nothing  of  his  being  refused  ? 

Carlton.  No. 

Mr  Clarke.  Call  Robert  Bartho'omew  again* 
(H^  not  appearing.) 

Mark  Bay  ley  sworn. 

I^Ir.  Marsh.  Are  yoa  a  ftt^^m-wi^ 


90S]  10  GEORGE  II. 

Batfley,  I  was  one,  and  am  disfranchised. 

Her).  Skinner,  How  long  have  you  known 
Hastings? — Bay  ley,  £?  er  since  I  was  bora. 

Serj.  Parker.  How  old  are  you  ? 

BayUy,  I  am  76  years  old. 

Att.  Gen.  How  long  hare  you  lived  there  ? 

Bayley.  I  have  lived  there  all  m^  time. 

herj.  Skinner.  You  ha?e  been  a  jurat  there, 
ba?e  not  yon  ? 

^y^y*   Yes,  six  or  seven  years. 

Att.  Gen,  How  do  you  make  freemen  f 

Bayley.  You  must  apply  to  the  mayor  and 
jurats,  and  desire  that  they  would  please  to  let 
you  be  made  free. 

Serj.  Skinner,  Suppose  I  was  the  eldest  son 
of  a  freeman,  might  I  come  and  demand  to  be 
free? 

Bayley.  No ;  there  is  no  such  thing  as  de- 
manding it  without  the  consent  of  the  mayor 
and  jurats. 

Serj.  Parker,  When  you  come  before  the 
mayor  and  jurats,  does  the  mayor  put  the  ques- 
tion, whether  the  person  shall  oe  admitted, 
or  no?    , 

Bayley.  He  says,  that  such  a  man  desires  to 
be  made  free,  if  you  think  fit  of  it. 
-  Serj.  Parker.  The  eldest  son  can  demand  it, 
if  he  thinks  fit,  cannot  he? 

Bayley.  No,  no ;  we  have  nothing  at  all  of 
an  eldest  son. 

Sir  T.  Abney,  Are  not  you  the  eldest  son  of 
a  freeman  ? — Bayley.  No. 

Sir  T.  Abney,  How  long  have  you  been  a 
jurat  ? — Bay  ley.  Six  or  seven  years. 

Sir  T.  Abney.  How  long  have  you  been  a 
freeman  ? — Bayley.  48  years  clear. 

Sir  T.  Abney.    What  profession  are  you  of? 

Bayley.  lama  seaman. 

Sir  T.  Abney,  Pray,  Mr.  Bayley,  were  you 
always  resident  in  the  borough  ?  Did  you  live 
there  all  your  life  ? — Bayley.  Yes. 

Sir  T.  Abney.  What,  when  yon  were  at  sea  ? 

Bayley.  No,  but  at  all  times  when  1  was  not 
at  sea. 

Thomas  Caswell  sworn. 

Serj.  Eyre,  How  long  have  you  known 
Hastings  ? 

Caswell.  1  was  born  there,  and  have  lived 
there  almost  all  my  time. 

Seij.  Eyre.  Have  not  you  been  a  freeman 
auda^rat? — Caswell,  Yes. 

Scrj.  Eyre.    Are  nut  you  disfranchised  ? 

Casfcell.  Ye<:,  I  am  now  disCronchised. 

S(*rj.  Elf  re.  When  were  you  made  a  freeman  ? 

CasmiL  In  1717. 

Serj.  Eyre.  When  a  jurat? 

Cas7i'ilt  In  1726. 

Serj.  Eyre,  Pray,  Mr.  Caswell,  how  do  they 
make  tree  ? 

Caswell.  When  I  was  made  free,  I  asked  the 
mayor  and  jurats,  although  I  was  the  eldest 
aou  of  a  freeman. 

Serj.  Eyre.  Acquaint  my  loni  and  the  jury, 
what  happened  on  your  applying  to  be  made 
free 

Cam>elL  I  applied  in  1717  to  the  mayor  and 
jarati  for  ihdr  good  will  to  make  me  free. 


Coie  (jf  Henry  Moore f 


[901 


Serj.  Eyre.  Is  there  any  differeieebctwcca 
an  elcfest  sou  and  another  in  makiog  five? 

Caswell.  No  difference  at  all,  but  that  one 
paya  half  the  fine,  and  the  other  the  whole ; 
out  the  consent  of  the  mayor  and  juialaistho 
same. 

Serj.  Eyre,  As  to  non-residenee,  do  thc^ 
ever  make  any  persons  free,  who  are  aol  nth 
dent  within  the  borough  ? 

Caswell.  They  never  make  any  free,  bet 
such  as  are  resident. 

Serj.  Eyre.  Has  any  person  a  right  to  hi 
made  free,  or  is  it  in  the  pleasure  of  &e  corpo- 
ration? 

Caswell.  It  is  entirely  in  the  pleamre  of  lbs 
mayor  and  jurats. 

beg.  Eyre.  A  man  by  purebasing  a  fme- 
hold,  has  he  any  right  ?— 'Caswell.  No. 

Att.  Gen.  Is  he  free  of  the  other  four  Cio^ 
Ports  ?—Cfl«»f//.  No. 

Mr.  Strange,    W  here  were  yoa  bom  f 

Caswell,  At  Hastings.  Mj  father  was  a 
freeman  when  i  was  born,  and  many  years  be- 
fore. That  is  my  father's  copy.  (Piedae- 
ing  it.) 

Mr.  Strange,  Did  you  take  up  your  freedon 
by  that  copy  ? 

Caswell.  I  wish  I  could  ;  1  should  have  had 
it  sooner. 

Mr.  Strange.  How  old  were  you  when  yoi 
were  made  free  ? 

Caswell,    I  was  twenty-six  years  old. 

Mr.  Strange.  Did  yon  ever  luiow  an  eUol 
son  of  a  freeman  denied? 

Caswell,  No ;  but  it  is  in  the  breasts  of  the 
mayor  and  jurats,  whether  he  shall  be  free 
or  no. 

BIr.  Strange.  Was  your  father  the  son  of  t 
freeman  ? — Caswell,  1  cannot  tdl. 

Mr.  Strange.    How  comes  it  upon  yoar  fin 
ther*s  admission  to  be  marked  the  day  he  wai    , 
born  ? — Caswell.  It  is  the  time  I  was  born. 

Mr.  Strange.  How  came  it  there  ? 

Caswell.  I  wrote  it  from  a  Bible  where  oj 
father  had  entered  it. 

Mr.  Strange.  For  what  purpose  ? 

Caswell,  1  wrote  it  down  now,  upon  this  IBB* 
mons,  to  shew  how  old  I  was. 

Mr.  Clarke.  What  is  the  difference  between 
the  fine  paid  by  freemen's  sons,  when  you  weft 
admitteo,  and  now  ? 

Caswell,  When  I  was  admitted  it  was  6s.  8i' 
and  now  it  is  20f . 

Mr.  Clarke.  How  long  has  it  been  SOi.  ? 

Casipell.  Twelve  or  fourteen  years. 

Mr.  Strange,  if  the  mayor  insists  upon  lOi* 
yon  pay  it  ?— Caswell.  The  usage  is  6s.  8d. 

Mr.  Strange.   But  he  might  refuse  it  nowf 

Caswell.     1  do  not  know. 

Mr.  Strange,     Suppose  he  had  asked  tM  . 
guineas  ? 

Caswell.    You  ask  foolish  qoestioDS. 

Mr.  Strange.  It  is  not  your  bosioett  to  Idl 
me  so. 

Caswell.  You  do  it  to  aggravate  jooreaMe* 

Mr.  Strange,  1  uk  you,  is  it  not  a  luil— 
for  the  eldest  ton  to  bo  adnitled,  SfOB  peyiif 


upon  a  Qao  Warranto. 

i\t  fiae  u  ihe  tniyor  ibtll  (liink 

Vo ;  all  the  custom  i>,  that  6*.  Bd. 
I,  •nd  13),  4J.  by  others ;  and  now 
I  is  eoi. 

ngt-    Do  you  Icnow  any  insrance  ol' 
^■teilfotafiaeufSOt.  ? 
I  know  bol  of  one  inslance. 
gt.  So  yoQ  lake  it,  uo  person  has 
t  made  Tree  T 

I  without  tbe  consent  of  tbe 


W>llh> 


Bourne  sworn. 

'  Hasliogs  T 


ifr.   Do  you  kc 
Ye.. 

ler,  Hon  long  liare  yon  known  il  ? 

Fifty-eight  years. 

fker.    Wliai  inetliod  miial  a  man 

dmitletl  a  IVeeman  ul'  Hastinf(a  ? 

Tbe  way  is  (o  get  tbe  good  will  aod 
^^  mnyiir  and  jurats. 

dni*.  Siippoaing  an  eldest  son  ap- 
made  free,  iloea  lie  apply  lo  the 
iuiaU  in  the  saiue  manner  as  dqd- 

Yes,  he  muit  make  tbe  same  ap- 

llai  he  any  ri^rht,  nilhoallhe 
mayor  and  jurats? 
Noue  that  I  kiiow  of. 
Were  Tou  ibe  eldest  son  of  a  fiee- 

.'  Did  fon  denianilitas  a  Hghtf 
I  demanded  it  as  a  I'aTour, 
.    Had  yoa  any  right,  in  case  ibe 
jurats  had  refused  yuu  ? 

•c   Are  the  freeholder*  within  the 

ilefree? — Buurnr.  No, 

^thpkkt,  Suppose  a  man  lias  an  ea- 

It  is  all  one,  my  Ion!, 

-■^'icke.  UidyoueTer  knoivoneof 

? — Beurne.  No. 
I.  Did  they  admit  you  immediately 
'licalion?  or  was  there  any  dispute, 

t  should  be  admitted  or  no .' 

Vet;  it naatwoorthreecourt-days 
Vftdmittedme;  IbeheTF,iaall,abuiil 

taicke.  IVhen  were  yon  admitted  T 
Id  1701,  my  lord. 
wer.   fSo  it  was  six  weeks  ynu  was 
ISlTourf — Bourne.   Thereabimls. 
tntr.  Vou  went  to  tbeir  huuws,  ID 
Ht  Tou  Taiclit  be  free  ? 
■Ym. 

.  Is  it  iheciiMom  for  any  per- 
_^_      n-reaideot  lobe  madi?  free? 
,No. 

mcr.  Did  you  ever  know  (he  eldest 
■MnaD  refused  f—iiuurf;      "- 
mtr.  Nor  nny  uther*  f 


A.  D.  1736,  pW 

Bourne,  I  cannot  cay. 

Hr.  Strange.  Donot  yoa  expect  (o  be  made 
free  again  f 

Alt.  Gen.  He  expects  to  be  a  freeman  b«> 
fore  your  client. 

Lflrl  Jlardwicke.  Were  yoo  eter  a jnratF 

Bourne.  No. 

I>ord  Hardaicke.  Or  •  commoD-caiucil- 
man?— &mmc.  No. 

Alt.  Gia.  My  lord,  we  rest  it  here. 

Sir  T.  Abney.  My  lord,  I  heg  leare  to  trou- 
ble your  lordship  with  a  Hord  by  war  of 
reply:  and,  notwithstanding  what  has  iKea 
ollereil  by  tbe  gentlemen  of  the  ulher  side,  | 
agree,  thai,  upon  tbe  Mandamu*,  we  barg 
laid  down  fuur  Ibings  as  necessary  qualilica- 
tions  for  claiming  d  freedom  in  this  borough  : 

Isi,  That  he  must  be  an  eldest  son, 

9d1y,    That  he  be  bom  within  the  borongh. 

Sdly,  It  must  be  aftar  tbe  admission  and 
swearing  sf  his  father,     And, 

4llilyi  It  must  be  upon  paying  a  reasoosbls 
fine. 

And,  my  lord,  I  humbly  apprehend,  that 
if  they  Iiayc  proTed  that  oiiy  other  of  the  " 
or  ihnl  all  the  sons,  are  intiiulnl  as  well  i 
eldest  son,  il  will  nut  at  nil  affect  our 
lorn  :  or,  if  we  protc  our  custom  larger  tbaii 
we  hate  laid  it,  thai  il  will  not  at  all  impeach 

My  tonl,  a  man  lays  ■  cusIdid.  that  he  haS 
a  right  of  common  li>r  sheep,  snd  proves 
right  Id  l>e  for  burses,  cnws,  and  sheep  loo  { 
this  shall  not  impeach  his  custom. 

Anil  iherefDre,  if  any  etideties  has  been 
pien  lo  your  lorilship  and  the  jury,  that  nil 
the  sons  of  a  freeman  are  iiitituteil  In  th«r 
freedoms,  iheii,  my  lord,  ^/ortiuri,  the  eldest 

Ltird  HardBr'icke.  Ilislsid  ■  in  respect  then 
of,'  sir  Thomas  Abney. 

Sir  T.  Abney.  My  loni, 
bend,  those  words  relatr  ' 
father.  It  is,  ■■  etery  per 
son  of  n  freeman,  and  b 
town  and  port,  after  Ihe  admission  and  swear- 
ing of  his  falher  into  the  place  and  nfBce  Of 
<me  of  Ihe  freemen  of  Ihc  said  lown  and  port, 
lias  a  right,  in  respect  thereof." 

My  lord,  that,  in  common  understanding, 
cannot  be  in  respect  of  his  being  born  an 
eldest  son,  bnt  in  respect  of  his  father's  being 
sworn  and  admitted  a  freemati  at  Ihe  lime  M 
his  birth. 

Lord  Hardaiicke.  Has  a  right  in  respect  of 
Ills  bring  born  after  his  father's  admission 
ond  swearing. 

8ir  T.  Abney.  And,  my  lord,  the  Customal, 
i»  make  out  that  fact,  says,  ■■  Van  modo,  p«[ 
Nativitalem   infra  liberlatem  siinm,    si    patar.] 
siius,  tempore  nati* itatis  sue,  fuit  liher  i"  If  j 
(he  tsiber  was  a  freeman  at  Ihc  lime  ol'lli«  son's  ] 
birth,  then  he  is  In  lie  made  l>ee,  | 

Mylord,  we  hsTesnppoiled  tbiscnilam  ia  1 
(he  strongest  manner,  b/  forly  entries,  by  ■  1 
great  number  of  lidng  witnesies,  and  by  ineic  1 
own  wiiueucs,  Customal,  and  entrie*   tool  J 


mbly  ajijire- 
3n,  being  theeldeat 


907J 


10  GEORGE  II. 


Case  (if  Hairy  Moore, 


[SOS 


iatoinuch  that  one  Robert  Ererndeo  is  the 
obIv  |»ersoD  ilivy  Lave  becu  able  to  ihew  that 
vrai  ever  refused. 

My  lord,  we  have  gone  so  far  back  as  the 
year  1588  with  our  entries,  which,  we  faumUy 
ap|»rehcnd,  is  a  vcrv  strong  proof  ot*  ao  an- 
cient custom  ;  we  lia%e  brought  it  down  to 
within  20  ^ears  of  the  present  time  ;  and,  iu 
all  that  space,  they  have  not  been  able  to  shew 
one  instauce  of  an  eldcat  son  that  was  ever 
refused  ;  and  the  entries  arc  equally  full,  and 
have  shewn  iu  the  clearest  manner,  that  the 
eldest  son  of  a  freeman,  horn  within  the  bo- 
rough, aiid  after  the  swearing  aud  admission 
of  his  father,  was  alway9  admitted. 

My  lord,  as  to  what  Mr.  Attorney  says,  that 
the  rules  laid  down  in  the  Customal  as  to  the 
making  of  freemen,  that  these  are  qnaliBca- 
lions  rather  than  rights,  and  that  we  have 
not  stated  our  custom  properly,  and  are  gone 
on  account  of  the  commorancy ;  my  lord,  1 
do  admit,  that  if  the  witnesses  had  come  up 
to  that  point  of  commorancy,  we  must  liave 
given  it  up. 

But,  my  lord,  I  must  l>eg  leave  to  insist, 
that,  although  Mr.  Attorney  has  bestowed  so 
much  learning  and  time  upon  the  words  **  ubi 
commoralur,"  to  shew  that  residence  arises 
from  the  Customal,  and  from  this  article, 
which  we  have  laid  down  as  the  foundation  of 
our  right ;  and  that  the  person  admitted  is  to 
take  an  oath  to  be  true  and  faithful  to  the  bo- 
rough where  he  dwells ;  yet,  my  lord,  the 
words  *'  Possunt  Majores  ct  Jurati,"  &c.  not 
only  imply  a  right,  but  they  bespeak  a  quali- 
fication :  and,  my  lord,  we  have  fully  shewn 
them  to  be  rights  that  were  never  con- 
tested. 

My  lord,  another  objpctlou  that  has  been 
made  by  the  gentlemen  of  the  other  side,  is, 
that,  as  we  have  laid  it,  it  in  necessary  a  rea- 
sonable fme  should  be  paid  upon  the  admis- 
liou  of  every  eldest  son ;  and  that  we  have 
given  evidence  only  of  a  tine  of  6s,  Bd,  and  that 
we  should  have  given  evidence  of  different 
fines  paid,  in  order  to  take  in  the  custom  as 
we  have  laid  it.  But,  my  lord,  I  submit  it  to 
your  lordship  ami  the  jury,  whether  the  sum 
required  is  unreasonable  or  no  ?  Is  this  so  ? 
Can  it  be  thought  so?  If  on  a  s|>ecial  verdict  it 
were  to  be  found,  that  every  man  had  a  right 
upon  paying  6s.  Bd,  I  humbly  apprehend,  the 
quantity  of  the  sum  must  shew  that  it  is  -a 
reasonable  Ane. 

Bly  lord,  as  to  the  by-law  they  have  read, 
that,  if  any  freeman  depart  out  of  the  town 
for  a  year  and  a  day,  lie  loses  his«  freedom ; 
with  great  submission  to  your  lordship,  1  ap- 
prehend it  is  not  at  all  applicable  to  the  pre- 
sent case.  It  does  not  say  one  uord  of  what 
is  necessary  in  order  to  a  man's  being  elected 
a  freeman.  We  say,  that  in  order  to  be  ad  • 
milted  a  freeman,  a  man  must  be  an  eldest 
•on,  born  within  the  borough  after  bis  father's 
freedom  :  but  they  do  not  read  one  word  out  of 
this  by-law,  tliat  no  man  shall  be  elected  a 
frsiemaD,  iinleai  he  bo  resident;  bat  it  says. 


that,  if  any  freeman  go  and  dwell  out  of  the 
town  fi»r  a  year  and  a  (Jay,  he  shall  for  ever 
lose  his  freedom. 

And  as  to  their  living  witnessFS,   they,  1 
humbly  appreheud,    will    have    little  weight 
with  your  lordsliip  and  the  jury.    They  are 
not  so  tree  as  oiks;  they  are  men  disfrao- 
chised  to  serve  a  particular  purpose.   It  is  true, 
they  ara  legal  witnesses;  but    it  will   goto 
their  credit,  and  the  jury  will  think  they  are 
under  a  bias,  and  that  they  are  to  be  made  free 
again,  and  therefore  are  prejudiced,  and  are 
determined  to  kt?ep  the  borough  in  the  saiiM 
narrow  hands  they  now  have  it.    They  bate 
all  said,  that  none  but  the  mayor  and  jorui 
can  give  a  right ;  and  that,  if  J  was  to  be  lei 
into  the  freedom  to-morrow,  (as  Mr.  Attorney 
told  you)  there  is  no  right  but  at  the  will  ui 
pleasure  of  the  mayor  and  jurats  only.    With 
resiiect  to    one    of  the  jurats,  and   bis  ovi  - 
ri^ht,  Robert  Bartholomew,  it  will  have  weight 
with  the  jury,  that  he  is  disfranchised ;  but 
much  greater,  to  prdve  him  |ierjured,  which 
we  shall  do  by  three  witnesses  uf  undoubted 
credit,  whom  we  shall  call   to  contradict  ill 
this  talk  that  he  tells  you,  that  there  is  no 
such  thing  as  a  right  but  at  the  will  and  pki- 
sure  of  the  mayor  and  jurats. 

Gentlemen,  we  have  no  other  evidence  to 
trouble  you  with,  but  to  contradict  Bartholo- 
mew ;  and  then,  gentlemen,  we  shall  leave 
it  upon  the  strength  of  the  cake  ;  and  we  make 
no  doubt,  hut  you  will  be  of  opinion,  that  the 
plaintiff  has  an  undoubted  right,  and  there- 
fore will  find  a  verdict  for  him. 

Air.  Broaduay  sworn. 

Mr.  Sir  an  fie.  Pray,  Mr.  Broadway,  do  yoa 
know  Robert  BarliuiomeM'  ? — Bnjadiftiy.  Yes. 

Mr.  Strange.  Mad  you  any  discourse  »idi 
him  about  the  right  of  freemen's  eldest  soas.* 

Broadicaif.  Yes ;  I  was  in  company  with 
him  about  two  years  ago,  at  the  sign  of  the 
Blue  Anchor  in  Hastings ;  he  then  told  me, 
that  the  chiest  sons  of  freemen  had  a  rigbt  Is 
be  admitted  to  their  freedoms. 

Mr.  Strange,  Did  he  say  any  thing,  that 
they  must  come  cap-in-haiid  to  the  mayor  and 
jurats,  and  beg  the  favour  that  they  would 
please  to  admit  them  ? 

Broadway.  No,  nothing  at  all  of  that. 

Mr.  Strange.  Did  he  say  any  thing  further 
about  the  right  of  eldest  sons .'' 

Broadway.  He  said,  he  could  remember  the 
time  particularly  well,  when  they  were  ad* 
roittea  without  any  dispute. 

Seij.  Parker,  Mr.  Bartholomew,  is  that 
true?  Were  you  at  the  Blue  Anchor  in  Hast- 
ings with  Mr.  Broadway  ? 

Bartholomew.  No,  there  is  no  such  sign  is 
Hustings. 

bir  T,  Abncy,  You  must  oill  John  SargeaL 

AtL  Gen,  Mr.  Broadway  says,  you  told 
him,  that  you  remembered  the  tune  ^rtico- 
larly  well,  when  the  eldest  sons  were  knitted 
without  auy  dispute. 

Bartholomtw.  I  never  told  bim  N. 


fqjon  a  Quo  Warranio* 

a  peraoD  who  wai  upon  the  pannel 
id  to  ooe  of  the  jurymen.) 

Wmner.    You  roust  not  talk  to  the 

*€  you  a  HastiDii^  man  ?   — **•  No. 

Min.  He  is  upon  the  pannel. 

Skinner,  Did  he  say  any  thing  toyoa 

is  cause  ? — Jurymsn,  No. 

len,    Mr.  Bartholomew,  do  yon  re- 

tliat  you  said  so,  or  no  ? 

olomew.  Last  sum mer  1  was  there  with 

;  but  I  never  heard  any  such  thing 

h\, 

farth.   How  came  yon  to  tell  them, 

ID  led   to  pry    into   the   corporation- 

Ahney,  Did  not  you  tell  him  you  was 
upon  that  right  ? 
olomew.    No. 

Abney.  Who  is  that  person? 
olomew.  The  minister  of  the  parish. 
Skinner,  80  he  came  to  pump  you? 
larsh.  He  knows  he  told  them  so. 


Henry  Dodson  sworn. 

farsh,  Mr.  Dodson,  was  von  at  Sar- 

ith  Ilobert  Bartholomew  ? 

n.  Yes,  about  two  years  since. 

(arsh.   Was  Mr.  Broadway,  the  mi- 

the  parish,  there  ? 

n.  Yes,  he  was  in  company  with  Bar- 

r  and  me. 

Tarsh.    Pray,  what  was  the  conversa- 

lation  to  the  right  of  freemen  ? 

n.  1  met  with  Mr.  Bartholomew  and 

1(1  way  at  Sargent's.     1  told  him,  the 

f  our  meeting  was  to  enquire  of  him 

IS  the  flight  of  freemen's  sons.     He 

t  the  eldest  sons  of  freemen  had  an 

rd  rifi^ht  to  claim  their  freedoms  ;  and 

that  foriiiprly  he  lia<l  hoen  requested 

p  his  freedom,  but  that  he  had  refused 

i*e  in    war   time  the  freemen    were 

d  with  taxes,  watchiog  and  working 

id  dav;    hut  that  uflerwards  he  had 

proper  to  accept  of  it,  and  was  ad- 

)r  a  bottle  of  wine.     He  said,  he  ap- 

the  mayor  and  jurats,  and  was  ad- 

'anh.  Did  you  say  any  thing  more  to 

1.  He  told  me  tliis  ;  but  I  said  nothing 
but  took  a  iiicmorandum  in  writing 

farsh.  Did  he  tell  you  any  thing  more 

hr. 

%.    He  said,  he  looked  upon  the  sons 

en  to  have  a  riirht. 

llardziicke.     Was  this    at   the   time 

V  was  with  you  ? — l)o(Uon.  Yes. 

tarih.  Was  Bartholomew  sober  ? 

I.  Yes ;  it  was  in  the  morning ;  he 

k  nothing  but  one  glass  of  wine. 

kinner.  Did  the  parson  go  with  you 

at  evidence  f  You  was  the  attomry  ; 

arson  go  as  another  agent  to  find  out 

laoce? 


A.  D.  1736. 
Mark  Whales  sworn. 


im 


Sir.  Strange,  Mr.  Whales,  do  yon  know 
that  old  gentleman  T-^Whalet.  Ym. 

Mr.  Strange,  Have  you  heard  him  maker 
any  declaration  concerning  the  right  of  an 
eldest  son  to  be  free  ? 

Whales.  About  19  years  1^0,  he  said  that 
the  sons  of  freemen  had  a  right. 

Mr.  Strange.  Did  you  never  hear  him  talk 
abont  an  eldest  son  ? 

WhalrV  1  do  not  remember. 

Lord  Hardwkke,  That  variance  of  the  fine^ 
I  wish  you  would  apply  yourself  to  that  point, 
Mr.  Strange.  The  admission  seems  to  have 
been  npon  ^  certain  flne,  6s.  Hd. 

Mr.  Strange.  May  it  please  your  lordship, 
and  you  gentlemen  01  thejnry ;  you  have  heard 
a  very  long  evidence ;  and  as  the  gentlemen  o€ 
the  other  side  have  been  pretty  minute  in  their 
objections,  it  will  be  proper  for  me  as  shortly  as 
J  can  to  reply  to  them. 

And,  my  lord,  the  chief  thing  the  defendants 
contend  for  is,  that  there  is  no  such  thing  as  a 
right  to  a  freedom  in  this  borough  ;  and  that» 
though  the  electing  members  to  represent  them 
in  parliament  be  one  of  the  principal  privileges 
of  cTery  freeman,  ^ct  that  there  is  no  person 
whatsoever  has  a  nght  to  come  and  claim  the 
'  consuetude  rcgni ;'  but  the  mayor  and  jnrats 
may  at  their  pleasure  chuse  members  to  re- 
present this  borough  in  parliament,  and  confine 
the  election  in  their  own  bands,  and  ma?  chuse 
them  when,  and  in  what  manner,  and  what 
persons  they  please. 

But,  my  lord,  to  support  this  right,  they 
should  have  laid  their  iitiger  upon  something 
that  would  have  intituled  them  to  this  right; 
and  yet  they  have  shewn  no  circumstance  upon 
the  lace  of  the  earth  that  can  possibly  entitle 
them  to  it. 

My  lord,  there  is  no  corporation  in  England^ 
but  where  if  a  man  serves  an  apprenticeships 
he  has,  by  that  apprenticeship,  a  right  to  his 
freedom,  and  the  sons  of  freemen  have  a  right 
to  come  and  demand  tlieir  freedom.  But  here, 
my  lord,  according  to  their  account  of  the  mat- 
ter, in  no  sha|)e  or  sort  you  can  ever  acquire  a 
right :  a  most  extraordinary  privilege  indeed  I 
and,  my  lord,  J  would  beg  leave  to  make  this 
observation,  thot,  as  they  heganwith  attacking 
what  sir  Thomas  Abney  set  out  with,  the  an- 
cient Custotnal  ;  so  it  appears,  they  have  treated 
it  in  a  ludicrous  manner,  and  with  no  regard  at 
all.  They  tell  us  it  is  bound  up  with  a  great 
many  miscellaneous  papers  of  no  use,  and  there- 
fore  it  can  have  no  authority.  And,  my  lord, 
this  observation  would  have  been  material,  if  i| 
had  come  out  of  our  custody ;  for  then  we 
should  have  shewn  why  it  kept  no  better  com- 
pany. But,  as  it  comes  out  of  their  own  cus- 
tody, can  we  oblige  tliem  to  keep  their  own 
book  better  than  they  have  thought  fit  to  keej> 
it  ?  Besides,  mv  lord,  it  goes  equally  to  their 
own  book  which  they  have  produced  ;  it  is 
made  op  in  the  same  miscellaneous  manner 
as  osri  IS ;    and  therefore  this  oLi«stion  U  4| 


oil] 


10  G£0K6£  IL 


t!iue  ofHenry  Mowt^ 


\Wk 


•trong  agaiDtt  the  uitliority  of  tlieir  book  at 


Bot,  my  lord,  I  fobiniC  H  to  yoor  lordtUp, 
tbmt  there  is  no  fomMlatioo  at  alJ  toqoarrcl  upon 
this  account. 

Suppoae  it  had  been  found  loose,  in  bo  coni- 
pany  at  all,  and  without  an^  cover ;  is  it  (be 
woraei  if  it  bad  been  loose,  for  bein^  stitched  ? 
]t  rather  argues  it  tO'  be  a  book  of  great  autho- 
rity, and  that  this  was  done  to  preserve  it ;  be- 
cause, whilst  it  lay  about  loose,  it  was  liable  to 
decay;  and  in  order  to  preserve  it,  it  was 
thought  proper  to  bind  it  up. 

My  lord,  they  say  further,  it  would  have 
been  material,  ifit  bad  be«n  bound  up  with  an- 
deot  charters  and  records  of  the  corporation  x 
my  lord,  I  looked  at  it,  and  saw  that  the  very 
charters  themselves  are  bound  up  with  it. 

My  lord,  they  tell  us,  this  Customal,  produced 
by  them,  has  not  at  all  left  it  clear,  that  the 
eldest  84IU8  of  freemen  have  a  rig;ht ;  ami  they 
say,  that  whatever  our  Cnvtomal  may  prove, 
that  our  entries,  which  have  been  read,  are  no 
proof  of  aoy  right ;  they  pray  to  be  admitted, 
and  therefore  tUey  have  no  right. 

But,  my  lord,  I  beg  leave  to  observe,  that  it  is 
not  a  phrase  that  runs  through  all  the  entries : 
in  some  of  them,  tlicy  are  admitted  upon  their 
instantly  requiring  it ;  iu  others,  it  is  secundum 
tontuetudinem. 

But,  my  lord,  supitose  it  was  so  in  all  the 
entries,  it  is  the  ccnnmun  form  of  them,  aod 
of  the  admission  of  all  the  copyholders  in 
Enffland. 

Lord  Uardwicke.  You  need  not  labour  that, 
Mr.  Htrange. 

Mr.  Strange.  My  lord,  they  say,  there  is  a 
circumstance  of  our  proof,  which  we  have  en- 
tirely failed  iu,aDd  which  they  would  prove  for 
us,  or  that  they  shall  help  it  out  ;  and  that  is, 
that  the  party  in  to  he  commorant  within  the 
borough  :  and  to  prove  this,  they  have  read  a 
byrlatv,  that  says  not  one  woni  that  he  is  to  be 
commorant ;  but  that,  if  a  man  goes  out  of  the 
town  for  a  year  and  a  day,  he  shall  lose  his 
freedom. 

But,  my  lord,  I  humbly  apprehend,  that  a 
new  by  law,  that  appears  before  your  lordship 
and  the  jury  to  have  been  made  but  a  year  and 
half,  and  contradicts  nn  old  custom,  is  the 
strongest  evidence  in  the  world,  that  it  was  the 
custom  till  the  by-law  was  made. 

To  what  purpose  else  was  the  by-law  made  ? 
They  had  better  have  rested  it  upon  the  ge- 
neral consent,  than  have  introduced  a  new 
bye-law,  which,  upon  the  face  of  it,  appears  to 
contradict  an  old  custom. 

My  lord,  Mr.  Attorney,  I  think,  was  pleased 
to  admit,  that  there  must  l»e  a  Customal;  and 
that,  taking  this  for  evidence  of  the  matters  in 
dispute,  and  so  far  as  it  is  an  authority,  it  says, 
that  the  comers  in  per  emptionnn  must  have 
been  commorant  within  the  borough  a  year  and 
a  day ;  and  he  says,  the  reason  of  this  is,  that 
tbey  should  have  some  knowledge  of  the  af- 
fairs of  tba  borough  btfort  they  are  made  free 
Cf  it. 


Bat,  my  lord,  tbis  oommoraBCy  is  not  ean- 
fined  to  the  oomers  in  per  empikmalu  The 
words  of  tbe  39th  Artide  are,  '*  £t  nullus  ftat 
liber  per  Emptionens,  qaotasque  io  Poito  vel 
Merobro,  nbi  libertatem  desklerat,  per  anam 
annum  et  onam  diem  permansk,  ec  si  bene  eC 
bonesto  haboertt,'*  &c.  To  what  end  should  it 
be  put,  that  a  man  who  eomea  into  the  free- 
dom per  empiionem  aboold  be  resident  a  yeir 
and  a  day  ?  «— — 

Lord  Hardwicke.  It  infen  DOthing  one  way 
or  other. 

Mr.  Strange,  But  one  bom  out  of  tbe  towo, 
and  bred  out  of  tbe  borough,  it  ia  not  neecsniy 
for  him  to  be  resident,  if  the  nnayor  and  jorati 
please  to  admit  him ;  and  yet  every  one  bora 
m  the  towUf  though  he  be  the  son  of  a  fm* 
man,  must  undergo  tbe  same  ezperimeBt  bj 
being  resident. 

My  lord,  the  34th  Article,  as  to  tbe  wsHs 
ttbi  commoratur^  it  is  only  a  part  of  the  oath 
every  freeman  is  to  take  upon  bis  admissioD, 
<'  That  he  will  be  good  and  faitbfnl  to  thekiofi^ 
of  England  and  his  heirs,  and  that  he  will  sb* 
serve  the  statutes  of  the  five  ports,  and  eipe- 
cially  of  that  port  where  he  resides."  And  it 
is  not  to  be  inferred  from  thence,  that  at  the 
time  of  his  admission  be  must  be  commorant, 
but  that  he  will  observe  the  statutes  of  the  bo- 
rough, and  consult  the  good  of  it. 

My  lord,  I  do  not  apprehend,  that  by  tbe 
38th  Article,  a  man,  by  being  free  of  one  port, 
is  intituled  to  his  freedom  in  all  the  other  ports. 
The  words  are,  *'  Et  ipsi  qui  sunt  in  omoibai 
et  singulis  formis  jJra^dictls  facti  liberi  in  aliqoo 
Portu  sive  Membro,  habeant  libertatem  consoe* 
tam  iu  omnibus  aliis  Portibus :"  i.  e.  As  s 
member  of  one  of  the  ports,  he  shall  have  tbe 
general  liberty  belonging  to  them,  but  not  that 
he  shall  he  a  member  of  all  the  five  ports. 

My  lord,  as  to  the  words  *  in  respect  thereof,' 
tbey  insist,  that  as  we  have  laid  it,  they  exclude 
all  persons  from  being  intituled  to  any  freedom, 
but  the  eldest  sons  of  freemen. 

But  I  submit  it  to  your  lordship,  that  at  in 
the  Mandamus  other  circumstances  are  after- 
wards  mentioned,  that  those  words  *  in  respect 
thereof,'  are  to  be  referred  to  the  last  antecedent 
words,  to  the  freeman's  being  born  wiibin  tbe 
liberty,  and  af)er  the  admission  and  swearin:; 
of  his  father :  and  unless  something  be  brought 
to  make  it  improper  to  refer  it  to  them,  I 
submit  it  to  your  lordship,  whether  it  would  in 
a  right  have  the  consequence  they  contend 
for. 

My  lord,  the  Mandamus  says,  that  the  eldest 
son  is  intituled  ;  but  this  is  not  an  exclusion  of 
the  other  sons:  for,  if  all  my  sons  are  inti- 
tuled to  their  freedoms,  then  my  eldest  son 
most  certainly  is. 

If  it  had  been  a  question,  whether  all  tbs 
sons  of  a  freeman  were  intituled  ?  and  upon  tbe 
face  of  the  thing,  the  man  sets  out  only  that  bt 
was  the  eldest  son,  he  would  not  enbrge  tho 
custom  ;   because  it  would  have  required  more 

Kroof :   but,  if  he  had  been  the  yonnrat  aoSi 
e  must  hare  said  that  til  the  Mus  we  &itit«lcl| 


open  a  Quo  Warranto. 
Iiere  muit  1i«te  been  an  RVfrmciit,  In  i 
ilH[uai'e  villi  our  cane.  Tliry  litive  uut 
'Hivvuae  cDiry  of  llie  juuiiui-kl  'oiis  of 
m.  If  we  liiU  Isitl  it  mure  euiiliiicil,  \\t 
bart!  fnileil  iijina  tlie  pruufi  bul  as  tli« 
us  (»n»  nut,  >l  woiilil  ham  1i«i>D«iiDagb 
■  «)U(lliewaxj!/iut  of  n  frci-man. 
Iwil,  1  into  but  one  iliiui;  more  to  trpu- 
ar  lorJaliiji  wiib  :  ibe  ([cotleinen  uf  llie 
Me  Inniw.  ihal  n  previuu*  n|>|i brail uii  to 
ivur  akil  jutniB  it  necnaaty  in  nrdcr  la  a 
beinit  loaile  fiec  i  and  they  infer  from 
',  that  it  iji  nol  ri^hl,  hui  mere  favour  iu 
lyorandjuruiH.  Ettu  where  a  oiin  ha* 
M  io<li>|iulal>lc  ri-ilii  in  Ihe  noil  J,  by 
idr,  he  muat,|i(VMlu>:e  ami  prCTe  hji  in- 
m.aod  hi*  madcr  cenifiea  iliat  bv  baa 
■«  a|)jiri-iitictiihip  fBiibfully  ;  yet  even 
nac,  auronbrit;  Ui  tbeni,  tlie  mayiiraHyB 
iurnia,  Ueiiltviiit'ii.  are  you  aalialieilf 
tury  are,  ihry  a<<niii  birn. 
,  my  liinl,  it  do<i>  not  at  all  f'nilotv,  ihnt, 
«  tnrir  opiuiiin  ia  to  W  l4ik«ii  us  lo  tlie 
■Mill,  ibal  Ili>-retiir«  lbe\  bHVc  a  rivbt  10 
■a  a]))irfii)i('e,  »lrt  haa  by  HcrTitiidi'  ac- 
■  riKhl  tu  his  li-ceilcin  ;  but  only  wbr- 
hsy  aball  admit  bitu  at  be  itnics  bis 

lord,  havinjC  IrouhM  your  birdabip  eo 
I  will  b«i;  leate  oiilv  to  itay  one  wotil 
HtOtbetiiieufOi.  8iJ. 
ij>  olyecl  tu  ut,  iIihI  ue  laid  it  u  partof 
HMp,   that  Ili«  eldest  son   ia   loltcad- 

Ml  payiuK  a  reaionable  Gne,  and  that 
■•  MU  tu  b«  a  due  ceiUin.  B'll  I  sub- 
(ft  ynut  lunl>hi(i,  that  Oi.Bd.  is  a  rea- 
*  fin«  i  ihtauin  i>  reasuuahle;  and  that 
nataut  iiaymrai  of  it  upon  every  admia- 

<M  evidence  what  ia  a  reawnahle  fine : 

tvly  un  ihiiae  inoianrea  we  haie  read. 
At  i*  tb*  rcagnnable  liiii! ;  and  they  are 
■I  only  to  viarraut  that  tliere  is  a  rea- 
B  fine  to  be  taken;  and  that  Iberefore 
I  hM  wrunif  lo  aayint;>  we  bave  a  rii^bt 
paying  a  reawnaW  tine.  If  we  had 
to  bate  been  upon  a  fine  certain,  tbey 

lia*a  otgeuted  it  tu  us,  and  they  n'ould 
tiewn,  Ibal  at  one  time  api^ie  uf  wine  was 
M ;    and  at  aiiotber  iiiiut  3IM.  waa  llie 

•nd  iberefare  il  would  bate  barn  dan- 
I  to  ba*e  laid  G>.  &d.  ID  U>  a  cerlain  fine. 
J  UardKieke.  You  have  nhened  no  eti- 
,  Hr.  Strau)^,  lliat  it  has  ever  hetu  ia- 

Strimct.    They  bave  talceo  6t.  M.  al- 
a|Ma  ibe  adoiikiioit  'if  lona. 
it  Uvdatckt.  Uueut'thei 


A.D.  ITM.  [Oil 

cialty  as  they  bare  not  sbewp  who  ii  intitulcil 
to  a  fi'eedim  wiihiu  Ibis  tiiirnii^b. 

Iiord  HardieUke.  It  will  he  |>rn])er  to  CDn- 
slilcr,  liow  much  unhis  nu^bt  lo  l>e  left  to  Um 
ju:y.  Thill  mucb  is  laui,  and  tbat  Uiey  muR 
enquire  of- 

Firat,  Wbether  it  aj-ppar*  frnm  Ihceridtvcr, 
tbat  ihere  tg  any  cuslum  within   the  luiriius^ 
that  (lie  eldest  sun  of  a  freenisn,  bom  after  tM;^ 
admiaaion   and  swearing  of  his  f.ither,  has  ftm 
tltfhtf  I  think  ibeworita'iu  respect  ihereofa 
answerail ;  ihi;  confining  it  ■  in  respect  thereof*-^ 
quail ficationa,  lliai  of  bo-*r 


IS  sot. 

Siraage.  That,  oiy  lunl,  is  a  reaaonable 
Ukd  no  certain  sum.  That  in  a  churcb- 
nt  >  rcaaunaltte  line  at  one  time,  wliicli 
W  nair  i  and  the  eorporation  ibink  that 
«w  ia  not  more  than  Ci.  Sd.   was  for- 

lord,  we  ihorcf'ire  submit  it  lo  your 
ip,  Ui>oii  the.  ciri:iiniKtanc«s  of  this  raie, 

t:  liiUy  iirwrtd  oui  iwoe;  e*pe< 
II. 


tbey  have  proied  the  ri^hl  for  all  ihe  si 

Kor,  as  Sir  Thomas  Abney  iuaisted,  i 
man  liaa  a  right  of  utmmon,  and  lays  il 
abeep,  and  prove*  he  has  ■  right  fur  sheep,  J 
iwws,  and  huraes  too,  be  aball  prevail;  and* 
that  I  think  the  same  with  the  present  ca»e;> 
fur  the  custom's  extending  tu  other  penonstl 
docs  nut  prove  this  bad,  because  laid  more  coivu  T 
tint^.  The  Jury  tlici«li>re  tnu^t  deieriniu^>l 
whether  therf  be  any  cusiom  within  the  bo>H 
roit|;b  lor  on  eldest  son  tu  be  free. 

Secondly,  Then  they  must  enquire,  wbelhv 
beinK  burn  within  the  lona,  after  bis  fatberin^ 
was  made  free,  be  oec«asary  qua) i Real ioi 
the  cuBiom,  nr  QotF    For  you  have  laid   that  I 
tii;bt  tn  rise  from  thence.     That  was  not  ne- 
ce9<<ary,  hut  that  you  have  laid  it  so. 

Thirdly,  it  will  be  nrcesiary  for  the  jury ,' ! 
next  to  consider,  if  tbev  belieie  rekiancs  tu  b»  J 
annlher  nece^ury  iiaalificaiiaD  f  I 

If  thtt  jury  be  of  opinlcin,  that  either  nffl 
thaie  tivu  qualiScations,  of  being  burn  wilhia  T 
the  town,  or  alter  the  I'Jtbcr  was  made  free,* 
are  necwKary  ;  urth;ittliat  point  uirotU'jrai 
is  not  nt-cuisary  ■    'hen  Ihey  ravil  find  a   < 
did  for  the  plamliir. 

Bui,  if  they  suould  be  of  opinion  tbat  ibB<  j 
two  former  are  not  essential  qualilicalioiii,  and*  I 
the  last  is  ni'cixeary  ;  then  tbey  must  find  toT'-l 
the  defendiinla ;    and  iu  thai  case  Ibat  poiu^ 

The  [loint  oflayinga  reasonable  Que  must  bi 
saved,  if  the  jury  find  a  verdict  for  tba  plainliA 

I  ona,  I   anj  doI  salisGed :    What  Mr.  At 
tniney  Gencnkl  said,   that  there  is  great  dif-i  I 
ference  belncen  a  reasonable  fiue  and  s   ' 
vertiiin.  bos  weight  in  it. 

A  reasonable  fine  is  such  as  the  law  will  . 
judge  to  be  so  I  thegeueral  usageof  the  kiiig^H 
dom  is,  that  it  shall  not  eii  '  ' 
half's  rent.  But  what  a 
and  who  aball  be  the  jud^e  of  it,  the  law  b 
tahiished  no  rule :  And  if  so,  iKp  qu  '.lio 
be.  Whether  the  jury  ahould  find  that  the  rea«'1 
sonablenesB  is  to  be  judged  of  by  the  proMl 
portion  of  the  snm  F  and  tbat  point  lo  be  r«>  r 
aerveal  for  (he  detenninatioD  of  the  Cour^  1 
Whether  there  be  a  variance  from  the  Om  j 
laid  iu  ibt  issue  f 

If  the  jury  Ond  for  the  plaintiff,  Ibrre  ninat  J 
be  a  rule  lor  the  fostea  to  stay ;  and  that  p( ' 
to  h«  laved,  for  ibe  vpiniMi  ol  th«  Court. 
SN 


0  years 
oablu  fi 


915]  10  GEORGE  II. 

Mr.  Marsh,  In  layiDi;  the  evidence  before 
the  Court,  my  lord,  their  own  witnesses  said, 
that  tburtcen  3'car8  ago  there  was  a  fine  of  20^. 
paid. 

Alt,  Gen,  There  is  but  one  instance,  and 
that  was  in  1730. 

Mr.  Strange,  We  take  it,  Mr.  Attorney, 
upon  your  own  witnesses  evidence. 

Lord  Hardwicke,  He  did  not  say  how  many 
instances. 

Alt.  Gen,  My  lord,  he  said  one  instance, 
and  no  more. 

Lord  Uardnicke,  The  books  ongbt  to  be  look- 
ed over  for  this  purpose.  I  apprehend  you  would 
have  shewn  instances  where  there  had  been  a 
variance  of  the  fine.  Call  that  witness  agrain : 
It  was  Thomas  Caswell. — Mr.  Caswell,  yon 
mentioned  the  fine  now  taken  to  be  20«. 

Caswell.  Yes,  my  lord. 

Lord  Hardwicke.  How  many  instances  do 
you  know  of  20s.  taken  for  the  fine  ? 

Caswell.  But  one,  my  lord  ;  it  is  Air.  Hall. 

Mr.  Strange.  Why  did  you  say,  that  for 
about  fourteen  years  20<.  had  been  taken  ? 

Caswell.  I  said,  for  about  nine  or  ten  years 
20s.  had  been  taken ;  but  it  was  always  6f .  8^. 
besides. 

Mr.  Strange,  You  are  disfranchised,  are  you 
tkOi^—CaswelL  Yes. 

Mr.  Strange,  Were  you  not  a  little  while 
ago? — Caswell.  Yes. 

Lord  Hardwicke,  I  will  not  have  another 
examination  of  the  witnesses. 

Mr.  Strange.  My  lord,  I  only  asked  him 
what  they  asked  me. 

Att.  Gen  What  was  that  ? 

3Ir.  Strange.  Nothing  at  all. 

Mr.  Marsh.  What  do  you  know  of  the  others 
who  were  admitted  ?  What  did  they  pay  ? 

Lord  Hardwicke.  Gentlemen  of  the  jury, 
This  is  a  writ  of  Mandamus,  brought  by  the 
plaintilf  Henry  Moure  to  require  the  defend- 
ants, the  mayor,  jurats  and  commonalty  of  the 
town  and  port  of  Hastings,  to  admit  him  into 
the  place  and  office  of  one  of  the  freemen  of 
that  town  :  And  the  writ  sets  forth,  that  the 
plaintiff  is  the  eldest  son  of  a  freeman,  born 
within  the  town  after  the  admission  and  swear- 
ing of  his  father  ;  and  has  a  right,  in  respect 
thereof,  and  also  upon  paying  a  reasonable 
fine,  to  be  admitted  a  freeman  of  the  town. 

And,  gentlemen,  the  matter  comes  to  this 
issue,  whether  time  out  of  mind  there  has  been 
a  custom,  that  every  person,  being  the  eldest 
sonof  a  freeman,  burn  within  the  town,  after 
the  admission  and  swearing  of  his  father  into 
the  place  and  ofiicc  of  one  of  the  freemen  of 
the  said  town  anil  port,  has  a  right,  in  ref>pect 
thereof,  and  also  upon  paying  a  reasonable 
line,  to  be  admitted  into  the  place  and  office  of 
one  of  the  freemen  of  the  said  town  and  port  ? 

That,  gentlemen,  is  the  issue  you  are  to  try  ; 
and  you  have,  no  doubt,  observed  on  what 
points  this  question  turns. 

It  appears,  that  Hastings  is  one  of  the  Cinque 
Ports,  and  it  is  besides  a  corporation. 

Gentlemen,  the  poiat  insisted  on  by  the 
plaintiff*!  counsel,  and  tb«  first  Cbiog  produced 


Case  of  Henri/  Moored 


[916 


to  be  considered  by  you,  is  a  book  consisting  of 
various  parts:  one  of  the  parta  is  a  Custood 
of  the  town  of  Hastings,  translated  out  of  Lalia 
into  English, — in  an  old  hand, — of  what  ao- 
thority  is  not  certain. 

At  last  it  comes  to  this,  that  in  the  book  ap- 
pears to  be  an  ancient  entry  of  the  Customal  of 
the  five  ports  and  their  menabers,  the  time 
whereof  the  memory  of  man  is  not  to  the  ooa- 
trary. 

t  rom  what  authority  it  comes,  is  not  eer* 
tain ;  but  it  is  an  ancient  book  of  the  toim, 
and  kept  among  the  records  of  the  corpora* 
tion  ;  and  the  entry  is  in  this  book.  Tbers 
are  several  other  papers  bound  up  with  it; 
leases,  the  rental  of  an  estate,  a  copy  of  a 
mortgage,  and  some  other  thingts. 

But  that  does  not  take  oflTfrom  thecre^ 
of  it,  if  it  has  any  credit  in  itself;  for  the 
towo'clerk  might  bind  up  what  be  thooght  §t 
with  it. 

Gentlemen,  the  entry  relied  on  for  the  plaii- 
tiflf  is  this : 

(  Concerning  the  making  of  frcemeo  in  the 
Cinque  Ports  and  their  members :' 

**  The  mayor  and  jurats,  the  bailiflb  sad 
jurats,  in  every  town  and  port  where  there  is  • 
mayor  and  a  bailiff,  may  receiTe  ami  laaks 
freemen  three  ways : 

Ist,  **  Per  Nativitatem  infra  Hbertatemiosa, 
si  pater  suus,  tempore  nativitatis suss, fuit liber." 

By  birth  within  their  liberty,  if  bia  father,  at 
the  time  of  his  birth,  was  a  freeiuao. 

Another  way  is  by  a  freehold  purchase. 

And  the  third  way  is  by  buying  a  frteioa* 

And  it  goes  on  and  says,  *'  And  it  is  1a  bt 
observed,  no  man  shall  enjoy  the  freedom  of 
any  of  the  ports,  unless  he  take  an  oath  to  be 
^od  and  faithful,  to  the  end  of  his  life,  to  the 
king  of  England  and  his  heirs ;  and  to  miia* 
tain  the  liliertics  of  the  CinqMe  Ports,  isd 
especially  of  that  port  wheiV^  be  is  commonDl; 
that  he  will  be  obedient  to  the  mayor  and  iurttf; 
that  he  will  pay  scot  and  lot,  Sec.  that  be  wili 
not  do  an}'  thing  to  the  reproach  of  the  mayor, 
bailifi',  and  jurats  where  he  is  commorant,  b«i 
give  notice  to  them." 

And  there  were  other  clauses  read ;  and  one 
of  them  is,  *<  That  they  «Yho  arc  made  frcf 
in  this  form  in  one  of  the  norts,  shall  enjov 
the  accustomed  freedom  in  all  the  other  ports." 

And  there  is  another  clause,  **  That  no  am 
to  be  iDirJe  free  by  redemption,  shall  be  s4 
mitted  into  the  freedom,  till  be  has  dwelt  in  tki 
borough  by  the  space  of  one  year  and  a  day.** 

These,  gentlemen,  are  the  entries  rtiUed  oa 
by  the  plaintiff.  Af\er  reading;  tbe^e  eutri«*i 
the  counsel  for  the  deif  ndants  objected,  ihaithi* 
was  not  a  particular  Customal  of  Hastings,  ui 
therefore  not  so  conclusive.  But  HastingfS  ia 
the  Mandamus  is  suggested  to  be  one  of  tVt 
fiwe  ports. 

Gentlemen,  tbey  hare  given  eTidence-of  tkiH 
different  si»ecie8  of  persons  admitted  under  U* 
nght. 

The  first  is,  where  persons  were  tdmitliJ 
as  eldest   sons  of  freemen,  born  witbia  thf 


917] 


upon  a  Quo  Warranto, 


A.  D.  17S6. 


[918 


borough,  and  after  tbe  swearing  and  admissioD 
•ftheiather. 

Tbe  next  is,  where  the  adioissiou  has  been 
of  eldest  sons,  born  nitbin  tbe  borough  ;  but  it 
does  not  appear  wbeilier  before  or  after  tbe 
•doiission  of  the  father.    And, 

Tbe  third  species,  of  persons  who  were  ad- 
■litted  as  the  sons  of  iVeeoneu  in  general ;  but 
they  have  not  shewn  that  they  were  bom  in 
tba  town,  ur  after  tbe  father's  freedom. 

As  to  the  first  species  of  persons,  who  were 
idautted  as  ehlesl  sons  of  freemen,  bom  within 
thttowu,  after  the  admission  and  swearing  of 
tbe  father;  I  think  they  read  in  number 
defeD  instances:  I  need  not  repeat  tliem. 
The  first  is  Jeremiah  Bryham,  admitted  the 
ISth  of  James  the  1st,  anno  1614;  the  last  was 
Bwiamin  Medhorst,  tbe  mh  of  May,  1721. 

Tbe  next  species  is  of  eldest  suns  admitted, 
and  mention  is  made  in  the  entries  that  they 
are  eldest  sons:  but  it  is  not  clear,  whether 
they  were  born  before  or  after  the  father's 
freedom ;  but  it  appears  they  were  born  in 
the  town.  They  are  in  number  fourteen. 
They  begin  the  7  th  of  May,  1608 ;  and  tbe 
last  instance  of  them  is  the  31st  of  Nov.  1678. 

The  tliird  species  is  of  admissions  of  persons, 
■CDtioning  tbem  generally  as  the  sons  of  free- 
men, without  distinguishing  between  the  eldest 
and  other  sous ;  but  it  does  not  appear,  whether 
they  were  bora  in  the  town,  or  after  their  fa- 
tl^ers  became  free.  They  are  in  number  twenty. 
8o  that  the  entries  they  have  read  are  in  all 
forty- live,  under  tlie  several  species  I  have 
mentioned  to  you. 

Gentlemen,  after  reading  these  entries,  to 
shew  that  such  persons  have  been  admitted, 
mentioning  tbem  as  eldest  sons,  or  sons,  the 
finejhat  has  been  taken  upon  their  admissions 
appears  to  be  6s,  Sd,  in  all  they  have  read ; 
And  at  tbe  same  time  other  persons  were  ad- 
milled  with  tbem,  -but  in  tlie  entries  notice  is 
DOC  taken  of  them  as  sons  of  freemen ;  and  as 
lo  tbem,  the  fine  is  13s.  4d. 

Gentlemen,  besides  these  entries,  they  have 
cnllcd  several  living  witnesses. 

The  first  is  Robert  Evernden.  He  says,  he 
is  sixty-six  years  old,  and  has  lived  in  Hastings 
fifty  years.  He  says,  he  has  heard  Thomas 
Moore,  an  old  jurat,  say,  that  the  eldest  sons 
of  freemen  had  a  right,  and  that  the  usual  fine 
paid  upon  the  admission  of  an  eldest  son  is  6s, 
8^  and  that  he  has  also  heard  John  Moore, 
another  jurat,  say  the  same  thing.  He  says, 
they  are  both  dead,  and  that  John  has  been 
dcnd  about  ten  or  twelve  years.  He  says  no- 
Ibing  about  the  qualification  of  residence,  or 
being  bora  in  the  town  after  the  freedom  of  the 
btlier. 

Tbe  next  witness  they  call  is  John  Couzens. 
He  says,  he  is  sixty  years  old,  and  that  he  al- 
ways understood,  and  has  heard  several  ancient 
people  say,  that  the  eldest  son  of  a  freeman  had 
B  right  by  hia  father's  charter ;  and  takes  it, 
that  the  father  must  be  free  before  the  birth  of 
Ike  SOD.  He  says,  he  heard  both  Thomas  and 
Idm  Uooce  say  the  eldest  sou  had  a  ligh^ 


and  never  heard  of  an  eldest  son's  being  refused 
till  the  plaintiflf  Bleore ;  and  says,  he  hear)} 
Dr.  Fiat  say,  the  eldest  sou  bad  a  right  by  his 
fatlier's  charter. 

Their  next  witness  is  Drew  Sbengleton. 
He  says,  be  is  sixty -nine  years  old,  has  lived 
fifty  years  in  Hastings,  aud  speaks  to  the  same 
purpose  with  tlie  two  former  wituesses ;  aud 
says,  it  has  been  tbe  discourse  twenty  years 
back,  that  freemen's  eldest  sons  had  a  right. 

John  Boykelt  is  tlie  next :  and  he  says,  be 
is  above  sixty  years  old ;  that  he  was  born  in 
Hastings, 'and  has  lived  almost  all  his  time 
there ;  that  about  forty  years  ago  he  went  into 
tbe  court-hall,  and  asked  to  be  made  free  as  a 
favour;  but  the  mayor  was  against  it ;  and 
then  the  town^derk  asked,  if  hb  father  was  a 
freeman ;  the  mayor  said,  No  ;  and  Waller  re* 
plied.  Then  you  may  do  as  you  think  fit ;  to 
which  tbe  mayor  answers,  I  will  not  give  my 
consent  to  make  a  dissenter  free  for  40/.  He 
says,  one  (Jedhurst,  the  only  son  of  a  freeman, 
demanded  his  freedom  about  fifteen  years  ago, 
and  was  refused. 

Joan  White  says,  she  is  62  years  old ;  has 
heard  her  father  say,  the  eldest  son  of  a  free- 
man had  a  right. 

Anne  Sargent  says,  she  is  63  years  old ;  that 
she  has  heard  John  Stevens,  who  was  several 
times  mayor  of  Hastings,  say,  that  it  belonged 
to  the  eldest  sons  of  freemen  to  be  free. 

Susannah  Medhurst  is  the  next  witness.  She 
says,  she  is  66  years  old ;  that  her  former  hus- 
band was  mayor  of  Hastings,  and  is  dead  ;  aud 
that  she  has  heard  him  often  say,  tbe  eldest 
son  had  a  right,  and  that  they  could  not  deny 
him ;  and  says,  that  at  that  time  it  was  gene- 
rallv  g^nted  to  eldest  sous. 

Gentlemen,  tbe  last  witness  for  the  plaintiiT 
is  Thomas  Colebrand.  He  says,  be  is  80  years 
old ;  that  when  he  lived  there  60  years  ago,  it 
was  tlie  usage,  that  eldest  sons  of  freemen  had 
a  right ;  that  old  Waller  the  town  -clerk,  T.  Lo* 
veil,  and  T.  Itainolds,  told  him  so ;  and  that  he 
has  heard  the  mayor  and  jurats  say  so  several 
times.  He  says,  that  about  60  years  ago,  one 
Medhurst,  who  was  the  eldest  son  of  a  free- 
man, came  and  <Iemanded  his  freedom ;  and 
Lovell  the  mayor  told  him,  it  was  an  ancient 
right,  that  the  eldest  son  of  a  freeman  should 
be  made  free;  and  that  afterwards  bo  saw 
Medhurst  among  the  freemen  at  an  election, 
and  vote  for  members  of  parliament.  Gentle- 
men, it  ap|>ears  upon  the  admission  of  this 
Medhurst,  which  they  have  also  read  to  you, 
that  he  paid  a  fine  of  6s.  Hd,  And  this,  gen- 
tlemen, is  the  whole  of  the  plaintilT's  evidence. 

For  the  defendants,  tbe  gentlemen  of  the 
other  side  insist,  there  is  no  right  at  all  to 
freetloms  in  this  borough  ;  but  that  all  admis- 
sions depend  upon  tbe  will  and  pleasure  of  the 
mayor  and  jurats ;  that  they  may  admit  or  re- 
fuse a  stranger  or  a  son,  just  as  tbev  please  : 
and  they  insist,  that,  if  there  be  such  a  right, 
that  it  is  restrained  by  these  two  qualificationr^ 
of  being  bora  in  the  town,  and  after  the  swear^ 
log  and  admission  of  the  father* 


919] 


10  GEORGE  II. 


Case  of  Henri/  Moore^ 


[920 


And  another  qualification  insisted  on  by  the 
defendants  is,  that  he  should  be  resiunt  within 
the  boroonrh. 

Gentlemen,  the  matter  of  law  which  will 
arise,  if  youfare  of  opinion  that  there  is  such  a 
custom,  will  be,  whether  the  fine  l)e  a  reason- 
able fine,  as  the  plaintiff  has  laid  it,  or  whether 
this  is  a  certain  fine  of  6«  8^. 

Crentlemen,  the  first  evidence  that  has  been 
produced  for  the  defendants  is  an  old  book,  in 
which  there  are  entries  of  an  old  Customal,  and 
a  by-law,  dated  the  ISth  of  April,  the  15th  of 
i|ueen  Elizabeth;  by  which  it  is  decreed, 
**  That,  if  any  freeman,  now  or  ot  any  time 
hereafler  an  inhabitant  of  this  town,  shall  d€^• 
part  or  dwell  out  of  the  town  by  the  space  of  a 
year  and  a  day,  lie  or  they,  so  dwellinsf  out  of 
the  town,  shall  lose  his  or  their  freedom  for 


>• 


ever. 

I  own,  I  do  not  know  so  extraordinary  a 
custom  any  where :  for  a  man  to  hare  a  ri«;ht 
to  be  admitted  a  freeman,  who  was  notresideNt; 
and  yet  the  corfHiration  could  disfranchise  a 
man  fur  non-residence. 

fidt  this  by-law  will  not  he  of  mnch  weiiSj^lit 
one  way  or  other.  It  only  shews  the  act  of  the 
corporation  to  disfranchise  any  person  that  goes 
out  of  the  borough. 

They  have  also  produced  for  the  defendants 
another  book,  in  which,  they  say,  ii«  contained 
the  usage  of  Hastings  time  out  of  mind  ;  and 
they  have  read  out  of  it  an  entry  in  old  French, 
the  puqyort  of  which  is,  *'  That  if  a  foreigner 
resides  in  Hastings  for  a  jear  and  a  day,  he 
may  come  bePore  the  baililf  and  jurats,  and  be 
admitted  to  the  freedom  upon  taking  an  oath." 

The  witness,  who  read  this,  swore  there  was 
DO  other  evidence  in  the  book  I'tiluting  to  the 
making  of  freemen. 

They  read  this,  to  shew  that  there  is  no 
right  of  freedom  at  all  in  this  borough,  if  a 
stranger,  who  has  lived  in  the  town  a  year  and 
a  day,  may  come  before  the  bailiff  and  jurats, 
and  thev  may  udmit  him  upon  taking  an  oath. 

Gentlemen,  the  next  evidence  I  he  defendants 
have  produced  is  from  entries  of  the  admission 
of  sons  of  freemen,  wilhunt  mentioning  that 
they  were  either  eldest  or  vounger  soqs  ;  and 
the  plaintiff  admits  many  of  these  entries ;  and 
they  only  shew,  that  the  fact  in,  that  other 
sons,  as  well  as  eldest  sons,  have  been  admitted 
foi  a  fineof  6f .  Qd, 

The  next  evidence  is  from  living  witnesses : 
and  the  first  witLes>«  thev  have  called  is  Henry 
Carlton.  He  says,  lie  is  8i)  years  of  age,  was 
born  within  a  mile  of  H.isii'  gs,  and  from  15 
years  old  has  livetl  there.  He  has  been  at  se- 
▼eral  meetings  o*  the  mayor  and  juiats,  and 
bas  known  several  honorary  freemen  made, 
(members  of  parliament,  and  captains  of.ships) 
who  did  not  reside ;  and  \  ot  he  says,  he  never 
heard  of  any  who  do  not  live  there,  that  had  a 
right  to  demand  their  fireedoms ;  and  persons 
Who  have  lived  there,  and  b(>eii  sons  of  free- 
men, have  been  refuseil,  and  has  known  in- 
■tancea.  He  saj-s,  he  never  looked  upon  it 
thai  any  peraoa  bad  a  right|  luJeM  acoordiag 


to  the  pleasure  of  the  mayor  and  jarats.  He 
sa^s,  one  Evemden,  who  was  an  eldest  son,  ap- 
plied to  the  mayor  and  jurats  to  be  made  five, 
and  was  refused ;  and  that  this  was  about  S5 
years  ago.  He  says,  he  has  been  a  jurat  from 
1701 ;  and  tells  you,  that  the  common  wav  of 
making  free  is,  for  a  man,  if  he  be  an  eldest 
son,  to  apply  to  the  mayor  and  jurats,  andaik 
the  favour  of  them  to  be  made  free ;  and  if  thty 
consent,  he  comes  to  the  court,  and  aakslt 
again ;  and  if  any  difference  arises,  they  pat  it 
to  the  vote ;  and  this,  he  says,  is  the  method 
of  proceeding  in  the  case  of  admitting  freenies*t 
eldest  sons.  He  says,  he  was  the  eldest  son  of 
a  freeman,  not  born  in  the  town  ;  that  he  sn 
admitted,  and  paid  but  Gs.  Sd,  Therefore  thii 
is  not  to  be  applied  only  to  the  right  of  tldot 
sons  bom  within  the  borough,  he  says,  that  se- 
veral such  have  been  admitted,  but  not  npoB 
tiie  foot  of  right. 

Their  next  wimesa  is  Robert  Barthokineiry 
ag^d  82.  He  says,  he  was  made  free  by  the 
favour  of  the  mayor  and  jurats ;  and  that, »  bit 
opinion,  nohody  hut  those  whom  the  mayor 
and  jurats  please  have  a  right.  He  wasasked, 
whether  he  did  not  tell  Mr.  Broadway  aadMr. 
Dodson,  that  he  rcmemlNirrd  the  time  particu- 
larly well,  when  the  eldest  sons  of  freeawB 
were  admitted  without  any  dispute  f  And  be 
savs,  He  never'told  them  so. 

*Mark  Hayley  is  the  next.  IJe  is  76  ycvf 
of  age,  and  has  lived  all  his  time  in  Hastiajii, 
and  has  been  a  jurat  six  or  seven  yaars.  He 
says,  there  is  no  su<:h  thing  as  demanding  a 
freedom  by  right,  and  that  the  eUlest  son  of  a 
freeman  has  no  more  right  than  any  body  eke. 

Their  next  witness  is  Thomas  Caswell.  He 
says,  he  has  been  a  freeman  ever  since  the  yetr 
1716  ;  that  he  is  the  eldest  son  of  a  freeinao, 
and  applied  to  the  mayor  and  jurats  for  tlierr 

food -will  to  make  him  free ;  and  knows  oo 
ifference  between  the  admission  of  an  ekle^ 
son  and  another,  but  paying  half  the  fine.  He 
says,  he  never  knew  any  persons  made  free  bat 
who  were  resident  in  town,  nor  upon  a  free- 
hold ;  and  that  it  is  entirely  in  the  pleasure  of 
the  mayor  and  jurats  (o  make  free.  He  savS| 
when  he  was  admitted,  the  fine  wasfis.  Ihf.fitit 
since  they  have  taken  20f.  But  being  caiN 
on  to  name  instances,  he  says,  he  knows  but 
of  one  instanrc. 

William  Bourne  is  the  next :  and  he  saysi 
he  has  been  a  freeman,  but  never  a  jurat;  that 
be  has  known  the  town  58  years  ;  and  that  tbe 
way  to  be  admitted  is  to  get  the  good-will  of 
the  mayor  and  jurats.  He  says,  he  is  tbe 
eldest  son  of  a  freeman,  but  knows  of  no  right, 
and  that  he  requested  it  as  a  favour ;  and  be- 
fore they  admitted  him,  they  considered  of  it 
two  or  three  court  days :  anil  be  says,  that  do 
non-resiants  can  be  admitted. 

This,  gentlemen,  is  the  whole  of  tbe  defto- 
daiits'  evidences. 

By  way  ot  reply,  the  plaintiff  has  calM  twt 
witnesses  to  contradict  what  Robert  Bartbslo* 
mew  has  sworn. 

Mr.Broadirsjiithefint:  mdhanyiilM 


99T3  upon  *  Quo  Warranto. 

he  (w  in  compiny  nilh  Barlholomen' about 
l«ru  years  iKo.  M  ilie  Blue  Anchor  in  Hiut- 
ifip  1  wbm  be  loJiI  liim.  thul  llie  eMe«1  Btns  uf 
ll^neii  hod  an  umloublril  rigbl.  •nil  ibat  he 
WM  aJmiltcil  U|Hin  ihnl  ritjbt,  Ihougb  lie  bail 
brlore  (Ire lined  it.  by  rcMOU  orilietuies. 

Mr.  Doiliou  wa<  bIw)  prcKui,  auil  br  cays 
lfa«  Mtne. 

Vpnn  ibli  Banholampw  wu  conrroiitpri  with 
Dixtioii  aiiil  Bruadway  :  and  he  »id  (hat  be 
<tai  not  n-iih  ibrm  di  socb  a  ntuce,  and  tbal 
■btre  »  n'>  such  sipi  aa  lliu  ItbicAnchor  at 
Banlingfi,  He  deuirJ  he  t«id  the  rides)  B"nhail 
a  ritflii ;  bulowua  be  said,  he  iliuu^ht  they 
aine  to  (iry  into  the  secrela  ol  the  coriwratian. 
'  Upon  ihu  ttidence,  genllemeo,  it  will  be 
pnper  I'ur  yuu  lu  cvnsid^r, 

Fml,  \V)>nber  yuu  believe  there 
ti'e  riKbl  in  this  bciinu^b  for  an  ebl< 
lr«r  ?  A»to  tbrnalil  that  has  bera  Betu|ifarllie 
dcfeodanln.  Thai  all  is  ai  the  will  and  {ileaiure 
«f  (Iw  mayor  atid  jurats,  and  thit  there  ii  no 
li^laiall  tnhelVee;  it  is  aui-h  an  extraordinary 
•nUuin  ai  I  banlly  erer  beard  uf,  and  know  no 
■och  innancc  any  where.  Some  right  ibere 
moM  be,  alihuu^h  the  rnDKtBlralci  may  hnre 


0  Ibeii 


TberelorB  the 
yon  believe  Ibere  ii 
be  free? 


tun  at  read. 


I.  'Thii 


1  be  sura,  is  some  cvi- 
I  CDDclusiTe ;  aait  it  is  the  Cui- 
il  ofihe  live  porta  ingCDeraJ,  and  there  are 
iMa  customa  in  each  port. 
.  Am)  here  ia  oDe  melbnd  laid  down  nf  an  ad- 
BSiaMna  of  freemen  iu  right  uf  a  purchase,  and 
lha(,  they  shew  yoa,  has  never  been  coinidied 
Willi. 

Bui  they  hats  read  many  inclancea  uf  per- 
■HM  who  were  admitted  u|Hin  the  Grat  right; 
thirtv-fite  they  have  read  who  were  admitted 
•aattleslEonR,  or  sons;  ofihe  first  iiwclef,  they 
Trail  eteteti  in  nuinber;  and  you  must  take  it 
iDigrther  with  what  the  living  witniaaea  tell 
yoa,  who  all  aay.  that  they  have  taken  the 
cealoiD  to  be  so,  that  tlie  eldeal  son  has  a  riybt. 
fVbal  Doykelt  iwori:  is  very  material,  that, 
whm  he  applied  to  bo  admilled,  Waller  the 
tmro-ulerkaaked,  if  hii  father  ko*  afrcrainnf 
The  mayor  said.  No ;  ta  which  Waller  rvplied, 
Titea  do  what  you  please, 

-Ontlemcn.for  ilieiletendanli,  the  wiinettet 

fcavc  iwum,  Ibat  they  know  of  no  right  to  ti-ea- 

Bta  ibla  btiruugb,  bnt  at  thepleoiure  of  the 

eaad  jurala;  and  that  during  Iheirtime, 

Hugh  parlicutar  menlinn  is  made  In  (be 

■  Ihallliey  areaona,  in  teapect  of  the  dif- 

eenf  the  line, and  that  \h«y  (readmitted 

fttr  pafinu  St.  tttf,  (bey   tell  vou  it  is  not  at  ail 
■Mt^ilal  bciu);  the  uin  of  a  Ireemao. 

GsDtlemen,  io  the  next  place  you  will  con- 
aider,  if  you  believe  there  ii  any  ri(;hl  for  the 
clileai  wmi*  of  freemen,  tiien  whether  it  be  ne- 
rewarr  Uial  he  be  burn  in  the  inwu,  and  after 
il^fctim  waantade  free;  because  the  plain- 
u  made  it  ncoMaary  for  him  to  prove  that 
Itan  Uric  aller  the  admiMiun  of  his 


A.  D.  1736.  [922 

t'aiher.by  Utyineil  ■  inrespscltherenf.*  Aadaa 
to  thai,  theancientCuEtuinnl  says,  "UnonuMJo, 
jiitr  nutivilalem  intra  libertatem  suara,  si  paler 
anus,  tempore  nativilatif  bus,  fuit  libtr ;" 
That  every  body  has  a  right  by  birth  williin 
llieir  liberty,  it  his  father  at  tlie  time  of  liia 
birlh  was  a  freeman.  This  the  ancient  Cua- 
but  this   is  not  c 


'I'lierttbre,  gentlemen, ^ou  willconsider  it  nitb 
the  evidence  ol'  the  living  wiiiiesaes,  and  aona 
of  Ihein  have  made  that  a  neceuary  qnaliftca' 
liuu.  One  of  tbem  said,  llal  the  falW  must  be 
free  beliire  ihe  birth  of  his  son ;  and  another 
aaid.  it  made  no  differenci',  whether  bnm  be- 
fore omOcr;  Biil  none  of  (hem  said  po^-iiively, 
that  be  niUBi  be  barn  witliiu  the  lihpriy.  alter 
the  admifiiion  and  swearing  of  bis  father. 
Therefore  ynu  will  comidrr,  whether  these  two 
quail  I  i  cations  are  proved  e«»eotial  lu  the  right 
(o  be  mode  free. 

In  the  next  place,  it  will  be  proper  lo  con- 
sider, that  the  Cusiomal  supjiuiies  that  no  man 
has  a  right,  unless  he  be  resionl ;  and  it  lend* 
lo  mlatge  the  freedom  of  tlie  borough,  to  let 
in  person*  not  re>i'lenl:  But  very  little  potiliva 
irviilenee  hsabeeui^iveDorthat* 

The  defend  Bills'  witnesses  have  sworn  po»i> 
lively,  that  the  mayor  and  jurala  can  Bitniil 
none  bnl  resianis;  and  yet,  that  they  raay 
admit  honorary  freemen  who  are  uon-reaidenl : 
Though  tlie  ancient  Ciistiinial  bn.i  an  express 
clause  in  it,  which  suppuses,  lliat,  io  order  In 
be  free,  a  man  roust  be  resident.  They  swear 
to  pay  scot  and  lot,  and  to  maintain  the  liber- 
ties ot'iheGve  ports,  and  paiticulsrly  ofthenort 
where  they  ate  cominorant;  which  impliea, 
lliat  every  freeman  should  be  commorani. 
And  the  Giiunael  fur  the  defendants  hat«  men- 
lioned,  that  every  freemnn  is  to  take  an  oath  io 
msioiain  the  rights  nf  iha  five  ports,  aud  es- 
pecially of  that  port  where  be  is  commorani. 

You  will  consider  therefo>e,gentleinea,  whe- 
ther this  Imports  a*  a  necessary  qualiticMtMt, 
that  in  enter  to  he  free,  a  maa  must  ho  rMidsnt  > 

The  counsel  for  the  plainlifl^  did  not  ask  tha 
witnesses  as  to  this  point  of  resldeove. 

Tlie  witnesses  for  the  dL-fendants  all  swore, 
they  took  It  tn  be  so ;  bul  yet  that  boDomry 
freemen,  who  were  noi  resldvnl,  an  jht  be  made 
free. 

It  will  he   proper  for  you  therefore,  geutle- 


sider. 


e.  that 


Fii-si,  if  ymi  believe,  on  this  erid 
there  is  no  right  in  iheaon   of  any  It 
demand  bit  frecdnta   of  the  mayor  and  jurats, 
bul  that  all  detiends  on  their  pW 


You  win  cnnsider,  whither  the  twanMlifl- 
-catioiie.  of  bfioi;  born  in  the  borough,  after  Ihe 
freedomof  Ihe  father,  ore  necessary,  or  noFi 

If  yon  believe  they  are  not  net^ssary  ;  but 
thnt  whether  h«  be  bnm  in  nr  out  of  iha 
homuqii,  nr  belhre  or  afler  he  waa  made  free, 
makes  no  dift'erence  ;  iu  tiiat  one  joa  niM 
find  for  the  defcndanto. 


983]  10  GEORCE  II. 

Bat  if  yon  bdiere  ■  right  in  th«  MM  of  frea- 
laea  ;  and  ihat  belog  bom  in  tbe  boruugb,  and 
after  the  Tither'a  lieedom  an)  euentisl ; 

Then  you  will  vaiwider  the  maUer  oT  rft> 

Aadif  you  tielieve  minnca  DOt  neceuarj, 
then  you  niuit  Bad  a  rerdict  for  tbe  plaintifi'. 

But,  on  the  other  band,  if  you  berievr  being 
bora  in  the  boruugh,  and  atler  tbe  father*!  free- 
dom, ara  not  neccMiary  ;  or,  if  necEoary,  tb*l 
it  It  equally  oeceaary  that  the  penouBahould 
berendent;  then  you  muat  find  a  verdict  for 
the  defenduit*. 

Tcrdict  for  the  Plaintiff. 

Foreman.  We  find,  that  tbe  e1de*t  ton  of  a 
ftveman,  born  within  ibeboroogh,  alter  hi*  fa- 
ther'a  freedom,  baa  a  right. 


Trial  of  Captain  Purteout,  [9S4 

Lord  Hardaitkt.    What  do  yoo  find  M  I* 


Foreman.  Hy  lord,  tre  find  reaideoee  not  De> 
oeaaary;  andlhat  the  FUMt.son,  bom  wititin 
tbcborougb,  afEer  his  father's  freedom,  bna 
right  upon  payinii  a  cuttninar*  fine. 

Lord    Uariaicke.     What  do  you  find  tbt 

FoTtman.  We  fiiHJ  the  fine  to  be  e«.  8i.  aad 
that  that  in  reaaoDuble. 

Lord  Hardnicke.  That  point  of  the  reawi. 
able  fine  mutt  be  M*ed  for  the  optoiooof  tba 
Court ;  and  let  the  Pueteaatay. 

N.  B.  The  Special  Verdict  was  aflerwH^ 
tolemnly  argued,  and  detemiioed  by  Ibe  Coait 
in  Amur  of  the  phuutiff  Mooic 


498.  Proceedings  in  tbe  Trial  of  Captain  John  Porteous,  for 
Murder.*  Published  by  Order  of  the  House  of  Lords ; 
10  George  II.  a.  d.  1756, 


CuBU  JumcUBix  S.  D.  N.  Regti,  Tenta  in 
NoTD  Seiciomi  Dorao  Bui^i  de  Edin- 
burgo,  Quinto  Die  Mensis  Julii,  MillesBi- 
mo  teptiDgeDteaimo  trigetirao  sexlo,  per 
HonorabUes  Viros,  Andream  Flrtcher  de 
Milton,  Justiciarium  Clprlcum,  Domiuum 


Gualterum  Pringle  de  Newull,  et  Gilber- 
tiim  Elliot    dc    nilDla,   ConnniEaionarioii 
Junticiariie  dictj  S.  D.  N.  Regis. 
Curia  legittime  alErmata. 

John  PORTEOUS,  lately  one  of  the  cap- 
tain lieutenaots  of  the  city  guard  ofEdiDburgh, 
present  prisoner  in  the  Tolboolh  of  Edinburgh, 
pannel.     indicted  and  accused  at  the  initauce 


*  As  to  the  pari ia men tary  proceedings  bar- 
ing relation  to  tliia  Case,  KB  New  Pari.  Hist. 
*oT.  9,  pp.  1S81,  ct  tt'i-  Tol.  10,  pp.  137,  cl  teg. 
147,  el  leg. 

Mr.  Burnett  (Treatise  on  tbe  Criminal  Law 
ef  Scotland,  chap.  1,  p.  71,  tit.  Homicide  by 
■oldiers  in  discharge  of  their  duty,)  after  con- 
udering  sereral  cases  of  homicide  CDmniitted 
by  soldiers,  in  which  tie  soldiers  appeared  to 
hare  acted  in  sell' defence,  orin  defence  of  guodt 
regularly  seized,  or  in  ussislance  of  revenue  ut- 
ficcn,  or  being  ou  duly  in  obedience  to  orders, 
cites  the  following  observation  nf  lord  Rnysloo, 
with  respect  to  »ome  of  those  cases :  "Thisde- 
fenre,"  f  meanini,'  that  the  soldiers  acted  hy  or- 
aera  of  their  officers)  ■'  was  likpwise  pleaded 
for  some  soldiers,  who  were  tried  for  shooting 
two  penons  of  a  mob,  who  attacked  those  sol- 
dins,  but  then  tf ai  no  explicii  iuteiloenior  on 


of  Duncan  Forbes,  esq.  his  majcaty'a  Advaetl 
for  his  highness  interest  for  the  crimes  of  Bor- 
der and  sIsaghlcT,  and  olhcn,  as  is  mora  fvUy 
mentioned  in  the  indicleniedt  raised  agaiaa 
him  IhereanenI,  Setting  forth,  Tliat  wbeia, 
by  the  law  of  God,  tbe  common  law,  the  mu- 
nicipal law  and  practice  of  this  kingdom,  sail 
the  laws  of  all  other  well-goremed  realnn, 
murder  and  slaughter,  maiming  and  woundiae 
with  mortal  wcaiioos,  any  of  the  subjects  of 
sucli  realms,  ana  the  ordering,  commsnillDt, 
and  causing  any  band,  or  nninber  ot' men,. arm- 
ed with  firelocks,  and  other  mortal  weapons,  to 
fall  upon,  vcounil,  murder  ami  destroy  nombets 
of  his  majesty's  subjects,  innocently  and  law- 
fully assernliled,  by  tiring  sharp  shut  amengit 
tlieiu,  whereby  multiiudes  are,  or  may  be  en- 
dangered, and  many  men,  women  and  innocent 
children  are,  or  may  be  killed  or  wounded,  «ilb- 


Uiat  point ;  jiriucJpally,  because  the  Court  wu 
out  inclined  to  give  loo  much  eocouragemeut 
to  soldiers,  even  though  acting  hy  orders;  nu- 
lilary  execution  being  an  ezlraordinary  re- 
medy, and  not  to  be  used  but  in  casea  «f  necea- 
aity.*' 

Mr.  Burnett  then  precceils  as  follows:  "Tliis 
principle  seems  to  hove  ruled  in  the  noted  Casa 
of  ParteDU8(July,  ITSQ,)  which  happened  a  few 


soldiers,  and  the  notoriety  of  the  avowed  pur- 
pose which  bronght  the  greater  part  of  tbe  mob 
there,  this  principle  ougbtnot  to  naTe  had  eKcl 
in  such  a  case,  and  certainly  would  not  now  be 
followed,  were  a  similar  case  to  occur." 


He  then  abridgea  tbe  argumnia  maiulaiiMi 
on  the  part  nf  the  prosecutor  and  oa  thet  nftbn 
punel,  ud  Uwn  mild  tbe  inlulBcaCar  rf  idt; 


925] 


Jor  Murder. 


A.  D.  17S6. 


\jm 


out  any  just  eause  or  occasion,  and  without 
lawful  warrant,  more  especially  when  com- 
mitteil  in  the  public  streets  of  a  city,  by  a  per- 
ton  lawfully  commissioned  by  the  magistrals 
thereof,  to  command  such  baud  of  armed  men 
for  the  preserration  of  peace  and  order,  and  for 
the  defence  of  the  inhabitants,  and  others  re- 
torting thereto,  are  crimes  of  a  htp^h  nature, 
and  aeirerely  punishable :  yet  true  it  is,  and  of 
rerity,  that  he  the  said  John  Porteous  had  pre- 
•umed  to  committ,  and  was  guilty  and  acces- 
sary, or  art  or  part,  of  all  and  eirery,  or  one  or 
ether  of  the  foresaid  crimes  aggravated  as  albre- 
faid :  In  so  far  as,  upon  the  14th  day  of  Aprile 
last,  or  one  or  other  of  the  days^uf  the  said 
nooth,  when  the  deceast  Andrew  Wilson,  sen- 
tenced to  be  hanged  to  death  by  the  high  Court 
of  Jnsiiciarv,  was  to  be  executed  at  the  Grass- 
market  of  the  city  of  Edinburgh,  he  being  at 
that  time  one  of  *the  captain  lieutenants  of  the 
town  guard  of  the  said  city,  lawfully  commis- 
tioneoby  the magistrats  and  town  council there- 
Qf ;  and  in  the  ordinary  course  of  rotation  with 
the  other  officers  of  the  said  guard,  being  order- 
ed to  attend  at  the  said  execution  to  preserre 
the  peace,  and  support  the  executioner  in  the 

▼ancy ;  upon  w  hich  he  obsenres  as  follows :  <*  No- 
thing is  here  said  of  the  conduct  of  the  luob,  the 
true  and  indeed  only  ground  of  justification  on 
the  part  of  Porteous ;  but  his  dei'cnce  is  made  to 
rest  solely  on  his  behaviour  at  the  time.  There 
wasy  indeed,  both  in  the  information  for  the  pri- 
soner, and  in  his  petition  afterwards  to  queen 
CaroliDe,  too  much  said  on  his  supposed  con- 
duct at  the  time  (his  not  firing,  or  giving  or- 
ders to  fire)  and  too  little  on  the  general  argu- 
ment in  justification,  arising  from  the  conduct 
of  the  mob,  and  the  consequent  plea  of  <luty  on 
the  part  of  the  soldiers.  It  is  plain  from  the 
interlocutor  of  relevancy,  and  still  more  from 
the  sentence  following  on  the  verdict,  (which 
last  expressly  found,  that  the  pannel  and  his 
goard  were  attacked  and  beat,  and  several  of 
the  soldiers  bruised  and  wounded)  that  the 
Court  were  influenced  by  the  circumstance,  of 
Porteous*s  conduct  at  the  time  betraying  symp- 
toms rather  of  a  revengeful  an<l  malicious  pur- 
pose, than  shewing  that  he  acted  from  a  sense 
of  duty.*' 

He  adds,  that  '*  in  the  Case  of  Sullivan  and 
Black,  two  soldiers,  tried  for  murder  before  lord 
Atichinleck  at  Invcrary,  in  Sept  1763,  who  had 
been  assisting  revenue  officers,  the  interlocutor 
•eemingly  narrowed  the  prisoners'  defence, 
since  it  finds  the  murder  relevant ;  but '  allows 

*  the  prisoners  to  prove  that  the  same  was  com- 

*  mitted  in  the  just  and  necessary  defence  of 
'  their  own  lives,  and  when  thev  were  in  the 
'  execution  of  their  duty,  and  all  facts  and  cir- 
'  eumstances  tending  to  their  exculpation,*  as 
If  the  *  periculum  viioe'  was  deemed  necessary 
to  excuipAte  in  such  a  case.  The  jury  found 
Bot  gmilty ;  the  fact  being,  that  a  rescue  was 
attcnpted  by  persons  armed ;  and  the  soldiers 
int  oreil  over  their  heads  to  intimidate,  before 
IbcyCradJiltiiiuUely.'' 


discharge  of  his  doty,  having  under  his  com- 
mand a  detachment  of  about  seventy  men,  he 
did  then  attend  in  the  aaid  Grass-market  ac- 
cordingly, and  after  the  aaid  Andrew  Wilson 
had  hong  upon  the  gallows,  erected  for  his  exe- 
cution, until  he  was  dead,  at  least  for  a  consi- 
derable time,  and  so  long  as  there  was  ground 
to  conclude  he  waa  dead,  he  the  aaid  John 
Porteous,  shaking  off  all  fear  of  God,  and  re- 
spect to  his  majesty's  laws,  and  conceiving  a 
most  wicked  and  malicious  purpose  of  destroy- 
ing, wounding  and  maiming  numbers  of  his 
majesty's  subjects,  the  inhabitants  of  tlie  said 
city  of'^ Edinburgh,  and  others  there  assembled 
at  the  said  execution,  without  any  just  causo 
or  necessary  occasion,  ordered  the  said  detacb- 
ment  of  the  goard  under  his  command  to  fire 
upon  the  people  so  assembled  at  the  said  exe- 
cution ;  and  the  men,  at  least  severals  of  them 
having  fired,  as  it  seems  he  apprehended,  over 
the  heads  of  the  multitude,  so  as  to  avoid  doing 
them  harm,  he  with  threats  and  imprecations^ 
repeated  his  commands  to  fire,  callmg  out  to 
them  to  level  their  pieces,  and  be  damned,  or 
words  to  that  nurmiae ;  and  at  or  about  the 
same  time,  he  levelled  the  firelock  that  was  in 
his  own  band,  taking  aim  at  Charles  Husband, 
servant  to  Paul  Husband,  confectioner  in  the 
Abbay  of  Holyrood-house,  and  most  wickedly 
and  murderously  fired  at  him,  whereupon  ho 
immediately  dropped  to  the  ground,  having  re- 
ceived a  wound  oy  a  bulletor  large  drop  of  lead 
on  the  left  side  of  his  head,  which  pierced  into 
his  brain,  and  another  large  wound  likewise  by 
a  bullet.or  large  drop  of  loul  on  the  left  aide  of 
his  neck,  and  a  thiro  woimd  in  his  body,  and  a 
fourth  wound  in  his  left  hand,  at  least  a  mortal 
wound,  or  wounds,  whereof  he  died  in  some 
short  space  thereafter ;  at  least,  he  did  so  le^el 
his  piece,  and  appeared  to  take  his  aim  at  some 
one  of  the  innocent  multitude  who  happened  to 
stand  directly  over  agrainst  him,  and  he  did  fire, 
and  upon  his  so  firing,  the  said  Charlea  Hus- 
band, at  least  one  or  other  of  the  persona  parti- 
cularly after-mentioned,  or  more  of  them,  did 
immediately  drop  to  the  ground,  having  re- 
ceived a  mortal  wound  or  wounds,  whereof  they 
soon  aAer  died.  And  by  his  said  example  and 
command,  severals  of  the  said  guard,  to  the 
number  of  twenty,  lessor  more,  did  at  the  same 
time  with  him,  or  soon  after  him,  fire  u|)on  the 
innocent  multitude,  whereby  all,  or  one  or  more 
of  thefol  lowing  persons  received  mortal  wounds, 
whereof  they  soon  after  died,  viz.  Archibald 
Ballantyne,  son  to  John  BalIantyne,yodnger, 
dyster  in  Dalkeith,  received  several  wounds, 
with  bullets  or  large  drops  of  lead,  which 
pierced  into  his  body,  at  least  a  mortal  wound 
or  wounds  in  Ihs  head  or  bo«ly,  whereof  he  died 
a  few  days  thereafter ;  and  John  Aoderson,  son 
to  George  Anderson  in  Craighead,  drover,  re- 
ceived a  wound  in  the  head  with  a  ballet  or  large 
drop  of  lead,  at  least  a  mortal  wound  or  wounds 
in  his  head  or  body,  so  that  he  died  in  few 
houra  thereafter;  and  the  following  persona 
were  grievously  maimed,  hurt,  and  wounded, 
to  the  great  danger  of  their  lives,  vis.  Margaret 


D27J  10  GEORGE  IL 

.Arthur  thu  Airih,  i««ul«titer  in  tfao  Cumon.  - 
gate,  neu  the  Water-gule  ibereof,  Jean  Peal, 
•nrtDt  tn  Jimei  M'Dowal,  meTchiDt  in  Edin- 
htfgh,  Darid  Wallicp,  journayman  wrighl  in  '■ 
EJiDbureh,  JamgiPh"Lli[iUteiierTantto 
Iduiler,  esq,  reitdrnter  in  ihe  Cannon-KaUi 
UavidKiJ(llayb.rinEdin>iiir|!li,  Patrick  t^^- 
ing  apiireatiue  tn  DaTid  Mitchel  jeweller  in 
Kdinbureh,  JaniM  Lyie,  anJ  AIntaDder  Wal- 
lace, both  wTTiinls  tn  James  Wri^Ut  olajiiDaLer 
in  Eilinttnniti,  John  Miller  uylorinEilioborgb, 
Da*td  Ogikie  writer  in  EdiDburgli,  and  Jamea 
NiTan  late  aervaut  lo  William  Sellan  writer  io 
Edinburgh,  reaidenter  in  the  Fottfir-raw:  at 
lea^l,  tlie  laid  perMDi  were  lO  killed,  wounded 
and  tnaiiued,  by  the  6ritw  in  manner,  and  by 
tliE  direction,  aa  albraaid,  aiKl  hy  the  aeaond 
firinir  aiDemwntiimed ;  for  oM  MDtental  with 
the  MiWitici  Ihna  committed,  nftar  he  bad 
with  the  asid  company  «r  detachment  of  the 
city  gaard  marched  towarda,  or  into  the  phwe 
or  rtrect  called  the  WcM-bow,  he,  witbont  juat 
catNeorooeaiioci,  af[ain  ordered  the  men  under 
bia  command,  to  race  aboni  and  fire  upon  the 
people,  and  at  or  about  the  aame  time,  he  fired 
a  miiaket  or  flrelnck  that  waa  in  bis  own  hand, 
ba* iog  either  reloaded,  or  eauied  to  bereltMded 
hia  own  piece,  or  takenanatherout  of  tbehaod 
of  one  of  the  guard ;  and  aereraU  uf  the  aaid 
guard  did,  upon  ttiat  aecond  example  and  com- 
mand of  hia,  fire  upon  the  multitiide,  wberdiy 
AieunderH'Neilaon  to  Edward  H>Neil  ia- 
dweller  in  U^irton^ball,  recnied  a  shot  in  the 
bead  with  a  bullet  or  lead  drop,  which  pierced 
into  his  brain,  at  leaata  mortal  wound  or  woutidi 
in  his  bead  or  body,  so  that  hedied  thereof  in  a 
few  days  therealter;  aod  Margaret  Gmdon 
armnt  to  William  Ogilvie  lay  lor,  in  Saint  Itlary 
Wind  in  Edinburgh,  received  a  ivound  io  ib'c 
heail  aliuTe  Ihe  left  eye,  vilh  a  build  Or  largfe 
drop  uf  lead,  which  pierced  into  her  bralo,  at 
leant  a  murtul  woun'l  or  wounds  in  her  liuad  or 
body,  so  that  she  died  thereof  in  a  short  space 
thcrealUr;  and  Henry GrahameUvlor inCan- 
tmnirale  received  a  wound  in  the  hi'ad,  with  a 
bullet  or  lari(e  drop  of  lead,  which  pierced  into 
his  brain,  at  least  a  mortal  wound  or  wounda 
in  his  head  or  body,  of  which  he  died  in  a  few 
faoura  thereafter :  at  least,  by  this,  and  the 
other  firings  by  him,  and  hy  his  order  anil 
example  above-niFnlioned,Bllor  one  or  more  of 
tlie  perronK  particularly  obnvu  recited,  as  havinif 
been  killcEl,  received  uiurtal  wounilr,  of  which 
they  soon  oiler  died,  and  all  or  one  or  move  uf 
the  persona  above  recited,  to  have  been  woimd- 
cd.  Here  grievously  maimed,  hurt  and  H'Oiind(.iI, 
lo  the  great  danger  of  tiieir  lives  :  at  least,  ut 
the  lime  and  place  aforsaid  the  saiil  persuut 
above-named  and  nienlioued  to  have  been  rc- 
sprclively  killed  aud  wounded,  were  all,  or  one 
or  more  uf  them,  wickedly  aii'1  malicioustv 
slaughtered,  murdered  and  wounded,  hy  tvouiiils 
aeiBTBlly  ^ivan  tliemhy  mortal  weapons:  and 
he  was  guilty,  art  and  part,  of  the  slaughter, 
murder  and  wounding'  of  all,  or  one  or  more  of 
tbem:  all  which,  or  any  part  thereof  being 
IboiHl  proran  by  the  rerdict  of  an  asuai-,  in 


Trial  of  Captain  Porleout,  [988 

preaence  of  '.bo  Inrda  justice  general,  justice 
clerk,  aud  commissiDoers  of  jusliciary,heaui[hl 
to  be  most  exemplarly  pooiahed  with  the  paioi 
of  law,  to  the  terror  oj'others  to  commit  the  like 
ioming.  Sic  Subarribilar, 

Cu.  AaaiuiiE,  A>D. 


I  Forbes,  pac|.  his  majm- 
^harlea  Erakine,   bia  ma- 


Mr.  Hugh  Hurray,  KJoDynmont;  sir  Jamtt 
ElphioBtoun. 

Prclacuton  in  Deftnce—Tdr.  Jamex  Oii- 
hame,jun.;  Mr. Henry  Home;  Hr.Aleaaads 
Lockhart ;  Mr.  Jamea  L«aaley  ;  Mr.  JaoM 
Hulburn  ;  adrocatei. 

Tbe  libel  being  openly  read,  aad  debalesnl 
eoce, in  preaeiiceorthejudgea,pannel  nndjoij, 
the  lunls  oidaioed  both  partiea  to  give  in  tbtir 
informationa  la  tbe  clerk  of  court,  in  urdcrtobe 
reimiied,  aud  the  pursuers  to  sire  in  tbein 
U[ainst  Friday  next  at  six  o'clock  at  night,  ud 
the  prolocutors  for  the  pannel  lo  give  in  tbein 
against  Tuesday  thereafter,  and  continued  tbs 
cause  till  Friday  tlie  16th  Instant,  and  ordera^ 
aiaiaara  and  witnesses  then  to  attaid,  and  ihs 
pannel  to  be  carried  hade  to  ptisoa. 

Jttly  13, 1796. 
Ikfoshation  for  his  Majeaty's  AdrocMe  Ibr  Ui 
Uighneas's  ioteieM, 

John  PoRTEot;s,  late  Cariuin  LientmantoTlbe 
City  Guard  of  Edinburgh,  FanucI, 

Tbe  jiannel  is  charged  by  the  indictmnt, 
wilh  murdering,  slaughtering,  mairoing  sod 
wounding,  divers  of  bis  majesty's  subjects,  hj 
firing  witii  his  oun  lian'l,  aud  causing  and  itr- 
ilering  a  liniid  of  armed  lucn  under  his  cviu- 
mand,  lo  rue  u|)on  a  multiludeof  innocent  pen- 
pie,  assembled  tu  sec  an  execution  in  the  GraM- 
markotof  the  city  of  Edinburgh,  wiilioui  any 
Just  cause  or  provocalioo,  contrary  not  only  lo 
the  laws  of  God  and  nature,  ami  ta  ike  gssd 
and  laudable  lawa  uf  this  and  all  ciher  well- 
governed  realms,  but  alao  contrary  lo  ihe  H- 
press  duty  of  his  ofHce,  who  Has  one  of  tbe 
L-otnmaniU'rs  of  the  city  guard,  intended  to  pit- 
servo  ll)e  peace  of  the  ciiv,  and  lo  protect  ihe 
■uhabitants  thereof  from  all  violence  ;  and  nhv 
was  on  that  occasion  enlrusteil  ivith  the  com- 
mand ufa  large  dclachment  of  the  said  guard 

culiou  of  a  sentence  of  liie  hi)ih  Court  of  Jiicli- 
ciary,  and  lo  prevent  all  riots  ami  tumutK, 
wlierchy  the  execution  of  the  said  seoleDcc 
might  he  disappointed,  the  laws  mit;ht  be  lis- 
latcd,  and  the  people  assembled  might  be  hint 
or  destroyed. 

The  indictment  sets  forth,  pari icularly,  That 
the  lime  and  jdacc  libelled,  where  a  great 


see  the  esecutiun  of  Andrew  VVilsoD,  tCBtcKcd 


gs9] 


for  Murder. 


A.  D.  1756. 


[9S0 


to  be  hanged  by  the  high  Court  aforesaid ;  the 
pannel  ha?ing  under  his  command  a  detach- 
ment of  seventy  armpd  men  of  the  city  guard, 
and  having  conceived  a  most  wicked  and  mali- 
cious purpose  of  destroying,  maiming  and 
wounding,  numbers  of  his  majesty's  subjects, 
ike  inhabitants  of  the  said  city,  and  others  as- 
sembled at  said  execution,  without  any  just 
cause  or  necessary  occasion,  ordered  the  said 
detachment  under  his  command  to  fire  upon  the 
|»eople  so  assembled ;  that  the  men  under  his 
command,  having  probably,  in  his  apprehen- 
sion, fired  over  the  heads  of  the  people,  he,  with 
threats  and  imprecations,  repeated  his  com- 
■nods  to  fire,  calhng  out  to  them  to  lev«i  their 
pieces,  and  be  damned ;  that  at  or  about  the 
aame  time  he  levelled  the  firelocic  that  was  in 
his  own  hand,  taking  aim  at  one  Charles  Hus- 
JmimI,  and  fired  at  him,  whereupon  he  imme- 
4liately  dropt  to  the  ground,  having  received 
iiroiuids,  whereof  he  instantly  died  ;  at  least, 
(hat  he  levelled  his  piece,  seeming  to  take  aim 
al  some  one  in  the  croud,  and  fired  it;  and  that 
npOD  his  firing,  the  said  Charles  Husband,  or 
one  or  other  of  the  persons  in  the  indictment 
mentioned  dropt,  having  received  wounds  by 
ballets,  of  which  they  instantly  died  ;  and  that 
by  his  commands  and  example,  several  of  the 
city  guard  under  his  command,  fired  upon  tlite 
ioqocent  multitude,  whereby  the  persons  parti- 
cularly mentioned  in  the  indictment,  were 
:kiiled,  maimed  and  wounded. 

The  indictment  further  charges,  that  not 
contented  with  this  barbarity,  the  pannel,  after 
he  bad  marched  off  his  detachment  to wanls,  or 
anto  the  place  or  street  called  the  West- bow, 
again  orcfered  the  men  under  his  command,  to 
face  about  and  fire  u|M>n  the  people,  and  at  or 
about  the  same  time,  fired  a  musket  or  firelock 
that  was  in  his  own  hand,  haviuji;  either  re- 
loaded, or  caused  tu  be  re-loaded  the  piece  for- 
merly fired  by  him,  or  haviog  taken  another 
out  gf  Uie  hand  of  one  of  the  guard  ;  and  tliat 
.several  of  the  Kaid  guard  did,  upon  that  secon<l 
.example  and  command,  fire  upon  the  multi- 
tude, whereby  the  persons  described  in  the  in- 
dictment, were  killed  or  mortally  wounded : 
and  tlie  indictment  concludes  in  cofiimon  form, 
that  the  pannel  is  guilty,  or  actor  art  and  part 
of  the  crimes  aforesaid,  or  une  or  other  of 
them. 

The  charge  in  this  indictment  is  so  heinous, 
tliat  one  shouUI  have  imu<^ined  it  would  have 
been  decent  in  the  pannel,  to  have  made  no  ob- 
jection to  the  relevancy,  and  to  have  founded 
V|iun  no  defence  for  avoiding  the  effect  of  the 
libel,  if  true,  but  to  have  contented  himself  with 
a  flat  denial  thereof,  reposing  himself  upon  his 
innocence,  if  he  is  truly  not  guilty  of  the  facts 
alleged,  without  any  other  desire,  hut  that  of 
bavmg  a  fair  examination  of  unbiassed  wit- 
nesses, to  be  produced  by  him  as  well  as  the 
prosecutor,  in  order  to  discover  the  real  cir- 
curosfances  of  the  transaction. 

But  bis  procurators,   it  seems,  thought  it 
their  duty  to  move  every  objection  against  the 
^iclcfancy  of  the  Jybcl,  and  to  offer  every  de- 
VOL.  XVII. 


fence  that  their  invention  could  suggest  from  a 
particular  rehUton  of  the  circumstances  of  the 
whole  transaction,  which  they  laid  before  the 
Court  upon  the  pannePs  information,  and  which 
they  ofl^ered  to  prove  to  make  good  their  de- 
fence. 

They  informed  the  Court,  therefore,  on  be« 
half  ot  the  pannel,  That  the  magistrates  appre- 
hending, tliat  some  violent  attempt  might  be 
made  for  rescuing  Wilson,  the  nitender  sen- 
tenced to  l)e  hangi^,  had  ordered  the  pannel 
to  attend  the  execution,  with  the  greatest  part 
of  the  city  guard,  to  support  and  protect  the 
executioner  in  the  discharge  of  his  oflice,  with 
directions  to  repel  force  by  force ;  that  to  make 
those  directions  effectual,  powder  and  ball  were 
by  the  town-treasurer  delivered  outof  the  town's 
magazine  to  the  city  guard,  the  morning  of  the 
execution,  with  directions  to  load  their  pieces  : 
that  besides  this  precaution,  the  danger  of  the 
rescue  appeared  to  themafi^istratesso  great,  that 
they  desired  of  general  Moyle,  and  obtained  a 
detachment  of  the  regular  troops,  who  were  postp 
ed  near  tu  the  place  of  execution,  in  order  to  sup- 
|>ort  the  city  guard  if  there  had  been  occasion ; 
and  whose  commanders  were  told  that  tlie  lord 
provost  would  give  them  authority  to  fire,  if  it 
should  prove  necessary ;    that  the  pannel  with 
the  town  guard  attendetl  accordingly  the  exe- 
cution ;  that  when  the  oflender  was  huug  op 
on  the  gibbet,  the  magistrates  retired  from  tlie 
scaftbid,  and  I'epaired  to  a  house  over  against  it  in 
the  Grass-market;  that  after  the  ofi'endcrhad 
been  hung  up  for  some  time,  the  multitude  be- 
came unruly,  and  liegan  to  Uing  stones  of  great 
size,  and  with  great  \io\euce,  that  some  of  tlie 
guard  were  thereby  hurt;  one  had  his  shoulder- 
blade  broke,  others  were  bruised,  and  the  tim- 
ber of  the  drum  was  beat  to  pieces ;    that  the 
insolence  of  the  mob  irrowing  still  greater,  and 
they  pressing  from  all  sides  n|K>n  tiie  guard, 
the  panne!,  who  apprehended  they  might  have 
intended  to  carry  off  the  criminal,  who  bv  this 
time  was  cut  down,  in  order  to  attempt  the  re- 
covering him  to  lile,  found  it  neci*ssary  for  him 
to  keep  uff  the  ninltitude  by  threats  and  me- 
naces ;  that  to  this  end  he  presented  his  piece, 
first  to  one  quarter,  and  ihentoanotlier,  calling; 
to  the  people  to  stand  otf,  and  threatening  if 
they  did  not,  he  would  fire ;  that  nevertheless, 
he  neither  fired  himsplf,  nor  gave  any  orders  to 
fire,  but,  on  the  contrary,  when  some  of  the 
guard,  provoked  by  the  hurts  thc}'  received, 
had  without    his  orders   or   authority,    pre- 
sumed to  fire,  whose  example  was  fidlowed  by 
several  others,  he  did  all  he  couki  to  prevent 
that  mischief,  by  commanding  tliem  to  desist, 
and  actually  did  beat  down  the  muzxle  of  one 
ofthemen*8  pieces,  who  was  presenting  it  in 
order  to  fire  ;  that  finding  he  could  not  be 
obeyed,  he  endeuvoiired  to  march  off  his  men, 
and  prevailed  wjtli  several  of  them  to  follow 
b'iu\  some  snr.i!l  way  i:p  the  West-bow,  when 
again  soineof  ihus(  men  who  followed  him,  piO- 
voked  by  what  he  did  not  know,  faced  alN>utan(l 
firiHl  towards  the  Grass-market;  that  the  first 
notice  he  had  of  this  firing  was  by  hearing  it. 


931] 


10  GEORGE  II. 


Trial  of  Captain  Portevj^^ 


«hicli  made  him  turn  about  in  order  to  stop  it ; 
that  at  tbi^  last  uiace  be  neither  fired,  nor  gate 
orders  to  lire ;  that  he  marched  as  many  of  his 
■nea  as  he  coald  i^athcsr  toother  back  to  the 
riily  ^uard  room ;  that  there  be  prcveuted  the 
iDf;n's  clcanin:^;  theii*  pieces,  that  the  f^uiity 
who  fired  mi((bt  be  distioguUhed  from  the  in- 
nrjcciit  who  did  nni  fire ;  that  his  own  piece  had 
not  at  that  time  been  at  all  tired ;  that  conscious 
of  bis  innocence,  and  that  he  had  on  this,  as 
well  as  OD  etery  former  occasion,  done  his  duty 
%rith  patience  and  temper,  he  presented  him&elf 
before  the  majrjstrates,  whereas  nothing  was 
easier  for  hiun  than  to  have  made  his  escape, 
and  that  in  their  presence  the  firelock  which 
he  had  in  his  hand  was  piesented,  and  appeared 
not  to  have  been  at  all  fired ;  and  that  there- 
fore it  was  impossible  the  lybel,  as  Jjbelled, 
could  be  true. 

From  this,  which  was  said  to  be  the  state  of 
the  case,  till-  procurators  for  the  pannel  contend- 
ed timt.  Thai  the  lybel  was  insufficient,  as  not 
flcMrribinf^  with  proper  accuracy  thp  particular 

Kart  of  the  street  where  the  person  supposed  to 
0  shot  by  the  |iannel  stood,  and  his  situation 
with  respect  to  the  pannel  at  the  time,  because 
thereby  tin*  pannel  was  deprived  of  the  oppor- 
tunity of  inukin^-  hia  defence,  by  foundio)^  it 
particularly  on  circumstances  which  he  might 
m?ail  himself  of,  if  the  position  and  sittiation  had 
been  distinctly  described. 

To  this  it  was  and  is  answered,  That  the 
lyliell  is  as  particular  as  the  law  requires,  de- 
■iuribinif  the  street  where  the  execution  was  had, 
which  IS  all  that  the  utmost  scrupulosity  could 
cxjiect  in  sucli  a  case.  Minute  circumstances 
cannot  be  known  to  the  prosecutor,  or  certainly 
discovpred  but  by  proof  upon  the  trial:  every 
circumstance  of  the  panneVs  own  actings  must 
be  known  U)  him ;  and  therefore,  if  from  tlik 
position  or  hitiiation  in  which  ho  was  at  the 
time  of  the  tirin||(,  he  can  show  that  it  was  ini- 
ptKsible  he  could  have  killed  the  t>erson  whom 
lie  is  chortled  to  have  shot,  describing  and 
proving  those  circumstances,  he  may  have 
advantage  from  them,  but  cannot  object  to 
the  prosecutor,  that  he  did  not  minutely  de- 
acrilN*  a  situation  that  was  not  known  to*  him, 
and  which  describing,  perhaps  erroneously, 
might  minister  an  unjust  occasion  to  a  criminal 
to  escape  justice :  wherefore  this  objection  to 
^he  form  of  the  indictment  ought  to  be  repelled. 
Hut  in  the  second  place,  The  procurators 
for  the  pannel,  very  unnecessarily,  one  should 
lliink,  if  he  is  innocent  of  tiring,  or  ordering  to 
fire,  and  in  some  degree  inconsistently  with 
that  plea,  alleged,  that  the  delivering  out  pow- 
der and  ball  to  the  city  guard ;  the  ordering  so 
|rreat  a  detachment  to  attend  ;  the  calling  for 
tiie  regular  troops  to  support  the  town  guani ; 
the  intimation  to  the  commander  of  those 
Iroofw,  that  they  should  have  orders  to  fire,  in 
caae  of  necessity ;  and  the  direction  to  the  pan- 
nel to  sumiort  the  execution  of  the  sentence 
against  W  ilsoo,  and  in  case  of  a  violent  rescue  . 
or  deforcement,  to  repel  force  by  force,  amoiint- 
•d  to  a  Aalerdor  from  the  magistratM  to  fire, 


[932 

when  it  bccaire  peer  wry :  aadtbatlhevkleBt 
assault  made  by  the  mob,  as  albicnid,  with 
stones,  which  were  to  be  cwiaiilffod  as  lethal 
weapons,  in  order,  as  the  panoel  bcficved,  t» 
carry  off  the  offender,  in  hopes  of  moterif 
him  to  life,  made  it  necessary  to  repel  fbrea  Vf 
force:  wherefore  these  circimasiances to lafier 
the  onler,  and  the  vMlent  assault  of  the  mob  n 
mentioned,  ought  to  be  snstaioed  and  adiMtt84 
to  proof,  as  a  tuial  defence  against  the  indiet- 
meut,  at  least  as  circumstances  lit  to  mitigalt 
tbe  punishment,  and  restrain  it  from  the  fcM 
ordinario;  since  the  pannel  being  veriaai  is 
liciio,  and  engaged  in  the  discharge  of  a  kwfid 
piece  of  duty,  if  any  excess  was  committed  W 
him,  it  ought  not  to  be  attended  with  cafiti! 
punishment,  but  oagfat  to  be  eorrecied  ertrmtr^ 
dinem,  according  to  the  degree  of  the  tsxtm. 

To  this  it  was  answered.  That  though  it  wm 
tnie,  which  is  not  at  all  upon  the  part  of  tbt 
prosecutor  denied,  that  the  magistrates,  opoa 
just  apprehensions  of  disorders,  and  an  attm|rt 
for  a  violent  rescue  of  the  criminal,  who  wit 
sentenced  to  die,  bad  ordered  powder  and  biS 
to  be  distributed  to  the  ^ard,  bad  increaied 
their  numbers,  had  obtained  assistance  frma 
tbo  commander  of  the  regular  troops,  with  u* 
surance,  that  in  case  of  necessity  they  shooM 
be  authorised  to  fire,  had  directed  the  paaod 
at  all  hazards  to  support  the  execution,  and 
prevent  a  violent  rescue,  and  had  even  toM 
him,  that  in  case  of  necessity  he  was  to  repel 
force  by  force,  it  will  not  in  the  least  follow, 
that  those  orders  could  in  any  degree  jndQf 
him,  except  in  case  of  necessity,  except  tbers 
had  been  an  attempt  towards  a* violent  rescue, 
which  could  not  otherwise  have  been  prevented, 
and  except  all  the  proper  prec:\utions  for  dis^i* 
pating  otherwise  the  mob,  and  for  legitimstio^ 
the  act  of  firing  upon  them,  had  been  previously 
made  use  of. 

For,  in  the  first  place,  no  order  fromaoy 
civil  magistrate  whatever,  can  justify  a  barba- 
rity so  horrid,  as  that  w  liich  is  charged  on  tbt 
pannel.  Had  the  provost,  and  all  the  roagis* 
ti-ates  of  Edinburgh  been  present  on  the  spot, 
and  had  they  ordered  him  to  fire  upon  the  in* 
uocent  people,  when  there  was  no  just  cause  for 
so  doing,  those  orders  indeed  might  subject  tbt 
magistrates,  as  well  to  tbe  penal  conseqoeocci 
that  attend  murder,  but  could  not  on  the  least 
acquit  him,  who  was  not  at  all  bound  to  obey 
such  illegal  orders,  and  who  therefore  acted  tl 
his  peril. 

In  the  second  place,  it  is  not  at  all  pretended, 
that  the  pannel  had  any  onlers  expressed  or 
implic<l  to  fire,  except  the  violence  of  an  at- 
tempt to  rescue,  not  otherwise  avoidable,  made 
it  necessary.  Had  that  been  truly  the  case, 
firing  possibly  might  have  been  the  pannel's 
duty,  the  reading  the  proclamation  undoubtedly 
would  have  made  it  justifiable ;  and  this  tbe  ma- 
gistrates knew,  when  they  ordered  aramuniliaa 
to  be  distributed,  and  invited  the  regular  troops 
to  their  assistance :  but  till  it  became  nBceasiiy, 
when  there  was  no  hazard  of  a  rcacuo,  bcfim 
any  disorder  wai  sought  to  be  ^u«lM  bjtha 


■913 


for  M<irdcr. 


kgal  pripuitinn  of  reading  Uie  praciomsiion, 
which  u  iDleniled  (o  intimidate  i-iolen.  and  to 
••(ante  Uie  Innocent  from  iha  %ii\\iy,  by  ^iv- 
in^  iliie  nuiice  lu  nil  thoufrhilcse  |ie*|>le,  who 
wiliiout  any  inaletulenue  &re  tnlxt  itilti  Ihe 
■uiililudE,  to  se|iRrat«  Irnra  the  ill  Dipaniiip,  it 
«a*  tbfi  must  cruel,  u  ncll  as  unjuiiifiahic  act, 
ibM  faaa  al  tay  lime  been  henrd  of,  to  mabo  use 
•rtli«wea|KiDii  titat  were  put  In  iii«  liitnila  of 
tb«  gtiard,  for  the  security  "f  tbe  peace  and  of 

tpwiilc,  to  denroy  so  many  inuucenla,  who 
Mi  in  any  degree  offended. 
(Ti  Ihlrdly,  llinugli  the  pannel  incnlioned 
M^og'  of  Iloiiei,  and  tbe  size  of  some 
Bteiu,  with  some  hurts  receiced  there- 
I,  yt\  the  libel  chargea,  and  lie  admits 
tint  tbu  urimiiial  wai  cut  down  before  ihia 
Itidldg  proiocaiion  preTailrd  wilb  any  one 
to  Grc :  bis  duly  Ifaen,  m  far  as  cooceroEd  the 
cxecutiou  ufthesenleoce,  was  over:  he  alleges 
iMi  d(iig«r,  nor  can  he  in  those  clrcumslancei, 
of  ■  rescue,  no  ioTasion  with  fire-arms,  or  other 
■MTlal  wcupons,  Gl  lo  deforce  or  detlroy  a  de- 
lMjbiii«iil  of  70  disciplined  men,  irilli  loaded 
piaceo  Mid  Kci'ewed  bayonets :  liow  then  can 
tlic  exiKcnc«,  or  the  ordeia  defend  him?  If  his 
actfaailbeciiabsoluielynecassary,  same  defence 
migfat  ba*«  been  founded  on  that  necessity  join- 
ts trilb  his  orders  :  but  wben  bis  allegations, 
Ibot^  tbry  trere  true,  do  not  point  out  tbe 
kut  necessity,  and  are  in  reality  founded  on 
aodliw  else  thao  the  ciiskomary  impertinence 
M  radi  occMions.  of  dinging  din  and  slonei 
St  the  executioner,  thou^^U  the  provocalino 
tblrehy  gtvsn  might  perhaps  justify  a  choleric 
Ban,  Mr  drubbiug  any  of  the  actors  lor  their 
maiotuiets,  ye[  lo  be  sure,  it  could  not  joslifie 
iIm  •UugbteriDg  at  the  offender,  tar  lees  can 
MNb  impertinence  in  a  few  bnys,  or  other  Idle 
mmift€,  excuse  the  firing  sharp  shut  upon  an 
MBoomt  multitude,  wheivliy  numbers  of  his 
■MtiaMy's  sutgecta  were  destroyed  :  and  tliere- 
An  it  seems  lo  be  beyond  all  Joubi,  the  psnnti 
«a  find  no  shelter  from  those  otderi,  or  the 
iitj  he  imagine*  lay  upon  bim  to  fire  \  and 
ntlMt  therefore  slaad  or  fall,  upon  his  being,  or 
■Mboiog  Kudty  of  the  facts  charged  upon  him. 
Tbe  procutalors  tbr  (be  pan  n  el  codes  Toured 
to  find  an  argnmcnt  for  him,  lo  a  late  resolution 
of  the  Court,  which  suspended  a  seoleoce  of 
lb«  court  ut  aiiutiraliy,  proceeding  upon  an  in- 
Itrloqiiilor  that  fuund  it  neccasary  for  soldiers, 
wIm  bapjieanl  lo  kill  in  the  execution  of  their 
Avtj,  wbcu  by  order  alteniling  cuslom-buiise 
aflhieia,  tujirovv,  llial  the  killing  was  Dece«i<ary 
iilr  iha  defence  of  iheir  lires,  inferring  from 
lU*  rccalution,  that  the  Court  did  not  think  il 
■eecwarj  liir  ibo  paunel  tu  prove,  thai  he  was 
id  ihngcr  of  his  life  :  and  though  all  thai  their 
abaerralioD  necewiarilv  imnlirs  were  granted, 
llwj  cuuld  have  no  brnttlt  by  it,  becauae  in 
thaa  c«M  Ibe  pannel  neither  does,  nor  can  aier, 
ifcat  (be  Uring  which  lie  was  personally  guilty 
of,  and  ordrrad,  i>aa  necemary  for  securing 
u  of  that  rrust  that  was  cutDHiitted 
nine  Ibe  jigblt  of  the 


A.  D.  1796.  [934 

Where  a  man  has  by  lair  weapons  put  ia 
his  hand,  to  be  employeil,  not  only  in  defeiic* 
of  his  life  when  attacked,  hut  in  support  of  th* 
execution  of  the  laws,  anil  in  dclenue  of  lb« 
pruperty  of  the  crown,  or  liberty  of  any  sub- 
jeci,  he  doubtless  mav  use  those  weapons,  not 
only  when  his  own  life  is  put  so  far  in  danger, 
that  he  cannot  probably  escape  without  making 
use  of  them,  but  also  when  there  is  iinminenl 
danger,  that  be  may  by  Tiolence  be  disabled  to 
execute  his  trust,  without  resorting  to  the  usa 
of  those  weapons :  but  when  the  life  of  tba 
officer  is  exposed  to  no  danger,  when  his  duty 
does  not  nectMtarily  call  upon  him  fur  tlie  exe* 
culion  of  bis  trust,  or  for  tlie  preservaiinn  of 
the  property  of  Ihe  crown,  or  the  preserra- 
tion  of  tue  properly  or  liberty  of  Ihe  subject,  U> 
make  use  of  mortal  weapons,  which  may  de- 
atroy  his  majesty's  subjects,  especially  num* 
bera  of  them,  who  may  be  innocent,  it  is  impos- 
sible, from  the  resolution  of  the  Court  of  Jus^- 
ciary  hinted  at,  to  expect  any  countenance  to, 
or  shelter  for  the  inhumane  act. 

And  upon  a  principle  very  near  allied  to  this, 
tha  panDel'n  pretence,  that  being  virsam  it 
ticito,  and  intiusled  with  the  execution  of  1^1 
orders,  any  excess,  that  for  lack  of  discretion  ue 
may  hare  been  guilty  of,  cannot  be  punished 
pana  ordinario,  ought  to  be  repelled ;  fur  il'a 
obvious,  the  trust  reposed  in  bim,  and  the  duty 
expected  from  him,  was  no  more  than  to  sea 
the  execuiiun  perfected,  and  to  resist  sny  vio- 
lent attemfit  to  rescue,  which  should  di«a|ipoinl 
the  execuiiuu  of  (he  law.  Now  when  the  sen- 
tence ■>('  the  Cnurt  of  Justiciary  was  executed, 
when  tlie  criminal  was  hanged  and  cu)  dowa, 
before  any  persun  fired,  tbe  trust  reposed  itt 
the  pannel,  and  tbe  duty  expected  from  bim 
ceased  ;  he  was  no  longer  an  officer  employed, 
lo  that  cad  for  which  the  fire  artns  were  loaded, 
■nd  his  actions  came  to  be  estimated  of  by  tbe 
EBBie  rules,  that  would  have  made  them  lawful 
or  unlawlul  upon  efery  ordinary  occiuioii, 
where  no  particular  danger  threalned,  and 
where  no  necessary  serrice  was  in  view. 

And  therefore,  as  in  such  cases,  tha  nonael 
miiHt  becutivinced,  that  noibiug  short  of  lieing 
cunitituted  in  immediate  danger  of  death  with- 
out firing,  could  justify  him  ur  his  guard  for 
making  use  of  loaded  iiie  arms,  he  must  in  coii' 
eei|ueiice  ackuowltdge,  that  in  the  case  in  qun< 
tion,  no  danger  of  life,  which  he  could  not 
haie  avoided,  having  threatened  bim  and  hia 
g^uard,  he  was  a  bantu  lei  y  inexcusable  for  tiring, 
and  tliai  therefore  bis  iniscbieTous  and  Inne- 
rariouB  act  must  be  atleudetl  wilb  tbe  bigbcal 
penalty.^ 

An  armed  man  who  assaults,  and  wittioal 
just  cause  drstrovs  Huother  man  though  armed, 
and  in  no  particular  trust  or  confidence  with 
bim,  the  law  cnnsiderx  and  demesoa  as  a  mur- 
derer; but  whm  the  eaptsin  of  ■  city  guard, 
wbu  has  an  armed  furi-e  coiumitird  (o  his  care, 
lor  the  good  and  Kufeiv  of  the  community, 
thinks  fit,  upou  any  sligtit  offence  or  prutoca- 
lioD.  to  turn  ihnaa  arms,  and  that  toice  upua 
»  orowd  of  ciUMOi  lawfully  aa  wwll  b«  |iia«^ 


935] 


10  GEORGE  II. 


Trial  of  Captain  Porleous, 


[99S 


oently  assembled,  he  is,  in  additioil  to  the 
Ulaughter  and  destruction  that  ensues,  s^ilty  of 
the  most  notorious  breach  of  trust,  and  for  an 
example  to  others,  whom  it  may  be  necessary 
for  the  {jifood  of  the  community  to  trust,  ooi^ht 
to  be  punished  in  the  most  severe  manner. 
Men  so  trusted  are  under  double  lyes,  fbr  besides 
the  ^neral  obli^tions  of  diity  and  humanity,  a 
particular  confidence  is  reposed  in  them,  which 
At  the  peril  of  their  lives  they  ought  to  answer. 

The  procurators  for  the  panne!  complained, 
That  in  the  indictment  he  was  charflfed  with  a 
wicked  and  malicious  purpose  of  destroying", 
wounding,  and  maiming  numbers  of  his  ma- 
jesty's subjects  ;  and  by  the  pannel's  sober  and 
modest  deportment  On  former  occasions,  and 
the  whole  circumstances  precedent  to  the  me- 
lancholy accident  now  in  question,  endeavoured 
to  shew  that  he  had  no  premeditated  malicious 
design .  B  u 1 1  his  again  was  to  no  purpose :  the 
prosecutor  \\e\cr  heard,  nor,  so  far  as  ne  knows, 
did  ever  any  man  before  this  time,  complain  of 
the  wickiMiness  or  inhumanity  of  the  pannel,  and 
he  has  rccctvtd  no  inlunn^tion,  by  which  he 
can  be  induced  to  think,  that  for  any  consider- 
able time  before  the  fact  complained  of,  the 
pannel  had  premeditated  tlio  destructive  action 
of  .wliich  he  is  accused.  But  then  his  procu- 
rators very  well  know,  that  ^fiw^  and  •..rdering 
to  fire,  imply,  and  are  proof  of  a  wicked  and  ma- 
licions  purpose  of  destroying  those  that  are 
fired  at :  <  malitia'  and '  propositum  pnecedunt 
ictum/  in  the  construction  of  reason  as  well  as 
law,  and  whoever  wilfully  murders  and  destroys 
his  majesty's  subjects,  must  be  demeaned  as  a 
murderer,  if  his  maiiciuus  purpose  preceded  the 
drawinsT  of  the  tricUer,  or  givinj/ihc  orders/one 
monuMit,  ns  much  as  if  it  had  been  preconceived 
a  wholpyear. 

These  shevvs  of  defence,  rather  than  defences 
beinp;'  removed  ;  the  next  thing*  that  comes  to 
be  considered,  is  t!ie  hisiory  of  the  pannel's  be- 
haviour, during  the  melancholy  transaction, 
which  his  procurators  offered  to  prove,  an<l 
insisted,  would,  if  proved,  be  a  sufficient  de- 
fence aQ^aiiisrt  the  facts  charged  in  the  lybel. 

But  in  this  the  prosecutor  can  by  no  means 
agree,  for  he  takrs  it  to  be  extremely  plain, 
that  every  siiii^le  circumstance  alleged*  by  the 
pannel  may  lie  true,  and  yet  it  uiay  also  be 
true,  that  he  with  his  own  hand  nred,  and 
killed  one  or  more  of  the  innocent  people, 
and  that  he  ordered  the  men  under  his  com- 
mand to  fire. 

It  may  for  example,  possibly  be  true,  that 
lie,  at  some  period  or  another  of  the  action, 
called  on:  to  the  multitude  to  stand  of}',  or  that 
he  \iould  /ire  ;  that  he  at  ^nme  one  jtoint  or 
another  of  time  prohibited  the  men  to  fire,  and 
struck  down  the  pieces  of  such  as  were  pre- 
sentiiip-tliei-n  ;  an<i  yet  it  may  also  be  true,  that 
lie  at  -sfime  other  {.omt  of  time  gave  the  precise 
woni  of  comma  id  to  tire,  and  actually  fireil 
the  piece  that  was  in  his  hand  :  iH-lbre  he  lost 
his  temper  he  might  have  threatened  only,  be- 
fore he  took  the  resolution  of  annoying,  as  welt 
M  after  he  «aw  iniachicf  done,  he  might  have 


endeavoured  to  prevent  a  partieolar  aet  of  kh 
buroanity  ;  but  his  doing  so  at  certain  pcritin 
ra  no  conclusive  evidence,  that  at  other  poiirfi  if 
time  his  conduct  might  not  have  been  very 
different. 

Were  his  giving  orders,  or  actual  firing  di« 
bions,  the  circumstances  mentioned  fhr  Iht 
pannel  might  create  a  strong  presamptnn  ftr 
htm  :  but  if  it  shall  be  prov^,  aa  it  is  diaifri 
in  the  lybel;  that  he  actually  fired  the  piece ii 
his  hahd  oflener  than  once,  and  g^ve  (poatift 
orders  to  fire ;  what  can  it  avail  bim,  that,  4 
some  other  periods  of  the  fray,  be  behavd 
himself  in  a  different  manner,  ahice  both  the 
one  allegation  anil  the  other  may  be  true  ? 

But  the  procurators  for  the  pannel  iniilkd, 
That  though  the  proposition  they  underlook  Is 
prove  was  m  some  degree  a  negative,  yet  it  WM 
so  circumstantiated  as  to  be  cajmble  of  m  poaitiie 
proof;  for  they  said  that  credible  witnesM 
could  be  produced,  who  would  inform  the  Coort 
and  jury,  that  during  the  whole  fray,  they  kcfl 
their  eyes  upon  the  pannel,  and  were  attentin 
to  his  actions ;  and  that  they  could  take  npoa 
them  to  say,  that  thorow  out  the  acuffle  he  M 
not  fire  his  piece,  nor  onler  the  guard  to  fire,  bit 
that  he  threatened  to  fire,  which  might  by  per* 
sons  at  a  distance  who  heitrd  the  word  fire  o^^ 
pronounced,  be  mistaken  for  a  coromand,  ana 
that  he  presented  his  niece  only  in  a  menaeiag 
posture,  but  without  firing,  which  might  haie 
misled  the  spectators  into  an  opinion  thai  ht 
did  fire,  though  he  really  did  not  ;  if  any  oM 
who  was  near  him  happened  to  discharge  bii 
shot  about  the  same  time. 

This  reasoning  however  is  manifestly  defec- 
tive, because  the  evidence  of  the  witnesses,  who 
shall  say,  they  did  not  see  or  hear,  bear«  no 
proportfon  in  point  of  weight,  to  the  testimoay 
of  those,  who  shall  upon  oath  poailively  sty, 
that  they  did  hear  or  see. 

And  I>e8ides  the  obvious  reason  for  maintam- 
ing  this  distinction  in  the  common  case,  there 
is  a  particular  consideration  that  sujiports  it,  ia 
the  case  of  a  fray  or  tumult,  where  shots  are 
fired,  mui-der  ensues,  and  there  is  a  geoeni 
confusion  and  surprize.     No  one  could  fiotti- 
bty  he  so  interesteil  in  keeping  his  eyen  opaa 
the  pannel,  >ihen  it  could  not  be  forseeu  there 
uould  he  occasion  to  give  evidence  touching 
his  behaviour,  as  not  to  be  lyable  to  he  carried 
off  from  that  object,  upon  any  fresh  snqirizc 
that  happened  in  the  tumult :    the  firing  of  a 
shot,  the  flinging  of  a  stone,  the  extraordinary 
behaviour  of^any  one  of  the  multitude,  or  of 
the  tfuanl,  mignt  impert^eptibly   have  drawn 
the  eyes  and  attention  of  any  spectator  Irom 
the  pannel,  to  that  new  object,  and  prevented 
his  seeing  or  hearing  what  he  said  or  did  in  the 
mean  time  :  and  therefore  no  witness,  or  nmn- 
ber  of  witnesses,  who  should  take  upon  him  or 
them  to  say  absolutely,  that  the  pannel  did  not 
at  any  penod  of  the  fray  fire,  or  order  tn  fire, 
would  at  all  be  credible ;  at  least  moat  certainly 
they  could  not  be  credited  againstauch  witnertet 
as  should  positively  say,  that  Iboy  SAW  nrbctfd 
him  fire,  or  order  to  fink 


Jar  Mardtr. 

ir  iriiartiM  eliill  Bay  tgkinal  the  pBotiel, 
that  Ihey  mw  him  preient  his  piece  and  Hre, 
•ltd  Tar  (heir  cauta  tctVnf i<r  abull  artr,  lliat  Uiey 
BlatrTcil  lire  anil  aniuke  iwiiin^  out  of  lire 
IBUEcle  of  t)U  piece,  iind  «  mnii  dro)i  (Jowu 
tead  in  lite  place  luwanls  which  he  poialeil  it, 
will  Ibot  evidence  be  suflicieiiily  contradicted 
by  peraimit  wlio  roay  »oy  Ihey  ubserted  do 
Meb  llilog,  or  thai  nihera  of  tne  ^iianl  tired 
dnul  Ihesatne  lime,  and  at  the  same  place  f 
it  b  tiuinbly  thouglit  it  canitDl,  treeniise  thla  is 
Htting'  up  a  oe^tite  eridenci^  only  agninst 
firitive,  nhicb  Detlherlaw  or  reason  penoiti. 

Ami  if  credible  wilncssra  ihalt  aver,  that  Ibe 

Otptain  dislinclly  ordered  the  eruanl  to  Are,  can 

It  Btail  bim   that  other  wIniGSies  heard   hirn 

n  the  cruwd,  that  if  they  did  not  retire  be 

Are,  wilhoal  bearing  the  poai lire  order* 

P^rtDg  ^*eD?  In  a  tjmull  every  iodiTiduat 

Wbol  pTffisibly  hear  every  Ihin^  that  paasea  ; 

itthen  it  is  nu  evidence  ibel  particutiir  words 

I  ullered  in  b  fray,  that  Konic  per«ans 

il  a  fray,  did  not  hear  or  attend  lo  Ihcm. 

And  Ihe  pannel   in  framing  bis  defence  on 

tbU  nrlick,  docs  not  teem  lo  bare  attended  to 

wlut  it  expressly  libelled  against  bim,  Ibai  in 

gtMl  anger  he  said  to  the  men  under  hta  cam- 

tmiA,  npon  their  firinf; overthe  beads  of  the 

'fanlliliide,  l^vel  your  pieces,  and  he  damned. 

nslaiice,  should  il  be  proven,  be 

R  Gonaisteat  vitb  that  part  of  the  defence, 

"A  tends  to  render  the  expression  fire  dabi- 

f  jr  the   pannel'B   pnssion  moved   tiim  tn 

^Ibe  expression,  level  your  pieces,  and  be 

■ed  f  it  it  a(  all  doubtful  in  what  tense  Ihe 

1  Sre  traa  pronounced  ?  T hes«  tliinf^s  are, 

'UMu^t,  too  plain  tu  be  further  insisted  on. 

^■•Tlle  Only  remaining  circumstance,  oii  tvbicb 

4w  procurators  fur  the  pannel  seemed  Vi  lay 

HreM,  was  Ibe  condition  of  his  firelocif,  when 

the  action  was  over,  and   bis  voluntary  pre- 

^jMing  himself  ttefore  the  laagislratea,  trhen 

^Hrcouhl  bare  made  his  escape ;  from  nhieb 

^^■j^  woald  have  inferred,  an  impostibilily  that 

^^Kt|»  gtfitly  of  actual  firing,  his  firelock  ap- 

^^pbiog  not   to   have  been  discbai^ed,  and  a 

■mg  improhabilily  that  he  vita  conscions  of 

iMvitqf  givtn  any  criminal  urdeni,  since  with- 

ewl  necessity  be  freely  presented  himself  to 

•JHlice. 

"  r  as  to  tbeie  matters,  it  musi  be  ob- 
,  llrsi,  that  ihe  condirion  in  which  ibe 
HkI^  firelock  appeared, can  yield  nn  evidence 
■tini :  A  piece  ibal  has  beuu  fired  may  he 
V'tntdpd.  and  *u  cleaned  and  hni«hed-iiii,  as 
lo  tPaipmi  n-aliBe  nrmarlioftlie  former  firing! 
and  Ihe  pxiv  wbich  Ihe  [wunel  made  use  of  in 
lirint;,  nii).'hl  hate  been  changed,  and  another 
{Htidurrd  loihe  mngiitrttes  in  ihe  room  thereof. 
But  udly,  ibe  indicimrni  no  wliere  avers, 
thai  tbe  iMiiioel  made  ate  uf  hit  uwn  piece  when 
ha  tlrM.  Where  lia  is  firsi  chained  with 
SriMT,  nu  more  ta  aaid,  than  that  he  leveled 
the  nretuck  tliat  was  in  bit  hand,  and  fired  it  nt 
Chadea  lluaband.  Now  iho  firelock  ihal  was 
ill  bia  tiaud,  ui;[titha>c  been  thai  belonging  to 
-mtUKta  IM*|  umtl  u  bli  own :  dod  in  Ibc 


A.  D.  1736. 

olber  part  of  the  iodictmcnt,  where  he  i 
charged  with  llrintf,  it  it  taid  that  he  made  ua* 
of  a  iniiskel  or  Brelouk  thai  waa  in  bis  hand, 
having  eilber  re-luadcil,  or  caused  to  be  re- 
loaded bis  own  pierce,  or  having  taken  anotbcr 
nut  of  tbc  band  uf  one  of  the  guard :  8o  lliat 
tbe  lybel  in  every  arliile  of  it  may  be  true,  and 
-  ed  i  and  yei  il  may  be  alto  true,  that  the 
el  did  not  fire  his  own  piece, 
id  as  to  Ihe  article,  that  ihe  pannel,  coH' 
acious  of  no  guilt,  appeared  viduntary  before 
tbe  magistrales,  tvbeii  be  could  easily  have 
madebia  eacape:  Il  can  possibly  inlbrno  prc- 
tnmnlion  fur  his  innoceuce,  if  the  facts  charged 
in  the  indictment  are  made  good.  W'lioever 
shall  be  satisfird  by  Ibe  proof,  ihtt  the  paunel 
acted  in  manner  lybelied,  must  be  convinced 
that  he  was  governed  in  his  aclions  by  no  pnu- 
ciple  of  discretion,  and  must  therefore  lay  no 
tveigbt  upon  an  act  of  bis,  which  can  yield  no 
inference  unless  he  is  supposed  to  have  been 
governed  by  ditcretion  and  prudence. 

Havinglbus  run  over  tbe  several  circum- 
Blancea  of  the  pannersnarralite,  Ihe  proaeculor 
apprehends,  be  may  safely  conclude,  thai  ihey 
cannot  jointly  or  separately,  be  suslained  aa 
a  defence,  again^it  tbe  chai^  laid  in  tbe  indict- 
ment:  Because,  though  every  circumstance 
alleged  were  undeniably  proved,  the  unhappy 
(lannel  mieht  neverlbeless  be  guilly,  and  a  po- 
ulive  proof  of  the  facts  charged  niiut  necet- 
sarily  prevail  with  every  unbiassed  jury-man, 
ID  join  in  a  verdict  against  him. 

The  protecutor  is  nevertheless  far  from  wish- 
ing, thai  the  uurcrtuoale pannel  shonblbede- 
prived  of  an  opportunitv  of  laving  every  cii- 
cumsiance  that  may  make  fur  fiis  defence  be- 
fore llie  jury  by  proof,  though  he  humbly  in- 
sists Ihey  cauut  be  sustained  as  a  defence  re- 
levant ti)  assolizie  from  ibe  indictment.  It 
is  possible  tbe  fact  may  come  out  otbcrwise  in 
the  trial,  when  wilnetisct  are  upon  oalh,  than  it 
did  nlien  the  exaroiuatioD  was  taken  in  tlia 
precognition!  and  should  the  proof  of  tbe  in- 
dictment be  in  malerialcircumsianeet  defective, 
the  evidence  offered  tor  llie  pannel  m.-iy  have 
its  weight;  wheretbre,  «a  far  as  the  forms  of 
tbe  Court  will  allow,  the  pruaeculor  makes  no 
opposition  10  the  iudnlgiiig  the  patmel  to  bring- 
wtiat  legal  evideuo:  he  can,  fur  the  infortuation 
of  the jury. 

It  is  far  fVom  being  the  interest  of  the  crown, 
or  of  the  public,  that  an  innocent  man  tbould 
suffer  I  but  it  ia  greatly  tbe  intrrest  orbolb,  thai  a 
fair  and  strict  inijniry  be  made,  where  tbe  guilt 
lyet,  when  a  massacre  hi  cruel  and  so  dauger- 
oui  happens,  to  the  end,  that  if  Ibe  ofiicer,  who 
has  power  put  in  his  baud,  for  Ibe  preseivatiou 
of  llie  peace,  and  for  liie  prniecliun  of  llie 
jienple,  ohould,  from  any  ui^uat  motive  what- 
ever,  make  use  of  ibal  power  in  breach  of  the 
taws,  to  tbe  deatruclinn  Uf  llie  jieople,  be  niay 
ba  made  an  exnmjile  lo  restrain  oihem  in  Ibe 
tame  circnmsianc«4,  from  Ibe  like  mouatruua 
anddnngerousnbutea  in  lime  coming. 

In  resycui  whercnf,  Sec. 

Sw  SiiAirriKtiir,       Dim.  Fn 


9tS9J 


10  GEORGE  11. 

July  tath,  1736. 


Trial  of  Captain  Porleous, 


[9ia 


Information  for  John  Porteoutj  late  Cftptaia 
LieuteoEDt  of  the  City  Gaanl  of  Edln- 
'  burgh,  agaiDst  his  Majesty's  AdTOcat. 

The  PaoDel  stands  indicted  at  the  iDstanee 
«f  his  Miyesty's  Adrocat,  for  bis  bigbness's 
ioteresty  for  the  crimes  of  murder,  and  slaughter, 
xnaiming,  and  wounding ;  and  the  facts  char- 
ged against  him,  from  whence  these  crimes 
•re  pretended  to  be  inferred,  are  these  follow- 
ing ;  That  the  paiinel  being  one  of  the  cap- 
tain lieutenants  of  the  said  city  guard,  was  by 
the  magistrates  of  the  city  ordered  to  attend 
with  a  detachment  of  about  seventy  men  of 
the  said  guard,  at  the  execution  of  Andrew 
Wilson,^  sentenced  to  be  hanged  by  the  High 
Court  of  J  usticiary ;  and  that  the  said  Andrew 
IVilson,  having  hung  upon  the  gallows,  erect- 
ed for  bis  execution  in  the  street  called  the 
Grass- market,  until  he  was  dead,  at  least  for  a 
considerable  time,  and  so  long,  that  there  was 
ground  to  conclude  he  was  dead,  he  the  said 
pannel,  conceiving  a  wicked  and  malicious 
purpose  of  destroying,  wounding,  and  maim- 
ing tbe  persons,  inhal>itants  of  tlie  said  city, 
and  others  assembled  at  the  said  execution, 
did,  without  any  just  cause  or  necessary  oc- 
casion, order  the  said  detachment  under  his 
command  to  (ire  upon  the  people  so  assembled  ; 
and  that  some  of  the  men  naving  fired,  as  it 
would  seem  the  iianael  apprehended,  over  the 
heads  of  the  multitude,  with  intention  to  avoid 
doing  them  harm,  he  the  said  [Ninnel  did  with 
threats  repeat  his  commands  to  fire,  calling 
out  to  the  men  to  level  their  pieces,  and  be 
damned,  or  words  to  that  purpose ;  and  that  at 
the  same  time  he  levelled  the  lirdock  that  was 
in  his  own  hand,  takiurf  aim  ^i  one  Charles 
Husband,  and  having  nred  the  said  firelock, 
the  said  Charles  Husband  immediately  dropt 
to  the  ground ;  having  received  a  wound  or 
wounds  by  bullets  or  large  drops  of  lead,  where- 
of he  died  in  a  short  space ;  and  that  by  the 
pannel  his  said  example  and  command,  seve- 
rals  of  the  said  guards,  to  the  number  of  about 
twenty,  did  at  the  same  time,  or  soon  there- 
ailer,  fire  upon  the  innocent  multitude,  by 
which  fire  two  other  persons  were  killed,  and 
several  others  wounded,  maimed,  or  hurt; 
and  that  the  said  pannel  having  thereafter 
marched  off  the  said  detachment  of  the  guard 
into  that  part  of  the  street  aforesaid  called 
the  West-bow,  he  did  again,  without  any 
just  cause  or  occasion,  order  the  men  under 
his  command  to  face  about  and  fire  upon  the 
people ;  and  that  at  this  time,  tlie  saiu  pannel 
did  fire  a  musket  that  was  in  his  own  hand. 
havin<jf  cither  reloaded,  or  caused  to  be  reload- 
ed, his  own  piece  or  firelock,  or  taken  another 
out  of  the  hands  of  one  of  the  guard ;  and  that 
severals  of  the  said  guards  did  upon  that  second 
example  and  command  of  the  pannel's,  fire 
upon  tlie  multitude,  by  which  fire  three  other 
l»erson8  were  killed ;  at  least  that,  by  the  said 
ilrings  of  the  paimel,  or  of  the  firings  of  the 
•ther  meo  in  the  said  detachment  of  the  guard, 


proceeding  from  the  panncl'a  order  and  «- 
ample,  the  several  persons  meution«l  in  tbe 
indictment  to  have  been  killed,  maimed,  or 
wounded,  were  all  respectively  killed,  wounded 
or  maimed :  Whereby  the  pannel  is  guilty  of 
the  killing,  wounding,  or  maiming  the  said 
persons ;  at  least  is  art  and  part  thereof,  or  ae* 
cessary  thereto ;  from  whence  tlie  indictaMot 
concludes,  that  the  pannel  ought  to  be  punished 
with  the  pains  of  law,  i.  e.  capitally. 

To  this  indictment  the  paunel  pleaded  oot 
guilty  ;  for  that  he  had  at  no  time,  during  tbe 
execution  of  Andrew  Wilson  aforesaid,  given 
any  order,  or  shewed  any  example  to  the  wud 
detachment  of  the  guard  then  under,  or  that 
ought  to  hare  been  under  his  command,  to  firs 
upon  the  multitude  so  assembled ;  and  that  he 
did  at  no  time  fire  any  piece  or  firelock  hin- 
self  upon  the  said  croud  ;  that  though  it  roigfal 
be  true,  that  at,  or  about  the  time  of  tbe  uid 
execution,  several  persons  were  killed  and 
wounded  by  tbe  firm^  of  that  detachmeol 
of  the  guard,  which  indeed  ought  to  have 
been  under  the  pannePs  command,  and  which 
he  does,  with  great  grief  and  sorrow,  regrete; 
yet  that,  as  such  firing  proceeded  wholly  from 
the  men  in  the  said  detachment,  without  anr 
order  or  example  from  the  pannel,  so  be  oonM 
not  be  charged  therewith,  however  fatal  or 
tragical  the  consequences  of  such  firing,  may 
have  proved. 

That  though  the  pannel,  as  conscious  of  kii 
own  innocence,  could  safely  rest  bis  trial  upon 
the  denial  of  the  facts  aforsaid,  and  upon  such 
proof,  as  he  could  bring,  by  the  evidence  of 
multitudes  of  persons. of  undoubted  credite, 
who  happened  to  be  present,  close  by  him, 
daring  this  unhappy  scene,  that  he  was 
no  waves  instrumental  in  the  killing  or  wound- 
ing the  said  persons,  but  that,  upon  the  con- 
trary, he  did  all  that  was  in  his  {tower  to  pre- 
vent and  restrain  the  said  firing  upon  the  mul- 
titude ;  yet,  that  he  was  advitied  by  his  counsel, 
that  they  could  not,  during  the  conducting  of 
his  trial,  consistent  with  their  duty,  sufier  him 
the  pannel  to  omit  or  abandon  any  defence 
that  was  competent  to  him  in  law ;  and  that 
therefore,  as  by  the  law  of  Scotland,  the  plead- 
ing to  an  indictment,  upon  supposed  facts,  is 
no  legal  admission  of  such  facts,  the  pannel 
was  at  liberty  to  plead  any  other  exception  that 
lay  against  ttic  form  of  his  iudictment,  or  e^en 
to  plead,  that  thouj^h  such  firing  had  pro- 
ceeded from  his  order  or  example,  yet  even  in 
that  cose,  such  firing,  and  the  consequences 
wherewith  it  was  attended,  was  not  sutficieut 
to  support  the  charge  against  the  pannel,  of 
the  crimes  of  either  murder,  slau<jrhter,  maim- 
ing, or  wounding,  or  to  render  liiiu  obnoxious 
to  the  pains  tibelTed. 

And  in  the  entry  of  the  debate,  the  procu- 
rators for  the  pannel  ask  liberty  to  ofler  to  the 
Court,  a  full  recital  of  the  behaviour  of  tbo 
paunel,  during  the  execution  of  the  said  An-  ^ 
drew  U'ihioii,  and  for  some  short  space  pre- ' 
vious  and  subsequent  thereto;  and  also,  lo 
oflfcr  a  short  relation  of  what  they  appreiMod 


mta  the  caniw,  iliat  the  execuiinn  or  the  aaiil 
Awlivn  WilMiii  wSB  Blleadetl  wilh  sued  an  un- 
MMsl  confluence  of  p«op|p,  anil  whb  ordered 
to  ba  guardeil  nnd  oierseen  hy  such  *  du- 
menra*  anil  uoBcciistonieil  arraeil  force. 

fhr  said  Andrew  WiUoii.  ulutii;  wlih  one 
BebcTl»nii,  and  nihcrti,  IidiI  In-en  bRnlriiced  Iu 
teUli  by  your  |nnUlii|is,  Tor  rolil'in^  one  of 
Ae  oollecior*  o<'  hia  mftjesty'H  revenue  of 
MUMeralile  sum*  ur  money  of  llic  public ; 
wd  wliik-  they  Uy  uudt-r  llieir  u<nteoce.  Iliey 
we  allowed,  m  usnal,  Ut  )ro  lu  tlie  vliurcli 
aAaining  to  Ihe  |>ri«uo,  fur  tlic  beiiefid!  ol 
4mn«  tcrficc,  under  Ihe  custody  of  a  small 
4«l»cbineut  ol  ilic  city  gunrd ;  nnd  while  tlie 
COntict*  were  lliui  nt  churcli,  RobertBon,  one 
•f  tbcm,  fouud  (ndina  lo  esc»|ie  from  bis 
l»e|)en  of  t lie  ffuard,  by  suddtnly  Jumpiog 
tttr  a  iHtm,  and  gellin|r  nut  at  ijic  doer  of 
Ifct  cfaorch  ;  his  reirt^l  ap|iarenlly  being  fs- 
id  by  llie  innb,  or  loweil  sari  of  tlie  |jeo- 


Fnta  IhisrKCDpeof  Robemon's,  sofaTotired 
hf  tlie  moll,  and  from  strong  inrmises  and 
•Bgf^ionn,  tbat,  al  theexecuiion  of  Wilion, 
a  iMeue  was  intended  by  the  moh,  which  In- 
denl  there  »u  a  reruonnble  ground  to  appre- 
Iwrnl ;  becHUDc  the  common*  hare  imbibed  a 
panieiooa  and  absurd  conixil,  as  if  the  robbing 
of  Ihe  public  money,  was  a  crime  more  par- 
donablr,  (hon  prirate  robbery:  ihercfure  it  was, 
M  tbe  pnonel  apprehend*,  lliat  the  magistrates 
of  lli«  cily,  from  a  sense  of  their  duty  to  pre- 
««M  ibu  vxcturion  of  the  laws  Itein^  any  fur- 
Vter  rliTfenit^iJ  liy  (be  rescue  of  Wilson,  took 
Ihe  >ti'«iit;est  precaoiionH  tl<nl  the  execuUoD  of 
^im  abonlJ  be  made  effectanl. 

In  cOD«pi|uciioo  whereof,  as  would  seem,  Ihe 
mnal  of  the  city  sent  lor  the  punnel,  in 
wheiDt  he  mutil  take  the  liberty  lo  say,  conft- 
^toce  was  g^iierallv  put  upon  those  dilficuli 
Wcaaiiraa,  and  tolJ  him,  that  iherc  being 
ftMt  apprehenatons  of  a  mob  at  Andrew  VVil- 
■oa'a  cxeculion,  that  llierelitrc  there  was  a  ne- 
cmlty  U>  be  well  jirepared  lo  prevent  their 
4(riCBa  i  and  for  that  end,  that  he  would  bsf  e 
tka  wbole  city  guard  In  atlend  at  ihe  execution, 
it  bavinic  given  orders  to  the  town  Iceasiirer  to 
flmiiah  the  men  with  powder  and  shot,  and 
aneb  other  niililary  amroauilion  ns  might  be 
BeDtaaury  for  the  use  of  tlie  men  in  maiutaining 
(Iw  pcac«  of  the  town,  and  suppoi-ting  Ihe 
'm  of  the  lawB.  And  this  conference 
t  proTOit  hs^peoed  n^Kin  the  Blonday 
Ig  the  encQtion  «f  Vi  ilson,  which  tb)- 
B  lh«  Wednetday  thereafter,  llul  it 
ra  tMfiHratta  of  iho  city,  not  thinking 

k  pHcaution  tiiffieienl,  upon  the  Tuea- 

>'4^  therrafler,  the  provoat  aeni  the  pannet 
«nh  a  li-llrr  to  [fencntl  Moylc'a  residing  near 
like  <iiy,  anil  chirf  commander  of  (he  forces 
li  SmUatMl.  telling  the  paonel,  ihat  the  iin|Kir[ 
4f  thtt  IrUtw  wia,  defiring  from  the  genrrat 
•a  onln  fur  a  pany  of  the  regimf nt  lying  in 
Ihc  C*iin(Tii-|iale  tu  enter  tlie  city  {u  thing 
I,  aSoept  in  the  caM  m' ur)(ci)t 


A.  D.  irsrt. 

neceuily)  in  order  to  over-awe  tlie  mob,  and 
tliereby  luuintain  the  pcaue  during  lb«  said 
e^tecaiion. 

Il  aeemstbis  letter  to  the  general  induced 
him  to  send  a  verhu)  mcsstige  in  return  thercUr, 
by  a  [lefBon  of  known  honour  and  veracity, 
fiiHJor  Pool,of  Ihnt  refiimenl  ootv  lying  in  th« 
Cannon-gate,  who  lold  Ihe  provost,  Ibat  tha 
general  wanted  to  know  uf  him,  what  part  tha 
kiug'a  troops  were  to  act.  and  what  precau- 
tion* bad  been  taken  lor  preventiug  any  insult 
or  invasion  that  might  l>e  made  opon  the  troops, 
or  what  length  lliese  troops  nivglit  go  in  (h* 
case  of  tumult  or  diUurbance.  I'o  which  the 
pruvOTt  inaik  answer.  That  llicre  waa  im 
reason  to  apprehend  any  incouvcnieucy  woutd 
hap|>ea  to  Ihe  king'*  troopa,  because  he  would, 
have  them  Only  to  parade,  for  a  terror  lo  tha 
moil,  in  a  Mreet  called  the  Lawn-market,  re- 
■nnved  from  the  sight  of  the  ececulion,  bat 
at  a  sma!l  distance  only,  where  nercrihelesa 
lliey  wonbl  be  ready  at  a  call  in  cose  of  no- 
ccssiiy ;  hot  thai  he  had  ordered  the  whole 
band  of  Ihe  cily  guard  to  atlend  at  the  execu- 
tion itself.  Willi  proper  arms  and  ammunition, 
namely,  slug  Ehnt,  witli  orders  to  repel  forca 
by  furce,  and  even  to  discharge  their  artn* 
among  the  mob  in  case  of  resistance. 

On  IVednesday  the  dny  of  ihe  execution,  in 
the  tbrenoon,  the  pannef  attended  the  provost, 
and  told  him,  that  in  obedience  to  his  cam> 
mands,  Ihe  ineu  were  all  ordered  to  be  in  rea- 
diness, tbeir  arms  pul  in  order,  and  loaded  ; 
whereof  tlie  provost  approved,  and  lold  tha 
pannel,  ihai  he  was  to  be  ready  betwixt  two 
and  three  in  the  atternoon,  wilh  his  guard,  and 
U>  draw  out  until  the  party  of  the  king's  troopa 
from  the  Cannon-gate  past  him ;  and  Uiat  so 
soon  as  the  king's  troops  were  drawn  up  in  tha 
Lawn-market,  the  pannel,  with  llie  ciiy  guard, 
should  forthwith  march  lo  the  prison,  and  con- 
duct the  prisoner  to  the  place  of  execution, 
tvithoul  allowing  him  fir$t  to  go  lo  the  town'* 
cDUDcil-hoose,  as  usual,  slill  wilh  intention,  ai 
woald  seem,  to  prevent  any  opportunity  of 
rescue,  or  disturbance  upon  that  head;  and  at 
this  time  in  the  ibrenoon  the  pnnoel  bnmbljr 
proposed  ■<.>  the  magistrates  ot  the  city,  that 
tliey  would  senit  a  proclamation  Ibrough  the 
town,  as  a  caiiliou  In  such  iunocenl  unwary 
people,  as  ntiffht  by  curinslly  be  drawn  lo  Ihe 
Kight  of  llie  execution,  warning  them  of  their 
danger,  in  ca«e  any  dislurbani'c should  happen, 
or  attack  be  made'  ugion  the  guard.  And  ac- 
cordingly George  linilsoy,  one  of  llieir  clerks, 
made  a  scroll  of  the  said  proclamalion  to  be 
sent  throuKh  the  town ;  but  for  h  hst  reason  it 
was  not  proclaimed,  llie  pannel  knows  not,  and 
at  the  same  time  the  paunel  rempiuliera  some 
one  or  other  of  tha  common -council  of  the  city 
proposed  in  case  of  disturbance,  llie  reading  of 
liio  Riot  A(rl,  and  for  that  puT|>ose  tent  for  a 
dozen  of  conies  uf  llie  act  to  a  bookaeller'a 
shop,  in  order  lo  distribute  them  among  the 
pniiiCT  nf&cera  of  tbc  law,  autliuriied  tu  read 
and  proclaim  such  net;  but  it  sernii  al  au 
limn  eilhat  wl  ihosa  proposals  were  y ui  il 


^•rtinQ  :  sat  )r  -h^  -.ni;«  -ji*  -•up  .^a.!!  ^^•fntion.         T  li.i    fi»n  f>ri>  a  '.li#^  b*m»  u^nncd  dwpn- 

ii4  4ny  '««tir««r    y    ti#*    r<\v     )ii:ii*ir2/*«1  ua  jrK  lei.  uu:  iuil    u.-^rr.a^   i    .d   '?9C1T9V,  he  wm 

^im  4ii«*:i  u".  vf'^i'i  r  M    'if-  liinnpi.  i^ijri*u*»n»tv-!    .1^   i«e  £•  i^  jaigni  -ifciiimH  iht 

j%  «iftn«^.  a«i4<A    ^.r^.  -.«•«   ivfuiH   tnar^i^i  ii-rtV-faiTii;  u    tic- •svriux^'.n  ;    :i[>r  no  cnouul 

-ynh  iMA  nwn   r-tm    \w  j-iani-tifMi*^.  invru^.U  ^sin  i«*  -:u  ia^:i  tmb  i«e  ^uavu  rniK  gpMlfai 

tSM  pto«v»  m'  •v>>.'i:iiuin   !«•    vvi  ii«*sr4  ja}'.  ''.uu  ipii>r  'ir  a  s::!/    luiiU*.    loMi  a  mi igvMSt  ihtf 

ii#  .••rt  lA  «*4rr.-'iir.*4  .n  .un  'ii»T  :    11  whitiii  i  :tiea7iiua«  us  juiu^  10 -lotii  je  :s  coBplodj 

fA^ATti    !n<il    lion,    ".i^    iM  vr-uiiit  ^  ium  4caa.  4tr-«*e3t]ie  -^   lie  sesuf»r^.  wtiirh  aivip 

•#hnn^;  and   «r*/!*'kr.iiiiq;'y   :he  «rt*->|fir%i   4ul.   ia  eatnnuaiiii  lui'n -auiTTc*  u)  ie  luagetf  attil  hi 

^*-4^r<v.  -^r'  w^*rti   .>t   si«  «««.    <«p«9  tSie  le  ileaii  -  ai»?r«iiie  .1  «';■  ~tiai  ihe  pHiiicI  lat 

(.annr-'.  «  'Mr'ra*;'  iat   -vht^^n  i  «i4  ntmnr^^  1  mna'np'  ui  ±e  Jiiilit^  :o  know  if  besboiiA 

tk4t  iji*^*  v^:>   Ao  -Mf  "Stf***.  ami   pot  ihre:?  indSn*  :!ie  cr.niiaai  :o  3e  int  «iown  fiom  ifat 

ej»i<<*9vf'^     h^r^i'i.   jt  th    niu»    <)f   viiira    ihe  f:itliei:  «*i*i  in ii*;*! i  lock  ai  Answer.  diM  ifai 


Wr^^n   eK«s  "j- n(iin:«i   wm  'uiniiacusd  »  i.;<        ^c  dual  bme  ill e  iDob  vi^ad  dSBBBdioK  Wdi 


ir.rtifi'il  ^Tt^M  Vir  aM  •7«iuir.An,  t.i«»  -leUAn-    'yH-iif  v^j  oiraixiiau.  JBii   Treac  hard  «^ 
m^nc  *><  M^  r-y   t'i*!""*  «^^  o'WM^ii  'vn   !,i*    i*ie  z^iari.  ami  v-uic  :iie  ^laniu:!  waa 

«ir44'  tv  k^^o  'ttT  >h4  mr/« :  vie  .wrac^  ot'  »    tmrjii^r  a**  foiiiMSfs.  at  lois  oui  tif  the 


#,/rr%feHi  tiniM-n^  <vk.  i»^  (•">»  C''.r.i-nn:irji.£%  nir.i  «■>(&«  •;('  tiite  cimvia's  iheoifai.  asane4  hy  Ae 

nrfy^imrvqf  (r.  *j-.<  w!;tf?!'*  t,  par  -.f  ?  .•>  r<vr>.  ''.^  Eot\.  -^^etueii  aaA^^ortmurruiil  ciuhimiHi 

nn*  )m  ifKA**)^^  r>ir  1 1<^  f>»nrt  ..  r;k%*.  'i^^V  •^''<  ic^  cJii-?  cJc  ^iwa.  vw  ui  die  puifgrwiMMi 

fip«Mi  •  ^4'%  ^t  in^  sr.v'.^d,  t '.'.  'l**  ^''^sxj.-c  ''jf  k":^;  L^jT  Af  u«e  i]i<:ii.  who  were  daiiea.viQanB$li 

liU  m^n.  Ill  ^r>r  %/•  un-*^.  z  ci'^-»r  tk-v  fit  u^^,  r^^.n^r:  tu^Et  M  l..v.  hj  cmna-.D'X  Uie  fOBi  tf 

4«*eripiiv^'«  t«v  -««  r.«r»rit>^7  RV'tr.'.4A::frj.  £»'.''.«  a.'XA  U  be'''uai4ifi :    ^  -itfuier  it  wasiktf 


HAAttfy  nfyf  <A  Urt  h'irT>f<^ 'ip^'n  u*^  £;*bij^r.  recr.var  b.m  o«ti  ic  t&eir  hantlii.  as  bating  I 
Ih^  ertj  WiJi^  irftm^iat*!^  wi-h-i.-e-w  r.i^»  l-;,  ^int  d^-^n  ii:..'.oc:  urder  :  or  Liac  the  ~ 
4«r#H«y  ff^^iiui^,  %rA  \u  vt^-w  or  th^  »c*fT<>l  1,  toe  Uw  wcr«  rfeMpud  to  see  bid  iateiBiiili 
>mt  wt^h^it  :«»v»r.{(  4r»y  'ir^^.r  r^r  r.fficcr  of  tUe  &n<i  ib.uLe  «  l?  «Tecm<hi  oi  ileu.)  ;  or  Uwilhe 
itwiff%tynnt\  9,iiht.^.  l%rtr,^,i:  Ar.iit  hsilhap-  <^ciDvi.'t's  Ixi'ly  visinscfoii^  10  be  siivca  wk 
p^vk*^,  t(i«t  v.m#!  Hh'*rr  ^;^:c>  Urf.r^  th^  act  ft f  af-a^'niizel  ^-j.  tr^  «uczeuod,  as  is  somefiBS 
*x^/i«ti/ift,  wi,:>  til*  rri:i.*!fT  "^'i*  r»«^.-:.n^  ti.<5  prratt-''-.  sr!:.  re  |;<cr?oc3  .if"  :.>'!¥  u  ::jree  or  Mit* 
CfirniruMr/  pr*y«:f  »':*:  r«Hr.r.f:i  r.-./J  sf'-ric  i-p  10  rious  o^tefirr^  a^-e  *«4:'-cat;eJ  i.>  Jeaib;  or 
j'rtf»,  l*!ii»ir.'^  fi.«  ji!«'/.*  V. :  ,4  ir.':  *:'.-^»;irjt;  and  fr-im  ■••  Ui"> -"-r  Tk^-.:.-'C  ii  pr^'ckJeJ.  the  BMb 
«/»  v*'»ri  *<  \».U',.f.  j»r»\«f  ♦.»;;*'■.:.  I,  or  v.'::f-  ly^'^^n  ti  i..s  .".t  i:,i  aiLLck  L;*  ::ii.dr«!:  And 
short  tirfi'r  ;itr*T,  ^n'J  i^f-  r^.^.f:  i^it  1'*  lis  ■.if.'/.i  t...;  i.mliC  .1  w.ft9  L.-ti  i.ij  ii:-ia  aforesil 
own  pr»v«t'-  »!«■•.', »y.r.,  il.f  {i:j.',... .  • ,  .k  hjr;'<  |,,s  h . i  hi->  s-j^'.;  :.j.-  •.!.-•:«  uf  kec  ;  ar-i  anodMTM 
fii^-r"  in  hi«  iiaji'I.  *:rl  &{■' r-i^:-.-'! .  r:;:.t  off  |^J«;  J,r  Ur:»l,  \Ua  li-;  i!.i-»  ;jt-€ti  ce^^r  iJie  lo  ilAdotr 
o^r^fToIrl,  un'\  f.'#u»i  lj:rr.,*lt  .T.  tiif  Vi  l  L  cnri  s:;.'.*-;  an<i  Iti*"  L...'>«:r '.r' luc:  d.nii^  was  knke 
#»f  fh«:  r|#:t4r,firif«'riioJ' il."  yi:.ri!.  ky  tli-i  I'jrce  ul"  Ci.  exc^.£u;L'^  lipje  5iOlielli3l 

Nr»«r»fin  n-i  tU*:  f/iriTifi  ha^l  In  Ii-m'^  ij^>  as  »ai  iliru^n.  add  screnil  bioers  of  tiie  mca 
ofor^dairf,  and  tli.jt  tl,*-  r.it)  l*.;!;i#s  h'.'l  vfit!i-  wcrp  Kurt;; .id  u-uiudtil. 
drawn  from  thf:  s« 'if^oid.  til"  in'.!>  lirr-^nir;  fo  |ji-  Titii  tio'.vrxe  ij  tLe  ir.oo  so  a'armtHl  ilie 
troiilfii'^'inu',  in'Tj'Iintf^  »'•  v.r,ij|  1  '„' » ,.|j  to  i;  ■•  pansit.I,  lh'»t  i.e  fuailea  »:.-'i  t^r  ?wo  rvrvarlsia 
thiii  lavt^liif't,  iinrifiliaif  ly  to  f:iit  d  f- ri  ili^rri-  the  ucst^^aid  ot  lUc  sccri'd*!.  turo'.jff  .i'hiiuI'S 
miri»l,  »nd  <'Md«Mvoiir  to  Itnii'^  inrii  to  IM;- I*y  I'hcc  towar.'s  ihe  v*.e»t  {.urs,  tr-ni  nbvnce  the 
Iflfpflditf  ;  an  f'X[if  dii:ni:  nliif;li,  utirn  tiM",iiAly  liiroMin^  ot'lliri  sioiies  Uio^iU  |'p.*v;j«!iid;  and 
R|i;)!i«:d,  liav  on  many  otlitr  tutasifu'*  Ufi.-ii  .  Uaxiu^  \t\it  h.s  piece  to  ii«s  sht.;iidcr,  be  le- 
kriowri  lo  hf.  iitl''rid(*d  uiili  surrt'ss,  itw\  tijf- =  v<rik'd  it  at  the  mob,  and  {•o:r.;i!)fif  it  aruuodtp) 
nioh  ffll  H  mnrmnrintf,  tli.it  tlfy  \t(j;:M  Ii:iv  ;  ;  liicjii,  tlirc:itei.("l  with  :.ii  uuJibi-.'  vuk'e,  thai  it 
liini  inMantly  rot  down,  and  it  it  urr<- i;ol  tiifiy  ^^oidd  iMt  beat  (it^ac?. ami  leave  off thn}W- 
fjiiirkly  done,  tliry  Hould  do  it  tlifinM'lvf.s  :  ini;  sioiir  s,  nu  1  altackin;^  l\\e  nwii,  le  woulJ 
^tid  at  tl>i«i  lini«*  tbf;y  |»rf%^(:d  hard  n|»on  tlif:  ,  iin;  innoii-^  tiu  in  ;  liut  iiniiie«l.aiely  iccovertd 
l^iiurd,  atrikin^  at  llifiri  with  Mi'-ks,  M'ixiii;r  of  '  his  |ucce  uitliout  firing'  it ;  the  threatd  fieio}^ 
III!  If  firi!  ftrrnK  mid  hayoiii'li,  and  throwin;;  ex-  !  only  intf/mlcd  to  intrnidaie  the  luob. 
r«*( -din|f  hii(  ittomit  at  thi*  ^unnl ;  oni*  whercol'  \  Hnt  iintoituiiately  upon  this  enftued  the  n  hole 
nit  n  driiiniiifT  to  tht*  ^kiill,  nnothrr  hroki' '  tniirical  sctMii.';  for  no  sonuer  had  the  prjud 
oiKiofihfMncn'NHhoiildiThonm,  another  wound-  :  Kti'i'l  (orwurd,  thn  att-nin*;  to  fire  as  atoreoid, 
rd  oiiff  of  ih«'.  nif'fi'fi  l«'i;^t  mul  Miveral  others  of ;  hnt  0:10  of  iUu  men  cauie  up  l'ro.:i  iM'hind  biiii 
thn  iiif'ii  Wfri!  WfMiiiflcd,  whfrfhv  they  are  yd  and  riiniiins'  hy  him  upon  his  rif^ht  hand,  ia* 
uhahleto  do  duty  :  The  tniih  nl  all  which  can  staiitly  di»«iiHr;;rd  his  piece  ;  upon  which  "" 
In*  ntlcalPfl  hy  ihrir  ciiinniyii  mirKeoii,  who  is 
-liy  ilin  city  ordered  to  aUeud  Ibeoi  upon  all 
tiigcnoin. 
4 


id'the  crowd  dropt  down,  suppo»rd  to  lie  Charkf 
li unhand,  and  which  Charles  llusbaml  will 
u|Km  proof  be  found  to  hATo  beta  tbe  pcnM 


/orJfi 

mho  tHBiuUiioaily  Mc|it  in  anJ  cui  tlottn  ihe 
fa'il^^la). 

,  lotmnlutcly  upou  lliis  Hrst  fire,  another  nl' 
lilt  ganril  vaiA«  up  lo  the  |Mtinet,  »iili  liiv 
fifOt  preuiitnl  and  cock*d,  anJ  ntkeil  il*  be 
afaauld  firs;  to  wbicli  the  paancl  answered 
Mitli  MOie  vchemeure.  No,  by  no  meaos,  and 
•truck  up  bin  piecf ,  bidilio^  liim  go  to  Ilia  renk, 
UXl  actiialty  (hrusl  him  ihrrolo. 

AAer  the  exainiile  ni'  lliii  firvl  (ire,  levernl 
niure  ol'iUe  roen  nere  heart)  to  Jjsfihsrge  their 
|IKCt|  tiul  upon  what  provutation  the  p&nnel 
■UiMitlctl-,  tlie«e  dials  having  been  at  a 
tOOMderaUe  ilitiBiice  from  the  psDn*'),  pro- 
Mttdisg,  u  is  guppeacil,  from  lucli  of  the  men 
V  trere  staiuhng  at  llie  south  treut  comer  oJ' 
JJm  Cwn- mill  bet  t  wheress,  us  ha«  been  no- 
Jjtic4,  the  pauiiel  wm  •iU)  HanAiaa  st  iius  tiirmer 
fUlian,  to  llie  west  of  the  icatfoM  aii<l  giibbel. 
Tbe  pBDDel  not  Jcooitiutr  the  fatal  i-oiise- 
foncea  ul'  ibow  kIii^,  but  xuapeciiog  however 
fkU  loltcliief  HOulU  liap|icQ,  se«ui);  the  meu 
tsd  b«en  so  raib  as  to  6i'e  witliuut  onlurt, 
ibWiglit  it  was  (he  Lent  course  he  could  tiJie, 
lo  lead  oS  iltc  men  of  Ihc  guard  as  soon  lU 
JIm  oould  i  and  fur  ibat  ead  be  called  aloud 
M  tbem  to  follow  bini,  soil  after  luuringifueii 
atiart  to  the  icrleBiils  lo  gather  them  la){elhe]- 
tftir  il  vns  iiu{)ussiljlelo  bring  them  Jnlornok^ 
.  I'lii  iif  the  mob)  lie  marched  «lf  as 
I  '!<- be  cohIiI  find,  by  tlic  north- 
.:  Jil,  UHTardilbe  foal  of  the  H'est 
'.>  :iiJe  u  parcel  of  the  men,  whom 
oiu'  iif  ilir  ii'ijcaols  bad  got  together  nl  the 
ibot  of  tbv  iloH'  ;  hul  as  hu  wag  g'oing  lu  joiii 
.tkat  parcol  of  the  men,  be  heard  a  piece  lireil 

nfein,  with  svtui;b  be  n  at  a  gnoil  deal  siir- 

.  yet  luore,  when  be  oliterreil  two  or 

k  tall  to  liie  groiiDil,  and  wliicli  oli- 

KU    ttw    lirt,t   ibiug    that    greally 

il  the  (MoiieI,  IK  kiiowiu^  from  theuce, 

^__W>inly  niiacUUl  was  done  :   but  ii  U  cer- 

_K^MlbiR  fatal  abot  did  not  proceed  from  the 

{•niifl,  but  fram  a  (Mriaiu  man  ia  the  Ktuvd, 

Ifast  can  b?  well  prori'ii ;    wlio,   after  liaTin|> 

4m4  ihv*  sliot,  iniiuei  I  lately  rciired  amongst 

4lia«.-»inl,  nt)d  then  gote  himself  Joined  to  the 

i^Vlf  :   and  xui'dy  the  nuigisliotaa  of  the  city 

nil  raowiiber,  llial  laheu  a  precognition  wat 

uLiugoJ  ilir several  fuciB Mid  occiirreuccaupoo 

I    <  'lay,  Ibat  a  ccrlaiii  person  iihl 

I'l.y  would  be  pleaiea  10  aiit  tbe 

ilicijuard  before  tliem,  be  would 

:trMi  who  made  ibis  last  fire,  but 

>DF  ni^^iin  mi't  ovetluaked  ibisoller. 

ifaMKin  Bi  ihe  tunii«l  saw  thore  was  do  rc- 
tlf>i''tf  IT  Iltf  tBOD  .from  ifcegtilarities,  be 
Barched  off  10  many  uf'thamas  be  liadjjotelo- 
fatliir,  without  tttkmg  liiiw^o  tonne  tliem  iuio 
•Bjiwdrr;  iriiiiigunlenalUie.aainvtimetolbe 
atprant".  t»  beat  aod  presi  olflhe  rrM  with  all 
maa^tx  ol  diii|Mlrh.  Ujion  nhiob  he  oUorved 
t  ibat  hod  ilng^M  come  off  partly  from 
ITobl,  aod  portly  from  eatt-eiul  nf 
~''.ii,  and  tall  into  the  rear ;  aud 
,  _  ]«l  was  lli.ua  .marching  up  the 
UJM  tnal  gf  tbt  fqicoMat  put  of 


A.  D.  I73S. 

the  mep,  and  bad  come  bb  far  asthelurn  of  ths 
Bow,  he  beard  some  dioppin^  g|iot«  firiog  in 
the  re»r,  and  about  tliirly  ur  forty  pace*  disUnl 
rrom  him,  wbidi  he  suppose);  ttiay  have  iiro- 
coedcd  from  Ibuie  men  who  were  atragglinv 
Upon  the  casl  vide  of  ibe  Comiiiercate,  nign 
(0  the  lli'ad  of  Ihe  Cow-gale,  but  upun  what 
nccaainii  the  panuet  knows  not ;  but  being 
alarmed  with  ibe  aliols,  lie  looked  back,  sup> 
poHinz  the  men  mii;ht  be  attacked  by  the  mob, 
and  iibserTiag  no  marks  of  any  lucb  attack,  ha 
tbougbtliie  most  prudeul  courae  becuvid  taka 
was  Forthwith  tu  march  ofTihe  men. 

it  fall*  here  to  be  iiMiced,  ihal  all  ibia  firiDg, 
fi^m  fint  lo  last,  and  whereby  su  mucb  luit- 
cliiafUas  been  done,  lasted  iioi  above  two  or 
three  miQules ;  aod  therefore,  GOnsidering  tha' 
violance  of  tlie  mob,  ajid  the  straggling  si  tualbn 
of  the  men  ol  tbe  guaj-d,  DUd  aiipposiDg  ibf 
trulbnf  the  above  narralive,  wliidi  will  be  at- 
tested in  priiper  time  by  (be  aaitit  uf  many 
eentlcmeu  of  uuiloubted  Tcradty,  and  w ha 
had  lair  opporiunity  of  ohservalioii  ai  tke  timv, 
it  i>  IcU  wilb  the  Court,  and  lo  emy  iuiparttal 
liy-atnnd<v,  wbethor  the  ifauiiel  could  well 
liaredoneiDore  for  tiieaafeiyvf  itte  burgh; 
considering  iJ I nt  it  sliall  a1;o  l)e  proved,  thai 
during  Ibcse  fi^w  ■oinnteaof  liHnir,  ai:uumpa- 
nied  witii  greatbtirry  and  cuufusinn,  tbe  pautial 
ga»e  sercral  repeated  ordj^ra  to  ijie  men  to  re- 
strain from  firing ;  but  observing  Ihosi:  orriora 
prove  iNcfleclual,  lie  ejiileavuured  to  sweep 
lliem  otTlht!  field  wilb  all  niaoDec  vf  precipila- 


esteemed  eoiuewbal  incwisislent  wilb  guilt, 
ecpeciallv  such  horrible  guilt  as  lie  is  chargi^J 
uith.)  Upuu  Uik  arrival  at  the  ^nard-bouFv, 
he  drew  up  lils  iil'u  tlitre,  scndio;;  a  aerj^ant 
to  Ihe  provost  for  orders,  wbich  were  brought, 
that  tbey  should  wait  nu  their  anna  lill  the 
king'a  iroops  paat;  and  some  if  tbe  men  m 
waiting,  oAeriiig  and  aitempting  lo  clenu  tbeir 
Ifiina,  Tint  the  jiapnel  discharged  it,  aod  would 
Dot  .allow  il  ti>  bi^  done ;  mean  linic  a  cerlain 
^erion  uf  orrdit  came  up  to  Ihe  panual,  and 
aiked  ii'  he  had  fired  t  To  whom  be  nioile 
ausw«r,Jiel»ad  nal;  biKtbepervin  iiul  bcioff 
aaliafied  wilb  llkeaaswer,  put  hu  finger  into 
Lhc  Kuuxle  of  tbe  panoel  s  piece,  and  aDcr 
having  rubbed  il  about,  aod  alter  bavuigalao 
viewed  Ibe  look,  said  to  Iho  p^inuel,  1  see  you 
have  not.fired.  and  1  aniK'adul'ii. 

Tbe  king's  trwiiu  haTiag  passetl  Ibe  guard, 
the  pnnnri  filed  oil  tbe  men  into  the  guani,  and 
orilered  the  aerjeanls  lo  keep  tliem  close  till 
farther  ordcr-i,  and  by  all  ineana  uol  lo  sitSier 
lUvoi  to  clean  tbeir  pieces :  and  nt  the  latqe 
timathe  ponnel  debveted  liii  corabipe,  loaded 
as  oforeaaid,  at  llie  guard  door,  to  one  of  Ibe 
guard,  neither  (■ntering  Iho  guard  liLiiiiielf,  nor 
any  other  house,  hut  )*eut  iuintcdiattly  to  (t|e 
proTOal:  lb  as  his  own  piece  was  brnugbt  .bock 

3P 


!»1] 


10  GEOft&e  II. 


Trial  of  Captain  PorteouSf 


[958 


fiftotitioii  ti  'Bituation  in  which  he  ^kM  at  the 
time  <if  the  firiogf,  the  ptnnel  can  hhe^  that  it 
Was  impossible  lie  could  ha? e  killed  the  person 
Whtim  ht  is  charged  to  have  shot ;  by  deiccrib- 
iltg  And  proving  these  circumstances,  be  may 
h$.fe  fUlvactagfe  from  them,  but  cannot  object 
to  the  prosecutor,  that  he  did  not  niinutelv  de- 
scribe his  situation,  which  wai  not  known  to 
hitn }  ttnd  that  by  the  describin)^  of*  which, 
perhaps  erroneoosly,  the  prosecuttit  migfht  mi- 
nister an  unjust  occasion  to  a  criminal  to  escape 
justice. 

To  which  it  wa$  replied  for  the  pannel,  That 
tbob|[;h  it  is  true  tliul,  in  most  cases,  the  de- 
scribing the  street  \vhiTe  the  gt/ilt  was  com- 
mitted, would  be  a  sufficient  description ;  yet, 
that,  in  the  present  cate,  #here  it  was  laid  in 
the  indictment,  that  in  a  crowd  or  moUitude, 
yafioos  shots  were  fired  by  difierent  hands,  and 
thereby  ivounds  i^iven ;  His  even  necessary  to 
describie  the  particular  place  of  the  street  uhere 
such  woiinds  \^'ere  Feceived,  in  order  to  form  a 
judgment  from  #hosc  hands  those  wounds  had 
proce<!ded.  The  paunel  might  have  tired  elu- 
sory', or  in  the  air,  and  the  wounds  received 
may  have  proceeded  from  the  shots  of  others : 
that  though  the  pannel  knows  his  owu  position 
and  situation,  tod  can  prove  I  hem  ;  yet  such 
proof  could  not  avail  him,  nor  be  received  by 
the  Court  in  the  point  of  relevancy  ;  because  it 
would  be  a  simple  negative,  which  could  not 
be  admitted  of,  nor  would  not  appl^,  unless  ttie 
particular  places  of  the  Street,  lu  which  the 
wounds  are  said  to  have  been  received,  had 
been  described  to  him;  a  situation  which  the 
pannel  cannot  be  supposed  to  know ;  whereas 
the  proseciitor  must  oe  supposed  to  have  known 
it,  seeing  the  same  information  that  led  bim  to 
know  of  the  wounds  rerciveil,  must  necessarily 
upon  inquiry  have  certiorated  him  at  what 
pwces  of  the  street  surh  wounds  were  received, 
seeing  the  matters  and  things  laid  in  the  in- 
dictment, are  charged  to  have  been  committed 
at  high- day- li^ht,  in  presence  of  multitudes. 
And  though  the  pannel  is  fully  satisfied  of  the 
good  disposition  of  the  honourable  prosecutor, 
to  lay  a  fair  and  certain  indictment  against 
every  pannel,  >et  it  must  he  adniittLd,  that  all 
indictments  ought  to  be  laid  with  all  that  ac- 
curacy and  full  description  tliat  the  nature  of 
the  thing  can  admit  of:  and,  ns  to  such  part  of 
the  answer  for  Lis  majesty's  advocar,  as  saith, 
that  such  particular  description  of  place,  if  per- 
haps erroneously  described,  might  minister  an 
unjust  occasiou  to  the  pannel  to  escape  justice; 
itis  answered,  That  such  enoneous  description 
of  ph'.ce  could  in  no  sense  affect  the  trial,  be- 
cause tliou:;h  such  description  should  not  be 
proved,  it  would  not  vary  the  case,  pnniding 
the  act  of  killing  w^re  proved  against  the  pan- 
nel, because  such  description  of  place  is  but  a 
circnoistaoce  immaterial  to  be  proven  by  the 
prosecutor ;  but  for  the  reasons  above  ass)>;i;ned, 
liighly  material  for  the  punnel  to  know,  ib  or- 
der Id  lay  his  defbnce  before  the  Court. 

It  WM  in  the  next  place  nffeied  as  a  defence 
hr  ihc  pineli  That  th«  rasntauct  of  the  mob 


wat  80  grtet,  and  the  attack  of  the  city  ^nrd 
80  violent  against  them,  in  beating,  lirnisnig, 
and  wounding  the  meif,  as  has  beat  above  no- 
ticed, while  ihey  were  in  the  lawful  ezecstion 
of  that  office,  committed  In  them  by  hiwful  8S« 
thority,  that  such  resistance  and  attack  nmt 
have  justified  the  guani,  in  repelling  the  vio- 
lence of  the  mob ;  since  such  proceeding  is 
the  i^nard  were  acted  in  snpjiort  of  the  due  ex- 
ecution of  the  laws,  which  the  onrob  wert 
highly  criminal  in  disturbing.  That  ibit  ar- 
gument as  pled  for  the  pannel,  was  not  only 
consonant  to  the  rules  of  reason,  but  ogreeabM 
to  sundry  judgements  and  precedents  of  the 
Conrt,  particuTarly  that  hi  the  year  1^99,  it 
ap|iears  from  the  tiooks  of  adjonmal,  that  Jaiiet 
Gordon  messenger  at  the  execution  of  a  etp- 
tion,  did,  with  many  others  his  assistants,  armed 
with  guns,  swords,  and  other  hostile  wespossi 
shoot  several  shots,  whereby  one  Alexander 
Jack  vfhs  killed  dead  upon  the  spot,  amidst  sna- 
merous  crowd,  which  the  al&rm  of  noise  and  ts* 
malt  had  drawn  tog;eiher,  and  whereof  only 
part  can  be  supposed  to  have  come  there  with 
luteution  to  resist  the  mcasenger ;  ami  the  said 
James  Gordon  and  the  others  his  assi^tanti,bei'Bg 
indicted  for  murder,  the  lords  sustained  this  de- 
fence to  him,  relet  unt  to  elide  the  libel  simply, 
viz.  That  he,  in  the  execution  of  a  caption, 
haven  his  blazcn  di!*played,  was  bv  tbree  of 
arms  hindered  to  enter  the  lioiise  of  iioanmy, 
by  the  persons  tuthiii  that  house,  and  that 
they  did  threaten  and  menace  the  messenger 
anil  his  assistants,  an<l  that  they  threatened 
to  raise  the  country,  and  that  the  country  did 
accordingly  rise,  and  beset  and  surround  the 
messenger,  either  in  the  house,  or  without  the 
house ;  the  said  country  people  being  armed 
with  guns,  Fnords,  and  other  invasive  weapons. 
Here  your  lordsliips  perceive,  that  the  Conrt 
justified  the  messeuger  in  shooting  amongst  the 
mob,  and  killing ;  because  the  persons  in  tbe 
house  forcibly  hindered  him  from  entering,  ami 
threatened  and  menaced  him,  lieing  armed 
with  invasive  weapons ;  and  the  present  easels 
more  favourable  in  hehatf  of  the  pannel,  who 
acted  by  lawful  authority,  as  well  as  Gnnlon-Hi 
the  other  case  did,  and  who  was  sup[N>rttng  tbe 
execution  of  the  laws,  as  well  as  Gordon  was  ; 
with  this  (liAcrencc  upon  the  side  of  the  pan- 
nel, that  he  was  not  only  hindered  and  me- 
naced in  the  execution  of  his  duty,  but  he  and 
his  guard  invaded  and  assaulted,  beat,  liruised, 
and  wounded,  as  has  been  above- noticed,  aod 
whereof  a  strong  pi-oof  shall  l>e  brought  ;  and 
that  the  mob  in  the  present  case  were  not  only 
armed  with,  but  in  their  attack  u|u>n  the  guard, 
I  maile  use  of,  big  stones,  of  two  or  three  pound 
weight,  which  must  be  allowed  to  be  very  in- 
vasii^e  wea|>ons  ;  and  therefore  the  nanntr&Bb- 
sumes,  that  the  defence  otfered  fur  bim  in  tbs 
present  case,  is  strons^er,  and  ought  rather  to 
be  allowed  him,  thau  that  which  was  snstaincd 
to  (vordon.  Only  the  pannel  must  do  the  jus- 
tice to  his  majesty 's  Ad  vocat,  as  to  ncknowledge, 
that  this  precedent  was  not  hitherto  offered  in 
tbe  dtbats;  ]but  when  tht  nscord  n  ia^ccKd, 


g»] 


far  Murder. 


wUt  be  band  \o  staiul  in  tbe  procin  icrnis  u 


^^Jtken  WH  in  the  rormer  il»li*l«,  a  precedent  I 

^HUm  CiRirt  oHV-int,  rs  b^bIiih  tbe  paonel,  I 

^^^■Eb  Ibe  naaiicl,  triili  lubmiiision,  ap^cbenils  ; 

^^Hn  for  liitn,  namel;  ciptain  Wallscc's  case,  I 

■wn  lime  altpr  llie  IteTululino.   CapUin  WbI< 

bM  WW  inili(-t«il  in  llie  169:^,  for  hafio^  rc- 

foMd  in  ihe  t68U,  in  dtUtrt  up  himself,   in 

obsdiencE  to  an  order  of  llie  preaidenl  of  the 

cMmcil.  Mut  WTeml  jnivy  cm an<wl tors,  whereof 

^^to  OBre  offictrs  ot  Male  ;  and  tlie  (laillffs  of 

^^■Bk(trs>h,  hsTiiiV  ^neiluwD  tothri  Cannon- 

^^Bt(  Tvitli  a  heriiild  anil  piiraeTant,  with  their 

^^nhi  of  arnii  irii|>lB}e<l,  to  put  the  unler  of 

nMi,  esplaio  Wallace  wooM  not  Oclirer  liim- 
n!f  a\t,  hut  retired  willi  the  men  under  his 
■tfaanit  la  the  Ahtiay,  and  det'eDded  himaelf, 
A  fired  Ufion  Ilic  lAilifls,  heraulds,  and  pur- 
'laU  i  Miot  icveral  perseni  detd  upou  tbe 
b  ■!)«  nniiad»l  a  grtBl  niaii^  others. 
n  Jefei'Cc  pled  titr  raplaia  Wallare  was, 
I  ttia  heepinj;  nf  tlic  AUmy  vns  comniitled 
Ifa  by  urder  of  the  frif ie  council,  uliich 
Ml  otdijred  to  maiDlaio  so  loQir  ■*  ibe  imst 
JlWIICODimltled  lohim;  that  as  to  the  ui- 
ftttjniij  council,  to  deliver  up  hi«  person,  it 
wMcantmir  loan  art  of  parliameulJatneslhe 
wMh,  w berehy  any  ^neral  warrant,  fur  pulling 
Ike  ^rton  of  nay  man  in  nnrd,  eiKcpl  where 
Mch  warrant  was  signed  by  lour  oHkeix  of 
MMH,  whereof  the  chancellor,  treasurer,  or  m- 
cnttry  of  iinle  to  be  one.  which  had  n<it  been 
■rwlited  i^  tVDllace'a  cutte,  was  probihiled  sod 
Mr  ba  reed. 

ba  lor'la,  afW  a  rery  learned  debate,  did 
II  these  defeoL-ea  to  captain  Wallace,  lir. 
tl«D  Ike  sahhalh  niilhl,  or  aborlly  beliire,  a 
"in  eeveral  planes,  in  i-reat  nuni- 
Rjand  thai  aeiernl*  of  them  diddeclare  lo 
I  Pateraoii  their  renulution  lu  trouble  the 
d  m  hU  guard,  and  lo  pidige  the  Abbay, 
■-■  *-  re^tricl  lo  an  arbiuarv  puniahinent. 
ur  lurdhipa  jwrceive,  tliat  the  Court 
I  prefioiia  lolenliou  only  declared, 
I'tbcj  troulil  trouble  the  panuel  on  liii 
i,  mai  piUti^elbeAbbny.BuricienttDnio- 
lalbapUDilliment  1  «>  ifuilerare  the  lawi 
j4tvtj  peraon  coin  milting  boatillly  in  de- 
ie^liit  guard:  and  then  ibe  lord*  suaiaiiied 
""wiogdHuncereleranl  to  elide  the  libel 
-  -  —  allheralJ.lcdld,inatu. 
«  tnautier,  come  down  Iba  Cannon- 
t  «Hh  awnnh  and  lire  anna,  and  did  best 
«  of  the  panwd'a  ccnlinvti  ;  and  hein^  de- 
)  to  aland,  they  liotwilhaUuding  adianced 
■DDcar.  Iliul  ihepHUrid  coidd  apeak  wilhlhcm  ; 
and  thri  br  bad  deaiicil  ihein  to  remove,  or  be 
at  IbMr  liiiznrrl,  they  nnlwilhalanding  Ihcreof 
Mill  [»-r.isi.-.lu>  advance. 

Tht'  a{tjibi'utiini  in  Ibn  pretpnl  cam  ii  my  : 
The  t>"""^'  "uiny  times  exhorted  the  mob  to 
atand  oO';  not  <vilh«  Ian  ding  at  which,  they  alill 
|ireBrrl  hjkir  bim  ;  lie  many  limea  adi'erli««d 
nlhaw  of  tbrir  haxanl ;  lbr«iliied  tn  ftra  iipoB 
»iftiR>y  would  nolVerp  oH';  hii  MDtineli 


A.  D.  iTflfi.  [95* 

were  not  only  beat,  but  hruiial  and  wounded  } 
all  which  i«  offered  to  be  ptoted. 

Another  caae  was  menliuned  ia  the  debate  ta 
your  lordihipa,  which  atrongly  lupporied  the 
plea  of  the  ptinncl,  because  it  was  a  jndgemetlt 
of  your  loiiltbipt  pronounced  but  very  lately, 
after  the  most  aolemu  declaration  of  the  Court} 
and  wherein,  the  paanel  is  informed,  the  CoufH 
wB*uiian>moua;and  which  Jadgement  eeewed 
to  be  of  that  impMlanee,  aa  to  induce  iha 
ConrI  to  reverse  ihe  proreedtngt  nf  tbe  higd 
cmirl  ot  admiraliiy,  after  aioleiun  trial  by  jurj 
in  that  cuiiri;  a  verdict  teiurned,  finding  th a 
lybel  proven,  and  the  defence  not  proven ;  am) 
a  sentence  of  death  pronounced  by  ihejiidgeaf 
ihe  liigh  court  ofadmirolity. 

Tbe  case  belnrethe  admirality  was  thia;  A 
corporal  and  a  private  cectinel  in  colonel 
Hamilton's  regiment  were  indicted  before  the 
udrotral  ler  murder;  for  that  they  had,  upon 
the  high  seas,  killed  Ili^h  Fraaer  younger,  o( 


aca,  whereof  be  instantly  died. 

I'he  defence  pled  for  the  pannels,  wiia  this, 
that  llie  pannels  were,  by  niililary  order,  ap- 
poialed  to  stiend  the  officers  nf  th'e  cnitoms  m 
seizing  of  gocNls  by  law  maile  sei/ahle ;  and 
that  the  panncia  being  in  a  boat,  upon  Ihe  aeas, 
along  with  the  cuitoin- house  olficers,  in  i|uesl 
nf  such  gouda,  Ibe  person  killed  iliil  came  up 
with  Ihem  in  another  boat,  with  nihers  in  oom- 
ploy  wilh  him  ;  and  that  Fraser  Ihe  dpceasrd 
jumped  into  ihe  boat,  where  the  pannela  and  ibe 
ciisEom-liouKe  ofliccrs  wtrc,  and  cndeavouied  to 
take  bold  of  Iheir  arms ;  which  was  both  a 
resistance  and  an  attack  of  the  cuslum-huuaa 
officers  while  in  the  execution  of  their  duly. 

Upon  the  olherhaud,  it  waa  pled  agninM  th* 
panoels,  that  Fraaer'a  jumping  into  the  boat, 
waaivilbno  inlention  to  m«ke  resist  a  nee,  but 
rnlhcr  to  save  liis  own  life  liinn  tbe  thrusts  of 
the  panned,  their  pieces  having  been  aimed  at 
him;  thai  those  in  the  ciKioiii- house  boat 
could  have  no  just  apprehension  of  being 
mastered  liy  Itlr.  JFraser,  he  having  no  invasivv 
weapon  about  him  nhateter,  and  being  the 
only  person  whoolfVrdto  get  into  ibecuatom- 
house  boat,  in  which  then:  vtK  seteial  per- 
sons well  armed. 

Th'jndgenf  Ihe  high  court  of  admiraliiy  ad- 
milled  of  the  pauneis'  plea,  in  this  nmniier 
only,  "  suslainB  ibe  defence  of  self  defence  pio- 
pnncd  hy  iha  pannels,  that  tbe  killing  of  Ihe 
said  Hugh  Ftsser,  by  them,  or  either  of  them, 
wa»  in  the  nvceat^ry  deleuce  eC  their  livM,  an4 
repelled  the  whole  uihiT  deOucts  ptopouad  fui' 
Ihe  panne k," 

I'be  Jury  returned  lUeJr  rerdici,  finding  the 
pannols  bclh  guilly,  art  and  part,  of  killing  titv 
saiil  Sir.  Fraier ;  and  finding  il  not  proven,  that 
Ihe  kiOinff  of  Mr.  OniNr  was  iti  Itie  necesssrv 
defence  oT.the  paiinels'  tii-ra :  V  poii  whiuh  let- 
diet  returned,  the  .indgv  sentenced  both  Ibk 
panncls  to  be  hnngril. 

The  prooeedingi  of  the  court  nf  admiraliiy 
were  laid  before  your  lordsbiiic  for  a  Kvlew, 


»55] 


10  GEORGE  II. 


Trial  of  Captain  Porteout, 


[968 


which,  it  is  believed,  is  the  sinjg^le  instance 
wherein  it  was  ever  contended,  that  the  pro- 
oeetlious  of  the  high  court  ot*  admirality  in 
matters  criminal  could  be  reviewed  by  any 
•ther  court. 

Notwithstanding^  of  which,  your  lord&hjps 
were  pleased  to  reverse  the  sentence  of  the 
judfe  admiral ;  no  doubt,  upon  supposed  error 
in  ois  proceethnjirg ;  because  the  verdict  of  a 
jury,  pronounced  upon  evidence,  cannot  be  re- 
versed ;  and  in  consequence  of  which  judg^- 
MCDt  of  your  lordships,  tlie  panneU  were  set  at 
liberty. 

"Sow  the  pannel  is  advised,  that  such  judg^- 
Bseat  in  your  lordships  could  stand  upon  uq 
foundation  other  than  this,  viz.  That  your  lord- 
tfaips  had  reversed  the  jad(|faient  of  the  admiral 
as  erroneous,  in  not  sustaining  this  defence  to 
thepanneb:  That  they  were  resisted  by  31r. 
Fraser  deceased,  while  they  the  pannels  were 
in  the  execution  of  their  duty. 

And  as  the  detrrce  of  resistance  oflfered  by 
Mr.  Fraser  to  the  pannels,  was  by  the  pannels 
themselves  maintained  to  have  been  no  hi^^her 
than  what  has  been  setfortli  (o  your  lordships  ; 
the  forsaid  unanimous  jud;;ment  of  your  lord- 
ships pronounced  after  many  solemn  delibera- 
tions,  does  by  conse({uence  shi^w,  that  it  was 
your  lordships  unanimous  opinion,  that  a  very 
small  degree  of  resistance  of  persons  in  the  exe- 
cution of  their  duty,  will  justify  the  persons 
resisted  in  the  act  of  killing  the  resistor. 

And  if  that  was  the  solemn  and  unanimous 
opiuion  of  the  Court  in  a  case  so  recent ;  must 
not  such  judgment  afford  a  strontr  argument  to 
the  pannel,  that  he  and  his  guard  were  resisted, 
while  in  the  undoubted  execution  of  their  duty, 
in  being  beat,  wounded,  and  bruised  by  an 
unruly  mob ;  who,  there  was  good  reason  to 
apprehend,  intended  to  defeat  the  execution  of 
tlie  criminal? 

To  this  last  case,  the  pannel  met  with  no 
other  answer  from  his  majesty^s  advocat,  but 
this,  that  the  pannel  cannot  plead  the  benefit  of 
this  case :  because  he  neither  does,  nor  can 
aver  that  the  firing  proceeding  from  him  or 
liis  order,  was  necessary  for  securing  of  the  exe- 
cution of  that  trust  that  was  committed  to  him  : 
his  majesty's  advocat  docs  admit,  that  where  a 
person  has  b^^  lawful  authority  weapons  put 
uito  his  hands,  to  be  employed  cither  in  dtfence 
of  his  life,  when  attacked,  or  in  support  of  the 
execution  of  the  lav\s,  or  of  the  property  of  the 
crown,  or  pro|»erty  of  the  subject;  such  person 
may  use  those  weapons,  not  only  when  his  own 
hie  is  so  far  in  danger  that  he  cannot  probably 
escape  without  making  use  of  them,  but  also 
where  there  is  imminent  danger  that  he  may 
by  violence  be  disableil  to  execute  his  trust : 
But  withall  seems  to  contend,  that  the  pannel 
was  under  none  of  those  circumstances  at  the 
time  he  committed  the  guilt  changed  upon  him 
in  the  indictment ;  for  that  tlie  execution  of  the 
criminal  was  over  before  the  scuflle  began,  or 
any  resistance  was  made  to  the  pannel,  and 
the  guard  under  his  command  ;  and  that  being 
tbtt  case,  the  pannel  can  plead  no  other  defence» 


than  such  as  might  arise  from  hbUogpit 
under  the  imminent  danger  of  bis  fife. 

But,  with  great  submission,  theie  poAioM 
of  his  majesty's  advocat  are  aasnmed  withool 
any  authority,  and,  as  would  appear,  not  ooly 
in  plain  opposition  to  the  laws,  but  to  the  nM&y 
precedents  already  ofiercd  in  behalf  of  tkt 
pannel;  for  it  is  hoped  it  matt  bte  ndniillcdi 
even  by  my  lord  advocat  binuelf,  nod  is  in- 
deed so  admitted  by  him,  tliat  the  pannel  was 
once  in  the  lawful  execution  nf  his  duty,  Mid 


was  obliged  at  all  hazards  to  support  the  e 
cution  of  that  criminal  who  wtsi  eommitted 
to  his  guard  ;  surely  then,  the  execution  of  the 
panneJ's  duty  can  never  be  said  to  have  been 
at  an  end,  until  once  the  criminal  was  folly 
executed  to  death,  and  as  such  ordered  to  m 
cut  down  by  lawful  authority ;  unless  it  shall 
be  said  that  it  was  the  pannePs  dnty,  tbt 
moment  the  convict  was  hong  up,  to  let  him 
instantaneously  be  cut  down,  rescned  by  tbt 
mob,  and  brought  to  life  again ;  which  seems 
to  have  been  their  plain  intention  :  lor  it  ttens 
to  be  confessed  upon  all  hands  that  there  was 
dan'^er  of  a  rescue,  which  seems  to  have  been 
the  occasion  of  all  this  extraord'mai^  appa- 
ratus :  and  for  preventing  of  which  it  is  ad- 
mitted, that  the  whole  guard  was  sent  oat  with 
their  pieces  loaded,  and  even  with  orders  to 
fire  at  all  ventures  in  case  of  such  rctGoe. 
Was  it  not  then  a  neceq»ary  partof  thepund'S 
duty  to  protect  and  support  the  eseculion  of 
the  convict,  when  hangingby  thenecfc  in  tbt 
air.  until  such  time  as  he  was  cat  down  by 
laifful  authority,  as  supposed  fully  dead  t  Aod 
it  is  certain  that  in  answer  to  the  pannel** 
message,  orders  were  brought  from  the  bailiili 
that  he  should  yet  hang  a  quarter  of  an  boor, 
which  surely  it  was  the  paunel's  duty  to  see 
obeyed,  ana  which  orders  of  the  badifis  tbt 
mob  nevertheless  did  resist,  and  cut  down  tba 
criminal  long  before  that  time  was  elapsed,  and 
which  the  paniiel  was  in  duty  bound  tooppoee; 
and  from  this  contrast,  it  is  offered  to  be  proved, 
all  the  violence  in  the  mob  proceeded:  outcaa 
it  be  with  any  justice  affirmed,  but  that  tbe 
pannel  was  in  the  execution  of  his  duty,  while 
he  and  his  guard  were  standing  upon  tbe  S|)OC 
under  arms  ?  Is  not  every  person  in  the  exe- 
cution of  his  duty  while  he  is  either  going  to, 
or  coming  from  any  lawful  expedition?  And 
therefore  it  seems  impossible  to  maintain,  bat 
that  the  pannel,  and  the  delnchment  under  bit 
command,  wcie  in  the  lawful  execution  of 
their  duty,  until  they  had  once  returned,  and 
were  diii|)ei^e(i  and  dismissed  i'rom  dutv,  at 
which  time  only  they  were  reduced  undc^  a 
private  rapacity. 

And  even  tiie  protection  of  the  hangman, 
who  had  actually  received  several  wounds  and 
contusions,  and  was  in  danger  of  being  tore 
to  pieces  by  the  mob,  was  a  part  of  the  panuel'i 
duty  :  for  thoutrh  he  is  a  minister  of  the  law 
somewhat  oilious  ;  yet  he  is  a  necessary  ont 
for  the  society,  and  lies  under  a  greater  ne- 
cessity of  being  protected,  from  his  being  so 
obnoxious  to  the  resentment  of  the  mob ;  and 


Jbr  Murder^ 

I  hamtnity,  mast  have  sach  proftec- 
led  him,  as  to  defeod  him  from 
I  brains  koockt  out. 
len  can  it  be  said,  in  any  sense,  that 
I  was  in  such  situation,  that  he  could 
i  the  benefite  of  self-defence?  It  is  a 
lie  in  self-defence,  that  a  person  in- 
si  retire  as  far  as  he  can  with  safety : 
X  is  the  case  of  a  city  guard  (main- 
great  ezpeuce)  that  so  soon  as  they 
led,  they  must  immediately  betake 
!8  to  their  heels,  it  will  be  apparent, 
are  but  keept  up  for  very  useless 

»uDe  time  the  pannel  can  with  great 
er,  that  he  is  far  from  being  of  that 
1  of  mind,  as  to  be  ready  to  take  the 
?,  which  the  law  might  afibnl,  against 
1  giddy  mob;  whereof  he  has  given 
n  many  former  occasions,  as  must  be 
im;  and  whereof  even  the  present 
be  an  instance  in  his  favours,  if  he 
b  justice  from  the  evidence :  but  with- 
must  be  allowed  to  observe,  that  it 
!  a  dangerous  position,  that  a  guard 
for  the  maintenance  of  the  peace  of 
il  city  of  this  part  of  the  nation, 
y  are  assembled  together  upon  duty, 
\  allowed  to  plead  no  higher  privi- 
i  that  of  self-defence  in  tue  strickest 

% 

hereas  my  lord  advocate  seems  only 
that  a  uerson  who  has  weapons  nut 
ads  by  lawful  authority,  for  the  de- 
the  property  of  the  crown,  or  liberty 
ibject,  may  only  use  these  weapons 
is  in  imminent  danger  of  having  the 
of  his  trust  defeated  by  violence  :  if 
he  case,  the  execution  of  duty  will 
very  ticklish  point ;  and  it  is  appre- 
ihat  few  folk  will  be  fond  of  it,  if 
possibly  live  without  it;  and  of  con- 
such  doctrine  must  very  much  dis- 
iny  persons  from  offering  their  ser- 
er  to  the  crown  or  commonwealth, 
the  supreme  executive  power  is  by 
tution  vested  in  his  sacred  majesty, 
reign;  therefore  my  lord  advocate, 
his  office,  is  of  council  for  his  ma- 
ill  causes,  will,  no  doubt,  have  due 
tioo,  how  far  an  argument  is  to 
d  against  the  pannel;  which,  by 
Meauence,  must  tend  to  weaken,  if 
t,  the  execution  of  the  laws. 
Duld  rather  be  inclined  to  think,  that 
person  has  the  trust  of  the  execution 
ws  committed  to  him,  the  smallest 
Mo  this  trustee,  as  such,  is  a  |^ilty 
a,  and  that  every  opposition  ot  such 
iQ  is  lawful  defence,  because  no  man 
above  the  laws ;  and  the  life  of  the 
which  the  common  good  is  employed, 
Iter  value  than  the  lives  of  any  one  or 
if  the  individuals,  and  so  ought  to  be 
at  all  perils. 

yeity's  advocate  upon  this  head,  in 
uUioo  against  the  pannel,  does  assume 


A.  D.  1750.  rOM 

this  fact,  that  the  mob  or  multitddeasseroMed 
at  the  execution,  were  behaving  themselves 
|)eaceably ;  and  from  this  seems  to  draw  his 
inferences  against  the  pannel,  which  indeed 
will  run  high  enough.  The  pannel  very  well 
knows,  that  no  order  whatever  will  justifie  the 
person  executing  that  order,  if  such  order  ap* 
pears  evidently  to  be  unlawful;  and  yet  in 
cases  which  appear  doubtful,  an  order  from  a 
superiour  will  have  its  own  weight;  more 
especially  in  military  matters,  or  such  other, 
things  as  resemble  them. 

But,  with  submission,  this  reasoning  upon 
the  mob's  being  supposed  quiet  and  peaceable 
and  innocent,  is  entirely  out  of  the  case;  for, 
as  we  are  now  upon  relevancy,  the  facts  must 
be  supposed,  and  then  the  argument  considered 
in  that  view :  and  as  the  pannel  does  aver,  that 
he  and  his  guard,  while  in  the  execution  of 
their  duty,  did  meet  with  strong  resistance 
frtim  the  mob,  in  so  much  that  many  of  the 
men  were  greatly  hurt  and  bruised:  and  if 
that  was  the  case,  it  was  an  unlawful  inva* 
sion  of  persons,  to  whom  the  execution  of  the 
laws  were  committed;  and  so  might  be  by 
tj^em,  in  support  of  those  laws,  resented  to  n 
pretty  great  length  ;  except  it  shall  be  main- 
tained, that  in  the  situation  of  the  pannel 
and  his  men  were  posted,  they  could  plead 
no  higher  privilege  than  that  of  self-defence  ; 
which,  with  great  respect,  cannot  be  main* 
tained,  but  rather  seems  to  be  a  contradiction  ; 
because  they  had  not  only  their  own  defence 
to  take  care  of,  but  also  the  defence  of  the 
peace  and  quiet  of  this  city,  and  of  the  exe* 
cution  of  the  laws,  and  that  due  obedience 
was  given  to  them. 

In  a  word,  ufMU  this  head,  the  pannel'e 
argument  is  not  onfy  supported  from  the  nature 
of  the  thing,  l>ecause  a  man  who  6ghts  with 
the  laws  upon  his  side,  fights  with  great  ad* 
vantage  against  those  who  are  fighting  against 
the  laws ;  and  fur  that  reason,  if  a  man  were 
to  fight  a  duel,  the  laws  would  be  the  best 
second ;  but  also,  it  is  believed,  that  no  in- 
stance can  be  given  in  this  country,  or  in 
any  other  of  civilized  policy  and  government, 
where  a  person,  proceeding  to  what  extremi- 
ties whatever  against  persons  who  had  assailed 
him,  while  in  the  due  execution  of  the  law^ 
ever  snfiered  the  pains  lybelled. 

My  lord  ailvocat  seems  to  insinuate,  as  if 
the  reading  of  the  Riot -Act  had  been  a  duty 
incumbent  upon  the  pannel,  whereby  the  in- 
nocent part  of  the  multitude  would  have  had 
time  to  have  taken  care  of  their  own  safety : 
hut  then  his  lordship  will  be  pleased  to  con- 
sider, that  no  person  is  by  law  authorised  te 
proclaim  that  act,  other  than  a  justice  of 
peace,  sherifi*,  mayor,  bailiff,  or  other  head 
officer ;  and  no  person,  under  any  of  these 
characters,  was  left  with  the  unfortunate 
pannel ;  but  he  was  abandoned  and  lef^  to 
grapple  with  occurrences  in  the  best  manner 
his  own  discretion  coidd  suggest  to  him. 

But  theu  the  readin^^  of  that  act  could  not 
answer  tht  present  exigency :  for  though  the 


959]  10  GEORGE  II. 

reading;  of  tbtt  law  may  pcrliapf  sometimes 
answer  the  end  for  which  it  was  intended, 
namely,  the  pre¥entio||;  the  demolition  of  any 
hoose  or  meeting-house ;  bat  if  the  nannei, 
in  the  present  case,  should  be  supposed  bound 
to  have  keep  bis  hands  across  for  the  space  of 
one  hour,  after  the  reading  of  this  act ;  then 
it  is  certain  that  the  mob  nii^bt  bare  prevented 
tlie  execution  of  the  law  ra  far  leas  space. 
And  it  is  certain,  that  by  the  acr,  the  mob  is 
not  put  in  contempt,  or  exposed  to  the  penal- 
lies  of  it,  until  ouce  they  continue  together 
one  hour  after  the  readini(  thereof. 

His  majesty's  advocat  is  also  pleased  to 
hint,  as  if  the  offering  of  this  plea  in  liehalf  of 
the  pannd,  founded  upon  the  resistance  of 
the  mob,  was  in  some  sort  inconsistent  with 
another  to  be  hereafler  mentioned  for  him,  viz. 
Ilia  innocence  of  the  facts :  bnt,  no  doubt,  my 
lord  very  well  knows,  that  by  the  laws  of 
Scotlami,  there  is  no  inconsistency  in  such 
different  pleas.  And  this  icads  to  the  consi- 
deration of  the  exculpation  offered  for  the 
pannel,  arysing  from  bis  innocence  of  the  guilt, 
cither  of  the  action,  command,  or  order  charged 
against  him  in  the  indictment. 

And  in  ttie  Hrst  place,  as  to  such  part  of  the 
indictment  as  charges  him  with  cither  having 
fired  himself,  or  having  given  orders  to  fire, 
whereby  Charles  Husband  was  killed :  tbongh 
it  is  imleed  true,  that  it  is  impossible,  from 
ihe  nature  of  the  thing,  for  the  pannel  to 
prove  an  absolute  negative;  because,  as  his 
majesty's  advocat  very  justly  argues,  if  the 
charge  iu  the  lybel  is  proven,  to  witt,  that 
the  pannel  either  did  lire,  or  ^vc  orders  to 
fire,  at  tills  time  iiiiiistclf,  no  negative  evidence 
can  prevail  uv:ainst  it  ;  yet  as  to  this  point,  the 
]»aniiel  otfers  tu  prove,  what  the  lawiers  call  a 
circuuistantiaie  iiei^ative,  which  in  a  good 
measure  reso!v€K  inio  an  affirmative,  viz.  Tiiat 
at  this  time,  wlieu  CMiarlcs  Husband  fell,  and 
gote  the  wounds  charged  in  the  indictment, 
whereof  il*s  siippo>ed  he  died,  the  pannel,  as 
has  been  above  recited,  was  in  the  following 
situatiun  ;  that  is  to  say,  he  was  pointing  his 
{>iece  witli  his  face  towards  the  west  port, 
Chreatning  the  mob,  that  if  they  would  not 
keep  off,  be  would  lire ;  and  that  nnmediately, 
Apon  this  expression,  a  private  centinel  of  the 
guard  came  up  from  behind  him,  and  dis- 
charged his  piece,  by  which  it  will  be  proven, 
Charles  Husband  received  his  death  wounds  ; 
because  it  shall  be  proven,  by  persons  of  un- 
doubted veracity,  that  were  hard  by  the  pannel 
all  the  time,  that  they  not  only  observed,  that 
he  did  not  fire  his  own  piece,  and  gave  no  order 
for  firing;  joined  with  this  other  circum- 
stance, that  no  proof  will  appear,  during  the 
whole  scuffle,  that  ever  the  pannel  made  use 
of  any  iireiock,  but  his  own  ;  and  that  his 
piece,  when  returned  to  the  guard,  was  found 
4oailed,  and  in  such  cnnditiou,  that  it  was  even 
confessed  by  the  maq^istratos  themselves,  and 
many  other«,  not  to  have  been  fired  ;  with  this 
further  atklition  to  exclude  that  further  part  of 
the  charge  id  the  indictment,  of  tbr  pannel's 


Trial  of  Captain  PofieouSp 


[9GB 


having  made  use  at  any  lime  of  any  oihtt 
piece  than  his  own,  via.  that  he  carried  his 
own  piece  in  bis  hand  tbe  whole  time,  except 
during  tbe  space  of  prayer  above-meniioiicd, 
when  be  gave  it  to  his  seirjeaDt:  and  it  shall 
also  be  proved,  that  there  was  bat  one  sbot 
fired  at  this  time,  at  which  Charles  Hasbsad 
is  supposed  to  have  received  hia  death  wooadt. 
And  as  to  the  c»ther  dropping  shots  that  an 
charged  in  tiie  indictment  to  have  fbUevid 
upon  this  first  shot,  if  from  tbe  cvideaea  ad- 
duced, the  pannel's  proof  shall  appear  la  he 
most  pregnant,  tliat  be  gave  no  orders  lo  fire 
at  this  time,  then  he  is  not  chaigeable  with  the 
consequenoeof  such  firings. 

And  thb  further  circumatance  must  itioogly 
operate  in  favour  of  tlie  pannel ;  to  witt,  that  it 
the  time  of  this  supposed  order  to  fire,  tbe  men 
were  not  drawn  up  in  a  regular  line  or  band ; 
but  were  either  straggling,  mixt  with  the  nob, 
or  in  a  circular  form,  surrounding  tlie  iotlibU 
in  the  Gras^  market,  which  excludes  ail  posn- 
bility  of  any  supposeil  general  order  to  fiie; 
nnl«w  it  be  supposed  that  the  pannel  was  a  mad- 
man, seeing  any  compliance  with  such  order 
must  have  led  the  men  to  fire  each  in  hisopfKH 
site  neighbour's  breast,  anil  a  great  many  ialo 
that  of  the  pannel. 

It  is  not  altogether  impossible  that  the  paa- 
nd's  expression  of  the  word  '  fire,'  might  naft 
erroneously  induced  this  fellow  that  camefran 
behind  his  back  (who  of  himself  perhaps  was 
too  forward  to  embrace  such  order,  had  it  been 
ffiven)  to  discharge  his  piece :  and  if  the  penoa 
firing  was  guilty  of  an  error,  or  of  a  miscoo- 
struction  of  duty,  the  pannel  is  not  chargeable 
therewith ;  seeing  that  every  person  that  bat 
the  least  knowledge  of  the  exercise  of  arms, 
must  know,  that  he  is  not  to  receive  an  order 
to  fire  fi  om  implication,  but  from  some  known 
certain  ruleof  disciphne. 

And  fur  this  reason  it  is,  thai  the  pannel  takes 
it  to  be  a  very  wise  part  of  the  military  institu- 
tion, to  avoid  misconstructions,  that  no  man  re- 
ceives orders  to  fire  ^especi:»lly  when  he  is  rest- 
ing or  shouldering  his  arms)  but  up<in  a  prece- 
dent series  of  exercise  attended  with  some  so- 
lemnity, to  avoid  mistakes ;  greater  or  less  in- 
deed according  to  the  nature  of  the  occasion. 

Sometimes  indeed,  as  was  obserred  in  tbe 
debate  on  the  side  of  his  majeity's  advocat, 
persons  will,  very  justly,  fire  upon  ao  abort  ad- 
veitisement  as  the  tuck  of  a  drum  ;  but  it  is  be- 
lieved, that  is  never  practised,  but  during  tbe 
noise  or  tumult  of  battle  ;  when  it  is  supposed 
that  the  voice  of  verbal  order  cannot  reacn  tbe 
men ;  and  then  this  tuck  of  the  drum,  or  ww 
other  signal  of  firing,  must  lie  previously  ad- 
vertised to  be  the  signal  of  such  action. 

Another  thing  falls  also  to  be  noticed  here, 
touching  this  first  charge  in  the  indictment, 
and  which  umy  be  even  taken  through  tba 
whole ;  that  when  two  or  more  persona  act 
nigh  together,  levelling  their  pieceaattbaauae 
time,  it  is  not  easy  for  the  ahaKpeftfj«i  etfie- 
cially  if  at  any  distance,  to  deterama  fieni 
what  piece  the  fire  proeacded ;  juid-of  lhia|NiVt 


Jor  Murder, 


auSuty  men,  best  iC4|utii)l*a  witti  the  exercise 
vflue  unia,  can  gife  Ihe  beal  micoiiat. 
,  JkoA  tutly,  u|ran  ihii  beail,  il>e  Iwst  conjee- 

■|k«liauiielc«iitn^e,  is  this,  that  upon  Ibis 
r"" ""' 
Ml 


[flow's   liriDil,   niUioul  cilh^r  uriler 
~  ^«  trODi  iLe  pannel  liis  coroDaaoiler,  the 
dn>pi>in2  ihots  thai  Piisiieil,  praceeiJe'l 
'Wberrun  rdlnws  of  tbeeuarJ;  whoeu- 
itf«l  tiy  tliii  flrst  examjile,  directed  anil 


Aictiarfeil  llieir  pieces  ag;aiuet  sjrh  pari  of  the 
tebiBi  they  resfiectively  nupposeil  aoy  Injury 


upon  ihern  ha<l  proaeedeil  froni. 
Tlie  Dexttaalerial  circumstance,  ciiarg^d  Id 
4fct  IndictiiieDl,  ii  that,  touchhi);  the  panoel'i 
behaviour  ot  the  West-  bow  ;  where  it  is  chtrf;- 
«d,  Tliat  he  coniiuaiitled  the  men  to  face  about, 
~    "  '        ind  that  at  or  about 

niisbet  or  firelock 


Itai  fire  ujion  tlie  people  ;   ■ 
4he  Mme  time,  be  lired  a  t 


a  band  ; 


either  r 


e-lna(]ed,hi«owa  piece, 
or  talien  anniher  out  of  the  liaud  of  one  of  tlie 
gtunl ;  and  that  upon  this  Mcontl  example  and 
mtutnand  of  ilie  pauuel's,  several  utheri  of  llie 
fWnJ,  under  bis  CoiDmaud,  did  lire:  ubereby 
S)B  |terKoi  iiieniioiied  iu  the  iudicimeat  were 
Ulkd  and  nounded. 

A*  to  which  I'ftrt  uf  the  charge,  the  paniiel 
•Art  the  lulloH'ing  proof:  and  iirst,  at  to  or- 
der, he.ahall  prote  by  mullitudea  of  persons 
■igb  hiin  at  the  time,  and  nbo  ivere  qarrowly 
fltMTfiDg  biiD  (nod  orders  aret^eneraily  eiTeu 
Viib  an  audible  voice),  tbey  heard  no  such  or- 
der giveu,  nor  heard  no  expression  of  Ibe  pan- 
nd,  that,  tty  the  most  remote  consequence^ 
cndd  have  been  interpreted  an  order  to  tire: 
ud  here  ibt!  pannel's  memory,  upon  Ibe  most 
Mriuua  reflL-ulion,  cunoot  divine  what  could 
fc«T«  (j^ven  occasion  to  any  body's  conjecturing 
thkt.be  ^v#  ao  order  to  fire  at  this  time.  Aud 
Krealsii  the  former  ubserralloo  fulls  to  he  no- 
Bead,  touching  the  solemnity  of  an  order  for 

ado.     Ai  to  the  action   of  dria^  cliurgcd 

Ijpfawt  the  pannel  himself,  for  finii^  at  Ibis 

baa;  the  pannel  offers  to  prove  tlie  very  ceu- 

liadi  ■■  least,  that  it  w;isiiceiuinel  of  the|[UBrd, 

Vba  a>ie  ibe  Snt  lire  at  this  time,  which  was 

am  abut  at  lloberUoti's  cloi«-head.      And  the 

yontl  i*  informed,  a*  htm  been  above  o«lice<J, 

ifcM  at  tlie  time  of  takinij;  the  precoguitiqo,  an 

sStr  nae  made  to  the  niigiatrales  to  single  out 

llielVilow.  il'  ih«v  would  nulTer  the  guard  to  be 

ifrawn  out,  wbu  Areil  iliat  slivt  tiiwiir<ls  Rohert- 

mn'm  c1<i««-bead,  by  nbicbibetnoor  lhn:Lepo»- 

,.1'..  CH      \...)  fufih(r,tbe  pannel  offers  to  prove, 

I,  not  only  that  thin  fellour  was 

11  lint  ired,  without  auy  order 

i-'l  cininulstaDtiuieit,  Hs  \n  ubove 

..obyniaDy  peisuosofuodouUed 

Lii-y  could  not  obuervG  the  pannel 

I  ■■  '^t  any  pi«ae  binisell',  durintf  the 

'  I  <;  iliis  fii-ing'  is  supposed  Iu  hai(^ 

Vi>d  here  Ibe  pannel  could  evi- 

ii  many  iocou*i«lenciM  lo  your 

'•  iiiiut necessarily  be  impli^  and 

I  y'Miui  lint  stro^iely  etduile  any 

Tor^HmptBtjUi^pitiyL^tby 


IhinU  be 


«\lk.B.  I7S6. 

time ;  but  doet  not  think  ii  altogellitr  t»  pru- 
dent lo  mealion  Ibeui  at  presenL 

As  to  the  taking  a  piece  out  of  anotberinaa'a 
hand,  and  tiring  of  it,  such  action  ivhs  a  re- 
nurkahle  occunr«iioe,  and  mutt  have  falUn  out 
umter  observation ;  and  so  Ihe  pannel  can  say 
niitbiite  about  il,  but  leave  i I  In  evidence,  witn 
Ihia  only  observation,  thataa  it  was  a  notable 
event,  il  will  operate  almost  as  strong  in  the 
ue^re  as  in  ibe  posiiite.  And  it  must  be  IfK 
to  lbs  jury  to  balance  the  evidence.  If  a  cout 
irariety  shall  appear ;  am)  to  lean  h>  that  side 
attended  with  the  greatest  credibility,  taking; 
Ihe  known  rule  of  the  law  into  the  compau, 
nnmely,  favour  to  the  pnnnel  in  case  of  diitnety. 
Only  tois  observation  falla  lo  be  made  lo  your 
lordships,  that  the  circumstances  of  the  case  call 
aloud  for  Ihe  pannel's  being  allowed  a  proof 
Upon  Ibis  part  of  the  iudiclmeDl. 

The  jiaiinel  doea  agree  with  bia  majesty's 
Advocate,  that  no  ne^tive  evidence  can  take 
litife  proof;  but  the  pannel  humbly 
has  offered  a  pretty  drcuuuiatiiiaie 
uiiE .  4IUU  it  my  Lord  Aiirocate  seems  to  admit 
Ibe  necesMty  of  a  proof  on  both  sides,  so  the 
panuel  will  not  labour  that  point  with  your 
lordships ;  not  doubting  but  you  will  allow  biin 
in  general,  to  prove  what  he  can,  to  exculpate 
him  from  the  guilt  laid  in  the  indictment  j  and 
ibat  your  lordships  by  your  inlerloquitur  will 
allow  him  as  niuch  scope  in  that  particular,  aa 
any  precedent  of  your  lordshi|iB'  court  can  an- 
tborize.  And  there  are  several  instances,  and 
one  very  particular  one,  wherein  great  latitude 
was  allowed,  both  as  to  ihe  circumiitauces  pra- 
cedeut,  coacoroitsnl,  and  even  subsequent  ta 
the  acti  charged  in  the  indictment. 

Some  general  useful  reflections  might  ba 
made,  hut  Ibis  paper  is  already  drawn  out  \a(a 
ton  greni  length,  and  as  ibe  pannel  has  learned 
Judge,  and  a  discerning  end  candid  jury,  ihe 
less  needs  be  said  ;  because  it  is  suppiiseil  tbey 
will  naturally  oceitr  to  these  inteie«le<l  in  Ibe 
trial ;  and  no  doubt  such  will  lay  aside  all  prB- 
Judices  and  prcpotsesaiuna ;  and  will  neterooce 
ibiitk  oli  but  utterly  despise  Ihe  consequencei 
of  popular  rage  or  vul^r  clamour. 

If  the  pannel  is  guilty  of  Ibe  charge  in  tba 
precise  way  and  manner  it  la  laid  agaiDSt  him 
in  the  indictment,  he  is  uf  opinion  miiisdf  be 
deserves  to  suffer:  but  if  on  tlie  olher  hand  tt 
«hall  centcoutitliat  he  is  entirely  imiocnnt  of  Iho 
hluod  ut*  lliDse  men  wherewith  be  I*  charged; 
be  thiuks  bis  .cose  deserves  aiugular  cfmuii- 
seratiun:  because,  it'  bands  and  imprison- 
ment, toss  uf  employment  and  breail,  obloquy, 
and  reproach  of  bluMl-gullt  aud  mauocre.aad 
of  cdQiequeaca  loss  ol  charaoler  be  cnlaoiities 
in  human  life ;  then  has  he  bad  a*  great  « 
share  ut  them  aa  Ever  aUeitdiKl  inuocenoe. 

Sic  Subscril'itur,    Ja.  Griiunb,  Jun,, 

Cum*  JuftTKUHix,  S.D.N.  Regis,    tenia  in 

I'rtebirio    Durgi  de    Eilinbuigo,  Decimo 

sexto  Die  iUum  Julii,  Mi1l«>uno  ■'^plin- 

geuli'siiuutrigeuiuuseslu,  perllouurabiles 

:   >tPihAqdrWRFt«Mwdr>llllWsJlMi- 


^6S] 


10  OEOftGE  II. 


darium  Clericiim,  Dominum  Jacobum 
Blackenzie  de  Koystouii,  S'Tajgfistruin  Da- 
▼idem  Erskiiie  de  Dun,  DomiDos  GualCe- 
rum  Prin^le  de  Newliall,  et  Gilbertum 
Eliut  dc  Miiito,  Cominissionarios  Juati- 
ciarisB  dicti  8.  D.  N.  Regis. 

Curia  legittim^  affirmata. 

Iniran^ 

John  Porieous,  lately  one  of  the  captain 
lieuteuauta  of  the  city  guard  of  Edinburgh, 
panuel. 

Indicted  and  accused  ai  in  the  (brmer  Sede- 
runt. 

The  Lords  Justice  Clerk,  and  Lords  Com- 
missioners pf  Justiciary,  having  considered  the 
indictnetit  pursued  at  the  instance  of  Duncan 
Forbes,  esquire,  his  majesty's  Advocate,  against 
John  Porteous,  jmuuel,  with  the  foregoing  de- 
bate thereupon,  Faiid,  That  the  pannel  having 
at  any  of  the  times  and  places  lilietied,  tired  a 
gun  among  the  people  assembled  at  the  execu- 
tion libcH^,  or  having  given  orders  to  the  sol- 
diers under  his  command  to  fire ;  and  there- 
upon they  the  soldiers,  or  any  of  them,  having, 
accordingly  fired ;  and  upon  the  firiii^f,  either 
by  himself  or  them,  the  persons  mentioned  in 
the  indictment,  or  any  of  them,  were  killed  or 
wounded ;  or  the  nannel's  being  art  and  part  of 
any  of  the  forsaid  crimes ;  all  separatim  rele- 
Taiit  to  infer  the  pains  of  the  law :  but  allowed 
the  panuel  to  adduce  what  evidence  be  could 
with  respect  to  his  behaviour  at  the  time  the 
forsaid  crimes  are  libelled  to  have  been  com- 
mitted, for  taking  off  the  circumstances  which 
should  be  brought  for  inferring  his  being 
guilty,  or  art  and  part  of  ihe  crimeti  libelled  ; 
and  remitted  the  pannel  and  the  indietitient  aai 
found  relevant  to  the  knowlcdf^e  of  an  assize. 

Sic  SubtcribUury  Andr.  Fletcher,  I.  P.  D.* 

The  Lords  Justice  Clerk,  and  I^ords  Com- 
missioners of  Justiciary,  continued  the  above 
diet  at  the  instance  of  his  majesty's  Advocate 
against  captain  John  Porteous,  till  Monday 
ofAt  at  seven  of  the  clock  in  the  morning ;  and 
ordains  assysers  and  witnesses  then  to  attend, 
under  the  pain  of  law,  and  the  pannel  to  be 
carried  bacK  to  prison. 

Curia  JusTiciARiiE,  S.  D.  N.  Regis,  teuta  in 
Novo  Sessionis  Domo  Burgi  de  Edin- 
burgo,  Decimo  nono  Die  Alensis  Julii, 
Blillesimo  septingentesimo  trigesimo  sex- 
to, per  Honorabiles  Viros,  Andream  Flet- 

*  Concerning  Interlocutors  of  Relevancy, 
see  in  this  Collection  the  Cases  of  James 
Stewart,  a.  D.  1753,  and  of  Nairne  and  Ogilvy, 

JL  D.  1705. 

It  appofrs  (New  Pari.  Hist.  vol.  10,  p.  201,) 
4hat  ip  the  House  of  Lords,  this  Interlocutor  in 
IPortebua^s  Case,  was  censured,  as  being  objec- 
tionaUe  from  (int.  al.)  "  an  ^rror  or  misuke 
with  regard  to  the  law  of  Scotland,  and  indeed 
/If  evtry  ireU  rtyulaM  society  in  tlw  world.'* 


Trial  of  Captain  Porteous^  [961 

cher  de  Milton,  Jotticiarium  Clcrieaa, 
Dominum  Jacobum  Mackensie  d«  Roj - 
stoun,  Magistrum  Davideiii  Enkinede 
Dun,  et  Dominun\  Gilbertum^  Elk>t  de 
Miuto,  CommissioBarioi  Juiticnttis  did* 
8.  D.N.Regis. 

Curia  legittim^  affirmatm. 

Intran* 

John  Porteous^  lately  one  of  the  captaii 
lieutenants  of  the  city  guard  of  Edubwghi 
pannel, 

Indicted  and  accused  as  in  the  foniier  Seda- 
runts. 

ThereaAer  the  Lorda  proceeded  te  make 
choice  of  the  folhming  persooa  to  paaa  ■fa 
the  Assize  of  the  said  John  Porteous : 

Assize. 

Sir  John  Inglis  of  Cramond. 
Alexander  Gibson  of  Pentkiod. 
George  Halybnrton  of  Fordell. 
James  Baird  of  Chester-  ball. 
John  Hogs^  of  Cam  bo. 
Thomas  Dundas  of  lictbam. 
Alex.  Brand  of  Brandsfield. 
John  Jollie,  vintner  in  Edinburgh* 
James  Hunter,  wright  in  Edinburgh. 
William  Wight,  baxter  there. 
John  Bell,  brewer  there. 
James  Davidson,  bookseller  there. 
David  Inglis,  merchant  there. 
Alexander  Sharp,  merchant  there. 
Patrick  Manderstoun,  merchant  there. 

The  above  Assize  being  all  lawfully  aworn, 
and  no  objection  of  the  law  in  the  contrary. 

The  pannel,  John  Porteous,  judicially  eoo« 
fessed,  that  time  and  place  libelled,  the  aeveial 
persons  mentioned  in  the  indictment  to  have 
been  killed  and  wounded,  viz.  Archibald  BaN 
lantyne,  son  to  John  Ballantyne,  the  younger, 
dyster  in  Dalkeith ;   Margaret   Arthur,  ^iis 
Airth,  rcsidenter  in  the  Cannongate,  near  the 
Water-gate  thereof;   John  Anderson,  aoo  ts 
George  Anderson  in  Craighead,  drover ;  Jna 
Peat,  servant  to  James  M*Dowal    roerebaat 
in  Edinburgh  ;  David  Wallace,  joumey-man 
wright  in  Ed'mburgh  ;  James  Philp,  late  ser- 
vant to  Lauder,  esq.  residenter  io  the 
Cannongate;  David    Kidd,   taylor  in   Edin- 
burgh ;  Patrick  Spaldan,  appi-entice  to  David 
Mitchell  jeweller  m  Edinburgh  ;  Jamea  Lyik, 
and  Alexander  Wallace,  both  servants  to  James 
Wieht  stay  maker  in  Edinburgh ;  John  Bliller, 
taylor  in  Edinburgh ;  David  Ogilvie,  writer  ip 
Edinburgh ;  and  Janoes  Nevin,  late  servant  la 
William   Sellers  writer  in  Edinburgh,   now 
reaidenter  in  the  Potteraw ;  Alexander  M'Niel, 
son   to  Edward  M'Niel,  indweller  in   Mer* 
lounhall;  Margaret  Gordon  scrvaut  to  Wil- 
liam Offilvie,  taylor  in  Saint  Mary  Wyudy 
in  Edinburgh ;   and  Heury  Qrahame,  tayllf 
in  .Cannongate ;  and  Charles  Hoaband  aei^ 
rant  to  Paul  Husband,  confectioiier  in  the 
abbey  ^  Holy-rood-hoote,   were   an   |ulM 


J  ^y   finnff,   proceeding  rram  the 
party  of  the  cit^  tfuanl  llien  under  hit  com- 
OMnd,  u  roentioaed  in  ibe  indict meiit. 
Sic  SubKribilur,     John  i'oKTEcii;*. 

Anbr.  Fletcuse,  1.  P.  D. 

Hif  Mijeitj's  Adiocale  for  proving  liii  lyltel. 
•dduced  iFie  wiloenc*  ■ftcr  deponing,  tiz  ' 

Jama  Drummond,  tntTchtnt  ind  nsideitter 
id  E'liiiburgli,  a^ed  tbirty  yean,  or  tben-by, 
mmrried,  »i>leiiiiily  twnrn,  purgeil  of  malice, 
MTItal  couDcil,  examined  aud  inieimgatrd, 
•(poned,  tbut  time  and  place  libelled,  nud  after 
AMrew   Wilson  bad  hun^  aonie  lime  upon  the 

Sllowi,  alNiut  a  qiiartt.'r  of  an  liour,  ai  the 
poneot  ibi.iki,  be  saw  Ibe  executioner  ffoioif 
Wf  lh«  ladder,  ai  ibe  deiioiienl  appreliended,  ' 
cut  him  down  ;  upim  wfiicb  he  aaw  boidc  an: 
atone*  tbrnwn  dy  ihe  mob  al  llie  executioner ; 
tome  wb«reof  ibe  ilrjionrnt  belieres  nii|;lii 
fcaTc  Tallen  umm  the  ijiinrd :  U|ton  which  hi 
ni*  the  pannel  adrance  tram  the  guard  weal- 
ward,  renting  hii  firelouk  unc-n  bia  thigh,  as  it' 
be  had  been  bending  it,  and  (hereafter  saw  him 
nbe  it  to  hii  hreail,  innviui;  it  from  one  puint 
l> another^  and  toon  ilicrenJtei  ibe  deponent 
fcoard  «  (bat  from  the  place  where  (be  paunej 
Vts  (taadiiiE,  bul  did  not  obaeric  wliclber  the 
dM  crame  mun  captain  Prirleous's  firelock , 
ud  Diach  alwul  (he  «ainc  time  ubiiencdonc 
•flhe  aoldiem  gu  onl  of  hit  rank  nerttward,  and 
■pon  ihe  iior(h'Kide,  and  xaw  him  go  fuither 
wen  than  Ihe  place  whtre  captain  Porlrouk 
waa  }  the  aide  of  llie  window,  where  (he  ik'pn- 
Mul  was  ■(aiiding  in  ItoberlBun's  house,  cover 
•4  tin  aaid  tnldier  from  the  view  of  the  depo 
nmt,  by  the  time  the  first  shot  was  fired  ;  nnd 
whieb  soldier  had  a  (fun  and  a  screwed  bajon 
In  bia  bund,  levelled  widi  rhe  butt  end  ulit 
im  brcsM ;  and  Ihe  dpnoncnt  did  apprehend  at 
A*  lime  that  captain  Forteoua  bad  fired,  be- 

ntdiately  beard  a  iho(,  and  aaw  a  man  in  a 
hm  ffiiuiitci  Iberealter,  as  soon  as  (be  mob 
tfapMwd,  lyin^r  upon  (ba  alreel,  upon  a  bne 
(rbitbcr  the  deponent  caw  canlain  Porlcoua'ji 
plcM  dimpled  ;  and  that  the  above-men- 
liaaed  auldicr  came  from  the  t)ody  uf  the  ^uard 
wbich  waa  behind  captDin  Porteona.  Cnuut 
actcn(i«  poiel.  And  ibia  ia  the  truth  aa  he 
IktU  anawer  to  God. 

Sk'  Sulitcriliil  ur,  ,1,  Dp.ummond. 

Andkew  Fi,ETr}iEii. 

Ki  WiUiam  Farbet,  Adtocat,  aged  thirty 
jmn.  w  thereby,  married,  aoletnnly  awurn, 
^on^  of  malice,  partial  eouncil,  examined 
U4  lolcmwttled,  deponed.  That  time  and  place 
Bb«llcd,ai)d  after  t]ie  deceaaed  Andrew  Wilson 
bad  bung  aiNiul  twenty  or  twenlV'fi'e  minutes 
■fMH  ibf^llowa,  the  deponenMrom  a  window 
im  Orr  the  ttabler'a  bouae,  upjKwite  but  a  little 
blbr  wulwanl  of  the  galtowi,  aaw  Ibe  execn- 
Ifanter  go  up  tome  atepa  of  the  ladder,  as  the 
iepmniilielierM.tacuidnwa  the  BBid  deceased, 
and  aaw  ibvreiipoa  atones  thrown  at  (he  execu- 
JtOft  i    upon  wliich  tlia  mtauiioaet  imniadi- 


A.D.  IT36. 
Btely  retired  tii  (he  guard,  and  the  mob  coafi- 
nucd  throwing  of  atones  ;  bo  tliat  the  depoueat 
does  beliere  some  of  tlie  stones  might  ba» 
touched  the  guard  ;  and  about  tlna  tiinu  the 
guard  were  drawing  togrtber  tu  the  norlli  and 
Meat  of  the  galluHs,  where  the  captain  was 
siaading,  and  did  soon  (hereafter  lee  (lie  paniiel 
Bilvancing  westward  fire  his  gun  among  th« 
people  asicnibled  at  the  execution  ;  and  ofa* 
serted  the  fire  and  smoak  issuing  out  of  iba 
inuzzte  of  his  piece,  tu  ihe  best  at  Ibe  depo- 
nent'd  obserratioD ;  which  be  thought  at  lb* 
lime  very  distinct,  and  that  Ihe  saiif  shot  naa 
tbe  first  which  Ibe  depoucut  beard  ;  and  tba 
deponent  at  the  time  did  imagine,  that  ibe 
paunet  had  fired  bia  shot  high  ;  bat  whether 
that  pivceeded  from  tlie  siluation  that  bis  fire- 
lock wai  in,  or  from  tbe  appearance  thai  tha 
tire  and  smuak  made  that  issued  outof  hispiecv, 
llie  deponent  cannot  now  particularly  charge 
hii  memory.  That  Ih^real'ler  the  dep(iueut 
beard  aereral  dropping  shots,  about  tHenl\, 
but  cannot  be  positive  as  to  tbe  number ;  that 
vrheii  the  aforesaid  lacta  happened,  the  deponriit 
nas  upon  tbe  auuth-iide  of  the  alreel,  and  itie 
pannel  to  the  north  of  the  middle  of  thetliveT, 
almost  opposite  lu  the  window  where  Ibe  de- 
ponent waa ;  and  h  hen  the  pannel  m>  fired,  tba 
deponent  did  not  obaerTe  any  soldier  ao  far  ad> 
Fnnced  westward  from  Ihe  body  of  (be  guaitlaa 
the  pannel  was.  Causa  icienlia  puiet.  And 
(hi*  is  the  truth  aa  he  aball  answer  to  God. 
Sic  Subicrihilur,         ViiLUXit  FcinnEa. 

Andrew  Fletchhi, 
Mr.  William  F/aKr,  son  to  tbe  loril  SiiKonn, 
aged  (iventy- four  yean,  or  thereby,  unmarried, 
solemnly    sworn,  pui^ipd   of   malice,    partial 
ciinncil,  examined  and  iuteiTOgaled,  denoncil. 
That  l|e  wa*  in  a  window  in  one  Orr'a  iiniite, 
in  the  Grasa-market,  the   aouib-side  of  iha 
tlreet,  that  day  that  Andrew  Wilson  waa  exe- 
cute;   that  afler  Wilson  had  hung  some  tin* 
the  gallows,  he  saw  the  executioner  gu  up 
ne  step*  of  the  ladder,  ai  be  apprehended,  to 
:  him  down  ;    and  then  saw  the  mob  throw 
nea  and  dirt  at  bim;  upon  which  the  h an ^- 
a  came  down    and  went  in    amougst  tb« 
dierathat  weie  standing  at  the  foot  of  tbe 
scaffold :    that  soon  after   the    banguiao  bad 
— ac  down,  he  saw  the  pannel  present  and  letcl 
gun.  mnring  the  muzzle  to  nod  fro,  and 
then  taw  him  Are;  and  to  the  best  ofbi*  know- 
ledge  or  apprehension,  *aw  the  NiaOak  issue 
ml  of  the  mouth  of  the  piece ;  that  ioiiuedl- 
itely  thereaiW,  within  a  second  or  two,   ba 
heard    several   dropping    shots   fired    by   tha 
;er^,  who  were  there  on  their  arm*  ;  that 
hioka  the  dropping  shots  lie  then  heard 
came  from  near  the  place  where  the  pannel  wu 
itanding. 

Anil  demined,  That  at  the  (ime  fonaid  lfa« 
jiaiinel  fii'^  liia  gun,  be  did  not  observe  any  <if 
the  anldjria  advance  bribrc  htm  and  prespnC 
(heir  gnus.  Cauin  %ri<nlia  pultl.  And  tbis  is 
truth  at  be  aball  ansMer  lo  C^. 

Su  fivhcribitiir.  WlLtTAM  Fnitla. 


lO'GGORGB  n. 


9OT3 

Mr.  Witliam   Vrguhart  of  Hdilra 
IliirtT-right  yean,  or  thereby,   


.  -o-  j-^-,   -J,  — rried,  m>- 

letonly  urorn,  pureed  of  nialice,^rtial  miiD- 
cil,  exatnined  ■nil  mtcrrogaled,  deponeJ,  Thit 
lie  WM  present  at  Andrew  WiUon's  execnlion 
Ibe  time  libelled,  in  the  house  of  one  Orr,  on 
the  south-side  of  the  street,  in  company  with 
■ir  Wiliiani  Forbes  and  Mr.  Fnser,  the  pre- 
flfeding'  witnesses ;  thit  after  Wilson  had  hunf 
gmae  time,  he  saw  ibe  executioner  go  up  some 
■tepi  of  the  ladder,  in  order  to  cut  him  down, 
Bs  he  apprehend^,  and  saw  the  mob  throw  se- 
reral  stones  at  him  ;  npoa  which  he  came 
down,  therefore  tbe  mob  continued  tu  throw 
stones,  some  of  which  fdl  among  the  f^^uard ; 
whereupon  he  heard  sereral  drojiping;  shotB 
flred  by  the  soldiers  ;  that  he  saw  the  paiinel 
present  his  piece,  immediately  heart)  a  shot, 
which  he  apprehended  was  shot  by  the  panur), 
but  did  not  wserre  it  so  narrowly  us  lo  see  the 
■moak  or  fire  inue  out  of  his  piece.  Gaum 
$cinti*  patel.  And  Ibis  is-  the  truth  as  he 
ihatl  answer  to  (lod. 

Sic  Snbieribilar,  Wilmam  Urqvhjirt. 

Jk.  Mackenzte. 

Jama  Demar  of  Vo^rie,  ao«d  aixty'fiMiT 
ynrSi  or  thereby,  marned,  solemnly  sworn, 
purged  of  malice,  partial  council,  examined  and 
unorogaied,  deponed.  That  time  and  place  li- 
filled,  at  Andrew  Wilson's  execatian,  he  was 
in  B  window  in  his  own  bouse  at  the  foot  of  the 
West-botr,iti  tbeeBt^«ideaf  the  way;  that  he 
•aw  the  hanirmaii  eo  up  some  steps  of  the  lad- 
der, after  Wilson  nad  hung  some  time ;  and 
■aw  the  mob  throw  some  stones,  one  of  which 
hart  the  executioner  on  the  ftce ;  npon  which 
he  came  down  the  ladder ;  whereupon  he  Mw 
the  pannel  present  his  piece  and  fire,  which 
was  the  first  shot  he  heard  or  saw  ;  that  when 
ha  saw  tbe  panoel  fire,  his  ude  was  to  the  de- 
ponent, and  that  the  pannel  was  then  ■tondinit 
on  the  east-side  of  the  gibbet ;  and  that  he 
fired  his  piecatothe  west:  anddepoued,  besaw 
the  fire  M  the  powder  from  tbe  pan,  slid  heard 
the  t^rart  of  the  shot.  Depooe*,  That  wlien 
tbe  pannel  Sred,  as  albr&iud,  he  was  sraiidinf 
on  the  sontb-easi  side  of  the  scaffold.  De|Kiaed, 
That  Wilson  was  cut  down  not  by  the  hang- 
nao,  but  by  some  that  were  standing  at  the  foot 
oftbe  gallows,  and  that  Wilson  was  cut  down 
befor*  be  beanl  any  aliols  :  Deponed,  That  he 
atuod  at  his  owo  window  before  Wilson  was 


shoM  as  before  mentioned.  And  bejoginterro- 
sated  what  kind  of  cloatha  captain  Tnrteoiu 
had  then  on,  declares  be  cannot  be  positive, 
botbelierea  they  werered  cloalhs;  butispu- 
AliTe tha  Ibe  knew  captain Porteout'  lace  nlieo 
he  saw  him  Rre.  Cauta  iCMntM  paltt.  And 
this  is  ihc  truth  as  be  shall  answer  to  Coi. 
Sk  Smhcribiiur,  Jahcs  Dewar. 

J  A.   ftlACKENSIE. 

Ctargt  Drmmmcmd,  eaq.  wm  of  Ibe  cnmtnii 

MBmn  of  Ibe  oostamas,  tgui        yaan,   or 

'  !,  mmM,  wtoouily  ■won,  pugcd  of 


Tritd  ^Ct^ain  Porteoui,  [90B 

c,  partial  coundl,  examined  BBd  hteiio- 
I,  deponed,  that  at  the  time  and  alaee  tt- 
belled,  Ihe  deponent  was  in  the  houae  of  BsiK* 
Halybiirton  on  the  right  bsnd,  on  Ibaaortb 
tide  of  the  comer  of  the  Strait-bow,  tbe  thiid- 
ttory,  at  the  time  of  the  exrcution  of  Andnw 
Wilson,  and  from  a  window  of  theaaid  boM^ 
after  tbe  criminal  was  thrown  over,  and  ba4 
tiung  for  fifteen  or  nxtecn  minutes,  tbeoaea- 
lioner  was  about  going  np  the  tedder;  andaftsr 


reral  stones  thrown  atbim;  which  madahia 
return;  and  while  he  was  on  the  gronad,  bs 
ohserred  his  nose  blooding:  and  »t  thiatoa 
'  lerved  one  or  two  persons  or  more  sUbJ* 
tbe  foot  of  tha  fallows }  one  of  wbiB 
itrelching  up  his  arm  with  a  kalfe,  fae  ol 


t  the 


;   the 


iiWfVC 

of  stODLf  to  continne,  and  some  of  tbem  M 
nmone  the  soldiers.  Deponed,  that  ironidi- 
utely  tliereafler  be  obserrcd  one  of  tbe  anldiiil 
advance  a  little  beforv  BIr.  PorteoiM  to  lb« 
westward,  uith  a  gun  in  his  hand,  wbick  ha 
presented ;  and  immediately  thereopM  tbs 
deponent  heard  a  shot,  which  be  imaginsd  la 
be  from  that  soldier,  but  did  notobaerrelbasr 
imoak;  though  at  Ihe  time  he  condilded  it 
was  from  that  sotdier'a  gon,  and  ia  podtin 
that  that  was  (be  first  shot  that  waa  6iied ;  sed 
the  depouetit  did  not  ihiuk  iliat  Ihe  stones  Ihst 
were  tnrown  dkl  give  any  just  cause  fin  iba 
firing,  Depoued,  Ihut  about  the  lime  wbot 
he  oSserred  the  KolJier  present  his  guntasssi' 
ia,  he  also  obserred  the  pannel  holding  his  gne 
in  his  hand  in  a  lereii  but  ia  not  pure  of  his 
putting  llie  butt  of  it  to  bin  shoulder.  De- 
poned, ihat  after  the  saiil  lirst  shot,  wiibin  a 
minuie  he  beatd  anolhcr,  and  so  it  coolinoed 
till  about  tbe  number  oi  eighteen  or  iweoly; 
and  this  vras  at  the  lime  of  the  firing  obstned 
by  the  deponent;  but  wiiliiu  some  miautsi 
Ihereafler,  iliere  was  a  second  firing,  which  ba 
did  hear,  and  upon  hearing  came  to  the  wia- 
doiv,  and  observed  sonic  lime  fallen  from  sa 
opiwsile  hoiije,  which  he  Juilged  to  have  ban 
occasioned  bj-  the  hulkls ;  And  as  lo  Ibe  eisb- 
teeu  or  twenly  dropping  slints,  in  the  Anl 
tiring,  they  were  from  tbe  soldiers  immedialdy 
behind  tiie  pannel,  betwixt  wliom  and  them,  bs 
observed  no  person  interposed  ;  and  heohoervcd 
the  time  of  the  first  shot  the  paonel's  face  wu 
looking  westward,  as  was  all  the  ooldicis'  be- 
hind him.  Deponed,  that  the  soldiet*  at  tbit 
timo,  who  firod,  were  lo  ihe  deponent's  best  n- 
membrance  to  the  nortbwejdof  tbeaeaAU; 
and  the  pannel  was  then,  lo  ifae  beet  of  his  i*- 
membriiDce,  either  upon  a  line  to  the  gibbet,  sr 
a  little  neslward  of  it.  Further  deponed,  IM 
ifae  soldier  who  first  fired,  as  said  ia,  advoiieid 
from  behind  the  psunel,  and  past  uponfaia  right 
hand  to  the  northward  c^  him.  Cokm  tcimtHI 
patel.  And  this  is  tbetrutli  as  he  shall  onewM 
to  God. 

ak  5ii»(crtUtKr,  1736.      Gb.  ; 
Do. 


Jm  Mwrdfr. 

■•VfUkamJohnttou*,  dnq^Mi  in  E<]inbiir(>h, 
ag«d  fiMI]>   ]i«irB.  or  lliereby,   mtnieil,  tn- 

' '-  iwm-n,inir^il«f  Nialwcpariialeoiiiicit, 

4  tuii)  iDWrmgnud,  drponeit,  time  aoJ 
B  libelled,  he  th«  (le)Minmit  being  ]ir««t»it  at 

"mof  Andrew  Wilton,  liedtilubtfrre 

akea  {funout  of  ■•ulitivr'*  huul.at 
(l  time  he  TCM  itanding  twin  tlie  Com- 
•M  and  niw  Tnd's  ihop,  which  is  under 
I  Ualybirrton'i  houie ;  Ihtrenpon  he  oli- 
•tn»il  ilie  panbeladfaiice  EUtnesteiis  westward, 
m4  did  Ke  him  prewnt  ami  l«*el  liiB  gUD,  Ihat 
■  W  ny,  lioid  it  onl  and  lire  amnnest  the  mul- 
littHbii  aniT  did  obKne  the  »rooak  come  out 
•fthe^ni  Aud  depuneil,  that  this  was  the 
fcR  allot  he  heard,  which  shut  imme<)iately 
IaU0W«d  after  the  criminal  was  cut  dnwn  l>y  a 
Innil  stancliDg  at  the  Toot  ol'  the  gihbel;  and 
tka  dcponeal  at  the  liroe  wa>  Blandiiig  in  a 
Wtadoir  hi  llie  house  ut'  one  Gainlner.  home- 
btviarby  the  Mu>re  Well;  and  wbvn  lhe|>annel 
was  taking  llie  gun  out  of  the  soldier 'a  hauil,  he 
■nearsd  to  be  iii  itaition,  and  it  was  some 
•bnrt  liiiie  belifre  he  was  ntaslerof  the  |;un. 
DipMMd,  tliat  til  ttie  bmi  »r  lii-i  reniembraace 
tba  pannel  was  cloatheil  in  red,  hut  he  hetng 
wdl  aoquaiolal  with  the  (laiinerg  tboe,  he  is 
plMw,  tliai  lie  wuB  Ihi?  person  Ibat  look  the 

ri  aad  Qrad  ai  ulbrsaid.     And  de|ioned,  thai 
batiaves  itn're  wan  about  tliinjr  yards  ilis- 
taaee  belwixi  ihe  ninduw  where  ihc  deponent 
WIS,  atiil  the  paonel,  at  the  first  tiring.     Cai 
•rkafitf  patet.      And  lliis  is  the  truth  as 
ikaU  visww  lu  Uml. 

Sic  HabstribUur,  Wm.  Juiinstoun. 

Da.  Ermkine. 

ilmrk  Spmit,  sbinMr,  and  one  nl'  the  c< 

^bka    ol    Edinburgh,    sgH    as   yeura, 

Aarefcj,  nwrried,  saleinoiy  swotn,  purgeil  of 

Mafioa,  |H)rlial  counail,  examined  aud  inlerro- 

rid,  de|m<ied.  That  time  and  pisce  hbelled,  as 
■Uwd  oil  WiiliBin  Itrr  slahler's  window, 
anulh  -aide  oflbe  Grass-  ntercale,  ha  tiaw  Ullion 
the  criminal  cut  down  from  the  gibbet:  upon 
Nbieh  fcoaaion  he  did  not  obserre  lliat  tijere 
Via  aoy  ({realer  dislarbaaee  than  usual  al  exe- 
•BliOMf  that  a  very  little  while  after  the  eri- 
■■mI  tras  so  cut  down,  he  ohserfed  the  pnnnel 
■iHDoe  before  the  soldiera,  anil  upon  the  norlb> 
■Uaof  Ike  acftffbld  oTer-aguiiisi  the  ).'ilibet,  he 
W  Imvi  flre  his  piece  towards  itie  west,  and 
ikfraaioak  iaueout  nl'  the  mouth  of  hisirun  ; 
Ihia  he  says  was  the  6nt  sbul  that  was  fired  ; 
b«  tmBMJislely,  upon  the  liock  nf  thai,  a  tall 
»■■  with  hia  own  hair,  aUint  the  third  bebinil 
iIm  paniM-l,  as  he  thinks,  Ored  off  his  piece 
Kfcvwiae  inwards  ihc  west,  but  up  in  the  air 
•Mr  llie  hod)  or  the  multilude:  Ibat  rery 
■nan  after  Mveral  other  dropptag  nhols  Ibl- 
btrad,  after  which  when  ibe  people  fell  hack 
•■d  apanird,  he  ohserTed  a  vuuri^  man  lying 
■pan  Ike  ffraund  b«  dtad,  directly  opposiie  to 
Ika  fla«e  where  the  pannel  llred.  Cnuio 
tntxlinpatti.  A  nd  this  is  the  truth  n«  he  shall 
WMrioGmt. 

Si*  SufccritifHr,  Minx  Si^orr. 

CiLa.  Ei.ivt. 


A.  D.  irse, 

GtorgtCampbttl.  Wright  in  Bdmban;h,  IgM' 
SS  years,  or  thereby,  married,  suleninl*  sworn; 
poTged  of  maUce,  partial  coimdi.  enannned  and 
iBtcrrogaleri,  deponed,  That  time  and  p1ac«  li. 
bollMl,  Ihedsponentiitood  in  the  window  nf  Mr. 
Carmichael'b  house,  iu  the  south-aide  of  the 
GraM-n]erGMe,direcl>voppcmielo  (be  gibbet; 
ttiala  rery  httle  after  Wilson  was  rut  down,  b« 
nbserrtd  the  pannel  with  four  or  flf e  nf  his  men 
shout  him,  and  (hat  as  hepoinied  hia  piecelo  anA 
fru  towards  the  inutlilude,  he  obierced  him  n- 


him;  upon  which  he  immediately  Tired  hia 
piece;  but  whether  this  was  the  hrst  shot  or 
Dot,  the  deponent  cnunot  letl,  for  there  waa 
three  or  fnurfired  much  about  the  same  time; 
but  ihat  the  paonel  fired,  he  is  sure,  for  he  sair 
fire  and  snraak  issue  from  his  piece,  "nint 
open  these  shots  alrendv  meDliuped,  he  saw  a 
man  fall  down  opoA  hi«  hark  on  lhe>treel.- 
that  afier  this  he  saw  the  paunel  raise  his  mus' 
het,  and  put  bis  hand  to  his  earl  rage- biix,  as  if 
he  inieoded  to  load  again ;  but  does  not  know 
what  tbilowcd  u|»hi  ihif,  because  he  imme* 
dialely  tost  sight  of  him,  Deponed,  That 
when  the  patinel  Cirud  his  piece  at  uhore,  he 
wot  daiiding  towards  the  south  easi  corner 
of  the  scaffuld,  and  p'linled  bis  piece  toward) 
(he  south-wett:  that  the  ptnn el's  tire,  with 
the  shots  that  went  off  at  ibe  »ame  lime,  wer* 
the  fitsl  that  were  made  on  Ihat  occasion, 
Cauta  identia  patet.  And  (his  is  Ihelrulh  as 
he  shall  auiner  to  God. 

Sic  Subicribiiur,         Ctaaat  CamPBiLL, 

G\LB.  £U0T. 

James  Buld,  merchant  to  Edinburgh,  age^ 
;i3yc«rii,  or  (hereby,  widower,  sotemidy  sworn, 
purged  of  malice,  psilinl  coudrtl,  eiamineil 
and  interrogated,  drpancd.  That  liriir  and  place 
libelleit,  the  deponent  stirud  in  the  tame  window 
with  Ihc  iniuipdiate  iirecvding  wiinesa,  or  al 
least  in  a  window  in  ibesame  tiHim:  (hot  a  lit- 
tle after  Wilwm  was  cut  down  frnin  the  gibbet, 
he  saw  the  |iannd  advance  a  Il<i1e  westwanl 
from  the  Corn-mercate,  (owards  thcsnulh-side 
of  the  gibbet,  and  fire  off  his  piece  we»t.ward, 
toward  the  Mute  Well ;  that  at  this  lime  he 
<  saw  none  of*  the  soldiers  near  him,  nni- observed 
I  any  ether  Hre  but  his ;  and  before  Ihere  waa 
I  any  more  firing,  when  the  miOtiliidc  fell  back, 
hesaw  a  man  lvin:{  dead,  inwards  ihe  placo 
Ihat  the  panDcl  painted  his  luecp;  that  he  is 
sure  the  captain  fired,  since  he  mtt  llic  lire  and 
smouk  issue  I'tom  bis  pi«c«.  Cunnt  K-wnti« 
pa(rt.     And  iliis  is  tlie  truth  as  h«  shall  au- 


0  0<h1. 
Sk  Sulifriiiliir, 


Jiinu  Btui, 


Andrew  Dtiw,  tcrrnnt  to  James  BTonlgn"- 
mery,  brewar  io  Potteraw,  ageil  ¥1  years.  «r 
(hereby,  niarried,  s<ileinnly  BWotB.  p'nrged  «f' 
malice,  partial  coiKieil,  exnmiocil  and  inti'rrn- 
gnted,  deponed,  'I'tiat  time  and  phicn  1ibelli-d. 
■  he  deponent  was  standing  allhctiiotuf  Rd'> 
beitam  the  itubler'a  cloti,  wLtm  Wilion  wA 


975]  10  QEORȣ  II. 

tba  scaffnld,  alniit  Ira  j'Bril*  from  it,  o?er- 
■niatttfaemittdleof llieactfTuld:  »nd depoDed, 
Tw  Ihe  paontl'a  sliot  at  tbat  tio«o  waa  tfu  first 
lie  beard  Ibeo  iibut.  Depuued^.That  be  was 
present  ftt  tbe  time  rrura^VilMu'M^coining  down 
to  bit  exeuutiun,  till  alter  he  wis  cut  douro  and 


MttntUt  pattt,      AdiI  tbia  ia  tM  truth  u  b« 
should  ODBirer  lo  Gnd. 

Sie  Suburibilur,  Jauu  H^xnELL. 
Ja.  SIackenzib. 
William  Doiiglai,  one  of  the  aoldiera  in  the 
oily  guard,  Edinbur^b,  aged  47  yean,  or  there- 
by, marriej,  aolemiilyiwani,  purged  of.  malice, 
uorlui  council,  exaniiiied  aad  iDlemgaled,  de- 
pMied,  That  the  time  aud  place  libelled,  m  the 
•lecutionet  vu  goiog  up  tbe  Udder  to  out 
down  WilMn,  ihere  were  several  atODcstbrowD 
■I  bim,  which  obliged  bim  to  come  down  the 
JwUer ;  at  the  aane  time  tliero  wat  acTeral 
alODes  thrown  amongst  tlis  guard,  betbre  Wil- 
■OB  waa  cult  down,  at  which  lime  he  heard  the 

Cn«l  iay  to  the  soldiera.  Be  daVno'd  to  you, 
gara,  fire ;  after  wbicb  he  heard  aeveral 
^ats  fired  by  th;  men,  but  koowa  nolbiog  of 
Ibe  pannd'a  Laving  fired  ;  and  that  theae  were 
'  tbe  fint  shots  he  heard  Gred  that  day,  to  the 
|)eat  of  bb  knowledge.  Depuned,  Tbat  the 
panne),  when  be  uttered  the  words  berure-men- 
liooedi  was  elandiiig  at  the  south  sule  of  the 

KUewB.  Deponed,  That  the  first  shots  were 
nl  before  nilson  was  cut  down,  aod  likewise 
■ome  of  tbem  thereafter.  Ca^na  icientia  pnttl. 
And  this  is  the  truth  aa  be  should  answer  to 
God ;  and  declares  lie  cannot  wrhe. 

.%.  SuliKiibilur,  Ja.  Mackenzie. 
jFtkibalii  Fctfj,  Ulster  in  the  abbay  oflloly- 
rood-bouse,  aged  48  years,  or  thereby-,  married, 
■oleninly  sivorn,  purged  of  muilce,  partial 
council,  examined  and  interrogated,  deponed, 
Tbat  the  liiue  and  place  libelled,  a  little  after 
Wilson  was  cutt  donn  from  the  galliiws,  he  | 
aaw  the  pannel  fire  his  piece  among  the  niul'  ' 
liiuite ;  and  immediately  bfard  him  say  to  bis  I 
men,  Levellyour  |)ieces,arij  lire  and  be  daniii'd ! 
Whereufon  there  ncre  a  great  many  sliots 
^ed  by  tbem,  and  saw  the  [loiincl  take  a  gun 
from  one  uf  the  men,  whicb  he  tbe  paimcl 
fired.  Deponed,  That  be  the  deponent  Has 
within  liv  yenrdsof  llie  pannel  when  be  iircd, 
and  spoke  the  words  betbre- mentioned.  Ue- 
poned.  That  at  tbe  time  when  the  pannel  took 
tbe  gun  from  the  soldier,  he  laid  his  own  ujiou 
tlie  scafiuld,  and  tbat  there  were  some  persona, 
but  very  few,  then  standing  upon  the  scafiuld. 
Deponed,  Tbat  iKtwixt  tbe  lime  that  the  pan- 
ncll  fired  bis  own  piece,  and  bit  taking  the  gun 
from  thesiddier,  as  aforesaid,  it  mijjbt  he  about 
e^ht  or  uiiie  minutes :  And  deponed.  That  at 
the  time  be  tireil  tbe  Bccond  guii,  there  were 
■sreral  other  guns  fired  at  tbe  attme  time.  De- 
pODoa,  That  there  was  do  shot  fired  before  the 
littf  fired  by  the  pannel  i  and  ib>t  tbcMcand 
ahot  0rBi|„by  tlio  pcnnal  wh  mw  tb*  mau 
plaoe  irhaw  tw  firwUba  ftm  <  mwI  tIpt.Jw  jmt 


Trial  ^O^taiit  Poricout,  [BTI 

not  taoved  above  aix  or  seven  yeirds  btfnil 
Ibe  first  firing  and  the  second  ;  ■addutam 
oT  the  soUiem  followed  tbe  panpel  in  Ibat  space, 
and  returoed  with  him  again  4o  tbe  pbM 
where  he  fired  firaL  Causa  seuntM  ^ct> 
And  tbia  ia  tbe  truUi  as  he  aball  answer  to  God. 
Sie  Suttcribitur,  Abcbuub  Ymi. 

Ja.  HacuxttL 

WiWam  Murray,  barrowmso  and  indwtlkl 
in  Edinbg^,  aged  ST  yeara,  or  thereby,  imr- 
ried,  solemnly  sworn,  purged  ofinalioc,  paitid 
conncil,  ezaniued  and  interrogalMd,  dcM^ 
Time  and  place  libelM.  the  depoMK  M« 
prMenI  at  the  cxeculian  of  Andrew  W3M^  m 
did  obaerve  two  of  the  soUims  iindw  the  pM> 
nel'scMnmand, fire  their gaaa;  bM  ihagws 
were  firvdun  in  the  airs  tMnahar  beobnrtsi 
tbe  pannel  fire  his  gan  wnongat  the  BBltitadti 
whereupon  be  ofaurvednbuy  drop  down,  aal 
did  bear  the  pannri  caU  oat  to  the  aolMi^ 
Damn  them  lor  bongan,  why  did  they  art 
fire  even  forward,  and  ctean  tbn  itteaif  it 
which  time  the  depoiient  waa 

the  south  pillar  of  the  Cmn- , 

twenty  yards  dialaaca  froni  the  vuaeli  h  be 
apprebends:  Farther  deponed,  IhatafWths 
said  Gmt  firing,  ha  obemed  Ihe  psmal  Idtt  a 


directing  it  towards  a  tnan  be  , 

which  he  did  thirty  or  forty  yearda  ;' and  na 
firing,  he  observed  the  perMn  so  pUTMad, M 
donn:  And  being  intermgated  bowMBC  hh 
pmeotdulocaa  of  bearing  remained  wiihliH; 
deponed,  be  has  been  as  dull  of  hearing  thai 
seven  years  past  Deponed,  IhnI  the  IwosbMi 
from  tbe  two  sukli^rs  were  tbe  first  firing  hi 
heard  npon  that  occasion.  Cavw  srinlia 
jiatcl.  And  this  is  the  truth  as  he  shall  aosvtt 
to  God. 

Sic  Suburibitur,        William  MnaaiT. 
Da.  EasKiNK 

Jamet  Kicoll,  watcb-mskor  inCnnnm-gtls, 
iged  36  yean,  or  thereby,  marriod,  solenudj 
sn'om,  purgf-d  of  malice,  partial  council,  eis- 
mined  and  interrogated,  deponed,  Tbat  he  "ts 
present,  time  and  place  libelled,  at  tbe  enca- 
tiun  of  Audrew  IVilsun;  aud  then  he  did  ob- 
serre  the  pannel  fire  his  ij'ud,  holding  it  oal 
straight  betbre  him,  amougat  the  muliitads 
there  assembled ;  and  as  be  beard  tbe  repMi 
uf  the  gun,  su  be  obserred  tbe  smoak  af  the 
powder  coming  from  the  gun  ;  and  tbiasbol 
was  the  first  be  liesnl  upon  that  occasion ;  and 
Ihe  pannel  when  he  thus  fired,  was  staDdinf 
betwixt  the  gibbet  and  one  lUr,  Cunnyohanie's 
sbopeonllie  north  side  of  tbe  street  nearibt 
north  east  eud  uf  the  scalfnld.  C'uuui  kii'sIw 
patet.  And  tbia  is  the  truth  as  he  shall  answer 
toGud. 

Sie  SubicribUurt        JufEs  Nirau. 

Da.  Ebsum. 

Wil/iam  JamaoH,  merchant  in  Ediabnifh. 

aged  34  years,  man-lad,  solemnly  n*nm,pW' 

ged  of  malice,  partial  oouadl,  enwiafd  ad 

iBtBnpntad,  daptmed.  Thai  ha  «w  |>mb4 


S773 


Jir  Murder. 


time  aid  pitee  libcHH,  at  the  exMutioa  of 
AmlrciT  WiIhid  ;  and  about  the  lime  wlien  they 
were  cutting  (loni)  the  criiaiiia],  the  depnneiit 
iheB  •tandisgf  wilhin  three  or  four  jeajdi  at 
■he  pannel,  dlJ  bfur  him  tfitt  ordera  to  the 
■obiim  iliai  trere  Ix'hiuH  hiu  tit  liret  and  im- 
medialcly  ih;rcuri-r  he  did  liear  the  panocl 
fire  the  qau  that  Mai  id  his  own  band ;  uid 
upon  Ills  tirtiiff,  ohnerTcd  thn  siiioak  of  (lie 
poivdrr  I.-0II1C  from  it;  theiiaftcr  heobserrcd 
At  paiinel  take  a  ^nn  from  one  ul'  the  snldiera, 
bat  wiiat  ute  he  miulc  iJierrnr,  he  kiiowi  iiol; 
ami  it  wat  jery  altutt  lime  'twixi  the  pniiDel'^ 
frtB|{,  and  hia  taKint^  the  nan  fmm  theanldier, 
•I  abo,  m  *erj  ulinrt  disliuicc  lietwixt  thi;  plaee 
wtanv  be  (irerl,  anil  wliere  he  f>ok  llm  will 
gnn;  theplarcul'  iiia  firiii»',  to  the  ite|iiincDt'g 
■Mmory,  beinir  acta  to  Itobcrlson's  Clos^bead  ; 
ami  «h«re  he  took  the  g\in,  nas  a  rery  little 
m;  up  the  (Irret  rroinil:  And  ilis  Bhollif 
keard  rrom  the  pannel's  gtin,  wbi  the  lintt  be 
fceanl  that  day.  Caum  leicniU  paid.  Atid 
Ihu  ia  the  iTUlh  un  lie  •ball  ansirer  lu  tiod. 

Sk  Subitribitur,  Viiu.u't  Javbson, 

Itt.  Emkinr. 
JUm  Meffht,  Imxt'r,  and  acrveat  in  the  com- 
kMO  bake-lii>use  in  llaslimdoss  in  Ediiitiurgh, 
ifti  86  yean,  or  thercly,  married,  solemnly 
■worn,  pur^ced  ui'  niulire,  partial  uoiiucil,  eMi- 
mincd  sod  iiitBrrot,'^ ted,  deponed,  Tiiat  nt  the 
time  aoil  place  Ithelleil,  Ate  deponent  nas  stand- 
ing  ID  3Ir.  Urr'it  dour,  on  ilie  i>auiti  side  of  the 
GraH-mercate  ;  and  Knnie  ■ihi)rt  time  atter 
Wilaon  iraa  cut  donn,  he  aaw  Ihc  panni-l  tiike 
•  pin  out  of  one  uf  the  coldier's  band,  beliire 
Mr.  Todd'a  ihnpe  duor,  wliich  he  immediately 
fired  off  tnwardii  ihu  norlli-ncst ;  a  Utile  Mure 
«bicb  the  de^innent  saw  bim  fire  hit  nn  n  ffun 
'"   '  ''  '         le  place  ;    that  iipnTi  the  captain' 


Bring,   the  deinineiit  saw  soi 
whw  atiNiil  betiiiiil  the  Coin- 


niLTcatc,  fire  Iheir 


(wvr  to  God. 

JmIN  Alot'FAT, 

Gius.  £uuT. 
John  Slevarl,  merchant  in  Ed'mlnirgh,  a^d 
90  yeara,  or  ttirreby,  unmarried,  tolemDiy 
■worn,  ptirgal  uf  maliee,  pariial  council,  rxa- 
■ined  and  inlcrrosattd,  dijirined.  That  at  the 
time  aii'l  place  Ijl-elkit,  tlic  dc|H)neut  was 
Mandiiii;  id  a  TTinilaiv  of  \\  ir.e  (iardcn's  linuae, 
en  the  ai<u;h-»i<le  of  the  •:cail'iild :  that  Mmc 
■hart  lime  liefure  >Vitson  mai  cut  dui«n,  upon 
■•me  Monfi  bcinif  throivi)  ot  the  hangman,  he 
abarrteil  the  pannel  jump  down  from  the  siuilh- 
■ide  of  the  walfold,  and  walk  up  Initikly  to- 
ward* the  place  uliere  the  disitiirbaiice  was, 
but  nothing  hi  hia  hand  but  a  cane;  imme- 
dialrly  alter  lliia  ^V'ilion  was  cut  down  ;  upiin 
whirb  the  gtiard  Ihat  atlciiilcd  the  txeciitinn, 
fccgmii  to  march  npth^  Bow  ;  tinil  that  at  the 
winh-weat  cnmrr  uf  the  gallius,  hcolncrvcd 
Aa  pwiDel  take  a  ^un  mil  uf  i  soldirr'N  band, 
Vidi  wkieh  be  pushed  back  the  muUitinlc ; 
^4  Am  wfacK  inc  paoncl  came  the  tCLi};i!i  ot* 
lUBrnJiiM,  beiiHr  uiiuD  tbi  rear  of  hia  men, 


A.D.  17M.  [97S 

he  law  him  receire  a  atrake  with  a  atone ;  upnn 
which  he  auddenly  turned  abnut,  aud  wared 
hia  piece  to  and  again,  towards  the  multiliidf, 
bat  nitbuut  &riiig ;  but  a  very  little  aflpr  tlial, 
he  turned  about  all  at  once,  and  stnpped  aoiiie 
stepa  forward,  and  fired  off  bii  piece  towards 
the  crowd  westward :  Ihat  this  was  the  first 
shot  nliicb  the  deponent  either  hcant  or  saw 
made  lliat  diiy.  Vauta  icientia  yatet.  And 
this  is  the  truth  aa  he  abuuld  answer  to  God. 
Sic  SuhaiLitur,  Jno.  Stewart. 


J.ihn  Cibb,  cow-fccdtr  in  Cannon^'ate,  aged 
11  .vara,  or  thereby,  married,  aolernnly  aworu, 
piiilfcd  of  malice,  partial  couucil,  examined  and 
interrogated,  depniicd,  that  lime  and  place  1i< 
belled,  he  was  standing  at  Mr.  Robcnaon'* 
cluBs-hrail,  in  ibc  Graas-market;  Ihat  a  very 
lililc  atlcr  the  haiif^man  bad  Im:cu  on  the  ladder, 
as  he  lLijii|;bi,  lu  nit  doivn  Wilson,  he  obserTeJ 
■he  par.nel  with  his  g'lin  in  his  hand,  adiance 
inwards  the  cru»d,  where  the  disturbance  waa, 
and  present  liis  piece  three  tiinra ;  the  last  of 
which  times,  the  drpnncnl  thoaght  be  Hrcd  her 
off;  for  be  aaw  tlie  primine  burn  in  the  pan, 
but  could  not  ace  tin:  fiery  smoak  at  the  mnK- 
zel,  because  of  the  crowd;  neither  conid  ha 
with  certainty  distinguish  the  report,  lieeauM 
several  other  pieces  were  fired  olf  at  the  aain* 
time :  that  upon  tlieso  pieces  being  ao  fired,  ha 
saiv  one  Mr.  Niel  drop  doivn  at  the  Muaa 
Well :  that  before  the  flring  abovettieutiuned, 
lie  neither  heanl  nor  saw  a  sliot  made  that  day. 
Cauia  leienli*  palei.  And  thin  is  the  Inilh  aa 
he  ihall  answer  10  God. 

Sic  Subicribitur,  Joint  GiBn. 

(iiLB.  Eliot. 


Edinburgh,  aged 
SO  yeara,  or  lliercby,  married,  satenmly  aworU) 


George  Smeilon,  * 


purged  of  malice,  parlhil  council,  examined 
aiid  interrogated,  deponed,  Ihat  lime  and  place 
lilielled,  lie  was  present  at  the  execution  of 
Wiltnn :  that  when  the  executioner  was  dning 
hisduly,  be  aaw  captniii  I'orteoas  come  off  the 
scnffdkl,  hetnusc  the  nm!)  was  crowding  upon 
the  guard;  and  while  the  pannel  wasendea- 
loining  to  Iti-ep  ofl"  the  miib,  he  saw  a  man 
with  a  silk  n.-ipkinc  about  his  neck,  pre»s  iipnu 
ihe  pannel,  and  stem  to  cndeavonr  to  grccp  at ; 

■  but  that  n  younj  gentleman  there,  in  green 
I  clonlhs,  kcept  Litn'od':  and  then  the  puiiiBl 
1  CKturncd  to  the  sinlfuld ;   but  abiuit  the  time 

the  criminal  was  cutting  down,  or  lo  be  cut 
down,  the  parnel  ivrnt  off  the  scafTnld  agaia; 
I  and  alKiiit  that  lime  there  wa-i  aloncs  thrown  Uy 
'  the  moh  at  the  hani.'ii>r.(i,  and  the  guard  ;  koA 
I  some  nfthem  fell  nui'-iig^t  ibc  guard  :  That  s-i 
I  far  as  the  deponent  lonid  ob-ervo,  being   \mn 

■  a  l>anixinc,  upon  the  'inith  si-lc  i.f  tbo  S(.-»fiJ,>,l 
'  five  storv  Uiuli,  ihc  st.inea  setmed  to  bv  M^rt- 

■  Inrgc,  but  tliR  deponent  cannot  tell  ttic  iVi-r- 
'  lioii"  ;  and  then  he  sunn  olifPTved  n  s^if    .^  % 

I  was  the  fli>l  Ihat  he  observed,  snfl  c,^,;, .  ,;.. 

j    nit 


979] 


10  GEORGE  IL 


Trial  of  Captain  Parieouif 


[950 


one  of  the  soldiers ;  and  this  shot  was  after  the 
criminal  was  cut  down ;  and  aAer  this  shot,  in 
a  very  little  followed  three  or  four  other  shots  ; 
and  at  this  time  the  pannel  had  his  piece  pre- 
sented towards  the  multitude  ;  and  that  be  saw 
tlie  flash  of  the  pan  of  the  soldier's  gun  that 
fired  the  first  shot.  Deponed,  that  the  pannel 
was  pretty  near  the  soldier  that  fired  the  first 
gun.  Causa  scientia  patet.  And  this  is  the 
truth  as  he  should  answer  to  God. 

Sic  SubscribUur,  Geo.  SsiErroN. 

^Va.  Prinule. 

Thomas  Harton^  doctor  in  the  regim^t  of 
IVelsli  fuzieleers,  iu  the  Cannon -giite,  aged 
d9  years,  or  thereby,  unmarried,  solemnly 
■worn,  purq^ed  of  malice,  partial  council,  exa- 
mined and  interrogated,  deponed,  time  and 
place  libelled,  he  was  present  at  the  execution 
of  Wilson,  when  he  saw  several  stones  thrown 
by  the  mob  at  the  guard,  of  such  bigness,  that 
was  sufficient  to  have  killed  them,  in  case  they 
bad  hitt  them  in  a  proper  place ;  which  con- 
tinued some  little  time.  Deponed,  that  while 
the*  criminal  was  banging  upon  the  gallows, 
the  deponent  saw  a  man  press  towards  the  pan- 
nel; and  being  come  near  him,  he  held  up  his 
hand^to  him,  ju  a  threatning  manner  ;  but  the 
deponent  did  not  hear  what  words  be  uttered. 
Deponed,  that  when  the  pannel  was  upon  the 
scafibld,  be  had  no  gun  in  bis  hand ;  but  when 
he  came  off  again,  he  took  a  gun  from  a  sol* 
dier.  Deponed,  that  when  the  pannel  came  off 
the  scaffold,  he  went  altout  to  the  west- side, 
and  turned  about  towards  the  north,  endeavour- 
ing to  get  bis  men  together,  which  he  could 
not  weel  do,  they  being  so  much  interspersed 
ivith  the  mob;  and  tney  continuing  Ktill  to 
throw  the  stones,  the  pannel  turned  about  with 
his  face  towards  the  west;  and  having  his 
fuzie  in  such  a  manner  in  his  hand,  as  if  he  had 
not  designed  to  fire,  but  waving  it  from  side  (o 
fide,  rather  speming  to  intimidaU:  them  :  Ami 
et  this  time  there  was  a  soldier  came  upon  his 
right  hand,  and  fired  close  by  the  pannel ;  and 
this  was  the  first  shot  the  deponent  obserifd: 
And  deponed,  that  he  had  his  eyes  strictly  u{mn 
the  pannel  all  this  time.  Deponeil,  he  did  not 
tee  the  pannel  fire ;  and  ho  iii  very  well  as- 
tured,  that  he  did  not  fiie  aMhattmic.  De- 
poned, that  this  shot  was  immirdiatcly  after  the 
criminal  was  cut  down.  Deponed,  that  after 
this,  the  pannel  endeavoured  to  carry  ofV  his 
men.  Deponed,  that  the  soMier  that'cauie  up 
by  the  pannePs  ri<^ht  sidf>,  canie  up  I'runi  be- 
hind him.  Causa  hi'iintiit  putct.  And  this  is 
the  truth  as  he  should  answer  to  God. 

Hie  Siibccribilur,  Tiio.  IlAnioN. 

Wa.  PillNOLE. 

David  Rannie^   merchant   in    E«linburf>li, 
©ged '10  ye*Ms,  or  thereby,  married,  soUuinly 


De war's  at  the  foot  of  the  Uuw,  saw  the  pannel 
draw  off  his  luvu,  and  maruhiug  up  th«  Bow, 


halt  at  baillie  Crocket's  shop,  at  which  timetbe 
deponent  heard  some  soldiers  fire,  which  the  de- 
ponent apprehended  was  in  the  rear ;  the  de- 
ponent looking  upwards,  and  thejr  that  fiml 
not  being  under  bis  eye.  Causa  setenti^  patct. 
And  this  is  the  truth  as  he  should  answer  te 
God. 

Sic  SubscribUur^       David  Rannie. 

AnDR.  FLETCnKS. 

John  Clatkf  Serjeant  in  the  regimeot  of 
Welsh  fiizieleers,  aged  93  yeara,  or  thereby, 
unmarried,  solemnly  sworn,  purged  ef  malicci 
partial  council,  examined  and  interrogated,  De- 
poned, That  the  time  libelled,  the  denoaeil 
was  sent  by  the  captain  who  commaaoiBd  the 
deUohment  of  the  king's  forces  in  the  Lawe- 
mercate  to  the  place  of  execution  to  get  onkie 
from  the  magistrates  or  the  pannel  $  and  hav- 
ing gone  up  to  the  scaffold,  and  while  the  de- 
ponent was  conversing  with  the  pannel,  be 
saw  a  stone  thrown  at  the  executioner,  which 
cut  him  in  the  nose  so  that  he  bled ;  and  about 
the  same  time,  there  was  a  stone,  about  the 
bigness  of  the  deponent's  two  iisls,  hit  the  calf 
of  the  deponent's  log;  upon  which  the  depo- 
nent with  the  pannel  came  dovin  from  the 
Bcafibld,  and  thereafter  saw  the  pannel  moviiHr 
his  fuzie  in  order  to  keep  off  the  crowd, 
who  had  by  that  time  pressed  upon  the  guard, 
and  drove  them  about  four  or  fifc  yeards  from 
the  place  where  they  were  {losted  a*t  first;  and 
thereafter  the  deponent  saw  captain  Porteoos 
endeavouring  to  keep  off  the  innb  with  his 
fuzie,  uaving  it  to  and  again,  telling  them  to 
keep  off,  or  he  would  fire,  hut  that  there  was 
no  (ire  at  that  time :  and  the  deponent  then 
walkinc  tow^iids  the  West- Iww,  saw  four  w 
five  of  the  soldiers  presenting  their  pieces,  aii'l 
saw  one  of  them  advance  to  the  right  where 
the  deponent  vrns  standing,  und  fire  upon  the 
crowd  ;  which  was  the  first  shot  the  dcponeot 
heard  ;  at  which  tinio  the  doponi'nt  saw  the 
piinnel  n^ion  his  left-hand,  about  seven  yeanii 
from  him  ;  and  then  the  deponent  saw  two 
other  of  the  soldiers  come  up  betwixt  the  |»aii- 
nel  and  the  deponent,  and  tire  in  the  air  ;  and 
thereafter  heard  four  or  five  more  rthom,  which 
the  deponent  thinks  was  fired  betwixt  the  plsee 
where  the  deponent  was  standing  and  the  pan- 
nel ;  and  the  depouvut  during  that  time  bad 
his  eye  lixt  u|K)n  those  wli.>  lirrd,  and  did  not 
observe  ca{>t*jin  l'orteou:»  fire,  or  ;;ive  oriiers  to 
fire ;  and  U{ion  the  first  shoi  iiJi  al'orsaid,  tli« 
d«>ponent  oht^ervtd  a  man  ih'0[)  at  the  entry  nf 
Hobinsnn's  closs.  Causu  scii'hti.e  f^nict.  And 
this  IS  (he  liuih  as  he  shall  an^w^r  to  God. 
Sic  Subscribitur,         Jm>.  Clark. 

A  NOR.  Fletcher. 

Colin  Campbell o\'  Ardonniiik,  aged  44yeaif, 
or  t lull  by,  man ied,  solemnly  suorn,  purged 
of  malice,  partial  council,  examined  and  inters 
ro;;utcd.  Deponed,  That  at  the  time  and  place 
libelled,  the  deponent  in  a  window  from  mil. 
Carmichaell's  opiioslte  to  the  scaffold,  obeervcd 
no  disturbance  till  once  the  executioner  wis 
going  up  the  ladder  to  cut  dowu  tba  deoeaaid 


961] 


Jix  Murder^ 


Wilfloo;  aod  then  nw  tome  itonw  thronn  at 
the  ex«ciitiuder,  tipoii  wLichhs  Mired  ;  and  ■■ 
be  was  nattiog  tbeCura-mercste,  the  depoaent 
etoenea  one  of  tte  ainne*  hit  him,  and  saw 
•uae  atoncf  thrown  at  the  guard,  who  were 
mon  the  north  aide  of  ihe  KalTold  ;  aod  saw 
ttt  f%aud  makinif  motioa  with  hii  fuzic  to 
keqt  off  Ihe  mob;  aod  afterwards  liimrd  lo- 


-  vbubioldierlhedeiKHieDtiawprewDlkiafire- 
•  -  M;  and  law  another  ilone  hit  (be  aame  sul- 
fa; and  thereupuD  the  said  soldier  pointed  hiii 
Mack  wcalward,  and  fucd  immediately  ; 
v.-  ipi  aaMheraoUMT  fired  iinineduildy  at\er  him; 
>  -  ihicti  firiagi  took  tlte  defwneJit'B  ryei  f/urn  olT 
^  Acpaual;  and  which  two  firiiit,i,  tbfldepo- 
««.'     anttbiako,  wen  the  lint  iJiat  wtjre  tired  by 

y~.  Ikaaidtwo  wldien  who  had  adtauced  ajnoug 
fm.-  ikt  crowd  trom  their  parly.  Cauia uitntit 
^  .  filet.  Andtliia  ia^betrulli  ai  ho  should  ao- 
^     tWtoGod. 


i 


KJJhh  JUeaaie,  lerjeaal  in  the  city  guard 
if  Bliiobwgh,  aged  48  year*,  or  ilineby,  mar- 
tiii.ioteDiniy  iwom,  pureed  of  nalice,  par- 
tittfipancil,  examined  aod  interrogated,  Ue- 
fmi,  Tho  tine  and  place  libelled,  and  about 
tttliaie  the  deceased  Andrew  Wilton  was  cut 
fan,  there  wBaafaoweiaof  atonei  thrown  at 
IhifBird,  partieulariy  oue  biff  atone  lig-lited 
tonit  tM  depoaent  and  aerjcaat  Fiuhiy ; 
itm  three  pound  weight;  and  that  the  dritm- 
■t  waa  cut  in  the  head  with  a  ataue,  aod  ihe 
^Mitnick  with  a  atone ;  and  that  Alexander 
KHbeat,  cenliBeH,  one  of  tlie  guard,  had  lii« 
dMdet  Made  bn^  wiUt  a  otone  ;  aad  Uiat 
Mfttbctcatroketwere  given,  ibe  depooei^, 
%«d«r«r  tbe  pasnd,  waa  drawing  olT,  and 
•■■H  bia  Men  in  the  foot  of  ttie  How ;  that 
fafanad^TO  Ibe  deponent  hie  fuaie,  wtiicli 
nilkafanelhe  {tanoel  ordinarily  carried,  tn 
i«f,  while  Jie  atlended  iJie  executioa,  and  tile 
paycn;  which  Ihe  deponent  returned  to  Ibe 
pMatagMio,  upon  tlieajgii'i  beii^  giren  to 
MdowB  Wikoo,  and  before  the  pauoel  came 
■Mnlrora  Ibeacaffaid,  Cauia  Kienliit  paid. 
llj  tha  ii  the  Irulh  aa  be  almll  anavrer  to  God. 
Sie  SubKribitur,  Wili.uii  Meane. 

3».  Mackenzie. 

AUnmier  Campbell,  apprentice  to  George 
JNgg,  aorgeon  in  Edinburgh,  aged  IByeara, 
*dMmbj,  unniarried,  Koleraoly  airorn,  iiurged 
w nalioajpartial  council,  examined  and  inter- 
—'  •    Deponeil,  Tliut  at  the  time  and  place 


?S:i 


I     ft«gwn 


«tbro 


^ — ,  — ........>  .». —  -  aniong 

Mgwird  aHer  Wilson  was  cut  down ;  and 
"  '  of  the  aoldiera  of  the  guard  step  asidr 
,  _-  — oqg  the  real  and  Src  ;  and  llu^c  were 
**1lni  flrat  ihols  tliat  he  lieanl.  ( 'ansa  iricn- 
«ftttet.  And  this  is  tlic  truth  aa  he  aboil  ati- 
*~TteQod. 

JlieSvbierUiitur,        Ai.ex.  Campbiu.l. 

Jl.  MACKENZIt:. 


A.  a.  1736.  [9&2 

itallhaf  Ratcert,  solilier  in  tbc  city  gu:utl 
of  Edinburgh,  agdl  40  years,  or  thi-rcby, 
married,  solemnly  aworn,  purged  of  malice, 
partial  council,  examined  and  ititerro<,'ate^, 
deponed,  That  he  was  preient  at  Wilson 's  exe- 
CHtion  at  tlie  time  libelled  ;  and  that  before, 
and  after  Wilwu  was  cut  down,  there  was  ■ 
great  many  stones,  both  great  and  small, 
thrown  among  the  guard  by  tbe  mob ;  thai 
after  the  panoel  carae  down  from  the  scafTuld, 
he  saw  him  waTe  bis  piece  he  had  in  his  band, 
hot  did  not  offer  to  present  it ;  then  he  saw  a 
siridier  step  out  fruoi  Ibe  rest,  and  tire  bis  |tiec< 
IB  the  air;  as  likewiw  two  or  ihrea  suldieri 
that  firod  tbereafier,  did  hkewise  fire  lUeii 
pieces  in  the  air ;  and  that  those,  who  fired 
first,  were  alanding  cloes  by  the  pannel,  ami 
the  deponent;  and  tbcsr  were  the  ftrst  ahoU 
he  heard  that  day  ;  and  he  heard  the  soldien 
■ay,  one  to  auotker,  Fire,  or  we  shall  all  b« 
knoekad  duwa ;  and  upua  more  atones  being 
thrown  among  them,  several  of  tbem  did  lire ; 


abola  wore  fired,  tlie  caplain  inarched  up  tO' 
wards  the  Row,  and  tbe  men  tullowed  him : 
that  at  the  lime  that  the  shois  were  fired,  ai 
•fonsid,  the  pvcnel  was  standio!;  at  tlie  font  oi 
Um  sleps  of  the  scaffold,  with  his  fuce  lowardi 
tlic  oaollei  and  deponed,  he  was  ouc  of  tkoM 
that  followed  ibe  caj>iBii>,  nor  did  he  see  tjii 
captain  fire,  as  Im  was  gt>inK  up  tbe  Ilow  :  tba 
when  the  coptiiin  wis  luarubiiiif  ou  tlio  brad  oi 
the  tOFn.  up  the  How,  he  heard  a  drnppiiig  slio 
or  two  fii-ed  from  the  rear ;  nor  did  be  see  thi 
co^in  return  Bl^in  tniiardii  llie  scatlbkl,  lu 
marched  alraigbl  on  up  to  tlie  town.  Caiin 
irientia  putel.  Anil  tiiir^  is  the  trutli  as  hi 
shall  answer  to  God.    And  declared  he  canno 

Sie  Subtcriiitur,  J  a.  Mackenzie. 

TJa-cii  Marline,  soldier  in  the  city  guard  o 
Edinburgh,  aged  40  years,  or  thereby,  married 
solemnly  sworo,  purgfd  uf  malice,  partia 
council,  esamined  nniT  interrogated,  deponed 
Tliat  he  the  deponent  wax  one  of  the  parly  o 
the  city  tfuard,  n  ho  altendeil  the  ejfecution  o 
Andrew  Wilson;  anil  before  iht're  was  anj 
firing  he  did  hear  llit  pannel  call  to  them,  no 
to  fire ;  and  before  ihal,  llie  deponent  had  hi: 
fihouliler  hiade  dis^niiiied  with  a  siruke  he  rC' 
ceited  upon  it  with  a  stone.  Causa  icienlu 
putit.  And  this  is  the  truth  as  lie  slmuld  an 
swer  to  Gnd.  And  declared  he  cannoi  write. 
Sic  Subfcribitur,  IJ.t.  Ebskinb. 

WiUinm  Byret,  aoldier  in  the  city  guard  o 
Edinburgli,  age<l  51  years,  or  thereby,  married 
solomoly  Bwom,  pnri^ivl  of  midiue,  parlio 
council,  oxamined  ami  iutcrrogaicd,  deponed 
That  he  was  one  of  tlie  city  t;uard,  who  at 
tended  the  execution  of  Andrew  M  ilson  ;  am 
that  he  did  not  hear  captain  I'ortcous  give  anj 
orders  h>  fire ;  but  nl>en  the  firing  hapi>CDed 
he  was  at  some  distance  from  the  pannel;  afte 
the  firing  of  iteferal  shots,  the  pnnnel  cailci 
uulo  the  Nldiera,  to  fall  into  thtir  vauV' 


083] 


10  GEOAGfi:  II. 


Trial  of  Captain  ForteouSt 


\m 


follow  him ;  ivbich  according^ly  the  deponent 
iind  the  rebt  did ;  falling  in  gradually  z^  they 
were  able ;  and  followed  him  to  the  guard- 
house till  they  were  dismissed  ;  and  iu  their 
inarch  up  tlie  Bow,  did  bear  one  shot  that  came 
from  the  rear,  but  by  whom  he  knows  not. 
CmAia  scientia  paUt.  And  this  is  the  truth  as 
he  should  answer  to  God. 

Sic  Subtcribitur^  Wiluam  Byres. 

1)a.  Ersjune. 

r 

Jiunei  Armout^  writer  to  the  signet,  aged  60 
years  and  upwards,  married,  solemnly  sworn, 
purged  of  malice,  partial  council,  examined  and 
interrogated,  depoued.  That  he  was  looking 
oYer  a  window,  to  see  the  execution  of  Andrew 
Wilson ;  after  the  criminal  was  thrown  over, 
and  cut  down,  he  obserred  the  croud  of  people 
throwing*  stones  of  considerable  bigness,  but 
against  whom  they  were  directed,  he  knew  not, 
but  they  fell  among  the  noldiers ;  upon  which 
he  heard  two  or  three  shots,  but  from  whose 
hands  he  did  not  olwenre :  thereupon  there  was 
an  intermission  for  two  or  tliree  minutes ;  but 
thereafter,  when  the  pannci  with  his  party  were 
retiring,  which  they  did  iu  great  confusion  and 
disonler,  thecrond  pursuefl  after  them,  renewed 
the  throwing  of  great  stones,  and  in  great 
nuuii»er;  upon  which  some  of  the  soldiers 
turned  about,  aixl  murchcd  back,  some  eight  or 
ten  paces,  still  in  disorder ;  and  then  heard  a 
good  numlter  of  more  shots  tired  ;  which  to  his 
grief  he  saw  did  ereat  execution.  Catt$a 
st:ientite  patet,  Auu  this  is  the  truth  as  he 
should  answiT  (o  (jod. 

Hie  Subscribitur^  James  Armour. 

Da.  lilRSKlNE. 

John  Robert  son,  stabler  in  the  Grass- mcrcate 
of  Edinliiir^li,  Oifcii  30  years,  or  thereby,  mar- 
ried, solemnly'  sworn,  purifcU  uf  niulice,'  partial 
couiicil,  examined  and  interrogated,  deponed, 
That  at  the  time  libullcd,  as  he  stood  in  his  own 
window,  iu  the  Giass-niercate,  he  saw  tho 
panntfl  with  his  piece  in  his  hand,  niofing  it  to 
and  agiiin,  kci'pin^  off* the  niub  ;  and  heard  him 
say,  Pire,  or  1  will  fire,  does  notknow  which  of 
the  two  :  that  imiuediately  after  this,  he  saw  a 
single  man  Ktep  out  ilirue  or  four  paces  before 
captain  PortCiHis,  and  fire  bin  piece;  and  the 
deponent  verily  believed,  that  the  people  who 
fell  near  his  cios.«,  ;;oie  their  wounds  by  that 
shot;  brrauiie  they  wore  lying  in  that  place 
towards  which  the  man  seem  to  point.  De- 
poned, that  he  heard  some  tiring  tow&rds  the 
loot  of  the  Bow,  Itefore  the  last«mentioned  shot. 
Causa  Silent ia patet.  And  this  is  the  truth  as 
he  sbou'ii  an-^wtT  to  God. 

i&'c  Subtcribitur^         Juiin  Robertson. 

Glut.  £liut. 

George  Vint,  coal  grieve  to  sir  William  Hnird 
of  Ne*ibvth,  aged  46  vears,  or  liiercby,  mar- 
riefl,  sfdeuiuly  sworn,  purged  of  inulice,*  partial 
council,  exa'iiined  and  interrfigateil,  de|K)ned, 
That  at  the  time  libelled,  he  was  in  John 
Uobertion's  window  in  the  Ghnss-mercate; 
Vfkta  h«  obterveU  tbepannd  moving  hit  piece 


to  and  again,'as  if  keeping  off  the  mob ;  aod 
at  the  same  time  be  saw  one  of  the  mhlien,  a 
black-haired  man,  step  forward  before  the 
pannel  and  fire  bia  piece;  upon  whieb  the 
pannel  turned  about,  to  him  and  puhed  him 
mto  his  rank :  deponed.  That  be  did  not  seethe 
pannel  fire  at  that  time,  or  anv  other ;  and  that 
the  mentioned  shot  was  the  first  he  beard  sr 
saw  that  day.  Causa  scientia  paid.  And  tbii 
is  the  truth  as  he  shall  answer  to  God. 

Sic  SubtcribitUTf  Georqs  Vnr. 

GiLB.  EUOT. 

Alexander  Thornton^  town  officer  in  Edin- 
burgh, aged  40  years,  or  thereby,  mafried, 
solemnly  sworn,  purged  of  malice,  partial  cood- 
cil,  examined  and  interrogated,  de|ioned,  Tbit 
being  upon  the  scaffold  onthe  14th  of  April  last, 
when  Wilson  was  executed  ;  the  pannel  sent 
faim  to  the  magistrates,  who  were  in  WilUani 
Orr's  house,  to  know  of  them  how  long  the 
criminal  should  yet  hang  upon  the  galk»ws ; 
that  he  returned  to  the  pannel  with  the  magis- 
trates direction ;  which  was,  that  he  should  still 
hang  a  quarter  of  an  hour  ;  but  before  the  half 
of  that  time  was  expired,  Wilson  was  cut  down. 
Causa  scientia  patet.  And  this  it  the  tmib  as 
he  should  answer  to  God. 

Sic  SubscribituTf  Alex.  Tromsoh. 

GiLB.   EuOT. 

Peter  Coulstoun,  merchant  in  Edinbnrgb 
aged  25  years,  or  thereby,  married,  aolemnlj 
sworn,  purped  of  malice,  partial  council,  ex- 
amined and  interrogated,  deponed.  That  time 
and  place  libelled,  and  afler  the  first  firing,  the 
deponent  being  standing  under  the  nortb-wnt 
comer  of  the  Curn-mercate,  saw  the  pai:Dci 
march  the  guard  under  his  command  up  the 
West-  bow  ;  and  saw  several  of  the  rear  of  that 
guard  fire  upon  the  people  assembled  at  the 
execution ;  and  at  the  seme  time  observed, 
that  the  pannel  was  withiu  the  lirst  turn  of  the 
West  Bow,  and  so  out  of  the  depi>nent's  view. 
Causa  scientia  patet.  And  this  is  the  truth  u 
he  should  answer  to  God. 

Sic  Subscribitur^  Pet.  CouuTOcy. 

An  DR.    FLEfCBCB. 

John  Kcnnedi/,  surgeon  in  Edinburgh,  aged 
50  years,  or  thereby,  married,  solemnly  sworo, 
purged  of  malice,  partial  council,  examioed 
and  it)terroL;;aled,  deponed.  That  some  short 
time  after  the  execution  of  Andrew  Wilsoo,  io 
April  last,  the  deponent  attended  the  persons  ef 
the  town  guard  after- mentioned,  viz.  Alexander 
Mushet,  soldier,  the  spine  of  whose  shuulder- 
hoiie  was  crushed,  and  Alexander  Braid,  soldier, 
who  had  a  contusion  in  his  rij> lit  foot  ;  both 
which  persons  informed  the  deponent,  that  they 
received  these  hurts  at  tlie  execntiou  of  the  uw 
Andrew  Wilson  ;  and  thut  the  last  mentioned 
lierson  is  lame  to  lliii  day.  Causa  scientia 
patet,  the  deponent  was  employed  to  wait 
upon  the  saids  persons.  And  this  is  the  troth 
as  he  should  answer  to  God. 

Sic  Subscribiiur^  John  KkcneoY. 

Andb.  Flbtcbu- 


IBS]  fir  Murder. 

Th«  l4iri»  Jailiee  Clerk  and  Coromia- 
Minen  of  Jiutieiary,  onlained  ifac  aasixe  to  in-  I 
;lose  initantlj  io  a  room  preiiared  fur  ihem  io  j 
be  Eichcqner,  and  return  thvir  Terdict  in  ibe 
)lil  Court  Houta  lornOTrow  at  four  o'clock  at 
li^ht ;  and  the  liaill  fifteen  to  be  then  preseut ; 
•ach  penon  uoder  the  pain  of  lair  ;  and  ibe 
MDoel  to  be  carried  back  to  priion.  i 

CcBU  Jcsncuuf,  8.  D.  N.  Regis,  tenta  in  ! 
Pnetorio  Burffi  de  Edinburgu,  Vigeiimo 
dieHeiifiiJulii,Blill<?iimoKptineeDlesimD  | 
trigeiimo  KXlD,  per  HoDOrebtlet  Vims 
Andream  Fletcher  de  Miltoa,  Juiliciarium 
Clericum,  DomiDum  Jacobum  Mickeusie 
de  ItoyitouD,  Maeiitrnm  DaTidetn  £r«- 
fciiie  de  Dun,  Domiooa  Gualterum  Pringle  ' 
de  Newhill,  et  Gilbeitum  Eliot  de  Mintn, 
ComniiHioDacuM  JoMiciarii,  diet.  S,  D.  N. 

Curia  legittirofe  affirmali. 

^  Mm  Forltout,  lately  one  of  ibe  captain 
iluleiumta  of  the  clly  ({uard.  pannet,  indicted 
od  accused  la  in  the  tbrmer  Scderunls. 


iceoftheaaida lords:  wLereol'lbele 


EoiNBURon,  July  30,  1736. 
The  above  iniee  liaf  in)^  incloied,  did  choice 
ir  John  lni{lia  of  Cramoml  to  be  Ibeir  cbau- 
dw  ;  and  Jamei  DatidsoD,  bwikifller  in 
Bfthprgh.  to  be  their  derk :  and  liavinr  con- 
•facd  the  indictment  Ht  ihe  instance  of  Dun- 
en  Forbea  nf  ColloddeQ,  esq.  his  raajctly's 
AlTOcat  for  his  liighnrsi  interest  againit  Juhn 
Pmeoat,  late  one  of  (he  captain  lieutenants 
«ftka  city  ^ard  of  Eilinbuntb,  liannrl,  with 
ikatardjuiOice  clerk,  and  lords  commisiiaoen 
if  jnsliciary,  tlieir  interlixguiiar  tlierenpun  ; 
toi  depoBitiooi  of  the  witnesses  adduced  for 
piMiDg  Ihereof:  the  pannel's  own  judicial 
ewfrMton,  and  'leposiiinns  of  the  witneMes  ad- 
'octd  for  the  saiil  Juhn  Purteuui,  pannel,  his 
uculpatioD:  they  ail  in  one  toice  Tsod  it 
FBTtD,  That  the  said  John  Porteous,  pannel, 
md  s  guQ  amuni;  tlie  jieopte,  assembled,  at 
Ibe  place  of  execution,  and  lime  libelled.  As 
■JH,  that  he  gave  ordeii  to  the  Buliliers  under 
u  eiHDinand  tu  fire;  and  n]>ou  his  end  their 
■  firing,  the  perMinii  menliuned  in  the  indiet- 
■nt  were  killed  and  wuiimled.  And  fand  it 
pOfsn,  that  llie  pannel  and  bis  guard  upre 
•Mud  and  beat  by  seieral  stones  of  a  cousi- 
*nUe  bigness,  thrown  omoiij;*!  them  by  the 
■•tttodei  whereby  several  of  the  soldiers 
*m  bruised  and  wounded.  Id  wimess  where- 
Wournid  ehsncellor  sod  citrrk,  in  our  name, 
Nnndwcribed  their  prescotd,  day  ain)  place 

^cSHbtCTibitur,      Jo.  I\nus,  Cltanc. 

James  Davidsun,  Clerk. 
tW  Lord  Justice  Clerk  aod  Lordi  ConnDii- 


A.  U.  1736.  [98 

^piters  of  JuxticiaTy,  bavintr  considered  the  t« 
diet  of  assize  reiaraed  a<;aiiiM  John  Porteni 
paonel  of  this  dale,  they  io  respect  thereof,  t 
the  mouth  of  John  Datgleish,  dempsierofcoui 
decerned  and  adjud^^ed  the  sniil  Jolm  I'urienu 
to  he  taken  from  the  Tolbooih  of  Kdinbui^l 
upon  Wednesday  ibe  8lh  day  of  Sipterah 
nent  to  come,  to  the  Orasi  mercate  bf  KiUi 
burgh,  the  common  place  of  execulion  < 
the  said  burgh,  betwixt  the  hours  of  two  ai 
four  of  the  clock  of  the  atternooii  nf  tliL>  ih 
day,  and  tbere  to  be  banged  by  the  neck  u|k 
a  Eiibbet,  by  the  handa  ol  the  executioner,  ui 
til  he  he  dead  ;  and  ordained  all  his  moieab 
goods  and  gear  to  be  escheat  and  iubrvught  i 
tail  majesty's  nse,  which  was  prouooncnl  ti 
doom.  Sit  SukKr'MlUT,  And.  pLBTcnn 
Ja.  Hackekzie 

1>*.    EUKTKE. 

Wa.  Princu. 

GiLB.    EUOT. 

The  priioner  beiog  thus  ordered  for  execu 
tion,  presented  th«  ToUoning  Petition  1«  hi 
majesty  ; 

To  Ber  Uost  Excellent  Majccly, 

QUEEN.  CAROLINE, ' 
GuAuiiAif  or  THESE  Realms  : 
The  most  humble  Petition  of  John  Poi 
TE0U3,    late  cams  in -lieu  ten  ant  of   tb 
City-guard  of  Ediobui^li ;  ddw  and* 
sentence  of  dcatJi: 
SUeweth  ; 
That  a  certain  person  named  Anitreiv  tVil 
son,   being  coniirted  in   the   High  Court  t 
Justiciary  nf  Scotland,  for   u  robbery  of  t1: 
public   money,  committed  on   the  high-wa; 
wan  sentenced  to  death  for  that  nltrnce  ;  and' 
bring  anprehended,  the  populac 
the  said  offender,  or  commit  sii 


i«  uppoinied  b 
~    attend  sue 


the  magislraieii  of  ilic 
exfcntion  with  a  detachment  of  the  ciiy-guar 
with  orders  to  see  the  same  duly  executed,  at 
to  suppress  any  tumults  that  iiiitjlit  happi 
upon  that  occnsian  :  and,  for  that  end,  the  sa 
delachraent  bad  powder  and  ball  delivered  i 
them  nut  ofthe  city  masazine. 

That,  while  the  said  offender  was  hangin 
upun  the  gibbet,  the  populace  be^an  to  insli 
to  have  his  l>ody  cut  down,  before  llie  msgii 
trates  had  given  orders  fur  tli»t  purpose ;  an 
your  petitioner  having  no  autlioriiy  to  uoosei 
thereto,  without  such  orders,  they  Ibreatned  t 
cut  him  down  by  force  ;  and.  in  order  to  to  dc 
croutled  in  great  numhurs  upon  your  petition* 
and  bis  men,  and  did  actually  assault  tbet 
with  large  afnes,  by  which  several  ^  th 
dttaohment  were  hurt  and  wnanded. 

That,  durinit  this  tumult,  direta  of  the  n) 
detachment,  without  order  from  \tmi  ne:; 
tioner,  unfortunately  lircd  upon  tLe'mulrtoA 
whereby  several  peiaoua  wert  killed,  ai 
Others  wounded. 

That  your  |>tiitioiKr,  «fta  V»-^t 


987]  10  GEORGE  11. 

utmoit  eDdeaToars  to  restrain  such  drmishy 
bis  mea,  perceiviog  tlienn  to  run  into  coiifusiou, 
and  to  act  without  orders,  drew  them  off  as  fast 
as  possible  to  the  g'uard  ;  and  committed  such 
as  lie  sus|)ected  to  have  fired,  to  the  custody 
of  the  guard,  tog^ether  with  their  pieces,  which 
he  orf^red  to  be  kept  for  inspection,  in  the 
aame  condition  as  they  were  then  in. 

Tiiatyour  petitioner  beini^  accused  of  having^ 
himself  fired  upon  the  multitude  on  this  occa- 
sion, and  also  of  having^  ordered  the  detach- 
ment to  fire,  without  any  just  or  reasonable 
cause,  your  [»etitioner  was  put  upon  his  trial  in 
the  High  Court  of  Justiciary  aforesaid,  for  the 
aaid  supposed  offence,  and  the  jury  empan- 
uelled  to  try  your  iietiiionor,  by  their  verdict, 
found,  That  it  wns  proved,  that  your  peti- 
tioner had  fired  a  ^uii,  and  also  had  given 
ordi'trs  to  the  detachnietit  and  guurd  under  iiis 
command,  to  fire  upon  the  multitude  so  assem- 
bled; from  which  firing,  either  of  your  peti- 
tioner, or  of  the  dutacthineut  of  guard  uuder 
bis  command,  by  his  order,  the  several  per- 
sons Kpcciiioil  in  the  in.lictnient  aj^ainst  him, 
were  rcspectivciy  killed  and  wounded.  And 
filso  found  it  proved,  that  the  mub  assembled  at 
the  execution  ul'urc^said,  did  invade  and  attack 
your  peliliouer,  and  the  detachment  of  guard 
under  his  command,  with  stones,  of  a  consi- 
derable bignt'S:!,  whereby  several  of  the  men  of 
the  guard  were  bruised  and  wounded. 

V\ton  which  verdict  returned  Uy  the  jury, 
the  Court  decerned  and  adjudged  your  peti- 
tioner to  be  hans^eil  upon  a  gibbet,  upon  the 
eighth  day  of  September  next. 

Th^t  though  your  [letitioncr  is  sensible  of 
thatdtfemice  and  rc^spcct  that  is  due  to  the 
viT;!i;^t  of  a  Brills  I',  jury,  yet  he  hnnihly  begfs 
Ic:iio  t<i  represent  to  your  most  irxccllcnt  ma- 
jesty, the  following  oiicumstauci's  as  they  ap- 
peared upon  his  trial  ;  to  wit,  That  the  evi- 
dence against  your  petitioner,  as  to  his  having 
fired,  or  given  orders  to  fire,  was  very  contra- 
dictory and  inconsistent ;  for  though  some  of 
liie  witnt'sses  deposed,  that  your  petitioner 
fired  the  first  shot,  yet  they  differed  extremely 
a!i  to  yuur  [letitioner's  situation,  at  the  time  he 
is  alled^jful  to  have  so  fired,  as  well  as  in  other 
inrcumslances ;  some  placing  him  at  one  corner, 
and  others  at  a  quite  opposite  corner  of  the 
scufibld  :  some  allcdging  that  none  of  the  sol- 
diers were  then  near  your  petitioner,  and  that 
iio  other  shots  were  tired  at  that  time  ;  while 
others  describe  your  petitioner  as  encompassed 
uith  soldiers,  and  say,  that  several  shots  were 
fired  instantly  upon  your  petitioner's  firing 
such  first  biiot ;  and  some  agree,  that  the  firs^ 
sliot  was  not  fired  by  your  petilionur,  hut  by  a 
ccutintl  of  the  guard,  who  was  close  by  your 
pefitioiicr. 

Vf'hcrcas,  a  great  many  persons,  of  un- 
doubted credit  and  veracity,  produced  on  the 
part  of  your  petitioner,  expressly  swore,  that 
during  the  whole  time  of  the  firing,  (which 
continued  alK)ut  four  or  five  minutes)  they  took 
rxact  notice  of  your  pefitioner's  behaviour  and 
iKiiuiuct|«iidfoiikl  not  obeore  that  he  find  at 


Trial  of  Captain  PorteouSf 


[98B 


all ;  but  that,  upon  tlie  mob^s  pretting  se- 
verely upon  your  petitioner  and  his  men,  and 
pelting  them,  with  large  stones,  your  peti- 
tioner called  aloud  to  keep  off,  otherwiie  be 
would  fire ;  and  that  upon  your  petitioner's  pmm- 
ing  his  piece,  in  order  to'^intiiiiidate  the  mob,  a 
cenfinel  of  the  guard,  (unknown  to  the  wit- 
nesses) advauced  from  behind  your  petitioner, 
and  fired  the  first  shot,  upon  which  one  of  the 
multitude  fell  to  the  ground:  from  which  ex- 
ample, they  supposed,  several  others  fired ; 
by  means  whereof,  the  several  persons  in  tlic 
indictment  mentioned,  were  either  killed  <)r 
wounded. 

And  as  a  farther  circumstance,  to  shew  that 
your  petitioner  did  not  fire,  it  was  proved,  that 
upon  his  return  from  the  execution,  year  pe- 
titioner went  directly  of  his  own  accord  to  the 
magistrates,  who  examined  his  piece,  sad 
found  the  same  loaded,  and  in  such  coiMitioD» 
that  they  agreed  and  were  satisfied,  it  bad  not 
been  fired ;  and  the  Serjeant  of  the  detach- 
ment attested,  that  your  petitioner  having  deli- 
vered his  piece  to  the  deponent  to  keep,  while 
your  petitioner  attended  the  dev<itions  tt  the 
execution,  the  deponent  restored  the  sunt 
again  to  your  petitionGr,  just  before  Toer 
petitioner  descended  from  the  scaflbld,  wVich 
is  a  strong  cireumstanoe  to  shew  that  veer 
pethioner  must  have  fired  his  own  piece,  if  he 
had  fired  at  all. 

Your  petitioner  also  begs  leave  hnrobly  tt 
observe,  that  when  a  band  of  armed  men 
arc  together,  and  some  of  them  fire,  it  is  veiy. 
difficult,  especially  for  those  at  a  distance,  to 
discriminate  the  persons  that  actually  fired; 
and  your  petitioner  is  in  charity  led  to  be- 
lieve, that  the  circumstance  of  your  |ietitioiirr  s 
levelling  his  piece,  and  threatning  to  fire,  at- 
tended with  that  of  the  centime's  having  Iked 
just  behind  your  petitioner,  may  have  iudnced 
some  unwary  persons,  in  tlie  heat  of  popabr 
iury  and  resentment,  to  be  too  ])Ositive  iu  ibs 
assertion  of  facts,  in  their  nature  dobioos  and 
uncertain. 

And  as  to  your  petitioner's  having  giffii 
orders  to  the  men  to  fire,  though  two  or  three 
])ersons  gave  evidence  against  your  petitioaer 
as  to  that  fact,  yet  neither  did  they  agree 
touching  the  place  where  your  |>ctitiouer  ms 
standing,  nor  in  the  fonn  of  wonls  pretended 
to  be  used  by  your  petitioner  in  the  giving 
thereof.  Wticreas  it  was  deposed  by  a  great 
number,  particularly  of  the  soldit*rs/who  wen 
close  by  your  petitioner  during  the  whole  tinK 
of  the  fray,  that  they  could  not  observe  thst 
your  petitioner  gave  any  such  orders  ;  hut  so 
the  contrary,  that  he  csdled  aloud  to  the  met, 
Don't  fire,  and  that  he  pusheil  back  the  min 
that  fired  the  first  shot  into  his  rank,  (which 
shews  that  your  iietitioiier  did  not  ap|Hwrt 
thereof;)  that  he  drew  off  the  men  as  fast  si 
he  could  ;  and  that  being  pursued  and  pelted 
by  the  populace,  divers  in  the  rear  luraed 
about  and  fired,  when  your  petitioner  was  it 
auoh  distance,  that  he  could  not  posiiU/bt 
privy  or  conseating  thereto. 


9S9]                             for  Murder.  A.  D.  17S6.              [gSO 

It  vrat  likewise  oliseircf]  at  the  trial,  and  ooC  leanmo  septingentesimo  tri^esimo  into, 
eoiitradicted,  that  upon  many  former  occasioiia  per  Houorabiles  Vims,  Andreara  Fletcher 
of  tumults,  when  your  petitioner  with  the  de  Milton,  Justiciarium  Clericnm,  Do- 
guard  hath  been  ordered  to  quell  the  same,  minos  Jacohnm  Mackenzie  de  Rnystoun, 
your  petitioner  had  bore  gpreat  insults  from  the  Oualternm  Pringle  de  Newall,  Commis- 
populace,  even  to  the  danger  of  his  life,  with-  sionarios  JusticiariiB  dicti  S.  D.  N.  Regis, 
oat  firing,  or  ordering  his  men  to  fire,  and  that  Curia  legiltimJi  affirmata. 

ffi^fi^  II^'T ''?  T^i  !!T  ^^  ''''"  ^"''  The  nid  day  the  Ix>rd  Justice  Clerk  deli- 

tifiedbv  the  law  in  doing  cither  ^^^  ^  letter  Vm  his  grace  the  duke  of 

So  tRat  upon  the  whole   as  your  petitioner  ^^^^^^     one  of  his  majLy's  principal  m^ 

kath  the   inward  FQtuifaclion   ot  being  con-  «»^.«:^  ^r  «*.4^  ^K«-^f  ♦u^  ♦-«il  ^uii^  - 

...       ir  r  1 :   •           ^^  .  e  *i^  r.^«-  GTetaries  01  State,  whereof  the  tenor  follows  : 

■oons  to  himself  of  his  innocence  of  the  facts  ' 

charged  against  him,  so   he  humbly  nppre-  _,    ,     ,         Whitthall^  Augugt  86,  1736. 

bends,  that  tlie  evidence  adduced  to  prove  the  My  lords,  apphcation  having  been  made  to 

mne,  when  compared  with  your  petitioner's  j»«  ro«jerty  in  the  behalfe  of  John  Porteous, 

defence,  will  not  appear  to  be  certam  or  con-  »^  caplsin  lieutenant  of  the  city  guard  of 

dusite.  Edinburgh,  a  prisoner  under  sentence  of  death 

But  in  case  your  petitioner  had  been  guilty  "9  the  gaol  of  that  city  5  1  am  commanded  to 

tfther  of  firing,  or  ordering  his  men  to  fire,  sigrmiy  to  your  lordships  her  majesty's  plea- 

vpon  the  occasion  aforesaid,  yonr  petitioner  »"»^»  that  the  execation  of  the  sentence  pro* 

Biost  humbly  intreats  your  majesty  to  consider,  nonnced  against  the  said  John  Porteons,  bo 

that  your  petitioner  was  in  the  exercise  of  a  respited  for  six  weeks  from  the  time  appointed 

»Wt  delegated  to  him  by  the  lawful  civil  au-  f^  *>«  execution.      I   am,    my  lords,  your 

thority  ;  that  he  and  his  detachment  were  first  lordsbi|>s  most  obedient  humble  servant, 

ttlifewfully  assaulted  and  invaded  by  the  po-  ^^^  Sahscribitur^        IJollbs  Newcastlb. 

poboe,  aiid  divers  of  his  men  bruised  and  hurt ;  Directed  on  the  back  thus:   «*  To  the  richt 

ud  if,  in  the  case  of  such  an  insult  upon  the  hou.  tlic  Lord  Justice  General,  JusUce  Clerk, 

kws,  vour  jicUtioner  bad  proceeded  to  repel  and  other  Lords  of  tlic  Justiciary  at  Edin- 

Ibree  by  force,  yonr  i>etitioner  humbly  begs  tmrgh." 

leave  to  obser^'p,  that  thooirh  he  should  look  m,        n       ^i         •  1  1     1            «t.  • 

Uck  with  the  utmost  «)rro/n,,o..  so  fatal  an  „^''f ^tf "'  '''f  •»"• 'S^.«  p^V*"?'  V" 

event,  yet  he  humbly  hopes,  tiat  the  provuca-  "?"''  '"  »!'«  "«•?«'«'«»•  «»  td.nburgh,  for  stop. 

lion  ana  aggression  afoisaid,  would 'be  con-  P'"?  *!'«"''>  execnt.«»,  whweof  the  tenor  Jul- 

^1       11**           -.    *          iiL  4 :«.»-.     :^  lows:  Hy  the  riufht  honourable  the  Lord  Jus- 

^ered  by  your  most  excel  cnt  majesty    in  .      ^.,^^>^    t|.e  Lords  Commissioners  of  Jus* 

your  profound  wj«lom.  as  a  great  extenuation  ^  j          Wheix as  her  majesty,  guardian  of  Ui, 

of  an  oifeucc,  which  <jould  not  be  supposed  i,:„^/o,np    1,-.  been  irracious  v  uleased  bv  • 

to  be  attended  with  any  prqicnse  malice  of  rJ"?_  °  "^^ .."?_  i?"  ?J^^^^^^ 

yonr  p 

had  no 

yuMbedeemed  a  proper  object  of  the  royal  ^^^^^ „,.j^^j^  pronounced ai^iinstjohn  Porw 

^~^  ^'                   .4,                   .       Lt  teoiis,  late  captain  lieutenant  of  the  City  Guard 

Your     petitioner  therefbre   most    humbly  of  Edinburgh,  present  prisoner  in  the  TolboolU 

pny%  your  most  excellent  majesty,  to  Uke  your  ^^  Edinburgh,  which  was  to  have  been  executo 

patHumer'a  unfortunate  case  into  your  royal  „pon  him,  upon  the  eighth  day  of  September 

oomnderation  ;  and  to  extend  that  mercy  and  instant,  be  respited  for  six  weeks  from  the  time 

compasttun  to  your  petitioner,  by  which  your  appointed  for  his  execution  :  These  therefore, 

iujcity,   adorned    with    all    excellent    and  io  obetlience  to  her  majestie's  commands,  dia- 

priDeely  qualities,   is  so    remarkably  <listin.  charge  and  prohibite  the  magistrats  of  Edin- 

gaislied ;  and  that  your  majesty  will  be  jrra-  burjjh,  and  all  other  officers  of  the  law,  from 

cioualy  pleased  to   issue  your  royal  warrant  putting  the  foraaid  sentence  of  death  in  execu- 

for  yoor  petitioner's  pardon.    And  your  ncti-  jjon,  upon  the  said  John  Fbrteous,  till  the  20lh 

Ikmer,  whose  doty  bath  hitherto  rendered  him,  of  October  next  to  come;    on  which  day  the 

oa  all  oocasions,  most  zealously  attached  to  gaid  magistrats  of  Edinburgh  are  hereby  re- 

liiB  n^yesty,  and  our  happy  constitution,  will,  quired  ^nd  ordained  to  put  the  former  sentence 

fraiD  the  addilional  bond  ot  the  most  powerful  of  deaUi  in  execution,  upon  the  said  Juhn  Poi^ 

gratitude,  devote  that  life  to  the  service  of  his  teoua  in  all  points,  as  they  will  be  answerable. 

aoa  excellent  majesty,    and   his  illnstrious  Given  at  Edhiburgh,  the  8d  day  of  September 

faouae,  which  be  shall  enjoy  as  the  fruit  of  ^736  yeara. 

your  miOcsty's  clemency  and  grace.  ^  Subicrihihir,           Ajid.  Fixtciier, 

-__  j^  Mackbs/.ie. 

Ilflr  majesty  was  pleased  so  far  to  comply  \Va.  I^rinole. 

wkh  thtt   Petition,  as  to  graut  a   reprieve,  ^            ,       .-.•*.'«...' 

vbioh  vat  sigaified  as  follows  :  [Extracted  forth  of  the  Books  of  Adjournal, 

upon  this  and  the  preceding  one  hundred  and 

CsBU  JosTiCMRiA  S.  D.  N.  Re^is  tenta  in  twenty  four  pB(fi-s.      By  nic  John  Davidsou, 

Nofo  Senionis  Domo  Burgi  de  Edin-  Clerkto  the  Cou  it  of  Justiciary. 

togo,  Tertio  Die  Meiisis  Septerobris  Mil-  Joun  Davipion,  Clerk.] 


«>l} 


10  GEORGE  IL 


Trial  qf  Captain  PorfcouSf 


[991 


But  tbe  populace  beinf?  greatly  displeased 
THrilli  this  favour  shewn  to  captaio  Porteous, 
agninsi  wbom  tliey  were  migbtUy  incensed, 
audaciously  took  upon  tbem  to  execute  tbe 
sentence  tbemseWes.  Accordingly  on  Tuesday, 
Septenibertbertb,  about  10  o'clock  at  uigbt, 
(being  the  night  preceding  tbe  day,  which  had 
been  appoint^  by  the  Court  for  his  execution,) 
some  men  by  surprize  entered  the  city,  seized 
all  the  fire-arms,  battle-axes,  and  the  drums 
belonging  to  the  City  Guards.  The  mob  in  a 
lew  minutes  locked  and  secured  all  the  city 
gates,  and  with  drums  beat  an  alarm,  then  at- 
tempted to  force  open  with  hammers  and  other 
instruments  the  prison  door ;  but  these  failing, 
they  set  fire  to  it,  and  burnt  it.  When  they 
entered  the  prison,  they  called  upon  the  under- 
keeper,  who  was  within,  and  mad»himopen  the 
douole  locks  of  tlie  apartment  where  captain 
Porteous  was  ;  it  had  also  a  bolt  within,  but 
was  not  bolted,  so  they  had  rcaily  access.  lie 
begcfed  they  would  spare  him  till  next  after- 
noon ;  but  they  refused  his  request,  and  im- 
mediatety  hurried  him  away,  which  was  about 
eleven  oxlock.  When  brought  out  uf  prison, 
be  was  heard  to  cry.  They  then  marched  out 
"with  lighted  torches  before  them:  In  their 
way  to  the  Grass -market,  passing  by  a  barber*s 
sign-post,  some  called  out  to  iiang  him  up 
there :  but  it  was  rcsolrcd  to  hang  bim  where 
tbe  murder  was  committed ;  so  they  proceeded 
to  the  place  that  the  gallows  useil  to  be  fixed  for 
execution,  where  he  wus  about  a  quarter  of  an 
hour  till  they  opened  a  shop  and  brou^rht  out  a 
rope,  one  end  of  which  they  threw  over  a  sign- 
post, about  20  foot  high,  belonging  to  a  dyer  in 
the  High-street,  near  the  ordinary  place  of  exe- 
cution. He  desired  some  time  to  prepare  for 
death ;  but  they  answered,  They  would  allow 
him  uo  more  than  those  who  were  shot.  They 
then  pulled  bim  up  in  the  dress  in  which  they 
found  him,  viz.  a  night-gown  and  cap.  lie  hav- 
ing bis  hands  loosed,  fixed  them  'twixt  his  neck 
and  the  ro)>e,  whereupon  one  with  a  battle-ax 
struck  towards  his  hands.  They  then  let  him 
down,  and  having  on  two  shirts,  they  wrappetl 
one  of  them  about  his  face,  and  tied  his  arms 
with  his  night-gown ;  then  pulled  him  up 
again,  where  he  bung  next  morning  till  day- 
light. When  he  was  cut  down,  and  carried 
to  the  Grey- Friers  church,  upon  ins|)ecting  his 
body,  it  appeared  his  \et\  shonlder  was  wound- 
ed, his  back  diso<»laured,  and  his  neck  broke. 

It  was  observed,  that  this  mob  was  under  a 
stricter  concert  and  better  conducted  than 
usual ;  for  as  marching  along  to  the  execution, 
Porteous  observing  a  gentleman  of  his  ac- 
quaintance, he  gave  him  a  purse  of  23  guineas, 
which  he  desired  might  be  delivered  to  his  bro- 
ther. They  lell  the  prison  doors  open,  and  li- 
berty to  the  prisoners  to  make  their  escape ; 
and  after  tbe  execution  was  over,  they  left  the 
arms  and  drums  on  the  place  of  execution, 
where  they  were  tbund  the  next  morning, 
puring  the  tumult,  parties  of  armed  men, 
with  drums,  patroled  in  the  different  streets,  to 
prfveat  any  surprize  from  th«  king's  furcef , 


quartered  in  the  suburbs.  After  the  execmkNi 
was  over,  they  went  to  the  lord  provost's  home, 
and  told  him  they  were  satisfied,  and  so  dis- 
missed, without  offering  any  othe^  riolence. 

There  is  one  further  circumstaooe,  that  ia 
order  to  supply  the  want  of  cler]|fymen,  tbey 
ordered  two  ut  the  gravest  of  tbeir  Bumbcr  lo 
exhort  him,  as  he  went  to  tbe  place  of  exe- 
cution. 


The  following  account  of  the  czecotioD  of 
Wilson,  and  of  tbe  putting  to  death  of  caplaii 
Porteous,  is  given  m  the  Historical  Cbnmds 
of  the  Gentleman's  Alagasioe  of  April  and  Sep* 
tember  1736: 

«<  Thursday^  AprU  i  5. 

"  One  Wilson  was  hanged  at  Edinbargb  Isr 
robbing  Collector  Stark.  He  having  iiii3e  aa 
attempt  to  break  prison,  and  his  comrade  bar* 
ing  actually  got  off,  the  magistrates  bad  tlie 
city  guards,  and  the  Welsh  fusiliera  aadcr 
arms  during  execution,  which  was  peHbnocd 
without  disturbance;  but  on  tb^  bangmaa'i 
cutting  down  the  corpse  (the  magistrates  bnof 
withdrawn)  tbe  boys  threw,  as  usual,  mmt 
dirt  and  stones,  which  falling  among  tbe  city 
guard,  captain  Porteous  fired,  and  ordered  hii 
Hien  to  fire ;  whereupon  above  20  persons  wen 
wounded,  G  or  7  killed,  one  shot  through  tbe 
head  at  a  window  up  two  pair  of  stairs.  Tie 
captain  and  several  of  bis  men  were  after  com* 
mitted  to  prison.^' 

**  Tuetday^  September  7. 

<*  Betwixt  nine  and  ten  at  night,  a  body  of 
men  entered  the  west  port  or  iLdiuburgh, 
seized  the  drum,  beat  to  arms,  and  calling  out. 
Here!  All  those  who  dare  avenge  innoeeat 
blood  !  were  instantly  attended  by  a  numtruui 
crowd.  Then  they  seized  and  shut  up  the 
city  gates,  and  posted  guards  at  each,  to  pre- 
veut  surprize  by  the  king's  forces,  while  aoe- 
thcr  detachment  disarmed  the  city  guaris,  aid 
advanced  immediately  totheTolbooth  orprisoa, 
where  not  being  able  to  break  the  door  iritk. 
hammers,  &ec.  they  set  it  on  fire,  but  at  iIm 
same  time  provided  water  to  keep  the  fliinc 
within  due  bounds.  Before  the  outer  door  vm 
near  burnt  down  several  rushed  through  the 
flames  and  obliged  the  keejier  to  open  vSt  ipncr 
door,  and  going  into  captain  Porteous's  spart* 
ment,  called,  VVhere  is  the  bug;;ar  Porteom? 
Who  said,  I'm  here,  uhat  is  it  you  are  lode 
with  me?  To  which  he  was  answered,  We 
arc  to  carry  you  to  the  place  where  you  khettn 
much  iuuocent  blood,  and  hang  you.  (le  maile 
some  resistance,  but  was  soon  overcome,  Ux 
while  some  set  the  whole  p  isoners  at  libeftyt 
others  caught  him  by  the  legs  and  drag|(cd 
him  down  stairs,  and  then  led  him  to  tlieGrasi' 
market,  where  they  agreed  to  hang  him  wilb- 
out  further  ceremony  ;  accordingly,  takioff  > 
coil  of  n»jie  from  a  bhop,  they  put  uue  end  « ll 
about  his  neck,  and  flung  tbe  other  cud  uicri 
d^  er's  groas  post  or  ^lo ws,  and  tirow  biv  "f  i 


Trial  nf  William  MaclaucMan. 

Imt  hiting  ifot  bi«  hands  to  llio  rap«,  they  ki 
tnin  ilowu  nnii  tied  Ihero,  bqiI  ilraweil  lilm  up 
■^UD,  but  uWrvin^  what  an  inilecrat  aigbl  he 
WH  wiUioiit  any  covf  riag  oter  bis  fiM,  ibey 
fcl  him  ikiwu  ■  SMonJ  lime,  aacl  |iulle>l  uft' 
vot  oftbeiwoshiru  he  hail  on  &iid  wrBp|ied  it 
■Iqui  his  hmd,  auJ  hauled  him  up  a  third 
thm  wiih  loud  huzza  atiil  a  rulf  of  llie  drum. 
ilAer  heliBil  liiing  till  supposed  lo  bedead,  th^y 
—'■'-'  -'  -  ronelo  the  pnst,  tlien  formally  ealut- 
ollirr,  Kroiinded  their  ^.rniB,  and  on 
B.01hw  ruff  of  the  drum  retired  out  of  ton'D. 
~  2  i>r  thit  kind  wai  ever  m  boldly  at- 
I,  or  M  Micceufully  executed,  alt  in  the 
■  »o  hourv,  Bl\er  which  eiery  ihiny 
The  magistrates  endeavonred  lo 
t  their  design,  but  were  attacked  and 
B  aivay.  Next  morniug  at  four  when  ibe 
was  taken  down,  bit  ueck  was  broke:, 
I  wounded,   aud   bia   back  and    head 


■a  what  wKinentioned  laat  month,  with  re- 

p  to  ibe  iiblaiuiog  this  ui>l«rlunate  man's 

r*,  there  was  a  small  mistake;   scTeral 

•  of  quality  aud  diatiuctinn  did  apply  lo 

'  aly,  io  I'ai'our  of  the  captoin,  but  we 

.  red  ibe  magiatrales  of  Edinburgh  did 

bllie  leul  interest  tbemsekei  in  that  ruat- 

|Knd    no  doubt  they  had  their  reascios ; 

k  fc  not  the  only  instance  of  the  [>oj)u- 


laceof  that  city,  putting  into  aclioii  Ike  brave 
but  unfurKiiing  principle  couched  under  (Ue 
raolto  of  tbeir  nation.  Nana  mc  iuipuiu  liuettiC. 
To  mention ooe;  in  lliebt-uinniiiguf  U<  Amie's 
reign,  when  the  earl  Sealield  Has  chsncellur, 
am  Green  [See  bisCoae,  toI.  U,  |i.  1 199.  -o  Ihia 
Colleclionf.  was  coDdemned  for  tlie  murder  of 
caplaiu  Jliddlelon,  and  Ibe  council  in  Edin- 
burgh ordered  him  to  be  repriered,  which  Ibe 
mob  bearing,  wlieo  the  ear]  came  iml  of  Iba 
council,  Ihe^  broke  and  otcrlumed  his  coach, 
and  greatly  lusnlled  the  earl,  and  obliged  bin) 
to  go  back  lo  the  council  and  gel  the  reprieve 
changed  into  an  order  for  his  execution,  and  he 
was  execuled  accordiugly. 

■'  About  14  persons  were  taken  into  custody 
ihe  next  day  oo  account  of  ibis  riot,  bul  noevi- 
dFiice  appearing  agaiast  tbem,  11  wtre  soon 
di^barged,  and  the  others  not  long  after." 

"  Saturdat/,  September  tS. 

"  A  proclamatioD  was  publiilied,  otfering  a 
reward  of  2001.  and  his  majdaly's  pardon,  to 
Ibe  discoverers  of  any  person  concerned  in  the 
murder  of  captain  Porteoui,  and  for  every  per- 
son to  discovered  and  convicled  tool." 

From  theviolencecoinmilted  upon Porleotis, 
arose  lliu  following  Case. 


9.  TheTrial*  of  William  Maclauchlan,  for  Mobbing,  Murder, 
and  other  Crimes  ;  JO  GEoufit  II.  a.  d.  1737.  [Maclaurin's 
Arguments  and  Decisions.] 


The  Indictment  was  as  follows :  "That 
irlwrEiii  by  Iha  law  of  God,  the  common  laiVj 
Iha  muDicipBl  laws  and  practice  of  this  king- 
dpn,  and  ibe  Jaws  of  all  nthtr  WFll-governed 
mwu,  jirivy  conspiracies,  to  raise,  procure  and 
n»rt,  and  the  raising,  procuring,  or  moviog, 
■eduious  commotions  of  tbe  people  mobs  or  lu- 
mut's,  rii  viuUliou  of  the  laws  repose  and  trnn- 

3nillii_\  "I   (be  kingdom  or  any  part  thereof; 
ir  coiiiiK'uimg  Ibe  lieges  by  !>eiit  of  drum,  and 
ilii-sr  :<-■' Lulling  themselves  riotously  and  lu- 
ti'tjctber,  armed  with  guns,  locba- 
I  liier  wariike  weapons  whatsoever. 
l:I>,  without  lbs  special  licence  uf 
.^n,  ortbeuuigistrates  uf  tbesarae; 
u,<r  „i,  |i.  .-.uig,  invading,  or  seiaiog,  the  guard- 
rwsui  ul  uny  borough  or  city  by  force  or  vio. 
Udcw,  dwaimiag  and  driving  out  tbe  soldiers 


•  See  the  preceding  Case. 

It  appears  by  the  Geollsraan'*  Mngazin 

Harch,  1737 ,  that  donng  this  trisl  it  was 

mmifA  tlial  s  body  uf  liiotmiii  had  conspired  lo 

arty  oS  ibepauuci,  io  cnuMnjucuceof  wbich 

lb«  nagisirates  onlerrd  tbu  cily  guonls  to  be 


placed  there  for  tbe  preservation  of  the  public 
peace,  and  the  takiug  away  their  arms ;  the 
violent  and  raasterlul  seizing  and  securing  Ihe 
gates  of  any  city  or  borough,  by  numbers  of 
dissolute  aud  disorderly  persons  riotously  as- 
sembled, whereby  ibe  lives  and  properties  of 


.        .  -   -idily 

and  profligate  pnrtof  the  people;  tbeiusuTiing, 
sUiniiig  and  resisting,  magistrates  in  tbo  due 
execution  of  their  offices ;  tbe  raising  wilful 
fire,  and  forcibly  breakiug  open  the  doors  of 
public  prisons,  and  by  fori^e,  Ibreals  or  terrors, 
extorting  tbe  keys  from  the  lawful  keepers,  sod 
setting  at  large  prisoners  Iswlullj  confined  lor 
capital  or  other  heinous  crimes  ;  and  Ibe  com- 
mitting wilful  and  deliberate  murder,  under 
cloud  of  oigbt.  in  derisiun  of  public  justice,  in 
open  defiaiice  and  contempt  of  bis  majesiy'a 
Jaws  and  authority,  aud  siieiided  with  circuai- 
Etances  of  brutal  cruelly,  are  most  enorinooa 
for  I  am!  deteniable  crimes,  destructive  ol  the  public 
peae«,  daji|^eruus  lo  tbe  lives,  liberties,  ami 
property  ol  ihc  subject,  subversive  of  all  laws, 
government  and  sncirly,  odious  and  abuiuioable 
in  the  siglit  of  Uoil  and  man,  and  niott  severe- 
ly punisliable  :  yeltnicit  i*and  of  verily,  That 
you  have  presumed  to  GOiamit,  and  an  nil7 

9  8  •:=!— 


9951 


10  GEORGE  n. 


Trial  of  William  Madauehlan, 


[896 


of  all  or  one  or  other  of  the  foresaid  abominable 
erimes,  ac^^fravated  as  aforesaid  ;  in  sn  far  as, 
upon  the  7ih  day  of  Sj'pteniher,  in  the  year  of 
our  Lord,  1730,  or  one  or  other  of  the  davs  of 
the  «aid  mouth,  certain  M^ditious  and  blood-  | 
thinly  persons,  sbakm<;oif  all  fear  of  God,  re- 
fr^rti  rtiid  rfveience  to  iiis  majesty's  laws  and 
authority,  ^upied  by  disloyal  and  diabolical 
prineipl*^,  or  ioHtij^uted  by  ifan^rous  and  des- 
perAte  mcendiarieK,  bHvint<^  feloniously  con- 
spired iinlairfuily  to  rai^,  move  and  procure, 
mobs  and  tumults,  insult  the  laws  aud  public  I 
authority,  and,  in  au  outri<v'eous  manner,  to! 
break  aud  disturb  the  public  peace  iu  the  city 
of  £dinburf>h,  to  do  mutder,  and  commit  the 
other  black  and  odious  ct  iines  after  mentioned, 
did  assemble  themselves  i**frti\\er  within  the 
said  city  and  county  of  Edinburjifh,  about,  the 
hour  of  nine,  or  some  other  h(»ur  that  night ; 
and  bein^  armed  with  cinhs  and  other  offensive 
weapons,  seized  adrumiu  the  possession  of  the 
drummer  of  Portsburgfa,  part  of  the  suburbs  of 
Edinburgh,  and  by  beating  the  same  within 
the  fiaid  borough,  convocaled  and  brought  to- 
gether great  numbers  of  dissolute,  profligate, 
and  disorderly  persons,  who  proceeding  to  the 
Netherbow  port  of  the  said  city,  by  force  and 
violence  seized  upon  the  ket'per  and  keys 
thereof,  shut  and  locked  -the  gate,  and  marcn- 
ing  to  the  guard-room,  where  the  city-guard, 
constituted  by  act  of  imrliament,  was  in  use  to 
lie  kept,  by  force  and  violence  seized  the  cen- 
tinel  standmg  at  the  door,  entered  the  same, 
and  disarmed  and  drove  out  the  soldiers  placetl 
there,  by  the  authority  of  the  magistrates,  for 
the  preservation  of  the  public  peace,  and  arm- 
ing themselves  with  the  guns,  lialberts,  lo- 
chaber-axes,  and  other  weapons,  kept  in  the 
said  room  for  the  defence  of  the  city,  sent  par- 
ties to  the  several  ports,  and  took  possession  of 
the  same,  shutting  the  gates,  naihng  or  rolling 
stones  to  secure  the  said  gates:  And  having 
thus  made  themselves  roasters  of  the  cily,  to 
the  great  fear,  terror,  and  trouble,  of  his  ma- 
jesty's lieges,  to  the  imminent  danger  of  shed- 
ding much  blood,  pillaging,  plundering,  and 
burning  the  houses  of  the  inhabitants,  they 
advanced  towards  the  public  prison  of  the  said 
city,  and  planted  some  of  th(*ir  accomplices, 
armed  as  a  guard,  from  the  north  bide  of  the 
said  {urison,  commonly  called  the  Purses,  across 
the  high-street,  to  stop  all  who  did  not  unlaw- 
fully associate  themselves  with  thero^  from 
imssing  to  the  prison -gate,  and  with  forc- 
tiammers  beat  ou  the  door  of  the  said  prison,  in 
order  to  break  it  open  ;  and  among  the  rioters 
so  planted  as  a  guard,  and  at  the  prison-door, 
and  in  divers  other  places,  during  the  said  tu- 
mult and  sedition,  vou  the  said  VVilliam  Mac- 
lauchlan,  armed  with  a  lf»chaber-axe,  or  other 
oflensive  weapon,  was  unlawfully  and  riotously 
assembled  with  them :  And  when  the  magis- 
trates of  the  city,  as  in  duty  bound,  went  in  a 
body  toward  the  said  prison,  to  disperse  the 
riotous  and  unlawful  assembly,  showers  of  large 
stones  were  by  you,  or  your  accomplices, 
pouied  ppoa  them ;  whereby  toioe  of  tbeai 


were  bruised,  and  all  of  theoOy  under  grea 
terror,  were  obliged  to  fly,  and  save  tbemsrivei 
from  the  fury  of^an  armc^  mob:  And  farther, 
yon,  or  vour  accomplices,  by  burning  torehfi| 
links,  whins,  or  other  combustible  matter,  wil- 
fully and  mslicionslj  set  fire  to  the  mid  prison* 
door,  to  the  great  danger  of  the  adjacent 
wootien  houses,  and  other  honsea  and  shops; 
and  having .  bnmt  and  beat  the  same  o|ieB, 
seized  the  keeper,  and  by  force  and  fear  ex- 
torted the  keys  of  the  rooms  of  the  said  urisoo 
from  him,  and  dismissed  William  Grinsell,  im* 
prisoned  there  for  murder,  James  Ratdiff, 
imprisoned  for  thef^,  robbery,  and  bouse* 
breaking,  and  divers  other  persons  there,  abo 
committed  by  lawful  warrants:  And  yon,  the 
said  William  Maclauchlan,  having  conceived  a 
deadly  hatred  and  malice  against  John  Porte- 
ous,  commonly  called  Captain  Porteous,  there 
also  confined  under  sentence  of  death,  the 
execution  whereof,  by  the  amiable  |M)wer  aid 
prerogative  of  the  crown  to  shew  mercy  tt 
subjects  condemned,  had  beep  respited  by  her 
sacred  majesty  the  queen,  then  gvardiaa  of  the 
kingdom,  you,  or  your  said  accomplices,  laid 
violent  hands  upon  him,  with  intent  to  mnnkr 
and  bereave  himof  his  life ;  and^havingdrigfed 
him  by  the  heels  down  the  saiil  tolbooth-stair, 
crying  for  mercy  for  Cbrist^s  aake,  lengtbei* 
ing  out  your  cruelty  towards  him,  alteraatcly 
leil,  dragged,  and  carried  him,  ftintiog  and 
falling  on  the  street,  to  the  Grasa-markel, 
within  the  said  city  of  Edinbnrgb,  tbie  place  of 
common  execution,  in  derision  of  public  jiu- 
tice  ;  and  making  a  staud  at  the  galmws-stooe, 
w  here  the  gibbet  is  usually  placed,  you  ooo- 
sulted  togolher  in  what  manner  to  put  him  to 
death  ;  aud  about  the  hour  of  eleven,  or  iooe 
other  hour  that  night,  having  hurried  him  to  s 
dystcr''s  tree  near  the  said  place,  while  in  most 
moving  manner  he  was  supplicating  for  a  little 
t^e  to  recollect  himself,  as  a  dying  man,  and 
to  beg  mercy  from  God,  you  or  your  wicked 
accomplices,  renouncing  all  ('hristian  compss- 
sion,  and  even  human  nature,  fixing  a  rape 
about  his  neck,  instantly  drew  him  up  upon  tie 
said  tree ;  and  when  he  endeavoured  to  save 
himself,  by  catching  hold  of  the  ro[>e  with  bis 
hands,  you, or  one  or  other  ofyour  vile  associates, 
barbarously  beat  them  down  with  a  paddle,  or 
other  instrument,  and  brutally  struck  him  upon 
the  face  with  a  lochaber-axe,  or  other  weapon; 
and  wantoning  in  your  wickedness,  making 
Inobe  the  rope  that  was  fixed  about  the  said 
dyer^s  tree,  you  or  some  of  your  accomplices, 
let  him  down  to  the  ground,  and  pulled  him  op 
again,  where  he  hung  by  the  neck  till  he  wsi 
dead.  All  which  detestable  facts  and  crimes 
uere  impudently,  wickedly  and  maliciously 
done  and  committed,  by  the  said  dissolute  aflid 
disorderly  persons,  riotously  and  tumulluously 
assembleil,  in  manner  above  descrilied  ;  andtlie 
said  John  Porteous  was  cruelly  murdered,  it 
the  time  and  place  aforesaid,  in  a  ihmng  and 
outrageous  manner,  to  the  dishonour  of  Godt 
the  contempt  of  his  majesty's  laws  and  autba- 
rity,  and  to  the  lasting  infiuny  of  the  baibaiaoi 


for  Murier  and  other  Crimes. 


A.  D.  1737. 


juMtmrv,  rnu  ou^hl  lo  i>c  liuxlexetuplarilv 
puiibhed  witli  DiB  painii  ol'  ]«w,  to  Ihe  terror  uf 
"' — '  it  llielikein  tiinecomiDg." 


•Cliet»lu 


knd  bI«Mly  actnn ;  anil  you  were  art  anil  pnrt  |  "  81  ildiclum  aliqnoil  reperiatur  puaitilni  (iTuri- 
oTall,  or  nap  ni'  oilier,  nl  Ihe  rarisaid  crinirs,  ^  bus  legibiii,  >n  debcat  rem  ildinqueii*  ex  una, 
Ufg^f itPil  u  arnresuid.  X'liicli  (acta,  or  part  »cl  *x  oinnibu»,  »fl  ex  ali(|ua  aorusari  el  oon- 
nrrMf,  ur  your  beiug  art  and  pnrt  Jn  all  or  my  I  ilemiiati  J"  Gomez.  ResoL  Jur.Cit.  lotn.  3,  C.  1, 
m  lb*  foresail]  crimcii,  lielnif  foaud  proven  l<y  j  n.  98 ;  and  cerlaiu  rulvsare  cstablialied  for  je- 
ibe  vrrdict  ul  ail  aasiie,  before  the  Inrdijmlice  I  lerinlnink;  wlien  one  trio)  iIokh,  or  doci  doI,«(- 
pntral,  jiuiice  elf  rb,  lad  cuinitiiuionen  nl'  I  rlude  ft  act^und  upon  a  diflereot  ground  'at  law. 

...dt.; —    — L.  ....  1      1     1  Hm  it  (,„  uejgr  Rubied,  that  tbe  proseculoc 

liaa  it  in  bis  power  to  insist  osaitiit  an  nff^nder, 
f«r  any  ciitne  lie  liai  commilted,  ibuugb  tl« 
ipecia  facli  afforded  a  ground  (or  a  prusucutiu* 
afadiirerstitDiturc. 

i.  The  Court  nould  bnre  been  competeul, 
thoiiifh  tlie  progecuiion  hat!  been  for  liigli  Irm- 
ion ;  becfcusc  tbough  by  7"  ^nn.  her  inAJetty, 
her  lieiri  and  succeuors,  are  emin^rcrcd  lo 
iaaue  commiBsionB  of  Oyer  and  Terminer  in 
Scotland;  yet  il  iapmiided,  "Tbat  tbcjuiliM 
canrt.  and  uiber  courla  haTiii|(  power  to  jud^ 
of  liigb  tre«HOii  and  misprision  of  treamn  in 
Seotlaud,  ahall  have  tiill  power  and  authority, 
and  are  thereby  rc^iuired,  lo  euquireolHll  bi{;h 
treasuni  and  misprtiiun  of  lii(;li  Ireasou  ;  aud 
pnxieEd,  hear  and  dettrtinine.  tba 
whereof  any  persona  sliaJl  be  in- 
*d  bel'uto  them." — Hence,  bad  ibis  be«ii  a 
trial  for  (reaaoo,  tbe  Court  would  haro  bveii 
e'lmpelenl,  lliouuh  another  method  ofproceed- 
ing  would  have  weD  retjuieilfl. 

9.  I'lie  indictment,  as  framed,  does  not 
amoiinl  to  high  treason.  The  chief  aim  of  Iba 
caDS|iirtitnrK  ^ud  tbeir  aiaacinles  was  lo  murdec 
ciplaia  I'ortcous.  For  this  purpose  Ibey  arm- 
ed, broke  tbe  prison,  and  committed  the  other 
oAcnces  set  forth  to  Ihe  minor  proposition ; 
therefore  tbe  conTOcallon  being  on  a  prirata 
Bod  particular  drsijirn,  it  was  not  leTviog  war 
againil  the  kin^.  In  the  Cass  of  Idesainger 
and  others,  ii  was  agreed  by  all  tile  judgea, 
that  if  tbeir  iiileDtiou  was  10  pull  down  two  or 
three  particular  bawdy-bousei,  it  was  nut  high 
treaann;  Hale,  Keyling.  In  Uaniinarie'aCaw, 
the  chief  article  found  lo  be  treason  wan,  iba 
lerying  war  to  pull  down  toectiog-huuics  ii 


(  Court  aDi^rued  Ihe  prisoner  counsel, 
leaded,   Nut  Guilty  }  and  in  point  of  fact 
H  •«■  furtb  foc  him,  "  That  he  was  fnolmai 
liilv  WrniysB  at  llie  time,  aiid  was  sen 
Jr  Uilyahi|t  tlie  forenosn  nf  that  day,  ihi. 
■  iiepiembtr.  In  Cnicieball  aud  Gogar 
b'Tsail,  and  got  dronk  to  auch  a  ileu 
■belt  he  returned  he  was  not  capaMi 
f  tbe  letter  he  bad  received,  but  which 
—j.-ta  lu  b« doiw  by  another. 
^.The  p^innel.  Boon  after  lii»   return  froti 
Owgie-ball,  Weill  from  my   lady  Weniyss'i 
knwe  to  .),d,[.  Lamb's,  no  alelinudc  in  tbesamt 
Mr,  kalian  linur  after  nine,     Wbeii be eoler- 
Mliamb's  liouae  be  staggered  with  druuken- 
WM>  and  was  drained  there  till  wilbin  a  •lu.irter 
oTrievcii,  and  then  went  out,  in  order  to  gi 
hb  own  hi'itse  in  tlie  Canongste.      That, 
pMaang,  he  called  at  Mr.  Ctiaie's,  vintner,  and 
drank  a  cbopin  of  ale  or  two  with  the  sei 
litcrc  i    and  betwixt  Lanlb'a  and  Caesie'i 
oac«  or  twice. 

"  Thai,  strolling  in  hi*  dninkenceis  tbrough 
tfaaalreci,  be  met  with  two  bakers,  who  carried 
Imib  away  with  tbcCo  tollwmob;  and  wbOhei 
tbey  pvl  a  locbobcr-axe  in  bis  hand,  or  not,  he 
alOM  Dot  reniemlm ;  but,  from  tbe  computing 
tka  liinr,  thu  mob  ha<t  proceeded  so  fur  ibst 
oin  was  in  tbeir  bands  on  tbe  sti — 
iiingled  with  the  rinlrr* ;  that  he 
>«ili*e  part  in  what  remained,  nor  iudeeil 
U  Cftpabie.  being  oterpowered  with  liquor. 
••That  all  Uiis  while  tbe  pannel  wju  in  bis 
J  iirery-habit,  and  went  home  In  bis 
i  did  not  atiempi  to  fly  nr  absmnd  next 
It  at  any  lime  thereafter." 
linl  ol  law  ii  was  pleaded  (or  bim.  That 
m  libelleil,  vie.  Ihe  breaking  prisoo  by 
I  multitude,  selling  felons  at  liberty, 
>  putting  lo  dealb  a  man  who  bad  been 
4  hy  ibe  sotereign,  amounted  lo  biijb 
.  and  rniild  only  be  tried  as  sucb,  ac- 
vording  to  tbe  mode  prescribed  Iiy  7*  Ann.; 
ClM  of  I'rter  Mnifinger*;  Case  of  Daniel 
OaDimsrie.  f 

Ana.  1.  Tbe  same  ipttiti  facti  may  be  the 
<lldalimt  nl'dilTercnl  ar.iion*  ;  and  llip  piuse- 
MlKBiay  insist  upon  what  alalute  or  gruuuil 
^Kfclis  cbuaex.  If  a  traitor  iu  rebellion  kill 
^■vtiia roqesty's  suhjecta,  theact  w  treason, 
^^Bn  be  prosecuted  as  inch  ;  but  at  the 
^IBtlflie  il  i*  lelony,  and  mav  be  tried  ir. 
" — '         Civilians  Ireal  of  Uiii  ijuesliLia  : 


MT.Por 


aid  ofUcet 


0  particular  meeting. 

Re|)IIed.  By  the  lawi  rclatire  lo  hi|rh  Irea* 
D,  if  it  be  not  tried  within  a  certain  lime  Ibe 
guilt  is  abolished ;  hut  according  lo  tbe  pruM' 
culor's  argument,  after  the  crime  has  t*e«n 
abolished  as  to  the  highest  eRecl,  it  may  be  still 
prosecuted  uuder  auolher  denomiiuilion ;  and 
iLougb  a  man  has  been  ab«olieU  upon  an  ii>> 
diclmeni  for  treason,  he  may  be  still  tried  for 
1  lesser  oRencc ;  or  if  be  has  been  absolved  on 
in  indictment  laid  for  a  lesser  uifence,  he  niaj 
iflerwarda,  on  theaames/i'Yici^iicii,  be  indict- 
ed for  treason.  All  which  is  abtuni ;  and  wu 
nvl  allowable  in  ibis  country,  even  before  Iha 
English  laws  as  lo  high  treaion  were  extended 
t'l  bcolland  ;  c  g.  tbell  in  landed  men  befora 
that  time  waa  high  Ireaaou  in  this  country; 
and  therefore  it  could  not  Iw  prosecuted  betiira 
an  iaturiorcourt,  Dorciiuldtbe  protccutor  re> 
itrict  hi*  libel ;  Mack.  lit.  Theft,  s«ci.  ii- 

U^  •uppoHiiou  iha  trial  could  nmceed  oa 
tiiia  iqdictmeut,  it  wat  pleaded  for  the  pauial. 


lOOS]  14  GEORGE  IL    Trial  of  Captain  Goodcre  and  M.  Mahrni^^    [lOM 

The  Jory  fband  him  Not  Guilty;   apon 
liieb  he  wm  dismissed  from  the  her. 
Act*  Cb»  Areskine.    Alt.  And.  Mac^wal. 

J.  Campbell. 


Id  1738,  Thomas  Liooing  sko  was  tried  far 
the  same  offeoce,  aod  found  Nol  Goilly  ky 
the  Jury. 


•■ 


^00.  The  Trials  of  Sabiuel  Goodere^  esq.  Matthew  Mahont, 
and  Charles  White,  for  the  Murder  of  Sir  John  Dioeley 
Goodere,  bt.  (Brother  to  the  said  Samuel  Goodere)  on  Board 
his  Majesty's  Ship  the  Ruby  :  At  the  Sessions  of  Peace,  Oyer 
and  Terminer,  and  General  Gaol-Delivery,  held  in  and  for 
the  City  of  Bristol,  and  County  of  the  same  City,  in  the 
Guildhall  of  the  said  City;  before  the  Right  Worshipful 
Henry  Combe,  esq.  Mayor  of  the  said  City,  Michael  Foster, 
esq.  Serjeant  at  Law,  Recorder;  and  others  his  Majesty's 
Justices  of  Gaol-Delivery.  Begun  on  Tuesday  the  17th  of 
March  1741,  and  continued  by  Adjournment  to  Thursday, 
the  26th  of  the  same  Month.  Published  with  the  Approba- 
tion of  Mr.  Recorder :  14  George  II.  a.  d.  1741. 

On  Wednesday,  the  18th  of  Maroh,  1741,  a 
bill  of  indictment  was  found  by  the  grand  in- 
quest for  the  city  of  Bristol,  and  county  of  the 
same   city,    against   Matthew    Mahooy  and 
Samuel  Goodere,  for  the  murder  of  sir  John 
Dineley  Goodere;  when  Dr.  Middleton  (Mr. 
Cioodere's  physician)    acquainted   the  Court, 
That,  in  his  opinion,  Mr.  Goodere  was,  through 
bodily  iodisposition,  unable  to    undergo  the 
fatigue  of  his  trial.     But  being  asked  by  Mr. 
Verridn  ^of  counsel  for  the  king)  whether  the 
priMMer's  health  would  not  permit  him  to  be 
0f6ttght  into  court  and  plead  to  his  indictment; 
and  the  doctor  declaring  bis  opinion,  that  he 
might   be    brought  up,    Mr.   llecorder  was 
pleased  to  order,  that  he  should  be  brought  up 
the  next  day,  in  order  to  plead  to    his  indict- 
ment.  Accordingly,  onTliursday  the  19lh,  Mr. 
Goodere  and  Matthew  Mahony  were  brought 
to  the  bar ;    when  the  Court  proceede<l  thus  : 
C/.  of  Arraigns,     Matthew   Mahony,  hold 
up  thy  hand  ;    Samuel  Goodere,  hold  up  thy 
hand  (which  they  severally  did).     You  stand 
indicted  by  the  names  of  Matthew  Mahony, 
late  of  the  parish  of  St.  Stephen  in  the  city  of 
Bristol,  and  county  of  the  same  city,  labourer; 
and  Samuel  Goodere,  late  of  the  same  parish, 
city  and  county,  esq.*  for  that  you,  not  having 

*  It  should  seem  that  upon  the  death  of  sir 
John  Goodere  the  prisoner  became  a  baronet, 
and  if  he  could  have  proved  that,  he  might  have 
sucoessfally  pleaded  in  abatement  to  this  indict- 
ment See  Com.  Dig.  Abatement,  F.  19,  F. 
SS,  «5.  Indictment,  G.  1,  Hawkins  PI.  Cr. 
lNM>k  8,  cb.  1I3»  atct.  105  cl  i^«  chap.  S5,  aact 


the  fear  of  God  before  your  eyes,  but  beiog 
moved  and  seduced   by  the  instigmtion  of  the 
devil,  on  the  19th  day  of  January,  in  the  14tb 
year  of  the  reign  of  our  sovereigu  lord  Gfotp 
the  2d,  by  the  grace  of  God,  of  Great-Britaio, 
France,  and  Ireland,  king,  defender  of  the  faith, 
and  so  forth  ;    with    force  and  arms,  at  tbe 
parish    aforesaid,  in   the  city  aforesaid,   aod 
coimty  of  the  same  city,  in  and  upon  one  tir 
John  Dineley  Goodere,  in  the  peace  of  God, 
and  of  our  said  sovereip^n  lord  the  king,  then 
and  there  being,  feloniously,  voluntarily,  aod 
of  your  malice  afore -thought,  did   male  la 
assault;     and  that   }ou,  the  aforesaid   Mat- 
thew Mahony,  a  certain  cord,  of  the  ralue  of 
one  penny,   about   the  neck  of  the  said  fir 
John  Dineley  Goodere,  then  and  there  felooi- 
ously,  voluntarily,  and  of  thy  malice  afore- 
thought, did  put  and  fasten ;    and  that  yon 
the  aforesaid  Matthew  Mahony,  with  the  conl 
aforesaid,  (by  you  the  aforesaid  Mattliew  Ma- 
hony, so  abiout  the  neck  of  the  aforesaid  sir 
John  Dioeley  Goodere  put  and  fastened)  tbeo 
and  there  him  the  aforesaid  sir  John  Dineley 
Goodere  feloniouKly,  Toluntarily,  and  of  jour 
malice  afore -thought,  did  choaic  and  strangle; 
of  which  said  choaking  and  strafigliug  of  biin 
the  aforesaid  sir  John  Dineley  Goodere,  by  }'oa 
the  aforesaid   Matthew  Mabony    in    manner 
and  form  aforesaid  done  and  perpetrated,  bt 
the  aforesaid  sir  John  Dineley  Goodere  then 

70  et  scq.  ch.  35.    As  to  a  plea  in  abatemeal 
of  a  misnomer  in  a  surname,  see  Shakes|>eare*l , 
Case  as  cited  in  the  Case  of  Layer,  ant^.  vel. 
16,  p.  103. 


for  the  Murder  of  Sir  John  Goodere. 


A.D.  mt. 


pows 


t«  iiNtantlf  lOrd  i  And  llial  you,  llie 
i  ttimricl  Oawlere,  tlii'D  ami  iliff« 
■ly,  vutuiilnrily,  nnil  ol  iliy  malice 
Diigbt,  naa  preseni,  >uEin|j,  abplttne< 
itis,  and  inaiutaining'  tlie  alurvaaiil 
*  Alaliony  in  manner  anil  firm  alore- 
ioDtouily,  vuluDtarily,  auil  oThisinslicE 
lugbl  the  afurrsaiil  air  J"hn  Diaeify 
e  10  kill  miiJ  murilfr;  audaa  ynti  ilje 
ilUiew  ftlaliony,  and  Hamuel  Guodere, 
ler  and  lurm  aloresaid,  the  al'areMiil  tir 
'ineley  Guodere  tlxn  and  tliern  fctuoi- 
oliiniai'ily,  antl  nf  yonr  malice  nfore- 
I  did  kill  and  niurdir,  agaiiisl  tlie  |ieace 
iiid  sovereign  lurd  tli«  King,  his  crown 

fArr.  How  gayest  (liou,  Mal'hsH  Ma- 
art   thou   (■uiiiy    of  the   felony    and 

whereof  thou  aUndeat  iudicted,  or  nol 
—'MaAony.  Not  (;uiliy. 
fArr.  Cul|irit,  bow  wilt  lliou  bellied  ? 
}Hy.  By  God  and  my  Country. 
'Arr.  Godaeiidlbecat^ood delirerBDce. 
/  Arr,  Ilow  B«ya*t  tboii,  Samuel 
t,   ad  tbou  t^uilly  of  tbe  felony   and 

wliereut'  Ibuu  flaDdeEl  indicted,  oruol 

r 

W  Goedtrt.  Not  Guilty. 
fArr.   ColiHil.  bow  wilt  thou  be  Iried? 
4I  Cuoilire.    Oy  fiiid  and  iny  country. 
fArr.  God  send  ihee  a  Kooddeliieraiice. 
Venum.     Mr.   Itecordei',   1   altcud  a* 

for  the  king  uu  this  mt-taiicholy  occa- 
d  it  ia  wilb  no  imall  regrtt  and  cauuarn 
f  lime  act  in  ibis  blMliua  ngainat  my 
sminrea,  ivlieit  under  circumstancea 
me  of  the  iinsuuera  at  tbe  bar ;  and 
mr,  M  kiiowini,'  it  alinuat  iinpoaxible  so 
in  A  biiiineu  iif  ibia  Eialure,  U8  nol  to 
igfat  on  tbe  one  tide  tn  have  done  Ino 
tnd  on  tbe  other  ion  little  :  howefer, 
Jiall,  in  llie  courte  of  Ihii  prosecution, 
KIT  to  observe  that  mediocrity  which  ii 
ceparable  from  buraane  rainila;  and  if 
be  BO  fortunate  aa  to  conduct  myself 
nlial'acliua  of  yon,  31r.  Itecoider,  and 
irt,  I  aball  readily  give  up  the  rest,  and 

mjraelf  with  the  tboii[.'bu  of  liaring 
It  ajuat  discharge  of  my  duly. 
be  priauners,  Mr.  Gootlere  luid  Mahony 
ought  proper  10  filead  in  chief  tu  their 
enl,  and  put  tbemaelvvs  upon  tbeir 
(be  onluiary  coiirae  of  law  ;    and  aa  tar 

be  judged  from  outward  appearance, 
od«ie  aeeniH  able  enough  at  present  tii 
I  trial  on  the  meriu  or  demerita  of  bii 
and  if  >u>,  we  tor  tbe  kiug  are  ready, 

part*,  lu  cuter  upon  our  duty.  (In 
«  band,  if,  ill  ihe  opinion  of  that  learned 
lan   (Dr.  MidJlMoD),  Mr.   Guodere   in 

lit  coodiiian  (through  bodily  weakue^s 
ipoaition)  lu  b«  brttught  upon  bia  trial, 
rbid  we  tbould  lie  fur  pressing  it  on 
ndi  celerity,  aa  tu  jirejudice  him  lu 
;  «f  fail  deleuce.  But  then,  u  we  would 
lAt  Kcalcfiting  bit  trial,  m  acitber 


would  we  be  for  giving  into  any  aflMlcd  delay. 
I  iberefore  hope,  tiir,  aucb  a  day  will  be  fised 
tor  the  comiog-on  of  thia  bukiueaa,  aa  tlial  tbe 
tra-fariiig  part  nf  our  witnetaes,  whom  at. 
present  public  jualicc  calls  fur  abroad  as.wdl 
as  at  liuiae,  may  be  dispatched  at  due  ltn«<' 
ti>r  the  other  neceasary  aerrice  of  their  king* 

Mr.  KtcordfT.  I  think  we  ought  to  pT<iceed 
to  the  tlial  immediateJy,  unleis  cauae  be  ibewn 
to  the  contraay. 

Mr.  Frtdcrick,  counsel  for  Mr.  Goodere. 
I  appeal.  Sir,  to  the  doctor,  whether  Mr. 
Gaodet«'4  case  and  vircumaiuicaii  will  at  pre- 
sent admit  of  il  F 

Mr,  Recorder.  Let  Dr.  Aliddleton  be  awom. 

Dr.  MiddUlon  awora. 

Mr.  Vernon.  Dr.  Hiddlelon.  I  think.  Sir, 
you  bare  attended  Mr.  Ooudere  (the  prisoner 
at  tlie  bar)  during  the  coune  of  his  illneai ;  wilt 
you  please  therefore  to  gice  tbe  Conrt  an  ac- 
countof  bis  preBcntstaie  of  health  ? 

Mr.  MiddUloa.  Mr.  Goodere  has  been  my 
pAlieol  lor  some  time  in  a  malignant  fever, 
which  lell  him  last  Sunday  erening,  and  sine*  . 
that  time  he  baa  lieen  growing  better,  and  on 
tbe  nieadinghand;  in  hia  frrer  bis  head  was. 
verv  much  diwrdered  (aa  at  present  happens  T  1 
to  Le  tlie  case  of  many  that  are  seized  witb 
ibis  epidemical  feter,  the  head  being  generally  > 
much  effected  iu  most  of  them):  1  ibinkba 
will  not  be  able  to  bear  the  laiigue  of  bia 
trial  at  present.  If  he  ia  put  upon  bia  trial, 
it  will  be  an  bardibip. 

Mr.  Recorder.  It  tbe  case  be  so,  that  bis 
head  la  disordered,  whereby  he  ia  rendered 
leas  callable  of  making  bid  defence,  I  think  it 
would  be  a  piece  if  iohuinanity  not  to  put  off 
his  trisl.  What  if  we  adjourn  it  to  llua  day 
leren- night  P 

Mr.  Vcrnoa,  I  am  heartily  glad  to  fmd  that    ^ 
Mr.  Goodere  ia  on  the  mending  band,  and  bopa't  2 
he  will  continue  to  mend ;    his  counsel  seema    ■ 
to  think  'be  may  now  come  upon  bis  trial  tt 
yet,  for  tho  honour  of  Or.  Middleton,  I  would 
nol  press  it  on  at  this  juncture.  , 

Mr.  Reairder.  What  doth  Mr.  Goodere  biro-. 
self  say  10  itf 

Sunivel  Goodere.  Ihopein  eigblor  nine  days 
to  be  be  tier,  or  dead. 

Mr.  Recorder.     I   have  proposed   this  day 

Samuel  Goodtrc.  Whatever  you  please  I 
submit  to, 

Mr.    Vernon.     Dr.  Middleton,  Sir,  aa  you    < 
arc  known  to  be  a  geutlemati  of  great  boiUMr 
and  abilities,  ne  muy  aalely  depend  upon  yonri  ^ 
account ;    therclbre  I  should  be  glad  to  know  • 
bow  noon  (hutnaiily  speaking)  Mr.  Goodere'S 
bodily  heeltli   may  admit  of   bis   taking   hie  j  ' 
trial.     I  know,  Sir,  you  are  a  gentleman  that '  ' 
has  a  great  regard  and  care  for  your  patients. 

Dr.  MiddUlon.  I  should  rathcrcbooBatoeX> 
cecd  ia  oare  than  tiill  short  of  il. 

Mr.  Ver^toh.  btii  il  is  jmaiblo  to  have  e«t  < 


HK)7] 


U  GEORGE  II.    Trial  ofCajdain  Goodere  and  M.  Makony^    [lOOS 

Cryer.  Oyez ;  you  good  men  that  are  im- 
paDoelled  to  try  between  our  sorereigD  lortl  the 
king  and  the  prisoners  at  the  bar,  answer  to 
your  names,  and  save  your  fines. 

Mr.  Recorder.  Prisoners,  yoa  hafeeacbof 
you  the  liberty  of  cballenging  twenty  of  the 
jurors,  without  shewing  cause:  But  yon  moit 
now  declare,  wbetlier  you  will  challenge  se* 
Feraliy  or  not ;  liir  if  you  do  not  join  in  yov 
challenges,  we  must  try  you  severally. 

Ma^ny,  I  leave  it  to  the  captain  to  chal- 
lenge. 

CL  of  Arr.  Christopher  Bromadge. 

Cryer.  He  sppears. 

Ct,  of  Arr,  Mr.  Bromadge,  to  the  book. 

Cryer.  Christopher  Bromadge,  look  opm 
the  prisoners ;  vuu  iirisouers,  look  upon  the 
juror:  You  shall  well  and  trnfy  try,  andtrae 
deliverance  make,  between  our  sovereign  locd 
the  king  and  the  prisoners  at  the  bar,  whom 
you  shall  have  in  charge,  and  a  tme  venfid 
give,  according  to  your  evidence :  So  help  yoa 
God.  ^^ 

And  the  same  oath  was'administered  to  the 
rest,  (which  were  sworn)  and  tbeir  names  sre 
as  follow  :  Christopher  Bromadge,  Isaac  find- 
rihh,   John    Merewether,   Christopher  UUj, 


over  care :  Therefore,  Sir,  1  would  ask  you, 
whether,  upon  your  oath,  you  do  not  think  he 
will  be  able,  in  point  of  health,  to  take  his  trial 
in  three  or  lour  days? 

Dr.  Middletan.  The  captain  may  put  him- 
self on  his  trial  now,  if  he  pleases ;  but  i  donU 
think  he  is  fit  for  it,  u|K)n  my  oath.  If  it  was 
lef\  to  me,  1  should  desire  the  whole  time  the 
Hecorder  has  mentioned. 

Mr.  Frederick.  That  is,  to  this  day  seven - 
night ;  we  shall  not  be  able  to  attend  the  Court 
sooner.  We  hope  the  trial  will  be  put  off  till 
this  day  seven -night  ? 

Mr.  Recorder.  Let  it  be  so. 

CI.  of  Arr.  Matthew  Mahony,  you  stand 
charged  likewise*  upon  the  coroner's  inquest 
for  the  same  felony  and  murder ;  art  thou 
guilty  or  not  guilty*^? 

Matthew  Mahony.  Not  Guilty. 

.  CL  of  Arr.    Samuel  Goodere,  you  likewise 

stand  charged  upon  the  coroner's  inquest  for 

the  same  felony  and  murder ;    art  thou  guilty, 

or  not  guilty? — Samuel  Goodere.  Not  Guilty. 

Mr.  Hecorder,  The  prisoners  may  withdraw. 

Od  Thursday  the  SOth  of  March,  the  Court 
met  according  to  adjourifmeut ;  and,  being 
opened,  the  prisoners  Matthew  Mahony  and 
Samuel  Goodere  were  brought  again  to  the 
bar ;  and  the  Court  proceeded  as  follows  : 

Mr.  Shephard^  counsel  for  the  prisoner 
Goodere.  Mr.  Recorder,  the  prisoner  Goodere 
has  in  a  great  degree  lost  his  hearing,  therefore 
desires  that  be  may  be  biiiught  nearer  the 
witnesses,  that  he  may  be  able  to  bear  what 
thev  say. 

Vkv.  Recorder.  Let  him  come  nearer.  Ma- 
hony, are  you  willing  to  come  forward  to  the 
bar  r* 

Mahony.  Yes,  my  lord,  I  am  hard  of  hearing. 

Mr.  Shcphard.  He  desires  the  same  indul- 
gence. 

Mr.  Recorder.  If  he  desires  it,  let  him  come 
forward  too. 

Mr.  Vernon.  Mr.  Recorder,  by  this  indul- 
gence beiinv*  moved  for  on  the  behalf  of  Ma- 
hony as  well  as  Mr.  (jooderc,  I  presume  these 
gentlemen  attend  as  counwl  for  them  both,  if 
matter  of  law  should  arise. 

Mr.  Frederic/:.  No,  Sir,  I  do  not, 

Mr.  Shephttrd,  No,  Sir,  I  tlo  not. 

CI  of  Arr.  Cryer,  make  a  proclamation  for 
silence. 

CrycT.  Oycz,  Oyez,  Oycz  ;  the  king's  ma- 
jesty's justices  strictly  cliar;;^e  and  command  all 
manner  of  persons  to  keep  silence,  upon  pain  of 
imprisonment. 

67.  of  Arr.  You  Matthew  Mahony  and 
Samuel  G<iodere,  now  -prisoners  at  the  bar, 
these  men  which  you  shall  hear  called,  and 
will  personally  aopear,  are  to  pass  between  unr 
sovereign  lord  lue  king  and  you,  upon  trial  of 
yodr  several  lives  and  deaths  ;  if  you,  or  either 
•f  you,  will  challenge  them,  or  any  of  them, 
yoo  must  speak  unto  them  as  they  come  to  the 
book  to  be  sworn,  before  they  be  sworn.  Cryer, 
Make  BB  Oyex,  and  call  the  petty  jory. 


James  Wiudde,  Joseph  Gregory,  Jobv  Scon, 
Isaac  Bannister,  sworn,  William  Engliiid, 
(challenged)  Francis  Billow,  (challenged),  Wil* 
liam  Jones,  Samuel  Page,  John  Perks,  Williia 
Dyer,  sworn. 
*Ci.  of  Arr.  Cryer,  count  these. 

John  Scott, 


Christ.  Bromadge, 
Isaac  Brodribb, 
John  Merewether, 
Christopher  Lilly, 
James  Wimble, 
Joseph  Gregory, 


Isaac  Bannister, 
William  Jones, 
Samuel  Page, 
John  Perks, 
William  Dyer. 


G» 


Cryer.  Twelve  good  men  and  true, 
tiemen,  are  ye  all  sworn. 

CI.  of  Arr.  Cr}er,  make  proclamatkyn. 

Cryer.    Oyez,  Oyez,  Oyez ;  if  any  ooectl 
inform  the  king's  majesty's  justices,  thekiog'i 
Serjeants,  the  king's  attorney  or  advocate,  fc« 
fore  this  inquest  be  taken  between  our  sovercigB 
lord  the  king  and  the  prisoners  at  the  bar,  of 
any  tcpason,  murder,  felony  or  other  misde 
mcanour,  committed  or  done  by  the  prisoDas 
at  the  bar,  or  either  of  them,  come  forth,  u^ 
you  shall  be  heard,  for  the  prisoners  stand  It 
the  bar,  u|)on  their  deliverance ;   and  all  per- 
sons hound  hy  recognizance  to  prosecute  tbeoii 
or  either  of  them,  come  forth,  and  prosecaiei 
or  you  will  forfeit  your  recognizances. 

CL  if  Arr.  Matthew  Mahony,  hold  upthT 
hand  ;  Samuel  Gooilere,  hold  np  thy  niDs. 
Gentlemen  ofthe  jury,  look  upon  the  prisonoii 
and  hearken  to  their  charge  ;  they  stand  in* 
dieted  hy  the  names  of  Matthew  Mahoov,  bH 
of  the  parish  of  St.  Stephen  in  the  city  if 
Bristol,  and  county  of  the  same  city,  laboutr; 
and  Samuel  Goodere,  late  of  the  same  parijAi 
city  and  county,  esa.  for  that  they  not  havisg 
(as  in  the  indictment  before  set  forth).  Upon  tiS 
indictment  they  have  been  lately  uraignedi  ife< 


Jar  the  Murder  of  Sir  John  Goodert. 


A.  D.  1741. 


tioio 


ifOD  faiTe  set ernNy  ptcacM  not  gfuilty ; 
»r  their  trial*  have  put  themselfea  upon 
nd  Che  country,  which  country  you  are : 
cfamrre  is,  to  enquire  whether  they,  or 

of  them,  be  guilty  of  the  felony  and 
sr  iu  nitnner  and  form  as  ihey  stand  in- 
,  or  not  guilty.  If  you  find  them,  or 
of  theii),  gnilty,  yon  shall  enquire  what 
or  chattels,  lands  or  tenemeuts  they,  or 

of  them,  had  at  the  time  cf  the  felony 
itted,  or  at  any  time  since :  if  you  find 
or  eitherof  ihcm,not  guilty,  you  shall  en- 
rhether  they,  or  eitherof  them,  fled  for  the 
:  If  you  find  that  they,  or  either  of  them 
1  fur  the  same,  you  shaJl  enquh'e  of  their, 
ler  of  their  goods,  and  chattels,  as  if  yon 
jond  them  or  either  of  them  guilty:  If 
nd  them,  or  either  of  them  not  guilty,  and 
liey  or  cither  of  them  did  not  fly  for  the 
say  so,  and  no  more ;  and  hear  yourevi' 


.  Vernon,  May  it  please  yon,  Mr.  Re- 
',  and  you  gentlemen  that  are  sworn  on 
wry,  I  am  counsel  for  the  king  against 
risoncrs  at  the  bar,  who  stand  indicted  for 
order  of  sir  John  Dineley  Goodere ;  they 
also  charged  on  the  coroner's  inquest  with 
ime  murder :  and  tlioutrh  it  is  impossible 
I  man  nature  not  to  feel  some  emotioiks  of 
*ness  at  so  afl*ecting  a  si^ht  ns  now  pre- 
itself  at  the  bar ;  yet,  gentlemen,  should 
nh  of  this  black  and  frighti'ul  murder  be 
upon  the  prisoners  (as  from  my  instruc- 
1  fear  it  nill)  pity  must  then  give  %fay  to 
r  and  astonishment  at  the  baseness  and 
rity  of  the  fact  and  circumstnnces ;  and 
)rrow  ought  to  be,  that  through  the  lenity 
\  laws,  the  unnatural  author  and  contriver 

shocking  a  piece  of  cruelty,  and  this  his 
I  accomplice  in  the  rufiianly  execution  of 
oiild  be  to  share  the  common  fate  of  ordi- 

nalefactors.  Gentlemen,  yon  perceive 
laid  in  the  indictment  that*  the  prisoner 
my  strangled  the  deceased,  and  that  the 
ner  Goodere  was  present,  aiding  and  abet- 
hira  in  that  barbarous  action,  and  so  in- 
d  in  the  same  guilt,  and  equally  a  princi- 
n  tlie  murder :  but,  gentlemen,  Mr.  Itc- 
T,  J  believe,  will  tell  you,  that  the  only 
ir  for  your  enquiry  will  be,  wliether  the 
ners  were  concurring  in  the  murder  of  the 
ised,  and  present  at  the  strangling  of  him  ; 
r  so,  whether  Slahony,  31  r.  Gimdere,  or 
ler  in  fact  strangled  him,  it  will  in  cousi- 
ion  of  law  lie  the  same  thing,  and  the  act 
angling  will  be  as  much  imputable  to  each 
im,  as  if  they  had  both  assisted  in  putting 
ml  about  the  neck  of  the  deceasefl,  and 
bis  actual  executioners;  nor  will  it  be 
rial,  whether  they  strangled  him  with  a 
■  handkerchief,  or  their  huiids,  so  the  kind 
itb  be  proved.  *And,  gentlemen,  as  to  the 
\  set  forth  in  the  indictment,  1  have  mat- 
in my  brief,  for  a  very  heavy  charge 
■I  both  the  prisoners,  hut  distinguished 
•t  the  prisoner  Mr.  Goodere  with  this 
IL.  XVII. 


black  chancteristic,  that  he  was  brother  of  tim 
deceased,  and,  as  such,  bound  by  the  ties  of 
blood  and  nature  to  have  preserved  his  person 
from  vrolence ;  and  yet,  gentlemen,  I  am  afraid 
it  will  appear,  that  bis  brother  died  by  his  pro- 
curement, and  in  his  presence,  which  it  the 
same,  in  effect,  as  if  he  had  perished  by  hit 
hand.  But  as  it  wouhi  ill  become  me  to 
aggravate  in  a  case  of  this  nature,  1  shall 
only  state  to  yoo  the  most  material  pasAg^ 
relating  to  the  murder  of  that  unfortnnate  gen- 
tleman, and  leave  the  rest  to  come  from  the 
mouths  of  the  witnesses  themselves.  And, 
gentleuien,  (as  I  am  instructed)  there  had  been 
a  lonflf  and  very  unhappy  difference  between  the 
deceased  sir  John  and  his  brother  the  prisonerp 
owing  to  various  occasions :  and  amongst  others, 
to  sir  John's  having  cut  off  the  entail  of  a  large 
estate  in  Worcestershire,  to  which  Air.  Goodere 
(as  the  next  remainder- man)  would  have  other- 
wise stood  intituled,  in  default  of  r»ne  of  shr 
John.  Gentlemen,  this  misunderstanding  bj 
degrrees  grew  to  an  inveterate  grndge  ana  ha- 
tr^  on  the  part  of  Mr.  Goodere ;  which  was 
so  rooted  in  his  heart,  that  it  at  length  worked 
him  into  a  formed  design  of  destroying  his  bro- 
ther,'and  making  away  with  him  at  all  hazards 
and  events.  The  great  difficulty  was,  how  to 
get  sir  John  into  his  power,  for  he  generally 
travelled  armed  ;  nor  was  it  easy  to  get  toge- 
ther a  set  of  fellows  so  base  and  desperate,  aa 
to  join  witli  him  in  the  carrying  off  his  brother. 
But,  unfortunately  for  the  deceased,  the  pri- 
soner, Mr.  Goodere,  having  been  lately  ho- 
noured by  bis  majesty  with  the  command  of 
the  Ruby  man  of  war,  happened,  in  January 
last,  to  lie  stationed  in  King-road  (as  much 
within  the  county  of  Bristol,  as  the  (vuild-hall 
where  this  court  is  sitting.)  Sir  John  (who 
was  advanced  in  years,  and  very  ailing)  had,  it 
seems,  been  adviised  to  come  to  Batli  for  the 
recovery  of  his  health :  and  having  occasion  to 
transact  afiairs  of  consequence  at  Bristol  with 
Mr.  Jarrit  Smith,  l\1r.  Goodere  took  this  oppor- 
tunity of  laying  a  snare  for  his  brother's  life,  aa 
you  \vill  find  by  the  event.  Ilo  applies  to  Mr. 
Smith,  and  taking  notice  to  him  of  the  misun- 
derstanding between  himself  and  his  brother, 
prctonds.a  sincrre  desire  of  reconciliation,  and 
desires  Mr.  ISmith,  if  |iossible,  to  make  up  the 
breach  between  them;  and  Mr.  Smith  promised 
to  do  his  utmost  towards  effecting  a  reconcilia- 
tion, an<l  was  as  good  as  his  word  ;  for,  by  his 
interest  and  persuasions,  he  at  length  prevailed 
upon  sir  John  to  see  and  be  reconciled  to  his 
brother,  and  sir  John  having  appointed  Tuesday 
the  13tb  of  January  last  in  the  morning  for 
calling  on  Mr.  Smith  at  his  house  in  College- 
Green,  Mr.  Smith  soon  mode  his  brother,  Mri^ 
Goodere,  acquainted  therewith ;  and  no  sooner' 
was  he  informed  of  it,  but  he  begiHi  to  take  hia 
measures  fur  the  executing  his  wicked  scheme 
again!<t  his  brother's  life.  For  on  Monday  (the 
day  before  sir  John  was  to  bc^t  Mr.  Smith's) 
Mr.  Goodere,  with  the  other  prisoner  Mahony, 
(his  inseparable  agent  and  companion  iu  every 
stage  of  litis  fatal  business)  went  together  W 
•  T 


101 13  14  GEORGE  11.     Trial  qfCaplain  Goodere  and  M.  Mahony^    [1013 


the  White  Hart,  an  ale-house  near  the  foot  of 
the  Col legfe- Green,  in  the  view  uf,  and  almost 
opposite  to  Mr.  Smith's,  in  order  to  see  if  it  was 
a  fit  place  for  their  desperate  purpose:  and 
finding  it  to  be  so,  Mr.  Goodere  commended 
the  pleasantness  of  the  closet  over  the  porch, 
■nd  said  he  would  come  and  breakfast  there 
the  next  day.  And  accordingly  the  next  niorn- 
ing(which  was  Tuesday  the  13th)  Mr.  Goodere, 
with  his  friend  Mahony,  and  a  g^ang  of  fellows 
belongin(;f  to  the  privateer  called  the  Vernon, 
whom  thev  had  hired  to  assist  them  in  the  way- 
laying and  seizing  of  sir  John,  (but  whom,  one 
would  have  thought,  the  name  of  that  gallant 
admiral  should  have  inspired  with  nobler  sen- 
timents) came  to  the  White  Ilart,  where  hav- 
ing ordered  they  should  have  what  they  would 
call  for,  he  went  himself  to  breakfast  in  the 
closet  over  the  porch,  from  wivcnce  he  had  a 
full  view  of  Mr.  Smith's  house,  whilst  the 
others  posted  themselves  below  on  the  look-out 
for  sir  John ;  and  it  was  not  long  before  he 
came  on  horseback  to  Mr.  Smith's  :  but  his 
stay  was  very  short,  being  obliged  to  go  to 
Bath  ;  however,  he  promised  Mr.  Smith  to  lie 
in  Bristol  again  by  the  Sunday  following.  He 
was  seen  from  the  While  Ilart  by  Mr.  Goodere 
and  his  spies  upon  the  watch ;  but  having  a 
servant,  and  riihng  with  pistols,  they  did  not 
think  proper  to  attempt  the  seizing  of  him  then ; 
hut,  as  he  rode  down  the  hill  by  St.  Augustine's 
back,  Mr.  Goodere  called  out  to  Maiiony  in 
these  words,  **  Look  at  him  well,  Mahony, 
and  watch  him,  but  don't  touch  him  now." 
And  in  fact,  gentlemen,  the  prisoners  and  their 
companions  tollowed  and  watched  sir  John  a 
considerable  way.  Afterwards  Mr.  Smith  ac- 
quainted the  prisoner  Mr.  Goodere.  that  his 
brother  was  to  be  with  him  on  the  Sunday  fol- 
lowing ;  and  little  thinking  that  an  interview 
between  brothers  could  be  of  a  fatal  tendency, 
advised  him  to  be  in  (he  way,  that  he  might 
bring  them  together  :  which  udvice  the  pri- 
soner observed  with  but  too  great  punctuality, 
taking  care,  in  the  interim,  to  lay  su(  h  a  (ruin, 
as  that  it  should  he  hardly  possible  for  his  bro- 
ther to  escape  I'aliing  into  his  hands.  He  or- 
dered the  man  of  war's  barge  to  Ijg  sent  up  for 
him  on  the  Sunday;  accuidinifly  it  came  up 
about  S2  or  o  that  aiicmuon ;  of  which  Mr. 
Goodere  being  inl'ortned  by  one  Williams  a 
midshipman,  whom  he  had  ordered  up  in  it,  he 
enquired  of  Williams,  if  he  knew  the  river,  and 
the  Brick-kilns  goinii^  down  it  ?  And  Williams 
telling  him  he  diil,  Mr.  Goodirc  ordered  him  to 
get  all  (he  boat*s  crew  together,  and  be  sure  to 

Klace  the  barge  at  the  Brick-kilns,  and  leave 
ut  two  or  three  hands  to  look  atler  the  bar^e, 
and  bring  all  the  lebt  of  the  men  to  the  U'hite 
Hart  ale-house,  and  wait  for  him  there,  for  he 
had  a  certain  person  coming  on  board.  Accord- 
ingly, ircntlemen,  Williams  and  most  of  the 
barge- men  came  to  the  place  of  rendezvous  at 
the  White  Hart,  where  Mahony,  with  several  of 
the  privateer's  men  (I  Itelieve  all,  or  most  of  the 
eam\gang  that  had  been  there  on  the  watch 
tht  lu«^ay  before)  wn  alto  met  by  Mr. 


Gooderc's  orders  to  way-lay  and  seize  ar  Johiiy 
and  6too<l  at  the  window  on  the  look-eat,  u 
order  to  watch  his  coming  out  of  Mr.  Bnith'i. 
Thus  the  ambuscade  being  laid,  the  prisoner 
Mr.  Goodere  goes  to  Mr.  Smith's  about  three 
ill  the  afternoon  (the  hour  at  which  sir  Joha 
had  appointed  to  be  there ;)   be  went  directly 
towards  hfe  brother  sir  John,  and  kissed  hia 
(what  kind  of  kiss  it  was,  will  best  appear  bj 
the  sequel,)  and  observed  to  biin  with  an  odIf 
ward  shew  of  satisfaction,  that  he  looked  is 
better  health  than  he  had  formerlv  done.    Mr. 
Smith  was  so  good  to  drink  friendship  and  re> 
conciliation  between  the  two   broihers:   Ur. 
Goodere  pledged  it  in  a  gluss  of  wine,  which  be 
drank  to  his  brother  sir  John ;  and  sir  Johe 
(being  under  a  regimen)  offered  to  pledge  bia 
in  water,  little  thinking  his  brother  designed  to 
end  their  differences,  by  putting  an  end  to  bii 
life.    But  that,  gentlemen,  you'll  soon  see  wis 
the  sole  end  he  had  in  view ;  for  sir  Jobaii 
about  half  an   hour  taking  his  leave,  Ur. 
Goodere  was  following  him  :  Mr.  Smith  alopt 
Mr.  Goodere,  saying,  *'  1  think  1  have  doac 
great  things  for  you."     Says  Mr.  Geodov, 
*'  By  God,  this  won't  do;"  and  ioimediatrij 
followed  his  brother :  and  meeting  some  oftlM 
sailors  whom  he  had  posted  at  the  White  Hiit^ 
says  to  them,  **  Is  he  ready  ?"   and  being es* 
swered,  "  Yes,"    he  bid  Uiem   make  Catip 
Mahony,  and  the  other  fellows  who  were  m 
the  look-out  at  the  Whi(e  Hart,  seeing  sir  Jobs 
go  down  St.  Augustine's  Bank,  immediakly 
rushed  out,  and  (as  they  had  been  ordered  by 
Mr.  Goodere)  seized  sir  John  as  their  prisoser. 
Just  then  Mr.  Goodere  himself  was  come  up, 
and  had  joined  his  companions,  and  thtwti 
himself  their  ringleader:  for  (according  to  my 
instructions)  he  gave  them  positive  nmn  to 
carry  sir  John  on  board  the  barge,  and  tbej 
but  too  exactly  observed  the  word  of  comnusd. 
They  hurried  on  sir  John  with  the  utmost  fia- 
lence  and  precipitation,  forcing  him  alon?,  asd 
even  striking  him  in  the  presence  of  his  bro- 
ther, and  (as  the  Romans  use<l  to  do  tbdr  ma- 
lefactors) dragged  him  through  the  public  vty. 
The  poor  uniortunate  creature  made  rcpetled 
outcries  of  murder,  that  he  was  ruined  and  on- 
doue,  for  his  brother  was  going  to  take  awaf 
his  life.     He  made  what  i-esistance  he  coohI 
and  called  aloud  'for  help,  but  all  was  to  so 
purpose.      Several    persons    indeed    followfJ 
them,  and  asked  vihut  uas  the  matter?    Bat 
they  were  answered  by  Mr.  Goodere  and  hii 
associates,  that  the  person  thev  were  hauliflf 
along  was  a  murderer,  had  kifled  a  man,  vi 
was  going  to  be  tried  for  his  life.    Tbenotl 
of  this  ruffianly  crew  beinnr  armed  (it  8Mo4 
with    bludgeons  and  truncheons,  obliged  tbi 
people  who  came  about  to  keep  off,  hokling  if 
their  sticks  at  them,  and  threatning  to  knock 
them  d6wn.     Gentlemen,  uhen  thev  bad  tha 
forced  sir  John  towards  the  end  ot'  the  reps' 
walk,  Mr.  Goodere  (who  all  along  bore 


com|>any ,  and  animutetl  iliem  as  tliey  pmd 
along)  bid  them  nidke  more  dispatch,  and  awsi 
their  pace.     Accordingly  they  took  op  tf 


]  for  the  Murder  of  Sir  John  Ooodere. 


A-  D.  1741. 


[1014 


and  carried  him  by  main  forc^a  consi- 
s  way,  then  set  him  down  asfain,  and 
1  and  hauled  him  along,  till  they  had 
m  to  the  slip  (opposite  to  the  King's 
Sir  John  cried  out,  **  Save  me,  save  me, 
y  are  going  to  murder  me."  There  the 
came  up,  and  the  prisoner  ]V|r.  Goodere 
is  brother  forced  on  boani,  and  with 
ly  and  the  rest  went  also  into  the  barge, 
in  then  called  out,  '*  For  God's  sake  rnn 
Smith,  and  tell  him  I  am  going  to  be 
"ed,  or  I  am  an  undone  man."    And 

out  that  his  name  was  Dineley,  Mr. 
re  stopt  his  mouth  with  bis  hand,  to 
t  bis  telling  his  other  name :  And  though 
ID  was  in  an  ill  state  of  health,  yet  his 
tearted  brother  forcibly  took  bis  cloak 
ff  bis  back,  and  put  it  upon  himself: 
ifing  thus  got  him  into  his  power,  he 
1  the  men  to  row  off,  telling  his  brother, 
ow  he  had  got  him  into  his  custody,  he 
take  care  of  him,  and  prevent  bis  maiking 
vith  his  estate.  But,  gentlemen,  in  fact, 
B  did  bethink  himself  concerned  iu  what 
bn  did  with  the  estate,  that  be  was  of 
1,  no  act  of  sir  John's  could  affect  it 
than  bis  life  ;  and  that  it  must  neces- 
Jevolve  to  him  (as  the  next  in  remainder) 
brother's  dying  without  issue.  And  this, 
men,  he  declared  to  Mr.  Smith  but  a  few 
lefore.  And  indeed  his  brother  at  once 
hat  kind  of  prevention  it  was  he  meant ; 
ow,  says  he  to  Mr.  Goodere,  (soon  after 
ng  forced  into  the  barge)  yon  intend  to 
s*  me  this  night,  and  tberetbre  you  may 
ft  do  it  now,  as  carry  me  down."  Poor 
man,  bis  heart  misgave  him,  that  the  de- 
f  this  base,  and  daring  outrage  was  to 
the  ship  his  prison,  one  of  his  cabbins  his 
iter-honse,  and  the  sea  bis  grave,  and 
Mne  be  made  it  his  choice  to  be  thrown 
ard  in  the  river  (xv here  his  body  might  lie 

rather  than  buried  in  the  ocean.  The 
ir  Goodere  denied,  indeed,  he  had  any 
!esign,  but  yet  could  not  refrain  from  the 
exhortation  to  dying  persons,  that  he 
have  him  make  his  peace  with  God.  At 
edclifft  the  privateer's  men  were  set  on 

and  1  think  about  seven  in  the  evening 
^e  reached  the  Ruhji^  man  of  war,  then 
g-road.  Mr.  Goodere  had  in  their  pas- 
.Iked  of  btceiling  and  purging  his  brother 
^  him  to  his  senses,  pretending  he  was 
man ;  for  he  knew  very  well  that  very 

bis  own  men  would  have  assisted  him 
I  an  enterprize,  had  they  not  been  under 
r  that  his  brother  was  really  mad.  And 
>  ap  such  a  notion,  as  soon  as  he  had  got 
I  board  the  Ruby,  he  hurried  him  down 
[  think,  they  call  the  gangway,  into  the 
t  cabbin,  making  an  apology,  that  he 
oogfat  a  road  fellow  there ;  then  ordered 
!ti  to  be  clapt  on  the  cabbin*door,  for 
knug  bit  prison  more  secure,  which  was 
JBgly  done.    And  now  having  made  his 

ft  priaoner,  bis  next  step  was  to  destroy 
B«  took  Mfthoo J  with  nyn  into  his  own 


cabbin,  and  there  tbe  cruel  means  of  murder* 
ing  his  brother  was  conqprted  between  them. 
They  agreed  to  strangle  him ;  and  engaged  one 
White  (who  is  hereafter  to  stand*  to  the  justice 
of  his  country)  to  assist  them  in  the  butcliery. 
I  should  have  told  you,  gentlemen,  that  it  is 
Qsual  in  ships  of  war  to  place  a  centinel  over 
persons  under  arrest ;  and  accordingly  one  waa 
placed  by  Mr.  Goodere's  orders,  with  a  drawn 
ciitlas  in  his  hand  at  the  door  of  tbe  cabbin 
where  sir  John  was  confined.  This  centinel, 
about  twelve  at  night,  was  relieved  by  one 
Bucbannan.  It  was  impossible  foi^  the  pri* 
soners  to  put  their  wicked  design  in  execntioOf 
whilst  this  Bucbannan  remained  at  tbe  cabbin 
door  ;  so,  to  remove  that  obstacle,  Mr.  Goodere 

gf^er  having  been  in  close  conference  with 
ahony    and    White)   comes '  down    to    the 
purser's  cabbin,  takes  the  cutlas  from  Bnchan- 
nan,  and  orders  him  on  deck,  posting  himself  a^ 
tbe  door  of  the  purser's  cabbin,  with  the  drawn 
cuthM  in  his  hand.    I  shall  open  none  of  the 
circumstances  disclosed  by  Mahony  in  his  con- 
fession, as    being  no  evidence   against  Mr. 
Goodere,  but  it  will  be  made  appear  to  you  in 
proof,  thKt  Mahony  and  White  came  to  tbe 
putaer's  cabbin  whilst  Mr.  Goo<lere  stood  posted 
at  the  door  of  it ;  that  they  were  let  into  the 
parser's  cabbin  by  Mr.  Goodere  himself.    Ma- 
hony in  particular  was  seen  by  one  Macgnineaa 
(who  kept  watch  in  the  gun-room)  to  go  into 
the  purser's  cabbin,  Mr.  Goodere  at  the  same 
time  standing  centinel  at  the  door  of  it,  and 
waving  his  cutlas  at  Macfjuiness,  to  make  him 
keep  back.     He  did  so  ;  but  Mr.  Goodere  waved 
the  cutlas  at  him  a  second  time,  and  bid  him 
keep  back.    Then,  gentlemen,  it  was  that  Mr. 
Goodere  and  his  two  accomplices  effected  the 
cruel  murder  of  his  unfortunate  brother.     Ma- 
hony was  heard  to  bid  him  not  stir  for  his  life ; 
and  then  in  conjunction  wiih  White,  whilst  Mr. 
Goodere  stood  watch  for  them  at  the  cabbin 
door  (which  Mr.  Reconlcr  will  ttll  you  was  the 
same  as  being  actually  within  it)   fell  on  this 
unhappy  gentleman  as  he  lay  in  the  cabbin: 
And  one  of  them  having  half  throttled   him 
with  his  hands,  they  put  a  rope  about  his  neck, 
and  at  length  strangled  him.    Great  were  hie 
ngotiies,  and  long  and  painful  tlie  conBict  be- 
tween life  and  death.      He  struggled  violently, 
and  kicked  against  the  cabbin,  crying  out  se- 
veral times  very  loud,  "  Murder  I  must  1  uic ! 
Help,  for  God's  sake  ;  save  my  lile,  here  are 
twenty  guineas,  take  it :"  For  he  well  knew 
they   were  stranp;ling  him    by   his  brother'* 
orders,  and  therefore  offeretl  them  a  bribe  to 
spare  his  life ;  but  the  ruffians  were  reitntlesa 
and  inexorable.    The  ship's  co<»per  (one  Jones) 
and  his  wife,  lying  in  the   adjoining  cabbin, 
heard  his  dying  out-cries,  and  the  noise  occa- 
sioned by  his  kicking  ;  his  crie»  too  were  heard 
by  others  far  beyonti  the  cabbin  door.     Nature 
at  length  gave  way,  and  he  expired  under  these 
cruelties.    Then  'Mahony  called  for  a  light, 
that  they  might  have  all  the  evidence  of  their 
eye-sight  that  sir  John  waa  actually  dead  ;  aRil 
(whicbif  ftiboGkiBgcirgunittftiiccittUie  case) 


1015]  I4f  GEORGE  IL    Trial  qfCajdain  Goodere  and  M.  Mahony^    [1016 


Mr.  Goodere  luaiselfhanded  them  in  the  candle 
an  that  occasion.  Buchannan  perceivinir  the 
li^^ht  disappear,  was  coming  to  him  %vitb  an- 
other; but  Mr.  Goudcre  waved  his  cutlas  at 
him  to  stand  off.  8uch,  gentlemen,  was  the 
fatal  conclusion  of  this  tragical  business.  What 
was  seen  by  the  cooper  and  his  wiie  aflcr  the 
candle's  being  handed  in,  with  regard  to 
rifling  the  deceased,  1  choose  shall  ci)inc  from 
their  own  mouths.  The  murder  being  thns  ef- 
fected, Mr.  Goodere  locked  the  door,  and  with* 
drew  to  his  own  cabbin  ;  Mahony  and  White 
were,  by  his  order,  put  aboard  the  yawl,  and 
tent  to  Bristol.  They  did  not  fly  Uie  city, 
gentlemen,  depending  that  their  iellow-mur^ 
derer  would  some -how  smother  this  deed  of 
darkness,  and  take  care  of  their  secui-ity  for  the 
sake  of  his  own :  But  Divine  Providence  or- 
dered otherwise.  The  honest  cooper,  though 
he  durst  not  give  the  alarm  whilst  the  murder 
was  committing,  for  fear  of  sharing  the  same 
late  with  sir  John,  yet  as  soon  as  he  could  with 
safety,  made  a  discovery  of  the  whole  that  he 
had  heard  and  seen.  It  was  concluded  Mr. 
Goodere  had  made  away  with  his  brother, 
whicli  too  evidently  appeared  on  the  cooper's 
forcing  open  the  purser's  cabbin  door  where  sir 
John  lay  murdered,  and  thereupon  the  cooper 
had  the  resolution  to  seize  the  murderer,  who 
remained  on  board  (though  his  captain).  He 
pretended  innocence ;  and  when  brought  by 
warrant  before  Mr.  Mavor,  and  other  of  the 
city  magistrates,  publicfy  declared,  he  did  not 
ilien  know  that  his  brother  was  murdered,  and 
went  so  far  as  to  deny  his  having  had  any 
hand  in  either  the  seizing,  detaining,  or  mur- 
dering him.  But,  gentlemen,  if  my'  iiistnic- 
iions  don't  mislead  me,  we  shall  flx  the  thing  at 
least  as  strongly  upon  Mr.  Goodere  as  ^Uahocy, 
nnd  more  strongly  upon  them  hoib  tb&n  1  aln 
willing  to  open  it.  We  shull  therefore  call  our 
witnesses,  and,  upon  the  whole  of  the  evidence 
on  both  sides,  appeal  to  your  judgments,  and 
to  your  consciences,  whether  both  the  prisoners, 
hy  the  ])arts  they  bore  in  this  horrid  action, 
have  not  forfeited  their  lives  to  the  justice  of 
their  country  as  accomplices  in  guilt,  and  prin- 
cipals in  the  murder  of  the  unfortunate  sir  John 
Dincley  Goodere. 

Mr.  S/ivphurd.  Mr.  Recorder,  1  beg  leave, 
hcfore  the  wiUicsses  are  examined,  to  say,  that 
there  are  a  great  many  circumstances  in  tlie 
case  laid  before  this  court,  and  1  don't  know 
how  materia]  it  may  be  tor  the  witnesses  to  with- 
draw, and  not  be  in  the  heariti^  of  carh  other 
during  the  time  of  examinatiuu ;  1  submit  it  to 
you,  as  is  usually  doneiu  casts  of  this  nature, 
whether  it  cugiit  not  to  he  done  in  this  case, 
where  it  appears  from  the  u'entlciiian's  oiwn 
openini;,  there  are  variety  of  circumstances.  1 
doubt  not,  iSir,  hut  that  you  will  see  equal  jus- 
tice done  between  the  king  and  ilic>  prisoner. 

Mr.  lleconier.  It  cannot  be  iusisied  nu  as  a 
matter  of  ri^ht,  that  the  witnesses  he  examined 
npart ;  but  it  is  generally  so  ordered,  if  it  is  do- 
siretl.  I  hope,  bir,  you  will  observe  too,  that 
ibe  prisoner  bath  m  ijgbt  to  beheaiti  hy  (u»iin- 


sel,  unless  in  matters  of  bw.    If  any  web 
maitcr  arise,  1  shall  be  ready  to  hear  you. 

Mr.  Vernon,  If  Mr.  Sbephsrd  moves  this  u 
a  matter  of  right,  1  would  just  remind  him  of 
%vhat  lord  chief  justice  Treby  says  in  Peter 
Cook's  trial,*  that  it  is  not  of  necessity  tliat  tlit 
witnesses  should  be  examined  apart  at  the  in- 
stance of  die  prisoner,  though  an  indulgcses 
generally  granted.  Sir,  the  crown,  periiaps, 
has  a  right  to  such  examination,  but  not  tbt 
prisoner  We  have  a  great  number  of  wit- 
nesses, all  of  whom  attend  here  on  the  pnUie 
service  (and  some  of  Uiem  persons  of  figure ;) 
and  it  would,  I  doubt,  be  casting  a  ssrt  of 
blemish  on  their  credit  to  examine  tuem  apart. 
Could  that  geiiili^man  shew  the  least  glinuner- 
ing  of  suspicion  as  to  the  fairness  of  our  wit* 
ncsses,  tliey  ought  injustice  to  withdraw ;  bat 
as  they  are  free  from  the  least  imputatioB  is 
that  respect,  I  see  not  why  ihej  abouM  bs 
incommoded,  and  hope  be  will  not  coolesd 
for  it. 

Mr.  Shephard,  I  own  it  is  not  of  neoesnty 
that  the  witnesses  be  examined  apart  in  frfosr 
of  the  prisoners,  nor  do  1  intend  to  ihrow  aay 
imputation  on  the  witnesses ;  but  by  Mr.  Vei^ 
nou's  opeuing,  some  of  them  appear  to  be  wit- 
nesses who  were  concerned  in  taking  away  ths 
deceased  gentleman  to  the  ship,  and  all  Ibm, 
I  suppose,  are  intended  to  be  called  as  wit- 
nesses. I  own  it  is  a  matter  of  indulgeoer, 
and  I  dare  say.  Sir,  that  you  will  indulge  a 
prisoner,  in  these  unfortunate  circumstaiicei, 
the  benefit  of  making  liie  best  defence  bt  cat. 

Mr.  Recorder,  Let  the  witnesses  withdnw. 
Officers,  clear  the  way. 

Mr.  Vernon.  We  hofie,  Sir,  it  is  not  intendt-d 
that  all  our  witnesses  in  general  should  with- 
draw without  distinction. 

Mr.  Jarr'U  Smith,  (Solicitor  for  the  prosen* 
tion.)  We  desire  there  may  be  a  room  for  our 
witnesses,  where  they  shall  be  tugetlier,  or  I 
may  lose  half  my  witnesses.  I  am  myself  t 
witness,  Mr.  Recorder,  must  I  withdraw  ? 

Mr.  Recorder.  No,  you  shall  not  go  oot-* 
Who  do  you  call  first,  Mr.  Vernon  ? 

Mr.  Vernon.  Cryer,  call  Thomas  Cbamkff^ 
layn,  esq.  [I\lr.  Chamberlayn  sworu.]  I  thiak, 
Sir,  you  have  been  for  some  time  acquaiateil 
with  Mr.  Goodere^  the  unhappy  gentleman  al 
the  bar. 

Chamberlayn.  A  late  acquaintance. 

Mr.  Vernon.  Pray,  Sir,  will  3'ou  giveso  ic« 
count  to  Mr.  Reconler  and  the  jury,  whether 
Mr.  Goodere,  at  any  time,  and  when,  denied 
your  interposition  with  Mr.  Jarnt  Smith  !• 
bring  about  a  reconciliation  between  him  asd 
his  brother  sir  John  Dioeley  Goodere  ? 

Chamberlayn.  Yes,  Sir,  he  did.  The  ctp« 
tain  applied  to  me  to  go  to  Mr.  Smith  to  inlcf* 
pose  for  him  with  sir  John ;  and  I  did  apply. 

Air.  Vvnwn.  Prav,  Sir,  how  long  was  it  be- 
fore this  unhappy  aii'uir  happened? 

C hambttlatjn.   About  three  weeks,  I  believe. 

*  Sre  vol.  IS.  p.  348.  See  too  Vangbn^ 
Case,  vol.  13,  p.  49^ 


'^r  the  Mnrdtr  ofHir  John  Oooderf. 


A.  D.  1741. 


Mr.  Vfrnrm.  And  ilid  Mr.  Stnitli  uiideruk« 
llial  Rood  Dtlured  ofif  e  ? 

C'lumUriayn,  Mr.  Huiilli  uid,  ha  ilioul:!  Iw 
MKilj  la  i|o  It,  ami  prninised  me  to  do  nil  lia 
•MiU  in  iha  aflaif . 

Ur.  FtroiOt.  H'bru  yiiu  applied  to  Mr. 
9aiili>,  were  you  aloue,  itr  wus  Mr.  Gonkre 

"*  sAerlo'/n.  I  went  firsl  alone  j  nftprward* 
1  Onodere  neni  iviilinie  tu  Mr,  Smith'* 


.  H'hnl  WHB  tiie  ocr.Btiuio  of  jour 
iii^rt»>lr.SmlU|-|';- 
CiamUriai/H,    To   Inlrett   him  In  uw  his 
«l  office*  lu  ifM  B  ncDneilluiiiiB  brtween  ilr 
■  and  ilircapiBin. 

''.Vtman.  Ite  pl«as«i1,  Sir,  tnl^ll  II*  what 
I  m  thai  occsHioii,  and  ivhellier  Mr. 
MB  aci)Uaialed  Hr.  Smith  wilh  (lie  naiure 
I  iniraoderBlanding  betweeo  him  anil  hi* 

m^iayn.  Yes,  Sir  ;  ihst  they  had  both 

Jk  lair  a  great  irhile,  and  speot  a  ^rcal 

■money,  and  tlierelhre  Mr,  Good^re  was 

"   have  Mr,  Jnrril  Sinilli  to  reconcile 

r  Iwlwecn  them,  (o  prerent  the  roiD 

uily,   oud  many  laoTe  such  espret- 


Mr.  Jar 


Mr.  Ycrnon.    Mr.  i^diith,  will  you  give  an 
■oeoimtur  irbai  you  know  ul'  this  folal  husi. 

^Kfp^h.    Some  few  veeks  before  Ibid  mnr' 

^HUMppciird,   Hr.    Cihsiitlwrluyii   ajiulieit  to 

^^Mnd  laid  me,  I.Sat  Mr.  (ioodere  (ibt  pri- 

Hpvr  at  the   bar)  desired   thai  I  would  use 

^Kf  vtmuit  oodeavour  niih  sir  John  Ditieley 

n»ur!i're  10  he  IVifoda  aii;l  recoiiuiled  with  Mr. 

Uouriiue.  snd  that  I  would  suffer  hira  to  hrin^ 

Mr.  Gvodcre  lo  my  house,     i  told  him,  I  ol'leo 

■1  *ii  Juiin  say,  ibat  tbere  bad  been  warm 

ICi  between  ihem,  but  would  make  use  of 

jr  erkdetfonr*  to  reconcile  Ibem,  and  that 

kpily  they  should  live  in  hatred,  as  tliey 

BMv  tbi  only  two  brothers.    Some  time  after. 

Iff.  Chnmberlayn  brought  Mr.  Uuudere  to  my 

IMsim,  where  ihry  siiud   about  a  quarter  of  an 

baof,  when  Mr.  Goodere  gave  me  Ibanka  lor 

lb*  pratnisB  1  hod  mailo  tij  Mr.  Chombertavn, 

Uil  lio  then  desired  I  would  ilu  all  I  couid  to 

CHUOte  a  reoondliatioD,     I  told  him,  I  sboidd 
glad  lo  be  a  happy  inslrumeiil  of  iliat  Hort ; 
■m4  ibal  tW  first  lime  I  saw  air  Ji^n  1  would 

■lb  W  kim  on  Uie  afTiur,  and  eiidcaioiir  to 
■A  W  blm  to  meet  Mr.  tioodere.  'I  he 
Msnid,  Ifanvmanin  Bui;land could  do 
Icocdd.  I  toll]  him,  I  hoped  to  succeed, 
ChBDiberlnyn  and  Mr.  Uoodure  weot 
•■my.  Some  little  ttma  aRer  they  were  gone, 
I  WW  air  John,  andlold  bim,  tbal  Mr.  Goodere 
bdapplicd  Id  lue  lo  do  all  I  could  in  reconcile 
Iheai.  Hir  John  secined  10  speak  much  Bgniust 
h  at  iirst,  and  thought  it  would  bo  to  no  pur- 
IWM  i  tat  ibsl  he  hnd  bpeli  a  real  friend  to  the 
cafttAia,  who  bad  nsed  him  tery  ill ;  but  at 
^tmk%mm  |iltnn«l  to  paiaa  eMopUmwuen 


I.  I  cannot  refuse  yon  anyibir^ 
me.  He  llien  mentioned  srieral 
Lbings  the  captain  had  said  ;  and  in  parlitjolat 
lAld  loe,  that  at  the  death  of  sir  Edward 
rioodrrc  bl)  father,  Mr.  Goodere  ibe  priioner 
bad  placed  several  pcrsoiw  in  the  bouse  wber* 
liir  Eilward  lay  dead,  in  order  lo  do  bim  som* 
iiiischiMlj  and  be  apprebendi.-d  lo  lake  away  bit 
life, 

Mr. 
Court,! 


rrofe* 


Mr,  lircoriUr.  ll  is  not  evideuce,  but  per- 
haps it  is  introductory  losomelhinff  Mr.  8milli 
bos  fiuiher  lo  say.  if  it  bv  noi,  it  should  not 
Lave  twRti  mentioned. 

Smith.  And  tbat  be  bad  endeiruurnl  bt 
set  aside  ■  common  recoTery,  and  made  stroDg 
applicatiou  to  the  Court  of  Common  Pieu  tw 
lb  at  purpose. 

Mr,  Shepkard.  Whether  this  be  eti>)«iwe,  I 
insiti  upon  it  in  point  of  law  Ibat  it  ia  not,  aad 
it  may  hare  an  eflect  on  the  jury. 

Mr.  Rteorder.  t  will  lake  noiice  to  the  jury 
what  is  not  eildence.     Go  on,  Mr,  Sintlh. 

Smith.  Aftar  sir  John  hul  repealed  sercral 
•lories  of  this  snit,  he  enncIudeJ  at  last  (as  1 
told  you  before)  and  wby,  Mr.  SuiiUi,  if  yuu 
a*k  it  of  roe,  I  c^n't  refuse.  I  saw  Mr.  Good* 
ere  soon  atler,  and  lold  him,  I  bad  seen  si« 
John,  and  talked  wilb  bim,  and  be  wns  nlessed 
(o  lell  me,  that  be  would  see  him,  and  bid  dm 
conlriie  a  eonienieot  place  to  bring  tbvm  lu- 
areiber.  I  lold  Mr.  Goudereabout  Ibe  allempt 
Lo  set  asi<le  the  rrcovcry.  I  wonder,  naid  Mr. 
Ooodi^i'e,  he  should  mention  any  thing  of  ibat, 
Tor  I  can  set  it  aside  wben  1  please.  I  told 
liim,  I  thought  he  could  not ;  lor.  laid  I,  I 
hare  bad  a  fc""d  opinion  on  it,  and  am  to  lend  * 
large  sum  of  money  upon  ibe  Worcestersbirfl 
estate.  He  said,  1  wonder  that  uny  body  will 
lend  him  money  npou  ihat  estate ;  1  au  nelt 
inremaiuder,  nud  tliey  will  run  a  risk  of  lusiu^ 
Uieir  money,  I  doassurayou;  and  he  canaot 
borrow  0  s'billing  on  it  wiiliout  uiy  conieot ; 
but  if  my  brother  wat  reconciled,  tbcii,  if  wa 
wanted  money,  we  might  do  it  to(reiher,  for  be 
cunnot  secure  il  alone,  lie  told  me,  that  h« 
ahoutd  lake  it  as  a  great  farotK,  if  I  could  fix  a 
time  as  soon  as  I  could  to  bring  Ibcm  togelher. 
^ioou  afler  I  saw  sir  John,  and  be  told  me  ha 
was  rery  deaf,  and  was  adviwil  to  ^o  lo  Bath, 
and  Iben  appointed  lo  he  will)  me  on  Tuesday 
lliu  ]3ih  of  January  \n\  in  the  morning,  when 
lie  wnuld  Ulk  with  me  about  the  biiaiiiess  of 
■dtancing  tlic  money  on  his  estate.  Ailer  this 
1  saw  Mr.  Gnudere,  and  laid  him  that  I  had 
seen  his  brother  ;  tbal  ha  waa  to  be  with  ma  on 
Tuesday  the  I3ili  of  January  last,  and  desired 
him  lo  be  in  ibe  way,  lor  sir  John  was  alwaya 
very  punctual  to  bis  appoinlnieat ;    and  if  mi- 


ll lotd  me  ho  would  be  in  Iba 
wiy;  and  on  the  Tuenlay  morning  Mr  John 
came  lo  nieon  hunehackjnst alighted,  and  cama 
LDlo  iny  ultiDC,    I  Kked  ilUB  lo  lU  ilswi^  nliwh 


1019] 


14  GEORGE .  11.     Trial  of  Captain  Goodere  and  M.  Maliony^ 


he  refused,  tftTingf  his  head  was  bad ;  that  he 
must  go  tor  l^ath,  having^  been  advised  to  ^o 
there  for  some  time,  and  then  he  did  not  doubt 
but  he  should  be  better.    I  told  sir  John,  tliat 
his  brother  knevr  he  vras  to  be  in  toivn,  therefore 
hoped  he  would  sit  down  a  little,  for  that  I  had 
promised  him  to  \mx^  them  together.  He  said, 
I  can*t  now ;  but  you  shall  see  me  again  soon, 
and  then  I  may  do  it.    I  asked  him,  When 
shall  I  see  you  again,  to  finish  the  business  you 
and  I  are  upon,  the  writings  are  ready,  name 
your  own  time,  the  money  will  be  paid  ?    He 
appointed  to  be  with  me  on  Monday  morniog  to 
settle  that  business  ;  and  said,  I  shall  come  to 
town  the  Saturday  or  Suudny  before,  and  when 
I  come  I  wilt  let  you  know  it :  he  then  mounted 
his  herse  and  rid  off.    Shortly  aflcr  (as  I  was 
going  to  theTolzey)  at,  or  under  Blind-gate,  I 
met  BIr.  Goodere,  and  told  him  I  was  glad  to 
see  him,  and  that  his  brother  had  been  in  town. 
He  said,  he  had  seen  him,  and  thought  he 
looked  better  than  he  used  to  do.     I  told  Mr. 
Goodere,  that  his  brother  had  appointed  to  be 
with  roe  Monday  morning  next  on  business, 
and  I  expected  him  to  be  in  town  either  the 
Saturday  or  Sunday  before.     1  then  had  many 
compliments  from  Mr.  Goodere,  and  he  said, 
how  good  it  would  be  to  make  up  the  matter 
between  him  and  his  brother.    I  heard  nothing 
of  sir  John  bein^  in  town  till  Sunday  the  loth 
of  January  last  m  the  morning,  when  he  sent 
ma  a  letter  to  let  roe  know  that  he  came  to 
town  the  nigut  before,  and  wonld  be  glad  to 
call  upon  me  at  any  time  I  would  appoint.    I 
sent  him  for  answer,  that  I  was  to  dine  from 
horAe,  but  would  return,  and  be  at  home  at  three 
o'clock  that  afternoon.    And  as  I  was  passing 
by,  I  stoptthe  coach  at  captain  Goodere's  lodg- 
ings in  Princcs-slreet.     I  asked  if  he  was  at 
home?    Found  him  alone,  and  then  shewed 
him  sir  John's  h  tier.     He  read  it,  and  asked 
the  time  I  appointed.     I  told  him  three  o'clock 
that  afternoon.    Said  he,  I  think  my  brother 
writes  better  than  he  used  to  do.     1  said,  Mr. 
Goodere,  I  think  it  wonld  be  best  for  you  to  be 
accidentally  on  purpose  at  that  time  nt  my 
house.     No,  says  he,  I  don't  think  that  will 
be  so  well,  I  think  it  would  be  better  for  you  to 
send  for  me.    1  returned  to  my  house,  and  my 
servant  told  me  tiiat  sir  John  had  called,  and 
that  he  would  be  hefe  again  presently.     Whilst 
my  servant  was  telling  this,  sir  John  came  in  ; 
I  took  him  by  the  hand,  and  asked  him  how 
he  did  ?     1  thank  God,  says  he,  I  am  some- 
thing better ;  and  after  I  have  settled  this  affair 
with  you,  1  will  go  to  Bath  for  some  time,  and 
then,  1  hope,  I  shall  be  better.     1  said,  captain 
Goodere  is  waiting,  I  beg  you  will  give  me 
leave  to  send  for  him  ;  you  know  you  said  you 
would  see  him.    With  all  my  heart,  says*^  sir 
John,  I  know  1  gave  you  leave.     I  then  sent 
down  a  servant  to  captain  Goodere's  lodginsfs, 
to  let  him  know  that  sir  John  was  with  me,  and 
desired  him  to  come  up.     The  servant  return - 
ad,  and  said.  Here  is  captain  Goodere  ; »  on 
which  1  said,  sir  John,  please  to  give  me  leave 
to  iotoKJl^ca  your  brotbsr.    Ut  gar  a  ina  icava : 


captain  Goodere  came  in,  went  din 
kissed  him  as  heartily  as  ever  I  had 
two  persons  who  had  real   affection 
the  other.    1  desired  them  to  sit  do 
John  sate  on  one  side  of  the  fire,  i 
tain  Goodere  on  tlie  other,  and  I  sati 
them.     1    called   for  a  table  and  a 
wine,  and  filling  a  full  glass,  I  said, 
give  roe  leave  to  ilrink  love  and  fi 
Ay,   with   all  my  heart,  says  sir  . 
don't  drink  wine,  nothing  but   wat 
withstanding,    1    wish    love    and    ft 
Captain  Gooilere  filled  a  bumper,  am 
it,  spoke  to  his  brother,  and  drank 
friendship,  with  his    brotlier's    hea) 
sate  some  time,  all  seemed  well,  and  1 
I  could  have  reconciled  them.    The  c 
ont  of  the  bottle,  captain    Goodere 
the  cork  in  his  hand,  nut  it  into  the 
the  bottle,  and  struck  it  in  very  hard, 
saifl,  though  sir  John  will  not  drink  w 
and  I  will^    No,  says  captain  Goode 
drink  water  too,  if  1  drink  any  more :  i 
was  no  more  drank.    After  tuey  had  t 
veral  things  (particularly  captain  Gc 
the  pleasantness  of  the  situation  of  the 
Herefordshire,  and  goodness  of  the 
a  very  pleasant  and  friendly  way, 
rose  up,  and  said,  Mr.  Smith,  %vhat  tin 
you  have  roe  be  with  you  to  morrow  n 
I  appointed  nine  o'clock.     He  said, 
I  wish  you  well ;    then  said  to  me, 
with  you  half  an  hour  before.    Sir  Jo 
down  the  steps ;  the  captain  was  folio 
stopt  him,  and  said.  Pray  don't  go,  ca 
you  and  i  drink  a  glass  of  wine.     ? 
now,  1  thank  you.  Sir,  said  he.     1   th 
1, 1  have  done  ^reat  things  for  you.    H 
a  little,  and  said.  By  God,  it  will  not  t 
in  a  very  short  time  the  captain  wi 
nimbly  down  the  steps.     1  followed  hi 
door,  and  observed  him  to  go  after  \ 
down  the  hill ;  and  before  he  turned  the 
yard  wall,  to  be  out  of  my  sight,  I 
some  sailors  come  out  of  the  White-1 
house,  within  view  of  my  door,  and 
up  to  captain  (Toodere.     I  heard  him 
he  ready  ?    (1  thoufifht  he  meant  the  b< 
said.  Yes.      He  bid  them  make  haste 
they  ran  very  fast  towards  the  lone 
one  of  them  having  a  bottle  in  his  hau 
tain  Goodere  went  very  fast  down  the 
had  it  not  been  by  mere  accident  1  slio 
followed  him,  (but  some  people  thini 
well  1  did  not)  for  1  promised  my  wife  1 
to  the  house  where  we  dined  in  Uuecn'i 
where  I  went  soon  after. 

Mr.  Uecordcr.  Mr.  Smith,  did  the 
toward  the  lower  green  ? 

Smith.  No,  Sir;  hut  some  towards  t 
on  St.  Augustin's  back.  Sir  Juhn  w 
way,  and  captain  Goodere  followed  h 
the  men  who  came  out  of  the  alehoi 
towards  the  lower  green  some  of  them. 
5  o'clock  in  the  evening,  as  1  was  ri 
the  hill  towards  the  College- green,  I  i 
a  soldier  looked  bard  at  ine  into  tba  oi 


I  ^  the  Murder  of  Sir  John  Goodere. 


A.  D.  1741. 


[IQSf 


lad  sometbiDgf  to  say,  aDd  seemed  to  be 
ODfusion.    1  walked  into  the  court,  the 

witb  me,  and  tben  be  said,  I  am  in- 
I,  Sir,  your  name  is  Mr.  Jarrit  Smith. 
ays  I,  it  is.  (What  I  am  noiv  ^oingf  to 
»Ir.  Recorder,  is  what  the  soldier  told 
He  told  me,  that  as  be  was  drinkiofif 

friend  at  the  Kioufs  Head  ale-bouse  at 
me-kilos,  be  beard  a  noise,  and  ran  out 
what  was  the  matter,  when  be  saw  a 
dressed  (as  be  described)  like  sir  John's 

Vernon,  Pray,  Sir,  bow  was  sir  John 
\? 

'k.  Sir  John  was  dressed  in  Mack  clothes, 
1  a  ruffled  filiirt  on,  a  scarlet  cloak,  a 
?el?ei  cap  (for  the  sake  of  keeping*  bis 
arm)  and  a  broad-brimmed  hat  flapping. 
Bcribed  this  exactly,  and  told  me  like- 
hat  tlie  captain,  of  the  man  of  war  and 
!W  bad  got  the  person  into  custody,  and 
ce  bad  put  him  on  board  the  man  of 
barge  or  boat  lying  near  the  Slip,  by  the 
I  liead  ;  that  the  gentleman  cried  out, 
lod'ssake,  if  you  have  any  pity  or  com- 
D  upon  an  unfortunate  man,  go  to  BIr. 
Smith,  and  tell  him  how  I  am  used:  and 
le  captain  heariug  him  cry  out,  stopt  his 
I  with  his  hand. 

Recorder.  What  did  the  soldier  desire 
\? 

ik,  Tlie  soldier  desired  me  to  enquire  into 
that  be  did  not  know  tb^  intention  of 

olf  a  gentleman  in  that  way. 

Recorder.  Did  you  do  any  thing  on  that 
t  of  the  soldier  ? 

th.  Yes,  Sir  ;  it  immediately  occurred 
,  that  sir  John,  when  be  left  my  house, 
e  that  be  was  going  to  his  lodgings.     I 

0  his  lodgings,  (which  was  at  one  Mr. 
mt's  near  the  mint)  1  there  asked  for  bim, 
elated  the  story  I  bad  heard  ;  they  told 
!y  had  not  seeu  him  since  be  went  to  my 

Vernon.  Mr.  SmKh,  Sir,  will  yon  in- 
ks by  what  name  the  untoftunate  gentle- 
you  are  speaking  of)  was  commonly 

ih.  Sir  John  Di&eley  Goodere ;  his  mo- 
as  a  Dineley,  and  there  came  a  great 
from  her  side  to  bim,  which  occasioned, 
og  called  by  the  name  of  Dineley. 
Vernon.  When  sir  John  went  from  your 
on  Tuesday,  was  he  alone,  or  had  be 
tendant«  with  bim  ? 

\h.  Sh*  John  was  well  guarded  ;  he  had 
,  and  I  think  his  servant  had  pistols  alsb. 
Vernon.  1  think  you  told  us  but  now, 
r  John  was  to  l>e  with  you  on  the  Sun- 
pray,  when  did  you  let  Mr.  Goodere 
it,  Sir .' 

!A.  I  met  captain  Goodere  that  very  day 
id  gate,  and  told  him  of  it ;  and  be  said, 

1  met  bis  brother  biniKelf. 

Vernon.  Pray,  Sir,  did  Mr.  Goodere  teH 
o  whom  the  estate  would  go    on  sir 


Smith.  Yes,  be  has  oflen  said  Be  wa»  tfa« 
next  remainder  man,  and  that  the  estate  would 
come  to  himself  on  his  brother's  death. 

Mr.  Recorder.  Well,  Mr.  Goodere,  you 
have  heard  what  Mr.  Smith  bath  said,  Iuiv9 
you  an^  questions  to  ask  bim  ? 

Mr.  Shephard.  Mr.  Recorder,  what  1  have  to 
ask  of  you,  witb  submission,  in  behalf  of  Mr. 
Goodere,  is,  that  you  will  indulge  counsel  to 
put  his  questions  for  him  to  the  Court,  and 
that  the  Court  will  then  be  pleased  to  pat  them 
for  bim  to  the  witnesses.  It  is  every  day's 
nractice  at  the  courts  of  Westmiusteri  Old 
Bailey,  and  in  the  circuit. 

Mr.  Vernon.  This,  1  apprehend,  is  a  matter 
purely  in  the  discretion  of  the  Court,  aud  what 
can  neither  in  this  or  any  other  donrt  of  cri- 
minal justice  be  demanded  as  a  right.  The 
judges,  I  apprehend,  act  as  they  see  fit  on 
these  occasions,  and  few  of  them  (as  fttr  as  I 
have  observed)  walk  by  one  and  the  same  ralo 
in  this  particuUir  :  some  have  gone  so  far,  as 
to  give  leave  tor  counsel  to  examine  and  cross- 
examine  witnesses ;  others  have  bid  the  counsel 
propose  their  questions  to  tho  Court;  and 
others  again  have  directed  that  the  prisoner 
should  put  his  own  questions :  the  method  of 
practice  in  this  point,  is  very  variable  and  un- 
certain ;  but  this  we  certainly  know,  that  by 
the  settled  rule  of  law  the  prisoner  is  allowed 
no  other  counsel  but  the  Court  in  matters  of 
fact,  and  ought  either  to  ask  his  own  questions 
of  the  witnesses,  or  else  propose  them  himself 
to  the  Court.  1  have  one  more  question  to 
ask  of  Mr.  Smith  before  we  part  with  him. 

Sir,  I  think  you  were  present  when  Mr. 
Goodere  was  brought  to  Bristol,  after  bis  bro- 
ther's being  killed  ;  Pd  be  glad  to  know  whe- 
ther you  then  heard  him  say  any  thing,  and 
what,  concerning  this  foul  business  ? 

Smith.  I  was  present  when  Mr.  Goodere  wai 
brought  to  Bristol  after  this  murder  bappeneti, 
when  he  was  asked  (before  the  justices)  about 
the  seizing,  detaining  and  murdering  sir  John 
Dineley  ;  and  he  then  directly  answered,  that 
be  did  not  know  that  his  brother  was  ronr- 
deredordead.  He  was  then  asked  in  rela- 
tion to  the  manner  of  seizing  bim,  and  carry- 
ing bim  away ;  he  said  he  knew  nothing  ofit 
till  he  came  to  the  boat,  and  when  he  came 
there  he  saw  his  bi other  in  the  boat;  but  he 
did  not  know  that  bis  brother  bad  beeu  used  at 
that  rate. 

Mr.  Shepherd.  Mr.  Smith,  Sir,  yon  are 
speaking  about  sir  John;  by  what  naaae  did 
you  commonly  call  bim  ? 

Smith,  Sir  John  Dineley  Goodere. 

Mr.  Recorder.  Mr.  Goodere,  have  you  any 
questions  to  ask  Mr.  Smith  ? 

Samuel  Goodere.  Yes,  Sir.  Mr.  Smith,  I 
ask  you  what  sir  John  Dineley 's  buKiness  was 
with  you,  and  how  tuueh  money  were  yon  to 
advance  ? 

Smith.  Five  thousand  pounds,  Sir;  and  I  told 
him  that  1  was  satisfied  that  it  was  a  good  title. 

Samuel  Goodere.  I  ask  you,  if  you  kovw 
bim  to  be  a  koigbt  aod  barouet  f 


I0S3]  H  GEOBGE  II.     Trial  ofCapiotn  Goodere  and  M.  Mahony,    [lOSi 


Smith.  I  can*t  tell ;  I  Defer  saw  the  letters 
patent. 

Samuel  Goodere,  Can't  you  tell  bow. you 
■tyled  him  io  the  writings  P 

Mr.  Vernon.  I  am  very  lotli  to  interrupt 
BIr.  Goodere,  but  must  submit  it,  Sir,  that  this 
question  is  extremely  improper,  because  per- 
sonal knowledge  is  by  no  means  legal  mi- 
dence  of  his  brother's  naving  been  a  baronet ; 
tor  baronetage  must  be  derived  from  letters 
patent:  neither  can  I  see,  Sir,  (with  great 
submission)  how  it  would  be  at  all  material  in 
this  oose,  whether  tlie  dt?ceascd  was  a  baronet, 
or  not.  By  the  indictment  the  prisoners  stand 
charged  with  the  murder  of  one  sir  John 
]>ineley  Goodere,  and  the  witness  Mr.  Smith 

£  roves  that  the  party  whom  we  shall  shew  to 
a?e  been  murdered,  commonly  went  by  that 
name. 

Mr.  Shcphnrd.  With  great  submission,  Mr. 
Recorder,  1  think  it  a  very  material  question 
in  point  of  law  :  upon  the  face  of  the  indict- 
Rient  it  appears,  that  he  is  described  by  the 
name  of  sir  John  Dinelcy  Goodere ;  in  a  de- 
claration for  the  king,  the  party  ouglit  to  be 
set  forth  with  his  adtlitions  and  titles,  the  per- 
sons committing  the  fact,  as  well  as  the  person 
on  whom  it  was  committed :  the  deceased  is 
described  by  the  name  of  sir  John  Dinelcy 
Goodere,  and  if  he  was  a  baronet  by  patent, 
it  is  not  his  title,  and  it  amounts  to  the  same 
as  if  they  had  mistaken  the  Christian  name ; 
if  the  deceased  was  a  baronet,  then  he  is  im- 
properly described,  and  then  the  prisoners 
can't  be  found  guilty  on  this  indictment.  The 
question  before  you,  Sir,  is,  whether  this 
question  was  proper  to  be  asked  the  witness? 

j\Ir.  Recorder.  Can  I  presume  him  to  have 
been  a  baronet,  or  can  1  admit  of  parole  cvi^ 
dence  to  prove  him  so  ? 

Mr.  Vernon.  Mr.  Recorder,  T  hog  leave  to 
be  heard  in  answer  to  this  observation  of  iUr. 
Khe|)hHrd*s,  which  I  apprehend  to  be  one  of 
the  most  extraordinary  1  ever  heard  from  a 
gentleman  of  the  long  robe,  and  am  bold  to 
say,  the  learned  gentleman  who  made  it  (if  in 
caruist),  is  niurii  mistaken  in  it,  and  in  the 
doctrine  he  hath  advanced  concerning  it. 
With  great  dt-rv-rence  to  your  judgrocni,  Sir, 
1  speak  it,  Iii:j  objection  (if  1  appnlirnd  it 
rightly)  is,  liiat  tliu  perbxm  mciitioncsl  in  ihe 
indictment  to  have  been  miu'ihi'rd,  is  tl:ore 
described  by  the  name  of  y\v  John  liinciiy 
Goodere  only,  and  that  by  tl:c  csiiU*ncc  it  np- 

Siears    the    pf-rson    nuirdcrrMl    was    sir   Julm 
Jiuelcy  Goodere  baronet ;  nxA  lie  v/nuld  from 
thencelnfer,  that  there  is  a  iniit-aUi-  in  the  de- 


bbdy,  as  a  fee  conditional  and  forfeMile  fur 
felooy.^But  that  where  a  baronet  is  mur- 
dered, it  is  necessary  to  set  forth  his  nsnie  (or 
more  properly  title  of  fHffnity)  io  the  indiet- 
ment,  1   mu^t  take  the  liberty  to  deny :  Iht 
difference,  which  I  apprehencl  has  been  a^ 
ways  taken  and  allowed,  is  between  the  io- 
diclee,  or  jierson  charged  by  the  indicimrat 
with  committing  the  oifence,  and  Ihe  persoa 
on  whom  the  offence  is  laid  therein  to  bavs 
been  committed.    'I'is  indisputably  true,  thst 
the   indictee's  addition  (whether  of  title  or 
otherwise)  roust  be  set  forth  in  the  indictment; 
but  what  is  the  reason  ?  Why,  because  it  ■ 
expressly  so  required  by  the  statute  of  the  UK 
of  Henry  the  5th,  which  directs,  that  indiol- 
ments  and  writs  where  nrocess  of  ootlawrj  ii 
awardable,  the  estate,  degree  or  uaysterj  af 
the  deiendant  shall  be  superadded  to  liis  aaai^ 
to  prevent  troubling  one  person  for  another. 
But,  Sir,  with  great  submission,  that  statmi 
was  never  taken  to  extend  to  any  other  but  tiw 
defendant.    All  the  kiw  requires,  as  to  lbs 
person  on  whom  the  offence  is  laid  to  bats 
been  committed,  is  a  convenient  certaiotjia 
the  description  of  him  ;  and  surely  a  deaorip- 
tion  by  the  right  Christian  and  surname  ii 
such,  and  suflicient  to  ascertain  the  penoB 
murdered,  especially  where  it  does  not  appec 
there  was  any  other  of  the  same  name,    la 
the  indictment  against  Coke  and  Woodbnrss 
on  the  Coventry  act,*    for  disfiguring  llr. 
Coke's  brotlicr-m-law  Mr.  Crispe,  andwhiek 
was  settled  with  great  advice,  the  person  di^ 
figured   is    described   as    here,    one  Edmnl 
Crispe  only  ;  and  all  the  modem  preoedemi 
of  indictments  at  the  Old  Bailey  are  silent,  as 
to  the  addition  of  the  peition  on  whom  tbt 
offence  is  said  to  be  committed ;  and  it  is  en^ 
tainly  best  aiid  sai'irst  to  omit  it.     l<ord  Coke 
in  hie  lirst  Institute  lays  it  down,  thai  a  {KrrMB 
may  have  divci s  surnames,  and  that  a  purcbsiB 
by  either  of  them  is  sutficient,  and  yet  boC 
one  of  them  is  his  true  name;  which  ibe«0 
the  law  is  not  so  over-curious  in  the  maaner 
of  describing  persons :  and,  if  I  mistake  doC, 
it  has  been  held  that  even  the  indictee  himM^^ 
can  take  no  advantage  of  a  mistake  of  hie 
surname,  if  his  Cliristian  name  be  right,  and 
he  l>e   other\«isc    described   with  convrnieSi 
certainty.     Besides,  ^ir,  this  is  begging  the 
question  ;  for  it  does  not  appear  in  proof  tbiS 
the  dvjccasc'd    was  a    huronet,    he  miffbt  fur 
au;jlit  appears  judicially  to  the   Court  liiva 
bf;e:i  iYnpli/:ni  b;   tbe  name  of  Sir  Jolin.    Bar 
vor.iiajxo    a^.    .i    p.ttiia-difj^nity   we    koow  i* 
t;-     inaUer  of  record,  which  is  a  thing  prorcjUa 

scription  of  the  person  murdered,  arid  a  va-     only  by  itself;  ilicrtfoie  if  they  would  hart 

riance  between  the  indictment  and   the  e\i-  '  '  '  '  ^-  -•    ..         .      ..  ^  — 

dence.     Our  baronets,  it  is  well  known,  arc  but 

of  modern  institution,  and   tlirir  croaiion  by 

patent  from  the  king,  as  the  fonntaiu  of  ho- 
nour;    and  whoever  reads  lord  Coke's  12th 

report,  will  find  it  to  have  been  resolved,  at  a 

learned  conference  in  the  time  oi'  James  the 

first,  that  the  king  could  erect  such  a  dignity 

by  [latent  descendable  to  the  hcira  male  of  Uie 


taken  any  advr.r.latre  nf  it,  they  should  baft 
had  t!ic  letters  paicut  of  creation,  or  aa  er ' 
enipliHcalion  t)f  tl:ei:i,  at  least  en  po'tsnc  (al 
the  law  t(.nins  ii)  realty  to  prcKhice  in  coort: 
and  for  an  antiioiiiy  in  point.  Sir,  I  begl<*af* 
just  to  mention  the  case  of  sirltichard  Grahinel* 


*  See  their  Case,  vol.  IG,  p.  54. 
t  iScc  his  Case^  vol.  1%  p.  6IA. 


Jwr  the  Murder  of  Sir  John  Goodere.  A.  D.  1741.  [I0S6 

tiMjr  are  by  law  intiiled  to'  but  I  cannot  admit 
of  ttviilence  whioli  cnn  serve  only  to  am  use. 
Mr.  Goodere,  bave  you  any  more  questions  to 
ask  this  w-itneas?  Mahony,  have  you  any  ques- 
tioDS  to  ask  ?    [Both  silent.] 

Morrit  Hobbs  svrom. 


(1  Prestoa) ;  he  was  indicted  as  a 
and  ol^cted  that  he  was  a  lord, 
ch  triable  by  bis  peers.  But  lord 
«  Holt,  and  others  then  (iresent, 
bim  they  could  take  no  judicial 
lis  hein^  a  lord  (though  they  tliem- 
d  him  so  out  of  courtesy  when  they 
im)  unless  he  produced  the  patent 
,  or  a  copy  of  its  inrollment,  be- 
jer  of  record  ;  so  his  objection  va- 
]  so  I  hupe  will  this  gentleman's, 
illed  the  deceased  in  the  indictment 
>ineley  Goodere  baronet,  then,  Sir, 
probably  hare  been  told,  that  we 
n  proof  of  the  identity  of  the  persoui 
le  baroncttage  was  in  its  creation 
,  and  made  a  concomitant  on  the 
surname  of  Goodere,  and  waited 
at  name;  and  that  the  deceased, 
as  a  baronet,  was  not  of  the  mater- 
of  Dineley,  and  so  upon  the  matter 
rson  as  sir  John  Dineley  Goodere 
sr  in  rerum  natura. 
'hard,  H^Tr.  Recorder,  Mr.  Vernon 
B  not  appear  that  sir  John  Dineley 
met,  and  that  we  oug^ht  to  protluce 

Katent  to  shew  him  such ;  i  think 
ard  objection,  considcrinff  that  by 
ner  cannot  look  into  his  indictment, 
copy  of  it,  in  order  1o  be  advised 
rlere  it  comes  out  only  on  hearinQf 
tent  read,  and  the  person  killed  is 
scribed  by  the  name  of  sir  John 
xidere  only,  without  adding  the  title 
o  tli.'U  it  was  impossible  for  us  to  be 
ith  the  letters  pntcnt,  or  with  any 
f  his   being  a  baronet ;    therefore 


witness  3Ir.  Smith,  who  was  so 
with  the  deceased  ;;entlemau,  had 
of  his  writinp^,  all  his  title  deeds 
him,  so  that  he  cannot  but  know 
y  of  bis  title  and  deinrree. 
order.  It  is  a  rrrrat  mistake  to  say, 
ecessary  to  set  forth  in  the  indict- 
ddition  of  the  person  on  whom  tlie 
lupposed  to  be  committed;  the  law 
)  such  thincT,  and  the  prisoners  suffer 
of  inconvenience  by  leaving  out  the 
because  on  this  indictment  if  they 
)pen  to  be  acquitted,  or  stiould  be 
of  homicide  under  the  deg^e  of 
py  may  plead  that  acquittal  or  con- 
bar  of  a  second  prosecution  for  the 
with  an  averment  that  the  party 
in  both  indictments,  though  under 
pscriptions,  was  one  and  the  snme 
is  suifirient  that  the  deceased  is  de- 
his  Christian  name,  and  the  surname 
he  was  commonly  called.*  The 
roposed  to  the  witness  is  improper; 
t  at  all  material  in  the  present  case, 
ir  John*  was  a  baronet,  or  no.  1 
deny  the  prisoners  any  advantage 

Leach's    Hawkins's  Pleas  of  the 

>k  3,  e.  s:;,  s.  7U. 

CVII. 


Mr.  Vernon.  Mr.  Hobbs,  I  think  you  are  the 
landlord  of  the  White- Uait  alehouse. 

Hobbs.  Yes,  Sir. 

Mr.  Vernon.  Piay,  wherealioutiathe  house? 

Hobbf.  Over- against  St.  Augustine'schurch. 

Mr.  Vernon.  Can  you  see  Mr.  Jarrit  Smith's 
bouse  from  the  window  of  your's  ? 

Hobbs,    Yes,  Sir,  very  plain. 

Mr.  Vernon.  I  presume  you  are  not  unac- 
quainted with  the  prisoners'  faces  ? 

Hobbs.  1  have  seen  the  prisoners  several 
times. 

Mr.  Vernon.  I  would  not  lead  yon  in  your 
evidence,  but  would  be  glad  you'd  give  an  ac- 
count to  Mr.  Recorder,  and  the  jury,  whether 
Mr.  Goodere  (the  gentleman  at  the  bar)  applie<l 
to  you  about  coming  to  your  house ;  if  so, 
pray  tell  us  wheo  it  was,  and  U|ion  what  occa* 
sion  ? 

Hobbf.  Tlie  12lh  of  January  (which  waa  on 
Monday)  captain  Goodere  and  Mahony  came  to 
my  house  ;  captain  Goodere  asked  my  wife, 
Have  yoa  good  ale  here  ?  She  said.  Yes;  he 
also  asked.  What  place  have  you  over-head  ? 
I  answered^  A  closet,  a  place  where  gentlemen 
asaally  sit  to  look  out.  Wilt  you  please  to  let 
me  see  it,  says  he?  Yes,  Sirj^  said  i.  1  went 
up  to  shew  it,  be  and  Mahony  vi  cnt  up ;  the 
captain  said  it  was  a  very  fine  i>ros|>ect  of  the 
town :    he  asked  for  a  pmt  of  ale,  1  draived  it. 


pewe  are  proper  in  asking  this  qnes-     and  he  gave  it  to  Mahony,  he  drank  it :    ond 
_.T. M_    4...  .-.1.    ..ri-^  jjjgjj  jljg  captain  nsked  my  wife,  whether  he 

might  have  a  dish  of  coffee  made  to-morrow 
morning?.  Sir,  said  the,  it  is  a  thing  1  don't 
make  use  of  in  my  way  ;  but,  if  you  please,  1 
will  get  it  for  you.  Then  he  told  her,  he  would 
be  there  fo*morrow  uiorning  by  about  nine 
o'ck>ck.    Moliony  was  by  then. 

Mr.  Vernon.  Did  you  hear  this  discourse 
pass  between  your  wife  and  Mr.  Goodere?} 

Hobbs,  Yes,  1  did,  and  thfu  the  captain  paid 
for  bis  pint  of  ale,  and  went  away  ;  and  the 
next  morning  (being  Tuesday  the  lUth  of  Ja- 
nuary) he  came  again  to  my  house  before  my 
wife  was  up,  and  1  was  making  the  fire  (fbi-  [ 
keep  no  servant).  I  did  not  know  him  airain,  I 
thought  he  was  another  man  ;  says  be,  l^uiid- 
lord,  can't  you  open  them  windows  in  the  par- 
lour? I  to'kl  him,  I  would,  and  so  1  did;  ha 
looked  out,  and  1  thought  that  he  hail  hern 
looking  for  somebody  coming  from  College 
prayers.  He  asked  where  my  wife  was  f 
Says  I,  she  is  a -bed :  benausc,  i^aid  he,  1  talked 
with  her  about  haviusr  some  coffee  for  breakfast. 
I  told  him,  she  should  come  down  presently, 
hot  I  had  much  rather  lie  would  go  down  to 
the  coffee-house,  where  he  would  have  it  in 
order.  No,  says  he,  I  will  have  it  here.  My  m  ife 
came  down,  he  askeil  if  ha  might  go  up  stairs 
where  he  was  bdbre ;  be  went  up,  and  by -sad- 

3U 


1027  J  14  6E0UGE  II.    Trial  of  Captain  Goadere  and  M.  Mahony,    [1028 


by  Naliony  and  three  men  more  came  in ;  I  did 
not  kiioiv  Mahony'sname;  when  they  came 
in,  the  eaptain  uai  above  stairs;  he  directed 
BIS  to  moke  his  men  eat  and  drink  whatever 
thry  woultl,  and  he  would  pay  for  it ;  I  brouj^ht 
them  bread  and  cheese,  they  eat  what  they 
pleased ;  Ma  bony  went  backwanls  and  for- 
wards, up  stairs  and  down  several  times ;  he 
went  out,  but  where,  or  wbait  for,  I  did  not 
know. 

Mr.  Vernon,  Did  Mahony,  when  be  went  up 
stairs,  g[o  in  to  Mr.  Goodere  P 

Hobbs.  Yes,  several  times;  Mahony  put 
the  cuflee,  and  some  bread  and  butter,  and 
made  the  toast,  and  did  every  things  for  the 
captain,  I  thought  he  had  been  his  footman. 
IV hen  the  captaiu  had  breakfasted,  and  bad 
made  the  men  welcome,  be  shifted  himself 
(xouie  porter  brought  fresh  clothes  to  him). 
By -and- by  a  man  rid  along^,  who,  I  believe, 
was  sir  John  Goodere^s  man,  with  pistols  be- 
fore him ;  1  heard  somebody  say  that  it  was 
his  man :  and  soon  after  the  captain  had  shifted 
himself,  Mahony  went  out  about  a  quarter 
of  an  hour,  and  came  back  sweatin*^,  and  went 
up  to  the  captaiu ;  and  1  looking  out  of  the 
window  saw  the  man  on  horseback,  and  leading 
another  horse  (which  I  took  to  be  bis  master's) ; 
and  by-and-byVr  John  mounted,  and  rid  down 
between  my  hou^e  and  the  church  ;  and  I  had 
acme  glimpse  of  him,  and  beard  the  captain 
say,  Lotfk  well  at  him,  but  don't  touch  him. 

Mr.  Recorder,  This  you  heard  the  gentleman 
above  stairs  say  to  the  four  men  below  ? 

Ilolbi.  Yes,  ISir,  he  spoke  those  words  to  the 
four  who  came  in. 

Mr.  Vernon.  Did  sir  John  and  his  man  ap- 
pear to  have  anv  arms  ? 

Hobbs,  Yes,  §ir,  they  bad  both  pistols  before 
them. 

Mr.  Vernon,  Those  men  that  were  along 
with  Mahony,  do  you  know  what  ship  they 
belonged  to? 

Hobbs.  There  was  a  young  man,  I  believe 
something  of  an  officer,  came  to  my  wife,  and 
aaked  her,  Is  the  captain  of  the  roan  of  waf 
here  ?  She  answered  that  she  did  not  know ; 
but  there  was  a  gentleman  above,  and  there 
were  six  other  men  besides  in  the  other  room  in 
another  company,  which  I  did  not  know  be- 
longed to  the  captain,  until  he  ordered  six  pints 
of  ale  for  them.  The  captain  ordered  enter- 
tainment lor  ten  men. 

i^Ir.  Vernon.  U'here  were  those  six  men  ? 

Hobbs,  In  the  kitchen  ;  they  did  not  belong 
to  the  man  of  war,  nor  were  not  in  company 
with  the  other  four. 

Mr.  Venivn.  Now,  will  you  proceed  to  ^ive 
an  account  \\  hat  followed  upon  Mr.  Guodere's 
sayin^r.  Look  well  at  him,  but  don't  touch  him. 

Hobbs,  As  soon  as  sir  John  went  down  the 
hill,  this  Mahony  slept  up  to  the  captain  and 
came  down  sigain,  and  he  and  the  other  three  in 
his  company  went  down  the  hill,  and  the  can- 
tain  followed  them ;  the  €k>|hca  which  tiie 
laptain  pulled  off  were  leH  in  the  room ;  when 
tM  captaiB  was  i^ing  out  M  tk«  door  with  hit 


ffwoni  and  cloak,  I  thooght  I  was  ftretty  nft 
of  my  reckoning,  because  of  hia  clolhet'iiein|[ 
left.  The  captain  said  at  the  door,  Lanilladj, 
I  will  come  Imck  and  pay  you  presently. 

Mr.  Vernon.  How  tons:  wav  it  before  Mr. 
Goodere  returned  to  your  noute  ? 

Hobbs.  ile  came  again  in  about  a  quarter  of  id 
I  hour:  VVhen  became  again,  he  went  up  stain, 
changed  a  guinea,  he  asked  what  was  to  pay  P 
I  told  him  t'ttiir  shillings  and  one  penny  half- 
penny, and  thou  wint  away.  About  an  hour  and 
a  half  after  Mahfmy  and  the  other  cameagtio, 
sweating,  and  saiirihey  had  been  amileortwt 
out  in  the  country.  Mahony  asked  creditfbra 
tankard  of  ale,  and  said  his  master  would  oona 
up  on  Saturday  following,  and  then  bewouM 
pay  for  it:  W^l!,  said  1,  if  lie  is  to  comenpoo 
Siturday,  1  will  not  stand  for  atankard  of  lie; 
but  if  he  don't  come,  how  shall  I  have  bit 
reckon innr  p  Hays  Muhony,  I  live  at  the  Scotch 
arms  in  Marsh-street.  Well,  said  I,  I  will  cut 
deny  drawing  you  a  tvnkard  of  ale,  if  yoa 
never  pay  me.  Slid  he,  You  had  best  get  tbi 
room  ready  n gainst  Saturday,  and  make  a  6n^ 
and  just  dust  ir. 

Mr.  Vernon,  Pray,  when  Mr.  Goodere  wei.t 
away  from  your  house,  was  he  in  the  nmi 
dress  as  w  hen  he  came  first  there  that  dav  ? 

Hobbs,  No,  Sir.  When  he  came  there  he Ini 
a  light-coloured  coat,  and  he  looked  like  i 
country  farmer  at  bis  first  coming  in ;  bat 
when  he  was  out,  he  bad  a  scarlet  cloak  oo, 
worea  oword,  and  had  a  cane  in  hia  hand;  a 
porter  brought  him  the  things. 

Mr.  Vernon.  Do  you  know  any  tbiag  of 
what  happened  on  the  Sunday  following  ? 

Hobbs,  Yes,  Sir ;  the  Sunday  morning  Ml- 
bony  came  to  my  house,  having  tronsers  and  a 
short  jacket  and  leather  cap  on,  asked  fbra 
quart  of  ale,  this  was  Sunday:  My  wlfenid. 
Don't  draw  any  more  upon  tick.  Mabooy 
gave  a  six -pence  and  paid  for  it,  and  said,  8ei 
that  the  room  be  clear,  the  captain  wilt  be  op 
in  the  afternoon,  and  then  he  will  be  here: 
And  as  he  was  going  out  of  the  house,  he  slid 
to  me,  If  you  fortune  to  sec  that  gentlemio  ga 
up  with  the  black  cap  before  that  time,  deyou 
send  a  porler  to  me  to  the  Scotch  arms.  1  told 
him  1  had  no  porter,  and  could  not  seod. 
About  3  o'clock  in  the  at'ternoon,  when  he  cane 
again  with  a  person  who  had  a  seal  led  face,aDd 
one  or  two  more,  a  man  who  lodged  in  tbs 
liouse  came  and  told  me,  that  they  wanted  to 
go  up  stairs ;  bnt  I  would  not  let  them,  becaoM 
it  was  in  service-time :  They  all  went  into  tbt 
parlour,  and  had  a  quart  of  ale,  and  when  thit 
was  drank,  Mabony  called  for  another;  and 
then  eight  or  nine  men  more  came  and  called 
for  ale,  and  went  into  the  parlour,  but  still  kept 
lookin<rout ;  and  one  of  them  being  a  littlefel- 
low,  I  don't  know  his  name,  keptalammingtba 
door  together,  ready  to  break  the  house  di»wt. 
S.iy8  I,  Don*t  brealc  my  house  down  aboot  my 
ears,  don't  think  you  are  in  Marsh-street ;  tbn 
the  little  fellow  came  up  aa  if  he  was  soiogio 
strike  me,  ai  I  was  conung  up  out  ofthe  cel- 
lar with  adobbia  of  ale  in  my  bukI|  for  ftgn- 


far  the  Murder  qfSir  John  Coudere. 


A.  D.  1741. 


to  the  coll^:  I  sBwlhiB^o- 

■ug  to  the  prisniier  Simufl  Good* 
■l«c«ued  walk  down  titt  liill,  I 
I,  and  Ro  dill  MftboDV ;  anil 
men  rualied  out,  aad  tnllun'ed 
ny  pniil  the  rcckoninK.  *nd  went 
Id  ta  lee  alter  rn;  innkanl,  <<>r  I 
id  (if'Ifwiiig  ibnt  llinn  Ihe  reckon- 

l>i  ia  all  1  do  know  from  tlie  be- 
end. 
.   Hotf  long  did  be  continue  at 

_ Ihf  Sunday  ? 

belieie.  Sir,  an  boar  and  an  lislf ; 
lume  nr  other  o(  ilietn  still  look- 
■llinif  at  the  door. 
!r.  YouMy  tlialSUbno;  desiri^d 
u  law  the  genllemaD  in  the  black 
»eQd  a  (lorKr ;  who  did  ;oii  ap- 

gfolleman  to  be  f 
gcDtleinaii  that  rode  down  the 

Jurji.  To  what  place  were  jou  to 
■Br? 
tlie^^cnlcb  arnisinMBrsh-Etreel, 

iy  lotlijed,  if  tbe  gentleman  in  the 
Lgo  nit  to  Ur.  Smith'*. 
».  I  tbink,  yov  la J,  you  satr  Mr. 
lie  Sunday  i^o  down  the  hill,  alter 
HI  in  the  black  c>|if 

dill,  Sir ;   but  nobody  at  all  tvas 

,  DidyouEee  me  at  all  thatdny  ? 
Tee,  Sii',  1  saw  you  go  into  Mr. 
i's ;  and  when  yuu  carae  down 
VIUb  (fentleman  in  (he black  cap, 

It  to  Mahouy  and  bis  company. 

Is  look  charii. 

,   Did  you  see  any  body  with  me 
ma  not  at  your  bouse  that  day. 
lid  not  say  you  were ;  but  as  y 
l-Hr.  Jarrit  l^mith's,  1  heard  one 
I  HV,  'I'liere  giie%  oui 
I  locked  onl. 
>l  be^  leaie,  my  lord, 
kUlbc  captain  bid  Alahony  to  look 

E gentleman  with  the  black  ca|i. 
r«r.     Was  the  gentleman  in   I 
wboae  going  by  they  all  Timhed 
I  gentleman  wham  you  bail  seen 
ilr.  Jarrit  Smith's? 
■iBir;  but  Haliony  ^re  bajf-s- 


lor  nbicb  reesun 

ionol  Willian. 

m.    Mr.  Williams,  I  (bink  vou  be- 

I  Ruby  at  ihe  time  when  this  nie- 

b happened  ? 

,Yes,  Sir. 

^.  Wiiatatalionwereyoum? 
<1  WH  ordered  to  walk  the  ijiiarter- 


of  sir  John  Dineley  (joodere  P  Tell  all  jou 
know  about  il. 

Williami.  I  came  up  on  Sunday  the  I3th 
day  of  January  last  for  my  comninnder,  went 
ID  Wn  lodgTD^,  he  was  nul  at  home;  t  waa 
lold  there,  that  he  dined  that  day  at  Dr.  Mid- 
dtetou'a..  and  he  was  just  gone  there,  I  wrat 
to  I>r.  Middleton'a  after  him,  and  he  wasjnit 
gone  from  thence ;  I  then  relurneil  to  bis 
lodgings,  and  found  him  there ;  I  told  him 
the  barge  was  waitiuff  far  his  honour.  He 
asked  me  if  I  knew  the  ri»er,  and  if  I  knew 
the  brick-yard  at  the  time-kilosf  I  told  him 
that  I  knew  the  liroe-kitns,  and  at  last  T  re- 
collected that  I  did  remember  the  brifk-yard 
he  meant.  That  is  well  enough,  says  he. 
While  I  was  there,  Malinny  came  np  to  him, 
niid  the  captain  desired  of  me  to  go  clown  Blairs. 
for  he  wanleil  lo  siieak  to  Mahony  iu  private. 
1  went  down  stairs,  hy-aod-by  Mahony  came 
down  and  went  away  ;  then  I  wtnl  up  lo  cap- 
tain Oomtere  again,  when  be  directeilme  toeet 
all  the  bands  together,  and  go  down  into  ibe 
hanie,  and,  savs  he,  let  it  be  landed  atthe^irick 
yard.  He  alked  me,  if  1  knew  Ihe  White 
Ilarl  in  the  College  Green  ?  I  told  him,  I  did, 
and  he  directed  me  to  take  eight  men  up  with 
me  to  the  While  Hart,  and  let  two  remain  in 
Ihe  boat,  for  I  have  a  gentleman  coming  on 
hoard  with  me.  I  did  aa  1  was  ordered;  and 
when  I  came  to  the  White  HnrI,  I  snw  Ala- 
bony  knd  some  of  the  priraleer's  men  wilti 
him  ibere  in  a  room :  1  diif  not  like  Iheir  com- 

a' ;  I  went  into  Ihe  kitrben  ;  1  asked  tha 
lord  lo  make  me  a  plot  of  toddy  ;  he  asked 
me,  whether  I  would  hate  it  hot  or  cold  ;  I 
toM  him  a  little  warm;  be  was  going  abont  it, 
but  before  it  was  made,  Mahony  and  the  pri> 
vateer'*  men  rushed  out  of  thehonse:  I  seeing 
that,  followed  iKem ;  they  had  the  grntlemen 
in  posaession  before  I  came  to  them,  and  were 
dragging  him  along.  I  asked  them  whnt  they 
were  ol  f  One  of  the  priviiteer't  men  Inid  me, 
if  I  dill  not  hold  my  tongue,  he  wnuld  throw 
me  over  the  key  into  tlie  rirer,  and  imme- 
diately captain  Goudere  came  there  himself ; 
The  privateer's  men  asked  what  they  should 
dn  with  him,  and  he  directed  them  to  take  him 
on  board  tbe  barge,  I  fulluHed  them  down  lbs 
liulU,  tbegenlleman  cried  ont  Murder,  murder ! 
Mr.  Stephen  Perry  the  anchor-srailh  came  ool 
of  bis  houw,  anclosked  me  what  was  the  matter  f 
I  told  him  I  did  not  know  :  Mahony  said  ha' 
wa*  a  murderer,  he  had  killeil  a  innii  on  hoard 
the  man  of  war,  and  that  he 
they  hail  carried  him  betbrc  a 
'  be  KDs  ordered  back  to  ihe  ii 
tried  by  a  courl  martial, 

Mr.  Recarder.  Was  the  canUin  within  he 
ingat  ihe  timoMahony  said  lliatt' 

WiSiiamt.    He  waijum  behiud. 

Mr.  Ricordf.  Wa^hewilhin  bearingl' 

Wiliiami.    tie  waa;    and   when   they   barfj 
brought  him  into  the  bargs,  eaptain  Gwulrr*'^ 
dtisireil  luIiaTethe  cloak  nut  over  sir  John  1^ 
keep  tiim  from  the  cold,  ont  sir  John  said  h*  J 
did  not  WBDt  a  cloak,  neilber  would  he  ban  it 


1031] 


li  GEOllGB  11.     Trial  of  Captain  Govdcrc  and  M.  MaJwny^     [ 


The  privateer*s  men  wanted  me  to  put  them  on 
the  other  side  the  water,  but  I  said  I  would  not 
without  the  captaio'is  orders.  They  asked  the 
captaiu,  and  he  directed  me  to  do  it,  and  i  put 
them  ashore  at  the  ^lass-house,  aud  just  as  we 
came  over  against  the  Hot-wells,  there  was  a 
gentleman  stand ing  whom  sir  John  knew,  to 
whom  Sir  John  cried  out,  Sir,  do  you  know 
Mr.  Jarrit  Siuith  ?  But  before  he  could  speak 
any  mori%  the  cioak  was  thrown  over  him  to 
prevent  his  crying  out,  and  the  captain  told  ine 
to  steer  the  har{j;e  on  the  other  side,  until  we 
got  clear  ofr*  the  nnisc  oi*  the  people ;  and  when 
we  were  got  clear,  he  directed  me  to  steer  the 
boat  in  the  middle,  as  I  ought  to  do.  1  obeyed 
bis  order.4. 

Mr.  Recorder,  \Vho  threw  the  cloak  over 
him  1* 

Wiilianu.  The  captiln.  And  the  caiitain 
being  as  near  to  sir  John  as  I  am  to  your  lord- 
ship, sir  John  askeil  the  captain  what  he  was 
going  to  ilo  with  him  ?  Says  the  captain,  I  am 
goin*|^  to  carry  you  on  board,  to  save  you  from 
ruin,  aud  from  lying  rotting  in  a  gaol. 

Mr,  Vernon.  And  \yhat  reply  did  su:  John 
make  to  that  ? 

Williana,  He  said,  1  know  better  things,  I 
believe  you  are  going  to  murder  me ;  you  may 
as  well  throw  tne  overboard,  and  murder  me 
here  right,  as  carry  me  on  hoard  ship  and 
murder  me.  No,  says  the  captain,  I  am  not 
^ing  to  do  any  such  thing,  but  1  would  have 
you  make  your  ueafle  with  God.  As  I  steered 
the  boat,  I  heard  all  that  passed.  We  brouglu 
sir  John  on  board  between  7  and  8  o*clock,  be 
could  hardly  go  up  into  the  ship,  he  being  so 
benumbed  with  cold  ;  he  di4l  go  up  oi*  his  own 
accord,  with  the  men's  assistance. 

Mr.  Veniohn  How  was  he  treated  on  board 
the  man  of  war? 

Williams,  Sir,  I  don't  know  how  they  treated 
him  aAer  he  went  on  board  the  shiji.  I  was 
pxcusc<l  from  watching  that  night,  so  i  went 
to  my  hammock ;  hut  after  J  was  got  out  of 
my  iirst  slccj»,  I  heard  some  people  taJkiog 
and  walking  about  backwards  and  forwards :  i 
was  surprised  ;  at  last  I  iK'Cped  out  of  my 
liamniock,  and  a^^ked  the  ceuiinel  what  was 
o'clock  ?  He  said.  Between  two  and  three. 
Aud  then  I  saw  captain  Goodere  going  down 
the  ladder  from  the  deck  towards  the  purser's 
cabbin,  but  for  what  intention  I  know  not.  I 
believe  he  came  ftxHu  his  own  cabbiii. 

Air.  Recorder,  Whereabout  is  the  purser *s 
cabl)in  ? 

Williams.  The  purser's  cabbin  is  in  a  place 
called  the  Cock- pit.  the  lower  steps  of  the 
ladder  is  just  by  the  door  of  the  punter's  cabbin. 

Mr.  litcordcr.  And  it  was  that  ladder  you 
saw  the  captain  go  down,  was  it  ? 

Wil/iaitii.  Yes,  Sir,  it  was. 

Mr.  yeruon.  Mr.  Williams,  you  have  not 
told  us  all  the  particulars  of  sir  Jojiu*s  treat- 
ment between  the  seizing  and  carrying  him  to 
the  barge, 

Wiilianu.  One  of  the  men  had  hold  of  one 
ann,  and  another  I  he  other,  and  a  tiiurd  person 
was  behind  shovmg  him  along. 


BIr.  Vernon.  Where  was  captain  Gc 
then? 

Williatns,  He  was  just  behind  him. 

Mr.  Vernon.    How  near  was  he  to  him 

WUliam$.  Sometimes  he  was  as  near  U 
as  1  am  to  you. 

Mr.  Recorder.  How  many  were  the 
the  comiiany,  do  you  think,  in  the  rope- 
when  they  were  carrying  sir  John  along  ? 

Williams.  There  were  liveof  theuriva 
men,  and  Mahony  made  six,  and  tliere 
nine  belonging  to  the  barge ;  about  sixic 
all. 

Mr.  Recorder.    At  what  distance  were 

Williams.  At  a  pretty  great  distanc 
walked  just  before  them:  1  saw  them 
him  along  in  the  inanuer  I  have  said  ;  1  I 
sir  John  cry  out  murder  several  times  i 
went,  as  they  took  him  along  the  rope-wi 

Mr.  Recorder.  Mr.  Goodere,  Will  yoi 
Wiiliuiiis  any  questions  ? 

S.  Goodere*  What  side  of  the  gun  -rooi 
you  lie  in  ? 

Wdliamt,   The  star- board  side  of  the 
room. 

S.  Goodere,  Why  then  it  was  impossibi 
YOU,  as  you  lay  iu  your  hammock,  to  lei 
body  go  down  to  the  cock- pit. 

Williaiiis.  Not  ct  all.  Sir ;  the  gunner's 
bin  comes  out  further  than  e\ur  was  knov 
that  sort. 

5.  Goodere.  Are  there  any  other  cabbin 
sides  the  purser's  in  the  cock- pit  .^  Did 
ever  examine  them  how  strong  they  arC; 
what  partitions  are  there  between  them  ? 

Williams.  I  don't  know  any  other  cabbii 
the  purser's  in  the  cock- pit;  the  cooper  11 
the  slop- room. 

S.  Goodere.  Were  you  never  in  the  do( 
cabbin? 

Williams.    No,  never  in  my  life. 

iS\  Goodere.  l)o  you  know  wh«.Tcaboii< 
Ruby  lay,  when  you  brought  that  genUi 
on  board ;  where  did  you  apprehend  the 
was? 

Williams.  1  did  not  know  the  situatii 
the  ship,  I  had  no  business  to  know  tba 
was  hut  a  foremast- man. 

Samuel  Tritctt  sworn. 

Mr.  Vernon.  Will  3'ou  give  an  accou 
Mr.  Recorder  and  the  jury  of  what  you  1 
relating  to  this  business. 

Trivett.  On  Sunday  the  18tli  of  Jan 
last,  I  was  at  a  public  house  in  the  rope-vi 
1  hoard  a  noise  of  )>eople  cried,  llarai 
sland  off,  or  else  we  will  knock  your  L 
out ;  I  stepped  up,  and  asked  what  right 
had  to  carry  a  man  along  attir  that  manni 
followed  them  ;  their  answer  was,  it  was  a 
shipman  who  had  committe<l  murder,  aud 
were  taking  him  down  to  the  ship  to  dc 
justice :  other  people  likewise  followed,  to 
ing  what  was  the  matter:  the  gontleoMi 
behind,  and  ordered  them  to  make  more  I: 

Mr.  Vernon.  Look  upon  the  |u-iaQiwr  i 
bar,  Mr.  Goodere ;  is  that  the  geutlenai 
ordered  them  to  make  more  haste? 


1033J 


for  the  Murder  of  Sir  John  Goodere. 


A.  D.  1T41. 


[10S4 


Triveft,     1  believe  that   is    the  man,  my 

ord.     Ou   the  ^eutlcmaif  s  ordering   thein  to 

u&ke  more  baste,  five  or  six  oi'  them  caught 

lim  up  iu  their  arms,  and  carried  him  along ; 

iiid  nv  they  were  got  down  aliout  the  comer  of 

klr.  lirowii's  wall,  he  iusL<:led  upon  their  malfiiog 

Dure  dispatch,  and  then  they  hurriod  bim  an 

ar  as  captain  Osliom's  dock.     Uy  4liat  time 

lit  clothes  were  rufflett  and  shoved  up  to  bis 

tfm-pits  ;   tlicy  put  tiim  down,  and  settled  his 

dotlies,  and  then  1  saw  bis  face,  and  knew  him 

a  Le  sir  John  Dineley  :  he  cried  out  murder 

Kveral  times,  and  said,  they  were  taking  him 

BB  board  to  kill  him,  he  beliered.    As  they 

vere  going  with  him  along,  he  cried  out  to 

Hrs.  Darby,  Fur  God's  sake  assist  me,  they 

are  going  to  murder  me.     I  told  Mrs.  Darby, 

k  was  sir  John  Dinelev :  she  said  she  knew 

LiiD ;    the  cluak  was  then  over  his  iiuse.    As 

Uiey  gut  him  further,  he  called  out  to  a  little 

girl,  to  get  somebody  to  assist  him,  for  they 

vere  going  to  murder  him.    They  ftushed  him 

akmg  to  Airs.  New's  house,  and  niade  a  little 

ttip  there,  and  then  they  brought  him  to  the 

Viler- ude,  where  wos  a  boot ;  they  put  out  a 

flank  with  ledi^es  nailed  across :  he  was  ordered 

ligoon  beard  the  boat ;  they  got  bim  on  board, 

and  put  him  to  sit  down  in  the  stero-sheet : 

tbes  he  cried  out,  For  God's  sake,  gentlemen,  if 

tayot'you  know  Mr.  Jarrit  8mith  in  the  Gol- 

Isfs-Kreen,  tell    him  my  name  is  sir  John 

Buieley.    One  of  the  men  put  his  cloak  and 

eofered  bim,  and  liefore  he  could  say  any  more, 

Iku  gentleman    (pointing    to    the    prisoner 

Goodere)  took  his  hand  and  put  it  on  his  mouth, 

■mI  would  not  let  him  sfieak  any  further,  and 

•nicred  the  bout  to  tie  pushed  off,  which  was 

done ;  and  the  tide  making  up  strong,  the  boat 

got  almost  to  the  other  side.     I  heard  that  gen* 

tkoiao  (pointing  as  before)  say,  Have  you  not 

ffnn  the  rogues  of  lawyers  money  enough  al- 

VBidy  ?    Do  you  want  to  give  them  more  ?     I 

*iU  lake  care  that  they  shall  never  have  any 

Mveof  vou  ;  now  1*11  take  care  of  you. 

Nr.  Aecorder,  Prisoners,  will  eiuier  of  yon 
>ik  this  witnewi  any  questions  ? 

&  Goodcrc,  No ;  1  never  saw  the  man  before 
M  my  life. 

Thomas  Charmhury  sworn. 

Charmlmry,   On  Hunday  the  18th  of  Ja- 

B*vy  lut,  between  the  hours  of  four  and  five 

i>  the  afternoon,  1  was  on  board  tlie  ship  called 

^  litvant,  lying  in  Mr.  Thompson's  fk)ck ;  1 

ImN  a  noise  coming  over  the  bridge  of  the 

<^  and  I  saw  a  man  in  a  KcaHet  cloak,  ond  a 

PUtd  of  |>eople,  some  before  and  some  behind, 

^•rdiog  of  him,  and  he  made  a  noise.   1  went 

towards  them,  to  see  what  was  the  matter,  and 

^Hr.  Htephen  Perry's  counting-house  (they 

'cM)  I  asked,  what  was  the  niatter  ?    They 

»id,  oe  bad  killed  a  man  on  board  a  man  of 

*ir ;  that  he  bad  run  away  ;  and  they  had 

bid  him  before  a  magistrate,  and  he  was  or- 

dtnd  on  iboard  the  king's  ship  to  be  carried 

Msd  to  London  to  take  his  trial.    Mr.  Perry 

[in  heuring  the  noise)  came  out  and  saw  him  ; 


says  Mr.  Pert^,  Ciestleroeu,d#  yon  know  what 
you  are  About  ?  I  would  not  be  in  your  ooatf 
ibr  a  thousand  {leunds,  tor  it  is  'squire -Goodere. 
They  threatened  to  knock  down  any  that 
should  come  near ;  a  fellow,  1  take  him  to  be 
Maliouy,  came  ap  4o  mo,  and  threatened  t« 
knock  me  down  several  limes.  They  4eok  and 
carried  him  as  far  as  captain  James  Day's  loAi 
and  wareliouse,  where  he  keeps  bis  hemp ; 
and  there  they  rested  him  again,  anA  thveatened 
to  knock  down  any  that  should  come  near 
them.  Then  said  Mahony,  Damn  ye,  here 
comes  the  captain.  Immediately  1  tumtd 
about,  and  saw  a  gentleman  with  -his  oone 
poised  in  one  hand,  and  his  sword  in  the  other  ;  ' 
he  had  a  dark  shag  coat  and  yellow  buttOD8« 
wlmm  1  take  to  be  tliat  gentleman  tlie  prisoner 
at  the  bar.  Tliey  took  up  the  man  in  thi 
scarlet  cloak  again,  and  carried  him  so  far  as 
coming  out  from  the  lower  College-green  into 
the  rope- walk :  the  prisoner -Geciaere  came  up 
to  tliem  and  ordereil  them  to  mend  their  pace; 
they  took  him  up  again,  and  carried  him  as  tar 
as  Brown's  garden,  at  the  k)wer  end  of  therono- 
walk,  as  fast  as  they  could  well  carry  him^ 
where  they  settled  his  ckMhes,  and  in  the  menu 
while  the  prisoner  Goodere  came  up  to  them 
again,  and  ordered  them  to  mend  tneir  pace. 
With  much  difficulty  th»y  got  him  between  thei 
gate  and  stile,  and  carried  him  as  fiir  as  the 
warehouse  at  the  corner  of  the  glass-house, 
there  they  rested  and  settled  his  clothes  sgain  r 
then  they  took  him  up,  and  carried  him  down 
to  the  Lime-kilns,  as  tar  as  the  lower  part  of  the 
wall  below  madam  New's  ;  ond  tlH>n^  brought 
him  down  to  a  place  opposite  to  the*  King's* 
head,  and  thc^n  they  put  him  on  board  a  boat  (I 
take  it  the  man  of  war's  barge)  having  tea 
oars,  and  they  handed  him  in.  After,  the  pri- 
soner Goodere  went  into  tlie  boat  af\er  hinii 
and  set  sir  John  on  the  starboard -side,  and  the 
prisoner  Goodere  on  the  larboard-side  ;  then  sir 
John  cried  out.  Murder!  you  gentlemen  that 
are  on  shore,  pray  tell  Mr.  Jarrit  Binitli,  that 
my  name  is  Dineley,  and  before  he  could  nj 
Goodere,  the  gentlemen  took  up  the  flap  of  the 
cloak,  threw  it  ove»tlie  face  of  sir  Jolm,  and 
stopped  his  mouth  ;  and  says  he,  I  will  takecsre 
of  you,  that  you  shall  myt  spend  your  estate  ; 
and  ordered  the  bai^e  to  be  put  off:  and  then 
he  took  the  gentleman's  cloak  firom  bis  shouK- 
defs,  and  put  it  on  his  own. 

Mr.  Recorder.   Who  %vas  it  that  stopped  his 
mouth  with  his  cloak? 

Charmhury,  That  gentleman  the  nrisoner  at 
the  bar.  The  boat  was  so  full,  hao  so  many 
|)eople  in  it,  that  they  were  obliged  to  row  but 
with  eight  oars:  and  when  they  [iroceedcd. 
down  the  river,  it  being  about  three  quarter* 
flood,  and  the  gentleman  continually  crying 
out,  they  went  out  of  siglit,  and  1  sow  no  more 
of  them. 

Mrs.  Darby  sworn. 

Mr.  Vernon.   Mrs.  Darby,  I  think  yon  lire 
at  the  Lime-kijin. 
Mrs.  Darby,  Yes,  Sir,  I  do. 


1055]  14  GEORGE  IL     Trial  of  Cajdain  Goodere  and  M.  Mahony,    [1036 


Mr.  Vernon,  Whit  do  yon  know  of  thb  tra- 
gical affair  ? 

Mrs.  Darby,  I  saw  sir  John  Dineley  forced 
aloD^  between  two  men,  he  crying  out  Murder, 
murder,  for  the  Lord's  sake  save  me,  save  me, 
lor  they  are  going  to  kill  me ! 

Mr.  Vernon.  Pray  what  were  they  doing  to 
liiro  at  that  time  ? 

Mrs.  jDar6y.  Forcing  him  along,  Sir;  one 
had  him  under  one  arm,  and  another  under  the 
ether. 

Mr.  Vernon.  Did  you  then  know  him  to  be 
sir  John  Dineley  Goodere  ? 

Mrs.  Darby,  Yes,  Sir ;  last  summer  we 
mended  his  chair  for  him,  I  knew  him  very 
well. 

Mr.  Vernon.  You  say  you  knew  sir  John  ; 
prav  did  you  know  this  gentleman  T  (i>ointing 
to  Mr.  Goodere.) 

Mrs.  Darby,  There  was  a  oreat  many  other 
persons  there  ;  they  told  me  that  the  captain  of 
the  man  of  war  was  behind  ihem,  which  1  be- 
lieve to  be  the  gentleman  at  the  bar :  he  was 
dressed  in  a  dark  drab-coloured  coat,  and  his 
waistcoat  trimmed  with  gold. 

Mr.  Vernon,  What  further  did  you  see 
pass  ? 

Mrs.  Darby,  I  saw  them  hurrying  him  on 
board  the  boat,  but  I  did  not  go  any  further 
than  over  against  my  own  door;  but  when 
they  were  turning  the  boat,  I  beard  him  cry 
out,  but  what  he  sud  I  know  not. 

William  Dupree  sworn. 

Mr.  Vernon,  Giveanaccount  of  what  you 
know  of  this  matter. 

Dupree,  On  Sunday  the  18th  of  January 
last  I  was  at  the  sign  of  the  Kioto's  Head,  upon 
tlie  rii^^ht-lianil  side  of  the  Red  Lion  as  you  go 
down  to  the  Hot  Well,  with  a  friend  of  mine,  n 
man  that  works  with  me,  drinking  a  pint  of 
ale  ;  iliere  was  a  voung  woman,  she  was  read- 
ing at  the  winditw.  She  said,  she  heard  a 
great  outcry,  we  heard  the  same,  we  went  out, 
■aw  a  company  of  men  forcing  a  gentleman 
Along;  1  saw  captain  Goodere  tiie  prisoner  at 
the  bar  coming  U'hind  them  :  when  ihey  came 
down  to  ScriguTHi's  Slip,  they  gave  out  a  re- 
port, that  the  gentleman  had  murdered  a  man 
on  lK)ard  a  man  uf  war,  and  they  were  taking 
him  on  board  for  justice.  They  put  him  on 
board  the  yawl,  and  captain  Goodere  stood  by 
whilst  they  did  it.  The  gentleman  cried  out, 
For  God's  sake  go  and  ucquaint  Mr.  Jarrit 
Smith,  for  1  am  undone,  they  will  murder  me. 
]  went  into  the  house  again  ;  the  people  ad  • 
viseil  me  to  go  to  Mr.  Jarrit  Smith,  and  inform 
him  of  it:  as  I  came  home  I  called  at  Mr. 
Smith's,  and  told  him  what  I  had  seen  and 
beard,  and  he  told  me  he  would  sec  about  it. 

Mr.  Vertion.  l*d  be  glad  to  know  whether 
upon  the  gentleman's  crying  out  yoa  saw  any 
thing,  and  what,  done  to  him  P 

Dupree.  I  saw  the  captaJDy  the  priioiier  at 
the  bar  j|)ut  bis  band  and  atep  bia 

jiir.  r  smoa.  Are  yoa  paar 

Jhfprtt.    Ya^  I  wm 


Theodore  Courts  Master  of  the  Sliip,  sworn. 

Mr.  Vernon.  Will  you  tell  Mr.  Recorder 
and  the  jury  what  you  know  oonceraing  the 
death  of  sir  John  Dineley  Goodere  ? 

T,  Court.  On  the  18th  of  January  last,  be. 
ing  Sunday,  the  barge  went  up  to  tielch  captaia 
Goodere  from  Bristol,  and  about  seven  of  tbe 
clock  in  the  evening  he  came  on  board,  aad 
when  he  came  into  the  gangway,  aays  he,  How 
do  you  all  do,  gentlemen  ?  Excuse  me,  gca- 
tlemen,  from  gomg  the  riffht  way  to-night,  fbr 
I  have  brought  an  old  mad  felkiw  on  board,  aad 
1  must  take  care  of  him.  1  saw  a  gentlemio 
with  a  black  cap  coming  up  the  ship's  tide, 
and  his  groans  snocked  me,  so  that  1  could  dok 
help  him ;  he  looked  much  surprized,  as  a  per* 
son  used  ill :  as  soon  as  he  was  on  board,  he 
was  taken  into  custody,  and  carried  by  the  cap- 
tain's orders  down  to  the  cock- pit,  and  pot  iato 
the  purser's  cabbin,  and  a  centinel  ordered  opoa 
him ;  and  I  saw  him  no  more  at  that  time. 
Next  morning  I  was  told  that  the  captain's  brs- 
ther  was  muraered,  and  that  the  captain-  bad 
given  Charles  White  and  Mahony  leave  (a  g» 
on  shore. 

Mr.  Recorder.  By  whose  direction  was  hs 
put  into  the  purser's  cabbin  ? 

T.  Court,  The  captain  himself  went  down, 
and  see  them  put  him'in. 

Mr.  Vernon,  Whereabout  in  tbe  ship  is  tbt 
purser's  cabbin  ? 

T,  Court.    In  the  cock- pit. 

Rlr.  Vernon.  Was  it  a  place  where  gentle- 
men who  came  on  board  commonly  lay  ? 

3^.  Court.  No,  nobody  had  laid  in  it  for  i 
considerable  time.  The  next  mominir  the 
cooper  met  me,  and  said,  Here  is  fine  duingt 
to-ni£|;ht,  Mr.  Court !  Why,  what  is  the  matter, 
said  I  ?  Why,  said  he,  about  three  o^clock  thif 
morning  they  went  down  and  murdered  fir 
John.  The  ship  was  in  an  uproar ;  the  cooper 
said,  if  Mr.  Perry  (the  lieutenant)  did  not  se- 
cure the  captain,  he  would  write  to  the  board: 
we  had  several  consultations  in  the  ship  about 
it.  'i'lie  captain  sent  for  me  to  breakfast  nilh 
him  :  I  accepted  uf  his  invitation  :  I  can't  say 
but  he  behaved  with  a  very  good  name  to  all 
the  people  on  board.  About  ten  o'clock  Mr. 
Perry,  myself,  and  the  other  oificers,  with  tie 
cooper,  consulted  about  securing  the  captaia. 
Mr.  Perry  cautioned  us  not  to  be  too  hot;  for, 
said  he,  if  we  secure  the  captain  before  we  koow 
sir  John  is  dead,  I  shall  be  broke,  and  you  too. 
Wc  sent  for  the  carpenter,  and  desired  him  to 
go  down  and  open  the  cabbin  door,  the  centinel 
who  stood  there  having  said  it  was  lockM ;  Uie 
carpenter  went  down,  opcnetl  the  cabbin-door, 
and  came  up,  and  said  sir  John  was  murdered; 
and  that  he  lay  on  hisj  left-side,  with  his  leg  ap 
crooked.  I  told  them,  gentlemen,  there  is  no- 
thing to  be  done  before  uie  coroner  comes ;  and 
therefore  we  must  not  touch  him :  wbereopoa 
the  door  waa  ordered  to  be  fastened  up:  wa. 
J  hAw  to  take  the  caplaiiii  and  «.|^ 
m  ftr  tbat  purpoae.  Aad  j 
I  jraa  taken,  hadedani } 


the  MuTdtrnfSif  John  Goadfrt, 


A.D.  17*1. 


CI033  ^ 


or  it.  llial  he  knew  not  Ihi 
P'trat  murtlered.  ^V  lieii  tlie  coroner 
IT  the  ileceasci),  and  niy  hcari  aclicil 

ftfeordtr.   Who  was  il  put  llie  cen^ael 

■ Jnbn  ? 

«rl.  The  CBplaiD  onlered  ll  to  be  ioo*. 

Vernon.    In  it  usual  lo  place  n  irentiiiel 

uner'a  esbbin-iioorf 

aurt.    No,  U  is  nul ;  unless  thri 

ly  ihere  under  coolinmieiil. 

Vtraon,   Is  tlierc  toy  other  cabliia  near 

lUTt.  Ym,  tliere  it  (be  B!o|>-rooin  Jusrt 
pre  llie  cooper  and  his  wife  lay  that 
there  ii  just  a  little  parlilioo  ot  about 
h  deal,  fiarlinc'  the  iloproom  Iroiu  the 
here  sir  Johu  lay  cnufiiied. 
'tnan.  I'ti'y,  will  you  tell  418  nbelher 
it  wliat  discourse  passed  Ix^twecn  Mr. 
I  and  you,  about  aaillug;  and  vilien  it 

Hrrf,  Sir,  in  the  morning  he  asked  me, 
iMiodferTc  to  sailf  He  asid.  be  had 
prenins  letter  Irom  llie  lords  of  tlie 
ty  In  sdil  as  soou  as  possible.  I  told 
It  ibewind  was  west-soutb-wcsl,  and 
coutd  lint  ^i>  out  to  sea ;  for  no  pilat 
ikerhargeot  the  ship.  1  beliered.  And 
a  a  harbour  where  a  pilot  is  allowed,  I 
la  tbr  ihia  {ilace;  otherwise  I  niutt  have 
I  bis  orders. 

'ernoR.  Did  he  acquaint  you  how  far, 
Mt  pan,  he  would  have  you  sail  ? 
<urt.  Ves,  be  said,  if  be  g'ot  no  fur. 
in  the  Roltnes,  he  did  not  care;  and 
«,  if  it  was  safe  riding  there.  1  told 
fM  not ;  for  it  was  I'aul  ground  for  sucli 

Itcorder.  Mr.  Ooodcre,  will  you  ask 
ten  any  questions  7 

vdtTc.  VVliai  cabbias  are  there  in  the 
t 

lUrt.     I  know  nncabbin8  there  but  ibe 
cahbin  and  the  slop. room,  Ate. 
emon.    Cnll  Sir.  U'llliams. 
William  W.iliBmt  sworn. 
Vtmon,    Mr.  William*,  bare  yon  a 
It  jonr  poE^eision    belonging  to  Mr. 


iir  D  watch  in  my  poiscsiIoD. 

l*lifa»e  to  pnidDce  il,  mid  lei 
,       came  byilf 
I  h«d  it  from  a  vault  in  Ilack- 

Hmr  aiine  il  lo  be  starched 

'<'-  TMijbi  ihittbinff  was  under 
It  (be  Cniincil-boute,  and 
;  .  ihe  Hrnckware-boDtiia  the 

■  "■.i.-hi,„d' 


ibmwK  the  wRleh  into  the  *ault.  Upon  whicfa, 
byihe  order  nf  Mr.  Alderman  Day,  I,  with  b 
mnntn,  opened  the  vault;  where,  on  search,  I 
found  the  walch,  and  look  it  out  Here  ia  lb* 
watch  ;  but  whoiie  ills.  I  know  not. 

Mr.  I'trnon.  Now  I  desire  lliat  watch  insjr 
he  sliewn  to  Mr.  Court. 

[Tlie  watch  is  delirered  to  Mr.  Court,] 

Mr.  Vernon.  Now  you  have  looked  upon 
the  n'atch,  tell  us  if  you  con,  whose  il  wos? 

T.  Cinirf .  1  can't  swear  positirety  to  it ; 
but  I  helieva  it  was  the  caplarn'i  waich  ;  he 
had  Bucli  a  one. 

Mr.  Vtrnon.    Did  Mr.  Goodere 
Bpild  H'utch  alniit  biiu  ? 

T.  Court.  The  captain  did  not  usually  wear 
a  ^tM  watch  :  but  I  hare  seen  such  a  watch  as 
Ihia  is,  hanging  up  in  the  captain's  cabbin.  I 
btl'OTQ  it  to  be  the  «ame. 

31r.  Rrrorder.  BIr.  Court,  you  were  asbeil 
by  Mr.  Goodere,  how  many  cabbins  there  ar« 
in  the  cock  pilf 

T.  Cnurt.  There  is  ibe  Steward's  room,  the 
purser's  cabbin,  and  the  slop-room. 

S.  Goodere.     Where  is  the  steward's  ri 

T.  Court.    Tbat  is  the  place  where  the 
linel  stands  ;  and  there  Is  a  place  on  the  other 
side  where  the  surgenu  lies. 

S.  Goodere.  What  persons  were  iu  th>t< 
place  I  hat  night,  do  you  know  f 

T.  Court,     The  surgeon,  I  suppose. 

S.  Goodere.     tVbat  other  persons  were 
any  other  of  the  cabbins  thai  night  ? 

T.  Court.    The  cuoperand  his  wife. 

.S.  Goodere.     Has  the  cooper  a  wife? 

T.  Court.    1  believe  so. 

S.  Goodere.  How  long  before  the  I3lh  of 
January  did  you  new-moor  the  ship? 

T.  Court.     Thursday  Ibo  ISthol  January. 

S.   Goodere.     How  were  the  bearings  then  ? 

T.Court.  (Loukiog'on  his  journal.)  Pusaet' 
poiot  west  by  south,  Denny. island  north-west 
and  by  west,  distant  by  compntatiou  about  four 
mites;  and  llie  point  Iu  the  weslwaidof  tb* 
Hale's  mouth  south  south-east. 

Mr.  Recorder.  Were  those  the  bearing  oa 
the  letbtoo? 

T.  Court.     I  know  no  difTerence ;  it  is  said 
here,  ditto  18th:   if  there  bad  been  any  tu' 
lion,  I  should  have  taken  uottceoi'it. 

Mr.  Vernon.     In  what  part  of  ihe  nver 
the  ship  lie  when  sir  John  was  murdered  F 

T.  Court.  She  lay  in  King  Road. 

S.  Ooodcre.  Do  you  know  the  Denny  F 

'!'.  Court.  Yes,  Ido. 

-V.  Qoodere.    Suppose  there  was  a  strail  line 
drawn  lru|D  the  south  corner  of  that  inland  to 
Ihe  north  part  olthe  water  of  Avon,  would  tbaj, 
ship  Ruby  hate  been  on  the  eait  oi 
oflhat  line? 

T.  Coui  I.    As  to  that  I  am  not  a 

a  I  saw  a  strail  linn  drawn. 

Mr.  Hrcurdtr.    Mr.  Court,  how  l(w»B  «1W  *• 

ip  continue  in  thia  mooriQa F  _ 

T.C^mil.  I  i«w-B»««irii'haA;\^  V"***"" 
do;  i'oUowinic 


\ 


tin* 
dM 


10S9J  14>  GEORGE  II.     Trialof  Captain  Goodtre  and  M.Mahony,    [lOlO 


5.  Gooderw,  Did  the  wind  then  blow  easterly 
or  westerly  ? 

T.  Court,  The  wind  blew  bard  westerly  the 
&nday. 

S,  Goodere,  As  to  the  distance  from  the 
Denny,  I  belie? e,  you  are  ri^ht  enongh  ;  but  1 
htLfe  a  gentleman  here  who  hath  taken  a  sur- 
vey of  the  river:  and  the  situation  of  the  ship, 
as  it  lay  Sunday  the  18th  of  January,  was  in 
the  river  bevern,  very  far  eastward  of  the  water 
of  Avon. 

Mr.  Vernon,  Mr.  Recorder,  by  Mr.  Goodere's 
present  enquiries,  he  seems  to  be  putliog  bis 
and  bis  fellow- prisoner's  defence  on  the  points 
of  the  compass;  I  hope  he  has  some  better 
point  to  go  on :  for  if  not,  these  I  doubt  will 
stand  him  in  very  little  stead.  It  appears  in 
proof,  that  the  ship  was  stationed  in  Kin^-road, 
when  this  murder  was  committed  :  now  K.ing- 
road,  we  all  know,  has  been  all  along  reputed 
and  allowed  to  be  within  the  local  limits  of  the 
city  and  county  of  Bristol ;  and  the  city  pro- 
cess runs  thither,  which  shews  it  to  be  Within 
the  fcanchisa  of  the  city;  and  the  sheriffs  of 
Bristol  do  there  constantly  execute  writs  and 
other  process  from  above,  which  shews  it  to  be 
Within  their  bailiwick  asa  county, wliose  bounds 
and  circuit  arc  best  ascertained  and  pointed  out 
by  reputation  and  consentaneous  usage,  which 
stand  as  perpetual  monuments  of  their  limits, 
after  other  marks  are  effaced  or  obscured  by 
time. 

BIr.  Shephard.  I  don*t  at  all  question  but  this 
city  has  great  powers,  and  its  limits  are  un- 
doubtedly set  forth  by  charter. 

Mr.  Vernon.  I  should  he  very  sorry  to  find 
the  jurisdiction  oi'a  city  (whose  rights  are  dear 
to  me  as  my  own)  shaken  by  a  side-wind, 
and  hope  an  attempt  of  this  nature  will  not  be 
suffered. 

Duncan  Buchanan  sworn. 

Mr.  Vtrnon,  I  think  you  were  one  of  the 
company  that  was  at  the  White  Hurt  upon 
Tuesday  the  12th  of  January  last  ? 

Buchanan.  Yes,  Sir. 

Mr.  Vernon.  Will  j'ou  give  nocounl  by 
whose  directions  you  cainc  up  there? 

Buchanan,  On  Tuesday  the  loth  day  of 
January  last  the  boat  and  barge  were  ordered 
up  to  Bristol ;  but  u|)on  what  Hcc<iunt,  I  knew 
not.  I  %vas  onlcrcd  to  go  to  the  White  11  ail  to 
attend  the  captain,  and  there  was  ^Muhony  and 
the  privateer's  men  drinking  hot  iiip.  1  knew 
nothing  of  what  they  were  upon.  I  saw  a 
gentleman  come  out  of  Mr.  Smith's,  I  suppose 
it  was  sir  John  Dineley  Gootlcre ;  he  mounted 
his  horse,  and  had  pistols  before  him,  and  his 
servant  followed  him  with  pistols  also.  Then 
some  of  the  men  ran  out ;  and  captain  Goodcre 
went  out  after  them,  and  ordered  them  to  follow 
the  gentiemao.  1  staid  there  till  the  captain 
came  back  again ;  aiui  I  know  notbiiin^  mora 
of  what  was  said  or  dona  then. 

Mr.  Vernon,  Will  you  am  inn 
bayyintdt».tii»aiii3Mr.WBp»8"^» 

Bu^hanmt,   OnSunbjtl 


noary  about  seven  o'clock  in  the  evening  tbc 
barge  came  along- side  the  ship  with  the  geo* 
tleman  in  it,  1  stood  in  the  gang- way  to  receive 
him  ;  when  he  came  up,  1  heard  him  to  make 
a  moan,  and  the  captain  said,  1  have  brought  t 
madman  on  board,  bring  bim  along,  I  will  briog 
him  to  his  senses  by-and-hy.  1  saw  tbeu 
take  him  along  the  gang- way.  You  roust  sot 
mind  what  he  says,  said  the  captain ;  and  be 
was  ordered  down  to  the  purser's  cabbin;  I 
was  ordered  centinel  there.  About  twdir 
o'clock  the  captain  sent  for  me  to  come  up  to 
him,  and  1  laid  down  my  sword  and  went  op. 
and  Mahony  was  there  with  bim;  andtben; 
was  a  bottle  of  rum  and  a  glass  before  tlieoi: 
the  captain  asked  me  to  drink  a  dram,  I  thank- 
ed him  and  drank.  He  askeil  me  ho%v  his  bro- 
ther was  ?  I  told  him  he  groaned  a  little ;  savs 
the  captain,  I  know  the  reason  of  that,  be  it 
wet,  and  1  am  coming  down  hy-and-by  to  sliitt 
him  with  dry  stoc^kings :  so  I  left  the  captain 
and  Mahony  together.  Some  time  after  the 
captain  came  down  to  me,  as  I  was  at  my  post 
at  the  purser's  cabbin  ;  he  asked  if  bii 
brother  made  a  noise  ?  1  told  him  no :  upoo 
which  the  captain  listened  a  little  time  at 
the  door,  and  tnen  said,  Give  me  the  sword, 
and  do  you  walk  upon  deck ;  for  I  want  to 
speak  to  my  brother  in  private.  Soon  after  tliii. 
Mahony  went  down,  and  very  soon  after  Ma* 
bony  was  down,  I  heard  a  great  struggling  io 
the  cabbin,  and  the  gentleman  cry  out  Munltr! 
I  then  thought  the~ gentleman  had  been  ia  use 
of  his  mad  fits ;  but  now  1  supfiose,  they  wcie 
then  strangling  him.  As  1  was  walking  to-aad- 
fro  in  the  gun-room,  I  looked  down,  and  sav 
the  captain  take  the  candle  out  of  the  lauthorp. 
which  was  hanging  up  there,  and  be  gave  tbe 
candle  into  the  cahbin. 

Mr,  Rccordtr.  Wlierc  was  3fr.  Goodere 
when  you  heard  the  cry  of  murder  ? 

Buchanan.  In  the  cock-pit  by  the  purser'* 
cabl)in-door,  with  the  sword  in  his  hand. 

Mr.  Rccordtr.  W  hat  time  of  the  night  was 
this? 

Buchanan,  lii'lwecn  two  and  three  o'clock : 
i  1  lighte<l  a  cantllc  at  the  lanthorn  in  the  gun* 
I  room,  and  was  going  down  to  the  captain  with 
'  it,  as  siip]K)siiig  him  t(»  he  without  light ;  an  • 
I  as  I  was  g(»iiig  down  with  it,  the  captain  bela 
up  his  sword,  waved  it,  and  said,  Go  back,  aoJ 
stay  where  you  are. 

Mr.  Recorder.  You  said,  that  sir  John  Dioo 
Icy  cried  out  Murder  I  Was  that  before  )<»«» 
offered  the  candle  to  the  captain  ? 

Buchanan,  Yes,  Sir ;  it  was  before. 

Mr.  Recorder.  How  long? 

Buchanaji.  About  a  quarter  of  an  hoar. 

Mr.  Recorder.  How  long  did  tbe  cry  c<f 
murder  continue  ? 

Buchanan.  Aboat  three  or  four  mtnulei: 
sooo  after  the  captain  bad  ordered  roe  to  keep 
becki  be  celled  for  a  ceodle,  and  I  carried  ses 
Jawh.  eni  taegere  me  the  sword,  esid  bid  bn  ] 

«;  end  nid  he,  if  my  toe- 
iiii»jMiie«  lei  bioi  eleee  aed 
lileelwdtheyofur'K 


Jitt  tke  Murder  of  Sir  John 

)b  tlie  krj  »wty  willt  biro :  ami  ii> 
,  the  doclor'a  male,  the  cooper  nod 
to^iber  aliiiut  it ;  «Dil  1  wu  nil 
i«,  il'  tir  John  waa  tieaS,  or  not 
'e  f>ee|ied  intuihe  ratlin,  weMW 
•  *er^  Olid  Borl  ol'  n  iiniii 
hia  taer,  nnil  ooe  of  hit  h^  lay 
Dii   which   we  cuncluilril  he 


u  off  your 


rder.  How  long  were  ji 
■at  to  latl  ? 
I,  I  oan'l  lell  exactly. 
nltr.  KecullcL-i  aa  well  us  you  can. 
I.  Al»ii(  three  niiarterg  nf  an  hour, 
rd/r.  And  coulil  you  are  who  wni 
r'a  I'aUiia-donr  all  ibal  lime  ! 
I.     Ye*,  Sir ;   I   saw  Ihe  caplnin 
I  fool  of  the  Uihter  at  the  duor, 
n  award,  from  llie  lime  1  ivent  ii|i 
'  came  dnwn  again  ;  lie  lorkeit  (he 
fricil  Ihe  key  oway  wilh  him. 
Dn.  Pniy,   were  Ihereaoy  holts  on 
CDLUia-iloor  ? 

I.  Ye>,  there  were  Itolts  oi>  the 
•rere  put  on  vuun  alter  iU  John 
trd:  sir  John  Has  m  ihal  cablio 
were  iiut  oo. 
n.  You  aay  yon  heard  a  noise  and 
irder,  hon  for  wcru  you  Inim  the 
wbeu  you    beard   that  cry    of 

I  waa  walking  lo-and-fro  the 

I.  [low  far  il  thai  from  llie  puriet'i 


I  taw  Alahnny  go  in  there. 
1,    Did  you  see  any  oilier  peraon 
Mahony  ? 

No,  1  did  nol ;  1  taw  Mahony  go 
Ihe  cry  of  murder,  but  no  other 

1.  Do  you  koow  any  llting  about 
capiaiii  t 
V<«.  I  will  tell  yon  what  bap- 
We  went  and  lecnred  him.  As 
•  laid  hold  of,  he  cried  out,  Iley  I 
tveldonei*  We  lold  him  his  hm- 
J,  and  ihat  he  had  aonie  con- 
id,  Whni  if  the  vilUiiiB  baie 
IfTotber,  can  I  help  il  P  I  know 

.   Did  you  see  roe  io  the  cabbb 

No,  Sir,  I  don't  lay  you  were  in 

itr.     Ur.   Goodore,  Ihe  witness 
M  MW  you  in  llie  c»hhia,  hut  al 


Gwderf.  A.  D.  1741.  [KHt 

Mr.  Rtcnni*r.    Uabony,  will  you  uk  ibia 

Mahony.  Are  yuu  certain  tlial  I  wtw  in  ilia 
cabbin  when  you  hvard  the  groaua  J 

Bucltanan.  I  am  positive  you  were  there !%' 
the  purser'*  cabbia,  when  1  beard  the  murdw 

Daniel  Welter  Ewom.  4 

Mr.  Vcmon.  I  think  yuu  are  the  carpenl**- 
helonKine  to  the  Uuby  mau  of  wot  ? 

Weiler.  Vea,  Sir,  I  am. 

Air.  Vcrnoa.  Give  an  account  to  3fr.  Iteif 
cnrderand  Ibejury  of  what  you  know  relu(> 
io^  Io  Uii«  biisiueu.  , 

Weiltr.  The  18tb  of  January  last,  about 
ECfcii  o'clock  in  the  evenio-r,  the  captain  catna' 
OB  boaiil  in  the  bai^ ;  as  I  attended  him,  ( 
obierved  be  ceeroed  in  a  pleasant  humour,  1 ' 
came  upon  ihe  duck  at  once,  and  said  be  In  _ 
brought  n  poor  crazy  man  on  board,  who  ha^ 
beeu  the  ruin  of  himself  and  laniily,  and  lha( 
he  bad  now  broughl  him  ou  hoanl  Io  lake  car|^ 
of  him:  he  l<iok  hini  down  to  the  cr  '-  -'* 
and  baring  been  ibere  a  little  while,  .._  ^, 
my  people  came  and  asked  for  some  bolls ;  ( 
asked,  WbatforP  He  told  me,  it  was  to  put 
on  ihe  outside  of  the  purser's  cabbio-door,  fo, 
bolt  llic  crazy  genlleman  in.  I  gave  him  % 
boll;  mller  ho  had  nailed  il  on,  became  anf 


John  cried  out.  What 
the  door  up  f  1  answered,  Nn.  I  ordered  tha 
door  Id  he  opened,  in  turn  the  points  of  thai 
nails.  The  door  being  ojiened,  sir  John  aekeif. 
whether  ihe  carpenter  »•■  iheie?  I  told  him 
I  wasibeman.  Tlie  centinel  told  meno-lmdr 
must  go  in  there ;  lioweier,  I  went  in,  whiC% 
they  turned  the  puiou  of  tlie  naila.  Sir  John 
bid  me  sil  down,  and  asked  me.  What  dow 
my  brother  mean  by  bringiDK  me  on  board  ia 
this  maoner,  to  murdtr  me?  No,  Sjr,  Kays  I,  1 
hope  not,  but  to  lake  care  of  you.  tie  asked, 
me,  if  his  brother  told  me  that  he  naa  madf 
I  anw  no  more  of  him  till  next  mnruiug. 

Mr.  Vtrnon.  And  what  d<d  you  lee  ifaen  f    . 

Wttltr.  Neil  morning  ihe  lieuteuant  tent 
me  down  to  *ee  if  air  Juha  was  dead.  I  went 
down,  and  asked  the  centinel  for  the  ke^ ;  ba 
lold  me  Ihe  captain  bad  been  there  lu  iha 
night,  and  had  taken  awny  the  key  in  hia 
pocket.  I  broke  open  the  cabbin  door,  and  lir 
John  was  lying  on  ooe  side  dead,  wilh  his  right 
le^  half  up  bent,  his  hat  was  over  hia  face, 
Willi  blo'id  beipatlercd  about  hi*  mouth  ana, 
noae.  I  went  directly  up,  and  lold  the  lien> 
tenant  of  il. 

Mr.  RecoTiltr.  By  whose  ordera  did  you  put 
the  Iwlts  on  (lie  door  ? 

Wdkr.  One  of  my  people  ramc  to  me  for. 
boitt,  and  told  me  be  was  onlercd  bv  the  cap- 
lain  to  put  llie  bolls  on  ;  and  jiiiuu  ol  ibem  ever 
came  for  anv  thing  to  be  auue,  wiihoul  au  ' 
order  uf  an  officer.  . 

Eduinrd  Jaart  awora. 

Mr.  rcrncn.  Itlr.  Jones,  t  think  vnuare  ihc, 
cooper  of  tha  abip  Kiibv  ?— tfiMT*.  i'e*,lJU. -« 

3X 


10«S]  U  GEORGE  II.     Trid  cfCapiain  Goodere  tmd  M.  MJumg,   [lOM 


Mr.  Vemm.  Were  yoii  on  bo«rd  upon  Sun- 
day the  18th  of  January  laet? 

Jojiet.  Yee,  Sir,  I  was. 

Mr.  Vernon,  fn  what  cabbin  did  yoo  lie  that 
nijprht? 

Jone$,  I  had  no  cabbin,  bat  I  made  bold  to 
lie  in  the  slop- room  that  night,  hafingf  my 
wife  on  board. 

Mr.  Vernon,  Pray  what  it  that  yon  eall  the 
•lop- room  P — Jonet,  it  is  like  a  eabbin. 

Mr.  Vernon.  How  near  is  the  slop-room  to 
the  purser's  cabbin  ? 

J<me».  Nothing  bnt  a  thin  deal-partition  parts 
it  from  the  purser's  cabbin. 

Mr.  Vernon,  Will  yon  relato  to  Mr.  Re- 
eorder  and  the  jury,  what  yon  know  aboot  the 
murder  of  Mr.  Goodere's  brother:  tell  the 
whole  you  know  concerning  it. 

Jones.  About  Wednesday  or  Thursday  befbre 
flib  bapj^ened,  the  captain  said  to  me,  Cooper, 
get  this  purser's  cabbm  cleaned  out,  fiir  he 
•aid  he  expected  a  gentleman  shortly  to  come 
on  board.  1  cleauM  it  out ;  and  on  Sunday 
evening  the  gentleman  came  on  board/ when 
the  people  on  deck  cried,  Cooper,  shew  a 
light.  1  brought  a  light,  saw  the  captain 
going  down  the  cock- pit  ladder,  the  gentleman 
was  lianled  down :  he  complained  of  a  pain 
in  his  tbi^h  by  their  hauling  him  on  board. 
The  captam  asked  him,  if  be  would  have  a 
dram  P  He  said  no ;  for  he  had  drank  nothing 
but  water  tor  two  years.  The  captain  ordered 
Mahonyadram;  lie  drank  it:  he  also  ordered 
one  Jack  Lee  to  put  two  boHs  on  the  parser's 
cabbin-door.  The  ^tleroan  walked  to-and- 
IVo  the  pur8er*8  cabbm  while  they  were  nailing 
the  bolts  on.  He  wanted  to  speak  with  one  of 
the  officers.  The  carpenter  told  him  he  was 
the  carpenter.  Says  tne  gentleman.  Do  you 
understand  what  my  brother  Ham.  is  going  to 
do  with  me?  Ana  said.  His  brotlicr  tiad 
brooght  him  on  board  to  murder  him  that 
night.  The  carpenter  said,  He  hoped  not,  but 
what  was  done  was  for  his  good.  The  captain 
said.  They  must  not  mind  what  his  brother  said, 
for  be  bad  been  mad  for  a  twelve-month  past. 
And  the  captain  went  up  again,  and  went  into 
the  doctor's  room.  I  went  to  bed  about  eight 
o'clock.  Sometime  about  eleren  o'clock  nt 
night  I  heard  the  gentleman  knock,  and  said, 
He  wanted  to  ease  himself;  to  which  the  cen- 
tind  gare  no  manner  of  heed.  Is  it  not  a 
•hame,  said  he,  to  keep  a  gentleman  in,  after 
this  manner?  At  last,  some  other  person  spoke 
to  the  centinel,  and  says.  Why  don't  you  go 
Up  and  acquaint  the  captain  of  it,  that  the  gen- 
tleman  may  ease  himself  ?  Soon  af\er  Mahony 
comes  down  with  a  bucket,  for  the  gentleman 
to  ease  himself.  Mahony  sat  down  in  the 
«»bbin,  and  he  and  the  gentleman  had  a  great 
deal  of  discourse  together :  the  gentleman  said 
tie  had  been  at  the  East-Indies,  and  told  what 
he  hsd  g^t  for  his  merit;  and  Mahony  said, 
some  by  good  friends.  I  heard  the  gentleman, 
after  Mahony  was  gone,  pray  to  God  to  be  his 
comforter  under  his  •fflictiona.  He  said  to 
liifflfslfi  hekneir  that  he  wu  gdof  to  b« 


dered,  and  prayed  that  it  miglit  oometo  Ngbl 
by  one  means  or  another.  I  took  ■•  Mtiessf 
it,  becaose  I  thought  him  a  emy  mn.  i 
slept  a  little,  and  about  two  or  tlwen  o^sbdE 
my  wife  waked  me.  She  aaid,  DonPt  yen 
hear  the  noise  that  is  made  by  tho  goMlamsaP 
I  beliefs  they  are  killing  biro.  I  tlwn  be«d 
biro  kick,  and  cry  out,  Here  are  twenty  ni- 
neas,  talkeit;  don't  murder  me;  MostldRl 
must  I  die!  O  my  life!  and  gave  •ereralkscfa 
with  his  throat,  and  then  lie  was  sdlL  1  gil 
up  in  my  bed  upon  my  knees ;  I  oaw 
glimmenng  in  at  the  crack,  and  eaw  thati 
man,  Mahony,  with  a  candle  in  his  I 
The  gentleman  was  lying  on  one  side.  Cbofci 
White  was  there,  and  he  pot  not  bio  band  li 
pull  the  gentlemsn  upright.  I  beerd  Nahsaj 
cry  out.  Damn  ye,  let  as  get  bis  watch  ort; 
but  W  hite  said  he  could  not  get  at  it.  I  r^^ 
not  see  his  pockets.    Whito  laid  bold  of 


went  to  tumbling  him  up  to  get  out  hii  BMetf, 
unbuttoned  his  breeches  to  get  ont  his  warn; 
I  saw  him  lay  hold  of  the  <»ain ;  Wbitonff 
Mahfmy  the  watoh,  who  put  it  in  bis  poiift; 
and  Wliito  put  his  hand  into  one  of  the  gcudc- 
man's  pockets,  and  cursed  that  tliere  was  is- 
tiling  but  silfer:  but  he  put  his  hand  In  ibt 
other  pocket,  and  there  be  found  gold.  Wbile 
was  going  to  give  Mahony  the  gold :  damn  yc^ 
says  Maliony,  keep  it  till  by-aad»by. 

"Mr.  Recorder,  lu  what  posture  didsir  Jabt 
lie  at  that  lime? 

Jonei.  He  lay  in  a  very  uneasy  manner,  with 
one  log  up;  and  when  they  moved  liini,  be 
still  remained  so ;  which  gave  tne  a  aospician 
that  he  was  dead.  While  pot  bis  hand  in  •Bo- 
ther pocket,  took  out  nothing  but  a  piece  of 
{>aper,  was  going  to  read  it.  Damn  ye,  nil 
dahony,  don't  stand  to  read  it.  I  saw  a  per- 
son's bund  on  the  throat  of  this  gentleman, 
and  heard  the  person  say,  'Tis  done,  aai 
well  done. 

l\Ir.  Recorder,  Wns  that  a  third  persDo's 
hand,  or  the  hand  of  Mahuuy  or  White? 

Jones.  I  cannot  say  whether  it  was  a  tbiri 
person's  hand  or  not.  I  saw  but  two  persons  in 
the  cohhin,  I  did  not  see  the  person,  for  it  wai 
done  in  a  moment.  1  can't  swear  1  saw  way 
more  than  two  persons  in  the  cabbin. 

Mr.  Recorder.  Did  you  take  notice  of  the 
hand  that  was  laid  on  sir  John's  throat  P 

Jones.  I  did. 

Mr.  Recorder.  Did  it  8]»pear  to  yon  like  Ibe 
hand  of  a  common  sailor  ? 

Jones.  No ;  it  seemed  whiter. 

Mr.  Vernon,  You  have  seen  two  hands  bdd 
up  at  the  bar.  I  would  ask  you  to  wbidi  of 
them  it  was  most  like  in  colour? 

Jones,  I  have  often  seen  Mahony's  and 
White's  hands,  and  I  thought  the  hand  wsi 
whiter  than  either  of  theirs;  and,!  think  it  wai 
neither  of  their  handa  by  the  coloor  of  it. 

Mr.  Recorder.  Was  sir  John  on  the  floor,  <ff 
on  the  bed  ? 

Jours.  On  the  bed;  bat  there  waa  no  shesla? 

it  was  a  floek4wd.  and  nohedj  had  Ma  Mn  p 
groat  while,  '  ^ 


jfer  the  Murder  iffSir  John  GaoJerf. 


A.  D.  ITU. 


Hr.  Fenm,  How  long  d'u)  the  criei  uid 
»ma*  wkich  you  beard  coaliuue  t 

Jmut.  Noia  grpol  wbile:  he  ari«i  like  a 
pettea  ipiagrout  i>l'  ilie  world,  very  Jov.  At' 
njr  bearuig  it,  1  kouIJ  Iidvm  (^  out  to  lli« 
anMB  tiine,  but  mj^jfu  di=<ire>I  me  not  i<>  ^o, 
fir  *be  wu  ttnii  tbere  was  Mnicbody  al  ili« 
daor  thai  would  k  Jl  me. 

Mf.  Ftmon.  (Vhal  ujnre  An  yon  know  cou- 
MraiMg  tliia  matter.  Of  ol'Mnhaiiy  uiiJ  VVliite'a 
Whs aibrwanis  |>ut  uu sUaie ? 

JiHM.  I  lieardfBooie  talkinf;  tliat  the  y«nl 
«M  t«  gn  to  bhore  about  luar  or  the  clock  to 
ifcs  mnttinv,  and  Kume  of  ut  were  called  up, 
H<1  I  iat|>urtuned  wy  wife  to  let  me  go  «ii(.  I 
e«IM,  and  asked  wlio  i«  ceuiiiicl?  DoDean 
BnchaiuR  ootwcreil,  It  is  I.  Uli,  says  1,  i»  it 
yau?  I  tb«n  thniiifbi  myself  nate.  I  jum|it 
vai  ID  toy  ibirt.  ireiit  to  him ;  »nys  I,  Tliere 
Imw  tftta  a  dcvilinU  iioiM  lo-Disht  in  the 
caliUa,  l>uiicao,  du  yuu  know  aay  tiling  ol'  the 
nnierf  I'Wy  hate  ueit* inly  killed  the  gentle- 
■MtgWhsliiball  III  do?  1  went  to  ihe  cabbio 
AMrwbcrelbcdoalor'imale  lodged,  ask eil  bim 
IT  ht  had  heard  any  thing  to-iiiiibtf  I  heard  a 
mat  noiai?,  aaid  be.  I  believe,  said  I,  llwy 
MW«  lulled  ibal  Kculleman.  Me  aaid,  he  be- 
ftCTBi)  M  too.  I  drawed  aaide  Ibe  acutlle  tbat 
fadiwl  iolo  Ibe  purser's  cabliio  from  the 
•Mward'Krntim.aaJ  cried,  Sir,  if  youuealite, 
tfUnk.  Uc  dill  nol  speak.  1  look  a  Ion;.' 
•tick,  and  endcainured  lo  muve  him,  Imt  found 
iMwaadvad.  1  told  Ihe  doctor*!  oihI",  ihal  I 
ibaoght  h*  WM  Ihe  pro|icr  penoo  to  relate  lli« 
■«ter  I*  the  officer,  bul  be  did  Dot  care  lo  do  it 
lb«a.  ir  yoti  »dl  not,  I  will,  aaid  I.  1  weot 
■p  IM  the  heulenaut  and  desired  him  to  come 
MU«f  biacabbin  to  me.  What  is  ibe  matter, 
nid  bcF  I  told  him  1  belieTed  there  bad  been 
mfdw  Gommitled  ia  the  cock-pit,  upon  Ihe 
(MtlHnau  who  wbb  brgui[ht  ao  board  lail 
■gilt.  Oh  '.  don'l  any  »o,  nay*  ibe  heutcnaot. 
In  Umi  intcrini,  •rhdal  we  were  talkiugr  abuul 
k,Ur.  Marsh  the  midBbipinai)  came,  and  n»i4, 
Utat  there  wiM  an  order  lo  carry  White  and 
Kalinny  ou  aliore.  I  llico  awure  lliey  aiMuld 
Mt  go  on  shore,  for  there  wan  murder  oora- 
■liiied.  'I'be  lieutciumt  Eiid,  Fray  be  easy,  ii 
ean'l  be  *o  ;  I  don't  believe  the  captaio  would 
do  Bnv  auch  thing.  That  gentleman  there, 
Hr.  Marsh,  wciit  lo  ask  ihe  caiitain,  it  Blahooy 
Msd  While  musl  be  piil  on  shore?  And  Dlr. 
Jlarah  relurned  again,  and  aaid,  ttiat  Ihe  cap. 
ttin  aaid  Ibuy  kliould.  1  then  aaid,  it  ia  cer- 
lainly  trocibat  the  genlleniBDis  murdered  be- 
■wecn  them.  I  did  nut  aee  Mabooy  and  White 
Uiat  morning,  because  ihey  were  put  un  ahnre. 
1  told  lbi>  lieiiienaDt,  tbat  if  ba  would  nut  lake 
cva  of  Ihc  mailer,'!  would  wrtM  up  lo  tlw  Ad- 
niinlty,  and  to  llie  mayor  of  BriMol.  The 
iimtonaDl  warned  the  ca)iiain  In  drink  a  glase 
of  winr ;  the  captain  would  not  come  out  of 
kM  otUiiB :  ihun  the  lieuluant  went  in  first ;  I 

~ I  told  the  captain,   ihil  my 

kcnk*    open,    and    1   deairM 


Sli'.  Recorder.  Mr.  Goodere, 
Jones  any  qucsliona '! 

S  (Jaodrre.  Ou  you  knon  whether  llie  a 
ahipiuaD  waa  tent  away  ou  the  king's  busin 
sr  clue  only  lo  put  ibose  two  men  no  sbore? 

Jones.  1  kuow  not )  you  were  the  oaptain  of 

Mr,  RtcarJer.  Mihoiiy,  will  you  ask  thia 
witueeaauy  iiufisUoDS? 

JUulumy.  l)id  you  see  me  lay  baud*  oo  the 
gentleman? 

/aa«t.  Ye4, 1  did,  ai  1  bare  already  related. 
Margartt  Jonrt  sworn. 

Mr.  Tcrnoji.  Ura.  Junea,  pray  BCi|Uaiot  Hr' 
ftecorder  and  the  >ury,  what  you  know  abuu 
Ibe  murder  ul  ur  Jubu  Dtneley  Coodere  (tha 
geotlemaa  onlered  by  Mr.  Guodere  into  ika 
jkurset'a  cabbio). 

Mra.  Joiiti.  About  seven  o'clock  in  the  even- 
ing, tb:  ItJlli  of  last  January,  Ihe  captain 
(haviog  been  on  iliore)  came  en  buttnl,  and 
came  down  inlo  the  cock. pit,  and  asked  if  the 
cabbio  waa  clean  ?  My  busbaud  answered,  YCf. 
Oa  wliicb  the  capiaio  gave  orders  to  bring 
Jown  ibe  gentleman ;  aud  the  captain  said  lo 
llie  docior,  l>nutiir,  1  bate  got  an  old  mail 
fellow  here,  you  muit  •loclor  bim  up  as  well  as 
you  can.  Tliey  brought  ihe  gentleman  into 
ibecabbip;  ibe  oaptain  ashed  bim- bow  he  did 
now  ?  The  geotlemau  complained  that  he  bad 
agreatpoin  in  hlsUiIgh,  be  »aa  hurled  by  tha 
Dieo's  hauliog  him  as  lliey  had  dune.  Tba 
CRptalu  luked  him  if  be  wuuld  dHok  a  dram  of 
mm?  He  aosviered,  No;  fur  he  aaid  he  had 
ilrank  nothing  bnl  water  for  two  years  psM. 
Tbe  captain  gave  a  dram  lo  several  peraoM 
lliere ;  and  he  gate  orders  for  some  Eheels  lo  be 
brought ;  and  be  nid  to  Rlaliouy,  Aa  his  clotbca 
are  wet,  do  yoti  pull  them  olf.  And  the  gen- 
llemao  snlil  lo  Mahony,  Don'l  strip  me,  fellow, 
uniil  1  am  dead.  The  genilemaa  said,  Brother 
Sam.  what  do  you  intend  to  do  with  me? 
Tbe  cai>uin  told  hira,  that  be  brougfal  him 
lltere  (o  save  him  from  rotting  in  a  gaol.  About 
ten  o'clock  Msbony  was  leti  theie;  ike  ge»- 
tlemao  de&iicd  bin)  logo;  bul  Mohonywid, 
1  have  orders  to  Bbiile  here,  to  lake  «are  of  you. 
Tbe  gentleman  uid  tn  Mabooy,  X  can  abida 
by  niyavir.  Before  Lhe  cnplHin  neiit  away, 
Ite  bid  Mabony  lo  see  if  Ims  brother  bad 
aoy  knile  obniil  him.  The  genllemau  gar* 
up  Ilia  kmte  U)  Mabouy,  desired  him  I* 
lake  care  of  it,  fur  it  waa  his  mhi's  Loitc. 
Tbe  gentleman  aakcd  about  lhe  kntle  me- 
ral  lime*  in  (he  night.  About  twelve  a'doek 
1  went  to  *Wp;  about  Iwu  u'ch>ck  I  awaked 
again :  I  bearti  tbe  gentleaian  talk  to  Mabotty, 
but  Mabony  adviseil  llie  gvnllaman  to  g«  la 
sleep.  He  aaid,  I  csunoi  sleep.  Tbey  lalknl 
together  a  greal  wliik.  Mabony  said,  I  atn  to 
go  on  sbure  iu  tbe  morniutf.  and  if  you  baTa 
auy  letters  to  Gctid  lo  Ikislul,  I  will  carry  tlieia 
I'ur  you.  I  heiril  Momebody  nay  lo  the  geHle- 
isiao.  You  mnsi  lie  ilili.  nud  nol  speak  ■  iverd 
far  your  lilc.  Hunn  minutca  after  J  lieard  * 
-  itotiggltng  ;   irlui  a  ma,  X^^^ 


1Q51J 


14  GEORGE  II.    Trial  ofCaftain  Goodfsn  and  M.  Mahany,    [lOjS 


yety  Mid  I,  we  can't  stop  them  neitkor,  seeing 
they  ha? e  the  captain*!  orders.  Then  went 
Joocf  up  forthwith,  and,  1  believe,  told  the  tieu- 
lenant ;  and  i  alM»  stent  up  to  him  just  afler, 
^d  loM  him,  that  I  believed  sir  John  wai  ac- 
tuatlv  inurdored  ;  fur,  said  I,  there  hafe  been  a 
terrible  noise  in  the  cock- pit  to  night,  and  the 
captain  himself  was  there-  this  morning  when 
'twas  almost  three  o'clock,  and  the  men  that 
were  with  bim  are^ng  on  shore.  The  lieu- 
tenant answered,  that  he  could  not  stop  these 
men  from  going  ashore,  because  the  captain 
bath  giveo  them  leave ;  so^  said  he,  we  must 
let  it  alone  till  rooming,  to  see  whether  the  gen- 
tleman is  dead,  or  no.  About  eight  o'clock  in 
the  morning  I  went  to  him  again  ;  but  he  told 
■M  it  was  best  to  defer  it  till  we  did  see  whe* 
tber  the  oaptain  sends  down  to  him,  or  not.  It 
is»  said  he,  no  way  proper  for  us  to  think  of 
seising  the  captain,  till  we  see  that  the  gentle- 
man is  actually  dead,  and  have  reason  to  think 
be  u  murdered.  When  the  captain's  breakfast 
was  ready,  he  sent  for  the  lieutenant  and  me  to 
come  and  breakfast  with  him :  accordingly  we 
did  ;  and  soon  after  there  was  a  shore- boat 
came  towards  us, and  then  Mr.  CMmroberlayne 
came  on  board,  and  went  to  the  lieutenant's 
cabbin ;  and  the  lieutenant  told  that  gentleman, 
that  they  were  then  going  to  seise  the  captain, 
ibr  it  was  believed  that  1^  had  been  accessary 
to  the  murder  of  his  brother.  Imms^istely  a 
message  was  brought  by  one  of  the  men,  that 
sir  John  was  dead :  upon  which  tlie  oaptain 
was  forthwith  seised  by  eight  ur  ten  men. 

Mr.  Fernoa.  How  far  was  your  cabbin  from  I 
the  pnrser^s  f 

Dudgeon,  I  can't  say  certainly,  but  beKere 
•boiit  three  yards. 

Mr.  Vernon.  Did  you  view  tbe  btxly  of  the 
deceased  whilst  he  lay  dead  in  the  purser's 
tMin? -^Dudgeon.  I  did. 

51r.  Vemou.  And  did  yon  find  any  visible 
roarkit  of  violence  upon  him  ? 

Dudgeon,  8ir,  I  saw  no  rope,  bnt  he  had  a 
neck-ctuth  about  his  neck,  and  there  were  some 
marks  in  his  neck,  which  looked  like  the 
scratching  of  naiU ;  and  1  believe  that  he  vtas 
strangled,  the  blood  came  out  of  his  nose  and 
mouth. 

William  Macguinit  sworn. 

Mr.  Vernon,  Were  you  on  board  the  Ruby 
man  of  war,  at  the  time  when  this  matter  hap- 
pened? 

Macguinis,  Yes,  Sir,  I  was. 

3lr.  Vernon.  Then  give  an  account  of  what 
you  know  concerning  it. 

MMcguinis.  The  niglit  in  which  the  gen- 
tleman came  on  board,  I  was  appointed  to  be 
the  centinel  at  twelve  o'clock ;  hut  when  the 
gentleman  came  on  board,  i  was  in  my  ham- 
mock. 1  was  calletl  np  to  stand  centry  in  tlic 
gun-room  ;  and  (please  you,  my  lord}  I  had 
not  been  long  on  my  post  before  1  saw  the  cap- 
tain  come  down ;  and  soon  after  1  saw  Mahony, 
that  msB  there  (poiming  at  the  prisoner  Bia* 
.bsoy)  ate  come  down.     1  stopt  bkm^  sod 


asked  bim  whore  be  was  going  f  Damn  yoor 
blood,  you  son  of  a  bitch,  what  is  that  to  >oa! 
How  busy  you  make  yourself.  And  wfaea  tie 
came  to  the  bottom  of  tbe  cock -pit  ladder,  I 
heard  him  say  to  another  man,  Come  here,  this 
is  the  way.  But  who  it  was  he  spake  to,  I 
know  not.  This  was  a  little  after  two  o'dock. 
The  captain  espied  me,  be  made  towards  me^ 
and  waved  his  naked  oullas,  and  said,  Stad 
back  !   stand  back ! 

Mr.  VemoH,  Where  was Blr.Geodere,vba 
he  advanced  towards  you,  aad  bid  yea  slwd 
back  r 

Mttcgumii,  Tbe  captain  was  down  is  the 
cock-pit  then. 

Mr.  Vernon.  Had  he  any  tbing  in  bis  buif 

HUcguink,  Yes ;  he  had  a  ciitles.  IbrneHi 
Buchanan  had  been  standing  cenUoel  is  ibi 
cock- pit,  but  was  released  by  tbe  capiaio. 

Mr.  Vernon.  What  more  did  yon  seef 

MacMuinis.  I  saw  Mahony  go  into  lbs  psr^ 
ser's  cabbin,  and  afterwards,  I  saw  tbe  captais 
and  Mahony  come  up  again  from  tbe  csck-fiL 

Mr.  Vernon.  About  what  time? 

Macguinii,  I  believe  it  was  tlien  aboet  ibm 
o'clock. 

Mr.  Recorder.  Mr.  Goodere  and  Mahsay, 
do  either  of  you  ask  this  witness  sny  i|ncBtisBiJ 

S.  Goodere.  No. 

Afa^ony.  No. 

Mr.  Tra//:«r  sworn. 

Mr.  Vernon.  I  think  yon  are  the  city  nuunf 

Walker.  I  am. 

Mr.  Kertiun.  i«ook  upon  that  watcb,  and  fiH 
an  account  liow  you  came  by  iL 

Walker,  I  found  it  in  the  necefssary-bosfti 
at  the  Brock  ware -boat,  a  public- luruse  on  tk 
Back. 

Mr.  Vernon.  Who  kept  that  public- bouse  it 
the  time  yon  found  tlie  watch  ? 

Walker.  One  CuUiford. 

Mr.  Vernon.  Was  it  accidentally^  or  spei 
search  that  you  found  the  watch  ? 

Walker.  I  searchtnl  for  it  iu  the  nccessan- 
house,  by  tlie  justice's  orders ;  when  I  fbus^ 
it,  tlie  case  was  in  one  place,  and  the  watch  it 
another,  about  a  yard  apart. 

Skrah  CuUiford  sworn. 

Mr.  Vernon.  Look  upon  that  watch.  Mil 
CuUiford  ;  you  hve  at  the  sign  of  the  Brack- 
ware-boat  on  the  Back,  do  you  not?  j 

jS.  CuUiford.  Yes,  Sir. 

Mr.  Vernon.  Do  you  take  that  to  be  tbi 
same  watch  that  was  found  by  Mr.  Walker, tki 
city  mason,  in  your  neoessarv-housc  ? 

S.  CuUiford.  Yes,  Sir ; '  I  believe  it  is  tbe 
same. 

Mr.  Vernon.  From  whom  did  you  receive  ii 
beihre  it  was  thrown  into  the  necessary -houie? 

S.  CuUiford.  I  received  it  from  Mahopy^ 
hands,  that  man  there ;  (|u>inting  to  the  pri- 
soner Mnhony). 

Mr.  Vernon.  How  king  before  be  was  appn- 
bended? 

S.CuUiforA.  IbadiliDmy 


t,  uid  two  hour*  after  he  vat 
And  wlitl  became  of  it  after- 


This  yoDnrman^i 
mj)  wu  drinking'  iu  my  Umwe, 
lie  waich,  delivered  ii  t«  ine,  and 
^tef  ilfor  him  until  be  did  c*l) 
^W  after  I  had  bubiiieas  to  po  out, 
wn,  and  had  ilie  wuldi  in  my 
|1  camii  liaelt,  my  children  lold 
bnalile  had  li«en  therr  to  uarch 
t,  which  much  ■iirprii'.rd  ine;   I 


Mutderiif  !\ir  Juhn  Goodere. 


A.D.   lT+1. 


rm^^ 


w  the  WBtcb  into  tlie  nerfwary- 
1  should  come  in  trouble. 

4iai  FuticU  tffont. 

Mf.Fus«ll,Iook 
|i»e  an  aceouiii  Ii™ 

a  thai  hand- 

I? 

bad  this  handkrrehirr  from  Ma- 

19ih  of  January  InM,  the  night 

rhim,  i  found  it  upon  his  neck; 

aeized,  he  look  it  ofT;     I  took  it 

t,  it  was  bloody  iheo  ai  ' 

f  pockei. 

tUtM.  chief  clerk  to 

clerk,  nmm. 
,  Mr.  Mitcbel,  what  paper  ia  that 

[le  Examinolion  ot'HUtiheit  Ma 
itoner  at  ihe  bar,  laken  bcl'mi 
tf  esq.  mayor. 
.    Did  you  see  the  [iriaoner  fi[i' 

Bbia  ureaence  ? 
I.  Sir. 
,  i)id  he  do  ii  volunlarity  T 

'  m. 

Did  you  Bee  Mr.  Uayor  tigo 

t^  I  did. 
,  Tbeii  I  ilMire  it  may  be  read. 
^^-r.  Read  the  Examiualton. 
t  Etaminatiou  iu  these  worda  ; 
(Dly  of  Bristol,  to   wil.      The 
OHialiODand  Coafessioii  of  Mol- 
k  uatiTtDr  Ireland,  Bffeil  abom 
!■   cxaminant  coolessflh    and 
BtaixteenorsefenteeDdavi; 
tt  UDC*,  he  was  deiired  by 

B  ofilie  Ruby  niBo  of  war,  i 

■rwtd)  in  ilie  ciiunly  of  the  city  of 
|e  bi*t  the  captain  B,  brulbcr,  »ir 
Ooudcfe,  bart.  and  bnna;  liioi  on 
lau  of  war  ;  and  that  oii  'f'nes 
CMIiiuaiil,  and  the  crew  betung- 
_  I  of  wBf'H  bargf,  and  F-ilwsid 
John  HoC'Grnree,  nud  Wdliam 
Uteer'a  Dwa,  were  placed  by  tbe 
I  ttie  Whiietbrt  alehouae,  0)1- 

'iirr/b-itTt't^ 

.  Ill  d<i  II  Iben. 


■^  i,i_,.^..^::.l^tiitol  ihcm. 


and  Georcu  Beat,  coekttero  of  the  bnre«,  lbs 
said  Edirord  Muc-Danirl,  John  Mae-Gnrer, 
Hamioon,  and  uiie  Chartps  Brycr, 
pnrateei  *•>  men  aa  atiiresaiil,  wwe  again  pleM<l 
at  the  Whjiu  HarlalbresBid,  lna(»zethe  said 
air  John  Dincley  Gooderv,  ami  waited  tlterefor 
mmir  time  ;  and  he  coming  out  of  Mr,  Jariit 
tjriiilh'a  hiiuae,  and  cnmiAu  under  St.  Au^ua. 
tine'f  cburuh-yard  wall,  uiis  eiaminanl  and 
Ilia  comradea  puraaed  him,  and  near  Ihe  ptinip 
ibere  they  came  up  wilh  him,  ond  told  bin 
tliere  waa  a  gtnltFunn  wanted  lo  aiKak  »::!> 
him  ;  and  he  asking  wh*re  tbe  eenlleman 
VIM,  wsa  atiawered  a  little  way  ofl*,  and  ha 
went  quietly  a  little  way ;  batuDoneappeariotc 
he  resialed'and  refuieil  lo  go;  whereupon  lliia 
examinaul  and  eomradea  aomelimef  Mrcibly 
hauled  and  puxlivd,  and  at  other  timea  carrieii 
himSTcrKl.  A u^uatine'a  biitit,  captain  Day'a 
rope-walk,  end  along  the  road  to  thefiot-well, 

(captain  Goodere  being  sometimes  a  lillle  be> 
lind,  and  (ometimea  amungal  the  crowd  att 
the  nay)  till  they  came  to  ilie  shp  where  tha 
barge  lay.  Bui  fir  John  was  very  unwilling- 
tn  go,  made  the  utmost  rcsiatance,  aud  cryed 
out  murder  a  great  many  times ;  and  when  be 
waa  put  into  the  barge,  called  out  and  desired 
somebody  would  go  lo  Mr.  Jarrit  8milli,  and 
tell  bim  of  his  ill  usa^e,  aud  that  hi*  name  waa 
sir  Juhn  Dineley  ;  whereupon  the  captain 
cbpl  bi<>  hand  on  lir  John's  mouth  to  ston 
liii  spraking,  and  told  biro  not  lo  make  such 
a  noise,    he  had  t^ol  him  out  of  the  lion'a 


estate ;  and  bid  tbe  barge-n 
which  ihny  did;  and  in  Ibnr  passage  to  the  man 
of  war,  tbe  two  brothers  bickered  all  the  way  : 
But  when  they  came  to  the  man  of  war,  tir 
John  nctit  on  board  as  well  as  be  could,  and 
the  i-«plBiu  took  hitii  down  into  the  pur»er't 
cabbin.and  siaid  a  little  time  with  him,  anil 
treated  him  with  a  drnm  of  ram,  and  then  left 
him  lor  a  rnnsiderahle  lime;  and  in  theiDtertm 
sent  f'lr  this  exaiuinant  into  hia,  the  captain'a 
cabbin,  and  there  told  this  eiaminant  he  muat 
murder  his  brolber,  fur  that  he  was  mad,  and 
should  not  lire  till  four  o'clock  in  the  morning. 
And  this  esamiuBnt  reasoning  wilh  him.  and 
lellini,'  him  be  would  not  be  concerned,  and  that 
be  Ilinn|*hl  be  had  broogbtbim  ther*  wilhin- 
lent  only  tn  bring  him  to  reason,  and  Ink*  eara 
Ibal  he  thoutd  not  aftend  hia  eflate  in  law. 
and  to  have  a  perfect  reivmciliaii'm  :  bill  lbs 
eaplaiu  Milt  insiitiiig,  that  as  this  examiuaiK 
bad  taken  him.  he  should  do  it ;  and  Ibis  rxm- 
minanl  Iheu  saying,  lie  waa  nut  able  in  do  it  of 
himiself,  the  cainaiii  replied,  if  ibis  exatuinaut 
could  get  nobody  dse,  he  and  llna  examinant 
mast  do  it  theroseltcs.  And  then  ordered  him 
to  call  oDcEliiha  Cole;  and  hebcingloo  drunk 
to  andertoke  sgch  an  alTsir,  bid  Ihi*  examinanl 
call  one  Charles  White,  a  toy  sluul  lusty  fel- 
low, aud  the  cajitaio  gave  him  a  drain,  and  bid 
bimsil  down,  and  MOagaieelher  drann,  and 
atkcdbiioifheconUfigbt,MidtoUhiin,  Hert.  _ 


K)35] 


14f  GEORGE  II.     Trial  of  Capldin  Goodere  and  M.  Mahmy^    [  lOM 


ilialt  bare  a  handsoine  reward.  And  this  esca- 
miuant,  the  said  Cbarles  White,  and  thecap^ 
taiu,  beinir  all  a(|;reed  to  murder  the  said  air 
John  Diuele^r  Goodere,  the  captain  then  pro- 
posed the  method,  and  produced  a  piece  of  half- 
inch  rone  about  nine  foot  long^,  and  Charles 
White  having  made  a  noose  in  the  rope,  the 
captain  said,  applying  himself  to  this  exami- 
nant  and  the  sai  I  Charles  White,  You  must 
strangle  him  with  this  rope,  and  at  the  same 
time  garethe  handkerchief  now  produced,  that 
in  case  he  made  a  noise*,  to  stop  his  moutli ; 
and  said,  I  will  stand  centinel  orer  the  door 
whilst  you  do  it;  and  accordingly  instantly 
went  out  of  his  own  cabbin,  and  turned  the 
centinel  from  the  purser's  cabbin  door,  and  let 
this  ezaminant  and  White  into  the  purser's 
cabbiu,  where  sir  John  Dineley  Goodere  w^jb 
lyiujg^  in  bis  clothes  on  a  bed:  The  captain 
barmg  pulled  to  the  door,  and  standing  cen- 
tinel himself,  the  said  White  first  strangled  sir 
John  with  bis  bands,  and  then  put  the  rope 
about  sir  John's  neck,  and  hauled  it  tight,  and 
sir  John  struggled,  and  endeavoured  to  cry  out, 
but  could  not.  And  this  examinant  confesses, 
that  whilst  White  was  strangling  sir  John,  this 
ezaminant  took  care  to  keep  him  on  the  bed, 
and  when  one  end  of  the  rope  was  loose,  this 
ezaminant  drew  and  held  it  tight ;  and  thus 
each  bore  a  part  till  sir  John  was  dead ;  and 
they  bating  rifled  the  deceased  of  bis  watch 
and  money,  knocked  at  the  dooc  to  be  let  out ; 
and  the  captain  called  out.  Have  you  don^  't 
they  replied.  Yes.  He  opened  the  door,  and 
asked  again,  Is  he  dead  ?  And  being  answered  in 
the  affirmative,  and  haviu;jf  a  light,  swore,  by 
God,  he  would  be  sure  he  was  dead  ;  and  then 
went  in  himself,  and  returniog,  locked  the  door, 
and  put  the  key  in  his  pocket,  and  they  all 
went  together  to  the  captain's  cabbin  ai^ain, 
and  there  this  examinant  gave  the  captain  sir 
John's  watch,  and  the  captain  gave  this  exa< 
minant  his  own  watch  in  lieu  of  it;  and  then 
the  captain  gave  them  both  some  money,  and 
White  afterwards  gave  this  examinant  ei^ht 
guineas  as  part  of  the  money  he  took  out  of  the 
deceased's  pocket,  and  then  the  captain  order- 
ed them  to  be  put  ou  shore  in  his  own  boat. 
And  further  this  examinant  confesses  and  saith. 
That  before  and  after  the  murder  nas  com- 
mitted, tlie  captain,  Charles  White,  aud  this 
examinant,  consulted  what  to  do  with  the 
corpse ;  and  the  captain  proposLMl  to  keo)!  it  two 
or  three  days  in  the  ship,  and,  as  hu  expected 
to  go  to  sea,  would  sew  it  up  in  a  hammock, 
or  something  else,  and  there  throw  it  over-hoard: 
And  that  before  this  examinant  and  his  com- 
rades were  sent  to  seize  sir  John,  as  is  before 
set  forth,  they  were  ordered  by  captain  Goodere, 
that,  if  they  met  with  any  resistance,  they 
should  repel  force  by  force,  an<l  were  prepared 
with  short  heavy  sticks  or  bludgcuins  for  that 
purpose.  Matthew  MAiioNr. 

Mr.  Itfcori^r.  (Speaking  to  the  jury.)  Gen- 
tlemtti,  yon  are  to  take  notice,  that  this  con- 
liniiMi  IS  e? idtoce  agaiost  the  prisoner  J|a- 

4 


bony  alone,  and  so  far  only  ongfit  you  to  rt- 
gard  it.  It  is  no  evidence,  nor  ought  yon  to 
lay  any  stress  upon  il,  as  against  the  prisooer 
GtKxIere. 

Mr.  Vernon.  Mr.  Recorder,  we  have  gooe 
through  with  our  evidence  of  the  liMt,  and  uere 
we  should  have  rested  it,  were  it  not  that  Mr. 
Goodere,  by  his  strict  enquiry  into  the  moI 
where  the  ship  lay,  seems  to  questioo  whetscr 
it  was  within  this  county  or  Dot :  A  qocstioo, 
which,  I  confess,  I  no  more  expected  to  bev 
of,  than  whether  we  ourselves  ve  now  witbti 
it.  However,  to  obviate  all  pretence  of  that 
kind,  and  give  the  gentlemen  of  this  jury  si  full 
satisfaction  in  the  point,  as  undoubtedly  the 
grand  inquest  for  the  body  of  this  coanly  bad 
before  they  found  the  bill,  we  shall  beg  IrsTe 
to  call  a  witness  or  two,  just  to  shew  that  KB|r- 
I  toad  has  been  constantly  taken  to  lie  wiilua 
the  city  and  county  of  Bristol,  and  that  ac- 
cordingly the  sheritfs'  oflioers  of  Bristol,  froa 
time  to  time,  have  used  to  ezectite  both  tke 
city  and  county  process  in  King-Road ;  wbacb, 
i  apprehend,  wUl  of  itself  be  satisfactoty  eri- 
dence,  without  entering  into  any  other  dtsqids- 
;  tion  of  the  county  limits.    Call  Mr.  Wint. 

!  John  Wint  sworn. 

i      Mr.  Vernon,  Mr.  Wint, what oflicer are  jM 
in  Bristol? 

Wint.  I  am  an  oflicer  to  tbe  sberiffii «( 
Bristol,  and  have  lieen  so  for  these  thirty  yean 
and  upwards. 

Mr.  Vernon.  Have  yon  been  used,  as  so  of- 
ficer to  the  sherifis  oi  Bristol,  to  serve  procev 
in  King- Road  ? 

Wint.  1  have  served  process  in  King-Roui 
forty  or  fifty  times. 

iVlr.  Vermm,  How  far  down  the  river .' 

Wint.  Very  often  down  as  far  as  Poset- 
Point. 

Mr.  Rtcordcr.  What  kind  of  process  hvi 
you  served  there  ? 

Wint,  Town  actions  out  of  the  mayor  and 
sheriifs  court,  and  out  of  the  l*ie|YOwder  coort. 

Mr.  Recorder,  Have  you  ever  executed  u  j- 
cess  there  which  was  directed  to  tbe  sberintaf 
Bristol  i* 

Wint,  Yes,  Sir,  I  have  served  sheriffs  mr- 
rants,  or  writi,  issued  Irom  above,  out  of  tke 
court  of  Kiosr's-bench  and  Common  -  Pleas  i* 
tbe  sherifl*s  of  Bristol. 

Mr.  Recorder,   Mr.  Goodere,  will  you  aik  ' 
this  witness  any  questions  ?  I 

S.  Goodere.  Yes,  Sir :  Is  all  that  is  csN 
King- road  within  the  liberty  of  tbe  dty  d 
Bristol?— I^m^  Yes.  it  is. 

S.  Goodere.    Are  you  sure  of  it  T 

Wint  I  know  where  the  ship  Ruby  lay  wai 
within  the  city  of  Bristol. 

S.  Goodere.  How  do  you  know  that  f 

Wint.  Because  1  have  been  down  with  ibe 
mayor  to  the  Holmes. 

Mr.  Vernon,  Call  Mr.  Lowden. 

Mr.  Lowden  sworn. 
Mr.  Vernon*    What  officer  sve  y0O|  lb 
Lowden? 


Jar  the  Murder  of  Sir  John  Goadert- 


A.  D.  i7-H. 


TrfwxJrfl.    J  hlTC  \itca  ■ 


uffioer  in  lliit  rity  |      ^It.Rtcordtr.  Wuany  peraoaaayoii  know 
re  aerval  Uiwd  nc-  |  10  tiave  taken  care  of  liim  in  yuur  i^arreli' 
rarrBDli  inide  oui  i       Hn.  Gethini.   I  ha>e  lie&rd  itie  capMin  Uik 
I  of  We*UnioBter-  |  with  Uiii  cwii  HckIot  about  it. 

■9.  Goodirc.   1  ihall  i;ite  jou  nuJ  tUe  jur;  ts 

.   .  .     ^  little  Iroiilile  ai  nwy  be.     I  bavu  id  eiidcouein 

Ibe  l)cnni.'v.  ivc  alwaj'i  laku  il  tg  be  iu  ihc  li-  i  TeUlion  to  Slahooy  »aA  tVliiie't  %ti\i\^  >w»y 


ttoa>,  toiTD  HBfranti, 

Ttfoa  wtiu  rrum  the 

uU,  and  the  Ailmiraltri  in  Kiqg-road 

Mif  part  or  Kiii^-roaii  uii    the  Huiiltiwaril 


bertiei  ol'  Briitol. 

Mr.  I'trnoA.  Mr.  ReoorJer,  ive  lia*e  ddne. 
Hr-  lUeoTiltr.   Air.  Uuudere,  aad  Maltliew 

tlunugli 

time  to  ruler  upno  jour  Uelence. 
.  S.  OuuJcrc.    May  il  [ilea 


fuur  u'ultick  in  (be  luoroius;,  becaiiae  it 

barged  ihiit  I  seci  tiiem  anny.    The  boat 

ieiii awBj  iu  llie  kiiu;'aMrtii-e  to  briog  leilera. 

Mr.  Marth  aworu. 


ilpf 


lo  prove  Dial 
duordCTe>l   LI  .        . 

bW  lo  lake  care  ul'biio. 


il  I  was  iluiof;  uiy 


ther  «i 

P 


Call  Mn.  Gcthlm. 
Hr,  Recorder.    Wbal   du  you  call  ber  id 
prove f 

S.  Gooderf.  I  call  lier  lo  (itotc,  that  before 
ttjp  brol^r  was  taken  An  board,  I  was  tu  t.ihe 
n  upper- riwm  of  ber  to  put  him  in,  where  be 
■iffht  be  taken  care  iiflocnre  hiamadnesB. 

m.Rtcuriler.  ^Vhat,  Mr.  (itiodere,  >lo  you 
■dtnit  llien  that  you  did  lake  ynur  brother  on 
bovd? 

S.  Coodcre.  I  do  aJmit  Ibat  I  carrjeil  my 
lirolber  on  board.  I  went  in  tbe  boat  alon^ 
with  kiat. 

Mrs.  Gtlhiiu  sworn. 
S.  Oocdert   aira.  Gelhiiia,  did  1  not  tpeak  to 
jau  a  l«rlnii;ht  or  three  weeks  before  lay  bro- 
takea  on  board  tbe  &bi|i,  to  hare  a 
of  you  lo  put  him  in,  and  that  Alabony 
haire  51.  a  month  to  take  care  of  him  ? 
Ctlhim.  Theprisouer, captainGoodere, 
—  -  if  I  had  not  a  garret  tii  lei  hirn  keep 
in,  for  (hat  be  wai  a  madman  :  and 
lin  Guuderr  ueier  made  it  a  secret  that  lie 
lake  and  koep  his  brother  as  a  raad- 

»&  Coodert.  WhelAer  I  did  not  tell  you  thai 
llaiuioy  was  W  uke  care  of  my  brother  a  fort- 
luchl  ur  tliree  weeks  before  he  was  taken  no 
haard  t  8peak  lo  the  lime  as  near  as  \ou  can 
neoUrcl;  and  whether  you  knew  I  hat  Mahony 
WW  Iu  ha*e  5^  a  month,  anil  that  I  made  no 
Banner  of  lecret  ofil.  and  that  I  endeBTOnred 
tabkecare  ol'him  as  a  lunaii<?. 

Hr«.  Gtthitu.  l^r,  I  have  already  said  that 
yva  ajHiketo  me  about  a  rnoui  to  put  your  bm- 
Iber  in.  hut  what  yon  mention  about  Mahony,  I 
knaw  oulliiii)f  of  that. 

Mr.  Vnuaa.  Pray,  ii  Kiog-rnad  in  the  road 
tofour  houM?— Mr<i-  Getlimi.  No.lSir. 

Mr.  Vfnm.  Was  your  garret  a  proper  nlac 
•f  Mwummodalioii  lor  a  tfentlemon,  and  om 
who  w«a  eatcerned  an  Englith  barooel,  ihiiil 
TM  t  Pray,  do  you  keep  a  madhouse,  uiadaoi 

Mra.  GdAiu.   No. 

Hr.  Vernon.    Don't  you  think  sucli  a  con 
taenianl  woulil  hare  Wn  tht  way  to  hare 
MM^himiBadr 
«™v  XVJI. 


Mr.  Marth.  I  had  an  order  about  eight 
'clock  the  nl^ht  air  John  Has  brought  oil 
buard,  lo  go  uu  in  the  morning  to  Bristol  for  tha 
kller^  friiui  the  Admirally,  and  about  four  of 
the  clock  111  the  morning  I  was  called  up  to  go  ; 
but  the  lieulenant  seemed  much  difordenid,  anil 
hid  ine  come  to  him  before  I  sat  oul.  I  waiie>l 
r>n  the  lieulciiaul,  and  told  him,  titut  White aiiil 
Mahouy  taid  they  had  hberty  lo  go  un  shore, 
that  the  captain  had  givea  ihem  tiberlv  to  t;o  i 
the  lieutenant  said,  be  knew  uothing  of  il.  But 
aa  it  is  always  my  way,  before  Icari^any 
body  olT,  1  said,  1  wuuldgn  to  the  captain  and 
ask  Icare.  1  went  lo  the  caplnin,  and  asked 
him,  if  White  and  Mahony  had  libertv  from 
him  lo  y^  on  ahote  ?  And  bo  said.  Yea,  bt 
Ihem  CO. 

rS.  Ooodere.  Mr.  Marsh,  did  you  go  npon 
Uie  king's  biisiaess,  or  on  pufi>oie  to  take  up 

MuriA.  I  went  about  the  king's  business. 

Mr.  I'Vrnon.  But  il  wai  alter  sir  John  was 
brought  on  board,  tliat  Mr.  Goodere  ordered 
yuu  logo  up 7 — Marth.    Yes,  Kr,  it  was. 

Mr.  Vernon.  fJid  any  body  else  go  up  with 
you,  besides  Mahony  and  While  ? 

M»T,h.  No,  there  did  not. 

Mr.  Vtrnaa.  Did  Mr.  Ooodere  gire  you 
orders  lo  ptii  lliem  on  shore  io  soy  particulat- 
l)lace? 

Marik.  1  win  do  justice  between  man  and 
tnaa  ;  the  captain  did  not  ^ive  me  orders  tu  put 
them  on  shore  in  any  particular  place. 

Mr.  Vernon.  U'ire  they  landed  publicly  or 
priralely .' 

hlanh.  I  put  Ihem  on  shore  at  the  Gibh, 
about  ail  of  the  cluck  in  the  morning'. 

S.  Gaviere.  Now,  may  it  please  you.  Sir,  I 
shall  shew  Ihal  Mahony  bad  business  at  Bristol 
that  day  by  appoiulmeut,  to  receiie  some  wages 
that  WHS  due  tu  him  ;  Ibrwbicb  purpose  I  shall 
call  Mr.  Uagg, 

Ahrl  Dagf,  Reeperof  Newgate,  swotti. 

5.  Coodere.  Do  you  know  any  thing  of  oap< 
lain  Menin,  and  nf  Alahony's  coming  lo  Bris- 
tol on  llie  Monday  to  srltle  an  nAiiirwilh  hioif 
liiigg.  There  was  one  captain  James  Mer- 
lin who  sailed  into  this  port,  and  on  his  coming 
ivas  charged  as  a  debtor  in  my  house,  al  tha 
mill  of  some  yer'ilemnn  in  Lnndon,  iu  an  aelioQ 
«f  3  or  4U0/.  Mahony  waa  aae  of  liis  aail^ 
I      3T 


1059] 


14  GEORGE  II.     Trial  qfCapiain  Goodere  and  M.  Makwy^    [1060 


until  he  was  prest,  and  he  chtrged  the  said 
Meirin  with  an  action  for  his  wag^es.  Captain 
Mervin  bad  a  desire  to  make  up  the  matter 
with  Mahony.  I  went  to  the  captain  of  the 
man  of  war  the  Tuesday  or  Wednesday  before 
Ibis  affair  happened,  which  was  the  first  time  I 
ever  saw  him,  to  the  best  of  my  knowled^ : 
the  captain  said  he  would  meet  me  the  Mon- 
day following,  in  order  to  accommodate  the 
difference* 

Mr.  Vernon.  Was  Mahony  appointed  to 
meet  you  that  day  or  not  ? 

Mr.  Recorder.  Mind  the  ouestion.  Was  Ma- 
hony to  come  that  Monday  r 

Vagg.  The  captain  made  an  appointment, 
my  lord,  to  meet  on  the  Monday  ;  and  I  told 
Mr.  Taylor  the  attorney,  that  Mahony  was  to 
come  on  shore  that  day,  to  make  up  the  matter 
between  him  andMervin. 

Mri  Vernon.  I  would  ask  you  another  ques- 
tion ;  Had  White  too  any  affair  to  make  up 
at  Bristol  ? 

Dagg.    No,  I  know  nothinflf  of  that. 

S.  Goodere,    Now  I  call  Bridget  King. 

Mr.  Recorder.    What  do  you  call  her  for  ? 

S.  Goodere.  Touching  the  lunacy  of  sir 
John  Dineley. 

Bridget  King  sworn. 

S.  Goodere.  Mrs.  King,  will  you  gfire  the 
Court  an  account  of  what  you  know  of  the  lu- 
na^  of  my  brother  sir  John  Dineley  ? 

Mrs.  King.  Please  yon,  my  lord,  I  think  he 
was  mad  ;  for  he  would  ^ei  up  at  two  or  three 
of  the  clock  in  the  morning,  and  call  his  ser- 
vants up,  and  iall  a  singing ;  and  then  he 
wonld  go  to  bed  again,  and  swear  it  was  but 
twelve  o'clock  at  night,  and  lie  a- bed  all  day. 
He  would  send  his  boy  out  all  over  his  grounds 
to  pick  un  stones,  and  have  the  wheel-barrow 
rattling  aooiit  the  streets  on  a  Sunday :  he  hath 
ringed  the  bell  to  call  his  servants  up  to  his 
bed -side,  and  when  they  were  come  up,  he 
would  ask  them  what  they  did  there,  and  swear 
they  were  come  to  shoot  him  ?  He  himself  hath 
gone  over  all  his  grounds  on  a  Sunday  to  pick 
sticks,  and  hath  sent  his  servants  to  market 
when  there  was  none ;  and  he  would  be  busy 
in  every  thing,  and  hang  on  the  not  himself ; 
and  he  hath  been  quite  raving  mao. 

Mr.  Vernon.  Did  you  live  as  a  servant  to  sir 
John? 

Mrs.  King.  I  lived  as  a  servant  with  him  in 
London,  and  he  came  down  for  the  air  to  Tock- 
inffton  ;  he  brought  me  down  to  go  to  Bath. 

Mr.  Vernon.  How  long  did  you  continue 
with  him  P 

Mrs.  King.   A  twelvemonth.  Sir. 

Mr.  Vernon,  And  how  durst  you  venture  to 
live  so  long  with  a  madman?  He  did  not  go 
mad  for  luveof  you,  1  hope?  Have  you  lived 
any  time  in  Bristol  ?»Mrs.  King,  No. 

Mr.  Vernon.  I'hen  1  suppose  you  came  but 
now  from  Loudon ?_ Mrs  King.  Yes,  I  did. 

S.  Goodere,  Do  you  believe  be  was  a  mad- 
man F 

Mt§,  King.    lo  die  actiimi  thai  I  hvre  tecu 


by  him,  I  have  reasoo  to  think  ha  was  a  nsd- 
man. 

Mrs.  Mary  Stafford  uwoiUm 

S.  Goodere.  Mrs.  Stafford,  will  yon  M  Ik 
lordship  and  the  jury  what  yon  know  of  ar 
John's  neing  a  lunatic  P 

Mrs.  Stafford.  Sir  John  hired  me  At  a 
bouse- keeper  in  London,  and  told  roe  he  bad  a 
great  many  servants,  and  he  wanted  a  hooM- 
keeper.  When  he  brought  me  down,  he  or* 
dered  me  to  his  seat  at  TockingtOD  ;  where,  he 
said,  he  had  a  great  deal  of  company  freqocat- 
ly.  When  1  came  there,  I  found  there  wis 
nothing  in  what  he  bad  told  me ;  fer,  inatead  of 
a  {^reat  many  servants,  he  had  bat  one :  a  poor 
old  shattered  house,  ready  to  tumble  dowi 
about  one's  ears,  and  the  noushold  seods  il 
to  pieces  :  he  was  a  madman  :  for  if  Ihad  Al- 
lowed his  directions  in  any  tiling  I  shonkl  bare 
done  mischief.  He  hath  sent  me  and  the  rat 
of  his  servants  to  Tliombury  market,  wha 
there  was  none ;  he  hath  ringed  the  bell  to  cd 
his  servants  to  come  to  his  bed-side  to  him, aid 
when  we  have  come  up  to  him,  he  hath  asM 
us,  what  we  did  there  P  Sir,  aaid  I,  yon  called 
me  up  :  be  hath  iaid  he  did  not :  and  after  we 
had  been  there  a  quarter  of  an  hour,  he  wooM 
take  a  knife,  fork,  glass-bottle,  or  any  tbiag 
that  came  in  his  way,  to  throw  at  US|  askinf  if 
us,  What,  did  we  come  to  rob  him  ?  And  1  wai 
afhiid  of  my  life,  to  live  with  him.  I  do  be- 
lieve he  was  a  madman,  or  else  he  wonld  never 
have  acted  as  he  did :  he  would  go  into  tbo 
kitchen,  and  take  the  pot,  and  bang  it  on  the 
fire.     1  style  him  a  madman  by  his  actions. 

Mr.  Vernon.  And  must  he  therefisre  be 
hanged  himself  like  a  mad  dog,  think  you  ? 

Mrs.  Stafford.     I  know  nothing  of  that,  Sr. 

Mr.  Vernon.  How  long  did  you  live  with 
sir  John  ? 

Mra.  Stafford.    Three  months.  Sir. 

S.  Goodere.    Call  Mr.  Robert  Cock. 

Mr.  Recorder.  What  do  you  call  hio  to 
prove  ? 

'  S.  Goodere.  My  lord,  in  order  to  prove  sir 
John  Dineley  a  lunatic.  Mr.  Cock,  will  yoa 
give  an  account  to  my  lord  and  the  jury  wait 
you  know  of  the  lunacy  of  sir  John  Dineley  P 

Robert  Cock  sworn. 

Cock.  My  lord,  I  have  known  Mr.  Diocky 
at  Charlton  for  some  years ;  I  have  been  seve« 
ral  times  in  his  company  ;  I  have  seen  hum  do 
several  acts  of  lunacy,  as  a  madman. 

Mr.  Vernon.     Where  do  you  live? 

Cock.  I  live  in  Cumberland,  when  I  am  it 
home. 

Mr.  Vernon.    Are  vou  of  any  buainesaP 

Cock.  1  am  an  officer  belonging  to  his  ni- 
jesty. 

Mr.  Fcrnon.    What  kind  of  officer  P 

Cock.    A  sa!t  officer. 

5.  Goodere.  1  will  not  give  year  lorUif 
and  the  jury  much  more  trouble.  I  am  ca- 
tirely  inn«iceui ;  they  have  not  proved  that  I 
waa  \(teiu:nt  at  the  death  of  air  Jolui  Piaely» 


V 


•n 


for  the  Murder  nf  Sir  John  Goodere. 


A.  U.  1741. 


10  pretence 
8.Goo<le 


lUr.  Retorder.  Dtm't  ileceivo  jiouiseir; 
thiMiKb  tliejr  tia*e  not  |ifo*eil  tb*!  you  wu  ac- 
tually ill  tliu  cabbln,  wlien  lir  JoIid  was  mur- 
dereJ,  vet  Ihey  ha^e  given  evidence  of  lliat, 
'  '  b  (if  Iha  jury  ^ive  ereilit  tn)  will  nmoimt 
enc«  in  tbp  eye  or  Uie  Uw. 
I.  Goodere.  I  ihatl  now  call  some  witnMsM 
M  mj'  chancier,  and  likewise  to  stiew  liow  im- 
pfobable  it  is,  Ibnt  I  abould  he  ifuiliy  or  the 
Aiunkrut'uy  lirotbvr.  Call  Mr.  Priichanl. 
Mr.  Pri/rAorrf«worn, 

^^WOCT  at  the  bur,  maDy  years :  he  always 

^^Bi  lb«  character  ol'  n  i^ood  husbanil,  a  gaud 

^^Hhrnr  and  a  kind  friend. 

HQ[  Oaadert.  I  slmll  call  a  person  who  saw 
tt«  will  or  air  John  Dineley  ;  and  Uieti  any 
lody  would  lliiok  that  1  ahould  be  the  niaddrst 
"mtm  in  the  world  to  enmniit  a  munler  thai  I 
fcDM*  would  he  40,000/.  damage  to  me.  It 
kM  my  business,  considering  the  circumstance 
«r  the  will,  and  Ihut  I  wu  air  Jobu's  heir  at 
liw,  at  all  oeats  to  preserTC  him.    Call  Mr. 

ReTcreod  Mr.  Watkiat  awom. 

S.  Goodere.  Mr.  Watkios,  did  not  you  tec 
or  hear  the  contents  or  sir  Jobo  Dineley's  will, 
and  did  not  you  tell  me  presently  after  tbe  will 
tn»  Daado  the  contents  of  it,  and  Low  long  was 
Jiwt  belbre  hii  death .' 

Walluni.  It  was  aborc three  months,  or  half 
A  year  before  his  death,  lo  the  beat  of  my  koow- 
laige.  It  was  so  long  ago,  asyoudioed  wilh 
BM  «t  Crupthume. 

S.  Qaodert.  Uid  you  uot  inform  me,  that 
tbat  will  did  cut  me  off  of  every  thiog,  and 
gwc  tlie  cutate  to  the  Foots ;  and  that  sir  John 
Md  «Do  so.> 

Wetkini.  Hir  Jobo  told  me  that  be  had  made 
1m  will,  and  had  cut  bis  brother  ulTfrom  every 
■king :  and  tbat  lie  bad  i^iieu  the  estate  to  the 
VmtM:    of  which   1   (old  Mr.    Goodere   soon 

8,  Qoodtrc.  How  long  n^o  'i 

Watkint.  I  can't  tell  exactly  ;  about  half  a 
jTMr  or  three  quarters  of  a  year,  it  nii^t  be. 

Hr.  Fcrnoii,  Tfac^  have  been  givintfair  John 
iha  character  of  beiD£  a  lunatic;  1  iTiink,  Sir, 
yoa  are  inioioter  of  Cropthome,  and  must,  I 
BrvMime,  hite  been  pretty  ronversant  with  sir 
iota,  and  a  fr«i|ueDt  witness  of  bit  behaviorir 
in  tlwt  DeiKtibourhaod  ;  be  pleased  iburelbre  to 
tpcakwhai  you  know,  as  to  bis  sanity  or  io* 
■mhiv  of  mind. 

Walkmi.  8ir  John's  character  in  my  ojiioion 
hath  bam  vory  much  micri-presenled  to  the 
wmU.  During  m*  acquaintance  with  him,  t 
bars  bond  btni  to  be  a  good  uti^hbour,  and  a 
kaad  triMnl  j  he  woa  a  man  nf  si  roog  pataioiia ; 
if  any  one  af^nted  him.he  wuuld  letthopaMy 
■bow  llMt  bo  did  resent  it.  All  hia  tenants  of 
Mir  cnantry,  and  Ihoie  I  have  converted  with 
my,  tbai  be  was  one  <<f  the  beat  nf  landlords. 

Mr.  Vrrnait.  I  dou'l  ask  vou,  Nir,  concerning 
hlamoialcharauur;  bulWHtberbe  was  fohia 
MM^WMte 


Witlkini.    Jn  Ilia  senses!    I  aaw  hhn 
Christmsa.  he  waa  making  up   bis  i 
with  several  of  liis  tenanla ;   be  was  then  id 
very  good  understand  in  e. 

Mr.  Vtrnon.  Pray,  did  you  ever  know  faim 
vi&iied  with  lunacy  ? 

Watkiai.  J  never  did;  but  on  the  conirarr, 
1  take  him  to  liavc  been  a   man  that  always 

Mr.  Vernon.  Do  you  know,  Sir,  whether 
thera  was  any  misunderslauditig  between  the 
two  brothers  ? 

Watkint.  There  has  been  a  long  mbuader- 
standing  between  them. 

Mr,  Vtrnon.  What  bare  you  heard  the  pri- 
soner Mr.  Goodere  say,  in  relatioa  to  air  Jobo'i 
making  bis  will  ? 

I\'atkiiu.  i  believe  he  told  me,  that  dr 
John  had  not  power  to  make  a  will :  I  told 
him  it  was  my  opinioD,  if  they  would  be  re- 
conciled together,  air  Joho's  will  would  not 

Mr.  TAonoiawom. 

S.  Goodere.  Mr.  Thomas,  bow  long;  bave 
you  known  me,  and  what  waa  my  chnracterF 

Thotiuu.  I  have  known  tbe  prisoner,  Hr. 
-^JaiDuel  Goodere,  a  great  many  years,  bate 
eery  often  been  in  hi*  company  :  I  never  found 
but  tbat  he  ever  behaved  with  all  the  good- 
nature that  possibly  could  he.  I  always  took 
him  to  be  a  good-nsiured  weU-behaTed  man, 
and  be  is  a  man  well-beloved  in  his  country. 
Mr.  JihJUldaworo. 

Athfittd.  I  have  known  Mr.  Goodere  a  great 
many  years,  I  never  heard  any  ill  of  him  till 
this  affair ;  be  is  reputed  in  the  country  of  a 
general  Kood  character.  1  have  been  concerned 
for  liim  111  several  suits,  I  never  knew  any  ill 

Mr.  Venom.  Pray,  Sir,  wbatbave  you  beard 
Mr.  Goodere  tay,  concerning  his  broUieT'i 
cutting  off  the  entail  of  his  estaief 

Aihficld-  I  have  heard  Mr.  Goodere  saj, 
thai  hia  brother  bad  no  power  to  cut  off  tb« 
entail,'  and  that  he  would  aet  the  recovery 
naide  ;    I  hare  heard  him  say  that  forty  timaa, 

Mr.  Kemon.  What  is  your  opinion  as  to  Iba 
sanity  or  inaanily  of  sir  John  ? 

Ashficld.  i  never  thought  him  a  msdman;  I 
always  thought  him  one  of  tbe  best  uoderainnd- 
■ng  in  the  whole  family. 

Reverend  Mr.  Rogeri  swora. 

Rogert.  1  have  been  acquainted  with  the 
|>ritiiner  Goodere  several  years;  I  know  be 
haih  behaved  very  well,  done  good  offices  to 
all  mankind  ;   and  1  never  beard  any  other  of 

Mr.  George  Farceeil  sworn. 
Fortevil.  The  priaoner  Goodere  hatli  been 
my  neight»aur  for  l»urleeu  or  filleen  vears ;  he 
hath  always  behaved  well  in  his  neighhourhiHid, 
and  bns  a  very  good  chiiracier  ■,  Iw  oiWAmei-j 
Mieii4ed\a»t\wiAVw'K«  w^j^wto-jiHW^ 


1063] 


ttfCajimii 


f. 


would  be  there  at  prajere  almost  every  day  ; 
he  was  always  a  sober  mail,  and  a  good-hu- 
moured geotlemaD.  1  thought  him  to  be  a 
gooft  man. 

5.  Goodere,  Mr.  Recorder,  I  would  not 
ire  you  and  the  jury  any  more  trouble  in  re- 
atfon  to  my  character ;  all  I  have  to  say  fur- 
tlier  is,  my  beintr  deprived  of  evidence  in  my 
behalf,  by  reason  of  my  disonler  and  the  sick- 
ntM  in  the  gaol,  which  hath  prevented  my 
friends  from  coming  to  me  to  adviKe  me  about 
making  my  defence ;  and  also  of  havingf  several 
witmsses  from  on  lioard  the  ship,  uhieh  might 
have  been  of  great  service  to  me.  1  had  an 
order  from  the  lords  of  the  Admiralty  to  re- 
quire them  to  btay  on  shore,  if  1  had  occasion 
lor  them ;  but,  as  the  ship  was  gone  before  the 
letter  e.ime  to  my  haiuls,  I  have  no  occasion 
DOW  to  tell  the  names  of  the  {lerions. 

[Mr.  Goodere  held  up  the  letter  in  bis  hand, 
but  the  Court  did  not  receive  it.] 

Mr.  Frederick.  Mr.  Recorder,  there  have 
been  several  aspersions  published  in  the  news- 
papers, to  the  prejudice  of  Mr.  Goodere ;  there 
das  been  a  paniphlft  also  published,  which  I 
have  here  m  my  hand,  entitled,  The  Bristol 
Fratricide;  but  I  hope  the  gentlemen  of  the 
jury  will  take  no  notice  of,  nor  be  influenced  by 
them  against  the  prisoner. 

Mr.  Vcrjion.  1  dare  say  they  will  have  no  re- 
gard to  any  book,  but  that  on  which  they  have 
been  sworn  :  those  who  know  them  and  tlicir 
characters  must  certainly  think  so. 

[The  Jury  declared  they  had  never  seen 
any  such  pamphlet,  or  papers.] 

Mr.  Vernon.  Mr.  Recorder,  we  must  beg 
leave  to  ask  Mr.  Jarrit  Smith's  opioiou,  as  to 
sir  John's  being  a  lunatic,  or  not? 

Smith,  Mr.  Recorder,  I  am  surprised  to  hear 
it  said  by  some  of  Mr.  Goodere's  witnesses, 
that  sir  John  Dioeley  Goodere  was  mad;  1 
kneiv  him  fourteen  or  fifteen  years,  and  con- 
vorbe<l  with  him  both  in  person  and  by  letter; 
but  never  discovered  that  he  wuk  in  the  least 
disordered  in  his  senses,  I  always  took  him  to 
be  a  man  of  sound  understanding.  On  the 
Sunday,  the  day  before  his  death,  he  expresi^ed 
himself  with  a  great  deal  of  good- nature  aud 
affection  at  the  sight  of  his  brother. 

Mr.  Shephard.  Mr.  Recorder,  with  humble 
submission,  1  am  instructed  to  offer  it  in  evi- 
dence, that  the  place  where  the  ship  lay  is  not 
witliin  this  city  und  county  of  Bristol. 

Mr.  I'crnon.  We  have  already  proved  it  to 
he  within  the  county  of  Bristol  ;  nor  is  there 
tiie  least  reason  to  apprehend,  that  Mr.  Re- 
corder will  extend  the  rule  of  '  Boni  Judicis 
'  estampliare  Jurisdictionem'  to  the  extendint; 
of  the  county  an  inch  beyond  its  ancient  and 
known  limits :  he  is  too  just  to  attempt  it.  On 
the  other  hand,  we  may  depend  he  will  not 
vuffer  the  county- limits  to  be  abridged,  but 
*  servarejusillufsum ;'  and  (O  be  hath  hitherto 
done)  discountenance  all  encroacbuents  on  the 
lights  aad  fraochuiea  of  Bristol. 


Mr.  Recorder,  It  has  beeo  proved,  aw!  ia- 
deed  it  can't  be  denied,  that  at  the  time  Iheta 
in  question  was  commit<e<i,  the  ahip  bv  n 
Ring- road;  and  I  think  the  evidenee  mkiek 
has  f>een  given  of  the  exercise  of  juriadiciin 
by  the  magistmtes  of  the  city  and  coontv  «f 
the  city  in  Kmg-road,  and  of  the  sberiff^^  lA" 
cers  executu'.g  process  of  all  kinds  thcte, 
amounts  to  a  full  proof  that  King-road  isviili- 
in  the  bo«ly  of  the  county  of  the  city  of  BrjilsL 
It  is  the  same  sort  of  proof  by  which  the  baoa^ 
of  every  county  in  the  kingdom  must  be  si- 
certained,  the  d«)ing  acts  in  the  place  in  qoci* 
tion  by  the  officers  of  the  county,  which  nMH 
be  douc  in  that  county,  and  no  other. 

S,  Goodere.  All  King- road  is  not  in  BroM. 
Will  your  lordnhip  please  to  admit  me  to  csl 
Mr.  Hill  P  He  is  a  gentleman  that  has  survevdl 
the  situation  of  the  place  where  the  ship  faj, 
and  will  describe  it. 

Mr.  Vernon.  I  am  sorry  to  find  Blr.  GoodcR 
driven  to  this  subterfuge  in  his  defence,  1 
could  wish  he  had  one  to  make  on  the  merits; 
if  he  stands  upon  his  innocence,  what  oeedtf 
all  this  stir  about  the  station  of  the  ship,  m 
where  on  earth  can  he  hope  to  be  tried  befoic 
a  fairer,  or  more  impartial  judicature  iImb  the 
present  ? 

S.  Goodere.  Call  Mr.  Hill. 

Mr.  Recorder.  Mr.  Goodere,  if  yoa  eansbcv 
that  any  part  of  King-road  is,  or  ever  m 
esteemed  to  be  in  any  other  county  than  the 
county  of  the  city  of  Bribtol,  I  will  hear  yoa; 
otherwise  it  will  be  to  no  purpose  to  describe 
the  situation  of  the  ship,  since  it  is  admitieil 
that  she  lay  in  King- road. — Mahuny,  haveyos 
any  thing  to  say? 

Mahony.  I  hope  your  lonlship  will  comidK 
that  I  was  a  poor,  pressed  servant,  and  I  «u 
drunk  when  1  made  the  confession,  and  I  wsi 
frightened  out  of  my  wits. 

Mr.  Recorder.  Yon  say  you  were  dmsk 
when  you  made  the  confession  ;  it  is  possiUt, 
that  niglit  when  you  were  first  taken  uA 
brought  before  the  magistrates,  you  wm  is 
liquor,  but  it  seems  your  confessioo  ww,boc 
taken  until  the  next  day. 

Mahony.  My  lord,  I  was  in  Bridewell;  I 
did  not  sleep  a  wink  the  whole  night. 

Mr.  Kecoider.  Have  you  any  witnesses  te 
call  ? 

Mahony.  No,  please  your  lordships,  I  an  s 
stranger  here,  I  have  no  witnesses  to  call. 

Mr.  Vernon.  Mr.  Recorder,  1  apprehcsd 
we  are  in  a  case  exceeding  clear  against  both 
the  prisoners  at  the  bar ;  and,  considering  that 
death  and  life  are  in  the  |io»ver  of  the  toogov, 
I  am  unwilling  to  reply,  where  life  b  at  stake; 
but,  as  Mr.  Goodere  seems  to  lay  some  strHS 
on  the  circumstance  of  his  not  lieing  actually 
in  the  cabbin,  at  the  time  his  brother  was  aMir> 
dered  there,  1  beg,  Sir,  you  will  indol^  me  aa 
observation  or  two  as  to  that  single  powl.  Nsl 
that  1  imagine  the  least  doubt  in  law  can  remain 
with  Mr.  Recorder,  but  being  in  the  case  of  a 
capital  prosecution,  I  would  waye  no  olgcdiai 


«f' 


06S] 


Jiff  the  Murder  of  Sir  John  Goodirt. 


[10C« 


louwwered  that  hu  the  Irut  dqwndinM  oa 
ItB  taw ;  and  I  •^r«e.  Sir,  ifaat  in  ardcf  to  | 
viDff  Hr.  Goodrre  witliin  the  (»nipHi  uf  tbe  ; 
*'  ~'  nent,  U^  muit  appear  to  hire  been  pre- 
laaa  abeltor,  at  the  pcrpelraliM  of  Iba 
ir.  The  law  ia  cxlrenicly  drar  ia  tbii 
a  aa  clear,  thai  if  ae' 
r#ral  peraona  are  eiif^K^  in  a  detig^  of  mur- 
fetii)?  aaother,  aud  one  uf  the  pany  atandt 
gnOD  the  watcb,  at  ihe  room  or  house-door, 
■nilat  the  reat  actoallj  commit  the  murder,  be 
a,  in  the  judgment  of  tbe  lav,  preaeut  at  tba 
nunler,  and  ai  miirh  a  pijncipal  in  it  ai  the 
iMt:  and  the  lai*  is  tbe  aame,  though  he 
■lood  at  a  cMuiderable  diatance  from  tbe  place 
where  tbe  mnnler  was  eommi'tnl,  a*  at  ibr 

Kor  the  lane'a  end  ;  for  it  ia  not  oecanarj 
liould  be  in  amipictu.  if  near  enougb  at 
baad  Ifl  cmboldcD  hia  accom|ilic«s  in  tiie  mur- 
der, through  the  bniiea  of  preaent  asutlance, 
sr  aei-urit^-  from  llie  peraoa  upon  tbe  walcb. 
iatl  aoil  IS  exprraalf  laid  down,  in  lord  cbief- 
juatice  Hale's  Hintnryol'ihePleai  of  IheCrowD, 
>i  the  chapter  <ifPetit-treaaun;  ivherehesays, 
Ibai  if  a  wife  or  aerrant  conspire*  with  a 
■tranger  lo  kill  tbe  hnsliand  or  mnater,  and  be 
ia  the  aaiiie  hoiisa  with  Ihetiranger  whilst  be 
eanmila  the  munler,  ibe  wife  or  aerrant  ia 
gniltj  of  petit-treason,  though  ool  in  the  same 
raon  where  tbe  mutiler  was  commiited.  Tbe 
NBedoctrioe  iataid  down  in  second  Hawkina's 
H.  Cr.  313,  (niAm  aa  a  tifin^  author  I  cite, 
Miy  for  the  sake  of  the  auihorinea  be  has  been 
■1  great  pains  in  coDrctinff.)  And  tbe  caae  of 
Im3  Dacre  is  full  in  point:  Mjr  lord  Daere, 
wilb  Haoael  and  severaJ  olbera,  went  by  night 
ista  anollier's  park,  unlawfully  to  kilf  deer; 
Mj  lord  waited  about  the  park-gale  upon  the 
aatcb,  whilst  the  rest  weotaqnarler  of  amile 
■la  the  park,  where  Iliey  met  and  killed  the 
keeper;  lord  Dscre,  lliough  at  ao  great  dia- 
Uoee  when  the  keeper  waskilled,  was  adjudged 
afriaeipal  in  tiie  murder,  and  accordingly  died 
M  il.  Anil  agreeable  Id  (hia,  was  likewise 
■be  case  of  Berry,  (the  porter  of  Someraet- 
kase)  who  wa*  coBcemed  with  Green,  Hill 
asd  otben,  in  the  murder  of  sir  E.  Godfrej' ; 
Mae  of  them  way-laid  that  worthy  magis- 
tnte,  and  baring  inticed  lym  into  tbe  yard 
hading  to  Somerset' house.  Green,  Hill  and 
atbcrs  strangled  hiui.  Berry  was  one  of  their 
|Ug,  and  whiln  the  other*  were  oommilling 
tki  border,  stood  at  a  great  distance  from 
Ikoi  on  the  watch,  <nnon  ibe  stairs  leading  to 
Ike  npcer  court  of  nnuieraet-houae:  he  was 
lilted  with  Green  and  Hill,  aa  being  present 


aflbejury,  in  the  c 


w  before  you,  i 


MIy  made  out  in  proof,  tbal  tbe  deemed  wss 
andsr  one  continuing  arroeJ  force,  from  Ibe 
iostaot  of  Ilia  being  seized  to  that  of  bis  death; 
•ad  that  bis  brother  (the  prisoner  Mr  Goodere) 
pot  and  kept  him  under  thai  liirae.  Then, 
fSBtleinen,  Air.  Gooilere's  displacing  Bucha- 
nan from  tbe  cnhbin-door,  and  placing  himself 
tina  in  bis  Mch'I,  with  the  drawn  aironl  io  hia 


hand ;  Habony'a  entering  into,  and  beiiw  let 
oat  of  the  eabbiii,  whilst  Mr.  Goodere  lept 
guard  at  ihe  door  of  it ;  Mr.  Goodere  waring 
bis  sword  at  Macguinis,  and  bandingin  Ih* 
candle ;  tbe  dying  outcries  of  his  brother 
(which  could  not  but  reach  bis  ears,  though 
not  bis  heart),  and  Other  black  ingredients  ia 
Ihi*  dreadful  case,  are  an  undeniable  proof 
that  Mr.  Goodere  was  concerned  with  Manonr 
and  Whitens  their  accomplice  in  bia  brotber'a 
murder,  and  took  hia  slaud  at  the  eabbin-door, 
with  DO  other  intent  than  to  emboldan  aud 
aaaisl  them  in  tbe  perpetration  of  that  cmel 
act,  and  keep  off  others  from  coming  to  bia 
brotber'a  relief,  orfrom  disiurbinn  them  io  the 
fatal  business  Ihey  were  about.  Under  wbidi 
circomUanoe  he  la  guilty  in  the  same  degree 
aa  Mabony  ;  and  in  tbe  eye  of  tbe  law  looked 
upon  to  have  been  as  mucb  preaent  at  bis  bro- 
ther'n  death  (as  an  abetlw  of  llie  murder),  aa 
if  he  had  stood  by  the  bed-side  and  held  tbe 
swoid  over  his  bead,  whilst  Mabony  waa 
strangling  him.  80  thai,  gentlemen,  I  appre- 
hend we  haie  made  good  the  indictment 
againat  both  the  prisoncra,  by  clear  and  con* 
vincing  evidence ;  and  therefore  doubt  not  hut 
their  guilt  will  suind  recorded  to  future  ages  by 
Ihe  justice  of  your  rerdicL 
Mr.  Skephard.     Hr.    Recorder,  will   you 


nark  that  be  hath  taken  notice  of,  tbe  lord 
bacra  and  bia  parly  came  by  nigbt  unlawfully 
to  kill  deer,  and  tberefbre  tne  Taw  presnmed 
Ihey  all  came  with  an  intent  to  oppoae  all  that 
aboifld  hbder  them  in  that  design;  and  so 
when  one  killed  tbe  keeper,  it  must  be  pre- 
sumed the  act  of  all,  becanae  puiaiwnt  to  that 
intent  But  whether  Ihe  present  caae  ia  dr- 
cuiDslanced  as  that  case,  ought  to  be  conai- 
dered.  1  do  admit  that  Mr.  Goodeie  was 
down  in  Ihe  cock-pit  at  the  lime  this  fact  waa 
done,  and  be  waa  iiertainly  obliged  (as  hath 
been  obseried)  by  the  law  of  nature  to  take 
care  of  hit  brother.  But  if  he  bad  no  other 
inteulion  of  carrying  him  on  board  the  ahip, 
than  tokecureand  tdiecare  of  him  aaa  person 
whom  he  looked  upon  aa  dianrdered  in  his 
aensea,  and  with  a  view  of  reducing  him  lo 
reason ;  then  surely  Mr.  Goodere's  case  ia 
very  different  from  the  lord  Dacre's.  And 
that  Mr.  Goodera  did  look  upon  his  brother  to 

Kt.  Rteorder.  Kir.  Shepban),  you  are  going 
off  from  the  point  of  law  to  mailer  of  fact;  I 


prerent  any  persons  coming,  who  might  bave  . 
prevented  the  murder,  or  lo  encourage  tliose 

within  the  cabbin  ii    -"^     ' ■*-  — 

about,  ihey  must  Hn 

dictroent;  otherwise  they  muM  acquit  him, 

tilr.  Shenhard.  If  he  was  not  there  wfth  that 
inlenlion,  be  cannot  be  guilty;  and  in  this  case 
no  sucb  intention  appears. 

Mc.  Recorder.    Qm  iambim.  ^  *»>&«  ^ 


1067]  14  GEORGE  II.     Trial  of  Captain  Goodere  and  M.  Mahony,   [lOOB 


fact,  which  mast  be  left  to  the  jory  on  the 
whole  evidence. 

Grentlemen  of  the  Jury;  the  priionera  at 
the  bar,  Matthew  Bluhony  aodSamuel  Goodere, 
ataod  iudicted  for  the  murder  of  sir  John 
Dineley  Goodere.  Aud  the  IndictmeDt  changes 
that  Mahony  stran^^^led  him,  and  that  the  pri- 
'■oner  Goodere  was  pre«eDt,  aidiuffand  abettinif 
him  in  the  tact.  They  are  both  chargrifd  as 
principals  in  the  murder.  For,  i(;entlemen,  in 
the  eye  of  the  law,  the  person  who  is  pi-esent, 
aiding^  and  abetting,  is  as  much  a  principal  in 
the  murder,  as  the  person  who  aciually  com- 
mits the  fact.  \V  hetlier  tlie  prisoners,  or  either 
of  them,  be  guilty  in  manner  charj^  in  tlie 
indictment,  3'oa  are  to  determine  upon  the 
evidence  you  have  heard. 

The  evidence  has  been  very  longf;  bnt  I 
will  endeavour  to  lay  the  material  parts  of  it 
before  you  in  such  a  light,  as  may  best  assist 
you  in  your  present  enquiry. 

'Tis  out  of  all  doubt,  that  sir  John  Dudey 
Goodere  was  strangled  on  board  the  Ruby  man 
of  war  in  King -road,  in  the  night  between 
the  18th  and  19th  of  January  last.  And 
therefore  what  past  at  that  time,  which  may 
affect  the  prisoners,  or  either  of  them,  as  they 
stand  charged  on  this  indictment,  will  deserve 
your  principal  attention.  But  as  the  prose- 
cutors have  (very  properly  1  think)  gone  pretty 
far  back  in  their  evidence*,  in  order  to  shew  by 
what  means  sir  John  was  got  on  board,  it  will 
be  necessary  for  yon  to  take  that  part  of  the 
evidence  likewise  into  consideration. 

The  first  witness  is  Mr.  Cbamberlayne,  who 
tells  you,  that  about  three  weeks  before  the 
murder  happened,  Mr.  Goodere  desired  'him 
to  use  his  gooti  offices  with  Mr.  Jarrit  Smith, 
a  friend  of  sir  John's,  in  order  to  bring  about 
a  reconciliiitiou  bet»ecn  sir  John  and  him. 

Mr.  Smith  tolls  you,  that  3Ir.  Chamber- 
layne  did  apply  to  him  for  that  purpose  ;  and 
a/terwards  brought  Mr.  Goodere  to  his  house 
on  the  same  errand  :  and  that  Mr.  Goodere 
then  repeated  the  same  request  "t^Ir.  Cbamber- 
layne had  before  made  in  his  behalf.  He  says, 
he  proposed  the  matter  to  sir  John,  who  with 
some  difficulty  consv^nted  to  give  Mr.  Goodere  a 
meeting ;  which  was  fixed  for  Tuesday  the 
13th  of  January,  at  Mr.  Smith'sR  house  in  the 
College- Green,  of  which  Mr.  Goodere  had 
timely  notice.  That  on  Tuesday  the  IStli,  sir 
John  rode  up  to  his  door,  and  having  just 
alighted  and  acquainted  him  that  he  could  not 
at  that  time  stay ;  but  that  the  next  time  he 
came  to  town,  which  would  be  the  Satnnlay  or 
Sunday  following,  he  would  meet  his  brother ; 
he  mounted  his  horse,  and  went  off,  attended 
by  his  servant,  both  armed  with  pistols.  He 
says,  that  on  the  same  day  he  met  with  Mr. 
Goodere,  and  acquainted  him,  that  sir  John 
would  be  again  at  his  house  on  Saturday  or 
Sunday  ;  and  it  was  then  agreed  that  Mr. 
Goodere  should  have  notice  when  sir  John 
came.  He  says,  that  on  Sunday  morning  the 
18th  of  January,  sir  John  sent  him  word,  that 
he  would  be  at  his  houie  that  day,  at  any 


hour  he  should  appoint ;  and  aecoijiiyhf 
three  in  the  atlemoon  waf  appointed.  He 
says,  that  the  same  momini;  he  gave  Mr. 
Go4»dere  notice  of  the  appointment.  Hut  ia 
the  afternoon  sir  John  and  Mr.  Goodtre  Mt 
at  his  house,  where  mutual  civilities  fmmi 
between  them :  that  sir  John  aooo  took  hii 
leave,  the  witness  and  Mr.  Goodere  waitngti 
him  to  the  door.  He  says,  that  he  pressed  Mr. 
Goodere  to  stay  longer ;  and  said  to  hiu,  I 
hope  I  have  done  great  things.  To  which  Mr. 
Goodere  replied  with  tome  emotion.  By  M 
this  will  not  do;  aud  immediately  followciar 
John  down  the  hill.  He  say  a,  that  afandiif 
at  his  door  be  observed  a  company  of  sMkn 
gathering  about  sir  John,  aud  heard  Mr. 
Goodere  say  to  them,  la  ke  ready,  or  is  it 
ready  ?  (he  is  not,  I  believe,  positiTe,  «ta 
were  the  words) :  to  which  some  of  tbeniln 
answered,  Yes,  Sir.  Whereupon  the  wbdi 
company  went  hastily  off,  some  towards  th 
Butto,  others  towards  the  Lower  Grean ;  ani 
Mr.  Goo«lere  followed  them  by  the  Batta.  Mr. 
Smith  had  no  suspicion  at  that  time,  that  Ae 
saitora  were  offering  violence  to  air  John,  ani 
so  made  no  fartlier  enqnirj^  into  the  miiSm\ 
till  a  soldier,  who  is  likewise  prodaocd  ss  ■ 
witness,  told  him  what  happened  at  the  bii|Bi 
The  next  witness  thev  produced  is  ManM 
Hobbs,  who,  it  seems,  keepo  the  White-Hat 
alehouse  at  the  foot  of  the  College- gicen :  lad, 
gentlemen,  you  will  observ%  that  horn  Ihi 
front  windows  of  that  house,  one  may  have  a 
view  of  M  r.  Smith's.  And  he  tells  you  that  ss 
3Ionday  the  l^th  of  January  last,  lite  prisoosit 
at  the  Mr  came  to  his  house ;  that  Mr.  Goodot 
desired  to  see  an  upper  room,  over  the  parloar, 
fronting  the  street ;  aud  having  seen  it,  ssid, 
he  would  come  the  next  morning  and  driak 
coffee  in  that  room.  Accordingly,  the  aot 
morning  he  came  (early  for  that  time  of  Ike 

J^ear)  before  the  windows'  were  opened,  or  fiifi 
ighted ;    bis  dress  so  different  from  what  lis 
wore  the  day  before,  that  the  witness  did  aotal 
first  recollect  him.    But,  it  seems,  he  diaofc^ 
his  clothes  afler  he  came  thither.     He  seeiod 
willing  to  drink  his  coffee  in  the  parlour ;  bst 
lieiog  desired  to  walk  up  stairs,  be  went  isis 
the  room  he  had  pitched  upon  the  day  befnf. 
Soon  aften/iards  the  prisoner  Mahony,  will 
three  other  persons,  came  in  ;  and  atW  tbcSi 
five  or  six  more.    These  people,  gentleoMB, 
were  not  altogether  in  one  room ;  hot  they 
were  all  entertained  at  Mr.  Goodere*s  expeace. 
The  witness  tells  you,  tliat  Mr.  Goodere  onkr- 
ed  they  should  be  entertained  ;  and  at  guiaf 
away  paid  the  whole  reckoning.    He  mts, 
that  while  the  company  was  at  bis  Imuse,  Mr. 
Goodere  above  stairs,  and  others  below,  ar 
John  Dineley  Goodere  rode  by    from    Mr. 
Smith's  attended  by  his  servant ;  and  that  as 
they  passed  by,  Mr.  Goodere  called  out  to  Ihi 
people  below.  Look  well  at  him,  but  don't  toaeh 
liim.     He  says  further,  that  6n  Sunday  Iht 
18th  of  January,  Mahony  came  to  bis  houatk. 
the  morning,  and  desired  him  that  if  be  mm 
the  gentlemaa  in  the  Uack  cap  (by  which  da> 


j^  Ihe  Miirdtr  of  Sir  John  Goodert. 


A.  D.  1741. 


criplion  il  apiMBr*  sir  John  «ai  meaiK)  go  tu- 
rkftla  iba  Urewu,  h«  wniild  wntA  a  pori»r  to 
iMB  a(a  puUic-houtt:  in  Marsh-BtTMl:  tlial  in 
h»  Bftefnoon  MahoDV  cnine  Bgnin,  with  n  gn-M 
■Wiy  other  (teople,  ill  ■pfieiring'  by  (heir  dmi 
B  be  Mih>rs.  And  iliit  as  llit  decvABcil  ivalk**! 
f  Itw  IniitM-,  (l>cy  all  ru»<ivil  mil  aud  went  nit. 
M  «M,  1  lliiiik,  no  tartlier  in  l)ia  eTiilence; 
pr  M  teem*  to  be  too  much  coonernal  Ibr  bii 
■ekening  and  hi*  tankard,  to  iDtod  uny  ibing 
bMBUMd  allvTwards. 

'  The  ncxl  ft  idraceia  Thomas  Willisina,  who 
MiMKt  U>  ibe  Kiiby.  He  wya,  Ihal  on  Sun- 
lay  tne  ISili  be  Lrought  up  the  barue  from 
Klltg|--road  ;  nnJ  was  enlered  by  Mr.  Good«re 
■  leave  two  bBnils  obcMrd  Ihe  ^r^e,  aad  take 
Ighl  of  Ilia  crew  to  (be  Whllr-IJart  aleliuiise 
•  Um  Collefe-gmn,  «nil  lli«re  wait  for  him ; 
bm  md  be,  I  bare  ■  gentleman  lo  ko  od  board 
g*.  He  accordingly  went  to  the  While-Hart 
•iA  fai*  men,  and  ther«  found  Alabony  and 
hmrtx  fi»c  people  belonziue  to  ibe  Vernon 
■{raH«r.  lie  MyH,  he  had  not  been  long 
mtn,  y>*frtt  lliv  company  niibed  mil  nf  iloors; 

ri  whicli  be  followed,  ond  found  th^y  had 
riolent  hnnds  on  the  d«ceiiscit,  and  were 
mrryiti^  biin  on  boar^l  Ibe  barge ;  giving  out, 
feat  he  bad  murdered  a  pereun  on  boanl  ihe 
A^,aBd  Ibal  (hey  were  carryJTig  him  ibilher 
taarifr,  a*  tbey  pretended,  lo  bring  him  lo 
jdatKe,  He  lells  yon,  that  the  prisoner  Ma- 
May  WW  TFry  acihe  in  thii  outrage  ■,  and  that 
be  BvilDiier  Gundere  v/as  present,  seeing  and 
iMBriBgall  lliatpnned.  Heliheiritegivesyou 
RiMCMinl  of  Ihe  conTeriati<in  that  piused  be- 
tnan  ur  John  nnd  Ihe  iirlEoner  Goodere,  afWr 
■■y  were  in  Ihe  burge  ;  and,  amons  other 
Wm  tdia  you,  that  upon  the  Atctawm't  ^ay- 
1|(,  lou  aro  carrying  me  on  board  (o  mutdi'r 
M^the  prifonerGoodereatiswered,  Nu,  I  don't 
tand  19  do  go,  bnt  I  would  bavt>  von  moke 

Cpeane  with  God.  Thia  witnna  sneaks 
to  wbtl  piiMed  nlier  they  earns  o[i  board 
lk>Ai|i;  for,  uiys  he,  I  IiaJ  been  employed 
<Kiy.  and  went  lo  beil  early.  Bnt  he  tell* 
BUftal  In  the  nl(;l>l  he  lieard  a  very  un- 
B^bbn on  board  ;  and  ttiatabouttivo  m  tbe 
^^^■t,  be  aiwthe  prixunerGooderegodown 
^^Hn-leailiDg  to  the  purser's  caltiln.— You 
^^BpMrd,  geoilemen,  from  Ibe  wiinessea, 
BPt^  ■h*n  mentioo  preaentiy,  ihat  ihc  mur- 
Tfcaai  committetl  in  inia  very  cabhln. 

Thitonatcauin  then  called  streml  nitnetaei, 
ftBocf  THrrt,  Tliomai  Cliarmbnry,  Mr*. 
Jhrby,  and  Wilbnm  Dupree  ;  iihoall  apeak 
kibe  manner  of  carrying  air  John  fmm  the 
Cafcgu  green  lo  the  place  where  ibe  barge 
lly. 

Ilieae  wilnrnei  agree  in  general,  thai  be 
vutmird  nith  great  rndeneta  by  the  com- 
|M>  in  <i1j<».r'l>iiudahe  wu.  Bill,  ati  Ihc  nii' 
mmi  Goorirri' julmiln,  Ibatbe  did  lake  hia  bro- 
il \  and,  as  Habony  endiVToura  to 
^  ■  ■'-■■  inil,  by  alleging  that  he 
I  neednntbp  very  parii- 
fclbe  circumalancet  allending 


rioA^ 


may  be  proper  for  you  lo  obaerrr,  that  Ihe  pre- 
tence eiven  out  lohtind  ihe  people  whoeoquh'eil 
the  meaning  of  Ihia  outrage,  wa*,  Ihwl  the 
gentleman  had  committed  a  inunler  on  bnartf 
tbe  Ruby.  And  lhal  when  sir  Jrhu  wasoD 
board  ihe  barge,  and  calling  out  for  help  to  the 
ueaple  on  share,  (ellinir  them  bis  name,  nntf 
aesr^oe  ibem  lo  let  hia  IVieiid  Mr.  Jaml  Sfflith 
knaw  (tiiBl  hud  happened  lo  blm  ;  Ihe  prisoner 
fioodere  oi  that  tmtani  ttopi  his  mouih.  Thia 
rcumstance  is  proved  fay  three  of  these  wlt- 

I'he  neKl  ael  of  wllnnses  who  hate  heen 
called,  aie  persons  belonging  lo  Ibe  Ruby. 
And  from  I  hem  you  faaie  an  account  of  what 

CBBscd  from  ibe  lime  sir  John  was  brought  on 
rard  to  the  time  ul  Ihe  murder. 
The  first  is  Theodore  Court,  the  mnsler  oT 
the  Kuby ;  aud  he  lelh  you,  that  about  sftcd 
in  the  evening  sir  John  was  brought  on  board, 
and  iinme<lialely  by  Mr.  Gocdere's  order  car- 
ried down  into  that  part  of  the  shin  which  ia 
called  the  cockpit,  and  secured  in  Ibe  purser's 
cabbin,  and  a  cenlitiel  set  on  him.  He  lella 
you  further,  that  Mr.  Goodere,  as  soon  as  he 
came  on  board,  said  to  him  and  ihe  other  com- 
pany present,  I  bare  brouglit  a  madman  on 
board.  And,  gentlemen,  you  will  observe,  ibat 
the  ship's  crew  were  made  to  cut eriain  un  opU 
nion,  IbatKirJobn  wasmad  ;  saysMr.  Ooodere, 
Don't  mind  what  he  says,  be  is  mad.  This,  all 
Ihe  witnesses  agree  in.  And  you  may  remem- 
ber loo,  that  when  tbe  poor  gentleman  was 
dragged  and  hurried  along  lowarils  the  barge, 
ibi>n  he  bad  murdered  a  man  ou  hoard  the 
Ruby,  Now  he  is  bronchi  ahoanl,  where  that 
pretence  cannot  serve,  he  is  n  madman,  and 
miisl  be  confined.  This  witness  was  present 
the  next  morning  when  Ihe  parser's  cabfiin  was 
br^ike  open,  and  sir  John  wan  found  there  mur. 
dered :  opou  which,  he  says,  Mr.  Omdero  was 
made  n  prisoner.  But  be  tells  you,  that  be- 
for*  this,  Mr.  Goodere  expressed  a  great  incti- 
nalTOn  tonillbnt  very  morning;  and  upon  Ilia 
representing  to  him  the  danger  of  atlempting 
the  Bristol  chaonel  without  a  pilot,  he  nnawer- 
H,  If  1  can  but  get  as  Itiw  u  the  Holmes  t 

This  witness  was  aslied  a  question  by  Mr. 
Gnodcre,  touching  tbe  place  vtbera  Ihe  Kuby 
was  moored,  a1  ihe  time  tbe  fuel  in  qiieglioii 
wu  commitled ;  and  he  saya,  that  slie  Ihea 
lay  in  King  Road,  and  hnn  detcribed  her  se- 
veral bearings  in  Fort's-head  point,  Ibe  Denny, 
andihe  Hole's  mouth.  But,  gentlemen,  it  will 
uol  be  material  in  Ihe  present  case,  in  what  part 
of  King  Road  the  ship  iben  lay,  if  yuu  are  sa- 
Itsfied  from  the  evidence  you  have  beard,  lhal 
King  Road  is  in  the  county  of  this  cily,  be. 
cause  it  is  admitted  by  (he  pnaoner,  nnd  ludeed 
it  is  too  plain  to  lie  denied,  ibai  tbe  ship  was 
Ibi^n  in  King  Road. 

The  D»I  nilnesi  is  Duncan  Iluchanan,  wlin 
was  one  of  the  company  at  Ihe  While  Hart 
ale- house,  on  Tuesday  ibe  I3tb  ;  and  he  con- 
Drrns  what  Ilobbs  told  you,  that  when  sir  John 
and  bia  terTBOl  rode  by,  ibe  -priiOQet  Qooden 


1071]  14  GEORGE  II.     Trial  of  Captain  Goodere  and  M.  Mahony,    [1073 


cdled  to  Mahony  and  the  company  at  tlie  White 
Hart,  and  bid  tbem  mind  him  w ell,  but  not  to 
touch  him.  He  aaya  too,  that  Mr.  Goodere  at 
the  same  time  ordered  some  of  the  company  to 
follow  sir  John.  He  speaks  much  to  the  same 
purpose  as  the  last  witness,  touching  the  brinjif- 
ing  sir  John  aboard,  and  carrying  him  into  the 
purser's  cabbiu  ;  and  adds,  that  two  bolts  were 
put  ou  the  outside  of  the  cabbin  door  by  Mr. 
Goodere's  orders.  He  tells  voo,  that  he  was 
the  centinel  placed  at  the  cabbin  door  by  Mr. 
Goodere,  who,  you  are  to  take  notice,  had  then 
the  command  of  the  ship ;  and  says,  that  about 
twel?e  at  night  he  was  sent  for  mto  the  cap- 
tain's cabbin,  where  he  found  both  the  prisoners 
at  the  bar  together.  That  Mr.  Goodere  en- 
quired of  him,  whether  his  brother  made  any 
noise  P  and  said,  1  believe  he  is  wet  in  his  feet, 
I'll  carry  him  a  pair  of  clean  stockings.  That 
between  one  and  two  the  prisoner  Goodere 
came  down  to  the  eock-pit,  and  listened  some 
time  at  the  cabbin  door,  where  sir  John  was; 
Imd  soon  afterwards  took  the  sword  from  him, 
and  ordered  him  up  to  the  deck;  and  stood 
himself  as  centinel  at  the  door.  He  says,  that 
being  on  deck,  he  saw  the  prisoner  Mahony  go 
down  the  ladder  towards  the  purser's  cabbin, 
and  is  positive  he  went  into  the  cabbin;  the 
prisoner  Goodere  standing  at  the  same  time 
centinel  at  the  door.  He  tells  you  that  a  short 
time  after  this  he  heard  a  great  noise  and  strug- 
gling in  the  cabbin,  a  person  crying  Murder, 
like  one  going  into  a  fit :  that,  I  think,  was  his 
expression.  This  noise,  he  judij^es,  continued 
four  or  five  minutes  ;  and  is  positive  that  the 
prisoner  Goodere  stood  at  the  door  all  that  time, 
with  the  sword  in  his  hand.  He  says,  that 
after  the  noise  in  the  cabbin  ceased,  he  saw  the 

{irisoiier  Goodere  hand  a  candle  into  the  cab- 
HU ;  and  that  he,  seeing  Mr.  Goodere  had  no 
light  with  him,  lighted  a  candle  at  the  lanthom 
Upon  deck,  and  was  going  to  carry  it  down ; 
upon  which  he  says  Sir.  Goodere  waved  the 
sword  towards  him,  saying.  Keep  back,  stay 
where  you  are.  He  says,  that  soon  afterwards 
the  prisoner  Goodere  called  for  a  light,  deliver- 
ed back  the  sword  to  him,  locked  the  cabbin 
door,  and  put  the  key  in  his  pocket ;  and  said, 
If  my  brother  makes  any  more  noise,  let  ma 
know  of  it. 

The  next  witness  is  Daniel  Weller,  the  car- 
penter of  the  Ruby :  he  agrees  in  the  main 
with  the  two  former  witnesses,  touching  the 
bringing  sir  John  aboard,  the  carrying  him 
into  the  purser's  cabbin,  and  putting  the  bolts 
on  the  door ;  and  gives  an  account  of  the  con- 
Tersation  he  had  with  sir  John  in  the  cabbin 
while  the  bolts  were  fastening  on :  from  which 
it  seems  natural  to  conjecture,  that  sir  John 
expected  he  should  have  foul  play  for  his  life. 
He  did  not  stay  lou^  with  him;  for  it  seems 
nobody  was  to  visit  the  poor  gentleman  but 
Mahony.  He  says,  be  broke  open  tlie  cabbin 
door  next  morning,  and  found  sir  John  dead, 
and  observed  some  blood  about  bis  mouth  and 
nose ;  which,  gentlemen,  is  what  may  be  ex- 
pected IB  caae  a  penon  ia  atrtnglad, 
1 


The  next  witness  is  Edward  Jones,  lbs 
cooper  of  the  Ruby ;  and  be  telU  you,  that  ta 
the  Thursday  before  the  fact  in  question  wu 
committed,  Mr.  Goodere  ordered  the  pararr*! 
cabbin  to  be  cleared  out ;  tur,  said  he,  I  iball 
bring  a  gentleman  aboard.     He  says,  that  sosa 

~,Mr.G< 


after  sir  John  was  brought  aboard, 
came  down  to  the  purser's  cabbin,  and  oflerH 
him  a  dram  of  rum,  and  alao  persuaded  bin  Is 
make  use  of  some  to  chafe  his  leg,  which  it 
seems  had  received  some  hurt  that  day.  He 
says,  that  Mr.  Goodere,  speaking  of  air  Joka 
to  the  people  present,  said,  Dou't  mind  wbil 
he  says,  he'll  oe  well  enough  again.  He  tdb 
you,  that  about  eight  o'clwdc  he  went  to  btd  is 
the  slop-room,  which  it  seems,  is  |iarted  fn* 
the  purser's  cabbin  by  a  thin  deal  partiiioSi 
That  before  he  went  to  sleep,  he  heard  whn 
passed  in  the  cabbin,  particularly  the  disooum 
between  sir  John  and  the  prisoner  Mabaaf, 
which  1  need  not  repeat  to  you.  And  saji 
likewise,  that  he  heard  sir  John  praying  .» 
God  to  deliver  him  out  of  his  present  disho^ 
and  express  himself  as  a  man  aenuble  of  hii 
present  danger.  He  tells  you,  that  bctvca 
two  and  three  in  the  morning,  his  wife,  whi 
happened  then  to  be  aboard  and  in  bed  wilk 
him,  waked  him,  and  that  he  then  heardagmt 
struggle  in  the  cabbin,  sir  John  crying  out,  M 
a  person  in  great  confusion  and  distress,  Hcft'i 
twenty  guineas,  take  it,  take  it,  must  1  die' 
He  says,  that  in  a  little  time  all  was  qaiOi 
from  which  he  concluded  the  gentlemaa  vsi 
dispatched ;  and  then  a  light  waa  brouglit  irie 
the  cabbin ;  upon  this  he  lays,  he  got  up  op« 
his  knees,  and  pee|)ed  through  a  crevice  in  ite 
partition,  and  saw  the  prisoner  Mahony  ud 
one  Charles  White  rifling  the  pockets  uf  iir 
John,  who  was  laid  upon  the  bed,  in  the  piMtorc 
he  has  described  to  you,  and  motionless.  He 
says,  at  this  time  he  saw  a  hand  at  sir  Joho'i 
throat,  and  heard  a  person  say.  It  is  done,  and 
well  done;  he  cannot  say  who  the  person  wu 
whose  hand  was  at  sir  John's  throat,  but  b^ 
lieves  it  was  not  the  hand  of  White,  or  MaboDji 
for  it  was  a  white  hand,  and  not  like  eiiber  ef 
theirs.  He  savs  that  he  lay  in  fear  of  his  owa 
life  (as  in<leed  1  think  he  had  great  reasoo)  till 
about  four  in  the  morning,  and  then  the  mcs 
belonging  to  the  yawl  being  called  up,  be  got 
up  too,  and  acquainted  the  lieutenant  witli 
wnat  passed,  and  consulted  with  him  and  otbcn 
of  the  officers  about  apprehending  Mr.  Goodere, 
which  was  afteiwanls  done  in  the  manner  joa 
have  heard. 

The  next  witness  is  Margaret  Jones,  wife  of 
the  last  witness.  And  she  gives  much  the  ssnc 
account  of  the  bring[ing  sir  John  aboard,  isd 
Mr.  Goodere's  offering  him  rum,  as  her  hoi* 
band  does.  And  says  farther,  that  M  r.  GoodcM 
talked  of  ordering  sheets  for  sir  John's  bei 
But,  gentlemen,  it  does  not  appear  to  me  thtt 
any  sheets  were  ordered,  or  indeed  any  softef 
relreshment  provided  tor  him,  except  a  siogli 
dram  of  rum,  which  he  refused,  having  forbsn 
the  use  of  strong  lijuora  of  all  aorta  for  a  cM* 
ndcnblc  timf .  ThiawitncalikcwiitgivaS 


107S] 


Jiir  the  Murder  of  Sir  John  Gttodere. 


A.  D.  1741. 


[107* 


account  of  the  conrersation  between  3Iahony 
and  sir  John,  an<l  tells  you,  that  when  Mahony 
olTenicI  to  pull  off  sir  John's  stocking^,  he  said 
to  liiiii^  Pray  don't  strip  nie  till  I  am  dead. 
She  savs,  that  a))OuL  two  in  the  morning^  she 
heard  Aahony  desire  sir  John  to  compose  him- 
lelf  to  sleep ;  and  soon  af'rerwards  the  li^ht 
was  put  out,  and  bbe  heard  !\lahony  say.  You 
must  lie  still,  and  not  stir  i'ur  \  our  lite ;  and 
immeiiiately  she  says  there  uus  ^reat  stmg- 
glin^  in  the  cabbin,  two  pcTsons  whispcrine, 
and  sir  John  crying  Alurdcr,  and  kecking^  m 
lus  throat  (as  she  expresses  it,)  so  that  bhe  con- 
daded  they  were  strang^lini^  bini.  At  thib  time, 
ibe  aays,  somebody  on  the  outside  of  tlie  door 
oflcred  to  come  in  ;  upon  which,  those  in  the 
cabbin  said.  Damme,  yon  nrgro,  keep  out. 
She  lays,  the  noise  and  struggliugs  continued 
Ibr  a  short  time  afterwards,  and  then  all  was 

aoiet,  and  a  liffht  was  bi-out^ht  into  the  cabbin. 
he  then  saw  tlie  prisoner  Mahony,  and  Charles 
White,  the  person  her  husband  spoke  of,  rifling 
■far  John'ri  pockets.  The  particular  circuni- 
fltances  she  mentions  in  this  part  of  Iter  evi- 
dence t  need  not  repeat.  She  says,  that  afler 
Ab  was  o?er,  they  went  out  of  the  cabbin,  and 
the  door  was  locked  and  bolted ;  and  she  heard 
•ae  of  the  persons  say,  Which  way  shall  1  go, 
where  shall  I  run  ?  To  which  the  other  an- 
swered, Follow  me,  my  boy. 

The  next  witness  is  James  Dudgeon,  who,  it 
eeems,  is  the  surgeon's  mate.  And  he  tells 
yoUi  that  when  sir  John  was  brought  aboani, 
■e  was  carried  directly  to  the  purser's  cabbin, 
and  a  centinel  placed  over  him.  Says  Mr. 
Qeodere  to  this  witness.  Doctor,  1  have  brought 
ft  roadman  on  board,  you  must  do  the  best  you 
ean  with  him  ;  pray  go  and  feel  his  pulse  now ; 
er  you  may  let  it  alone  till  to-morrow,  tlie  first 

Sbt  will  be  the  worst  with  him.  The  doctor 
1^,  but  was  told  by  the  cmtinel,  that  he 
had  orders  to  let  nobody  in  hut  Mahony  ;  how- 
ever, he  went  in  and  fell  sir  John's  pulse,  and 
fbond  no  disorder  there  but  what  might  be  oc- 
casioned by  the  fatigue  he  had  undergone  that 
afternoon.  This  witness,  who,  it  seems,  lodged 
m  a  part  of  the  cock-pit  near  the  parser's  cab- 
hint  says,  that  about  two  in  the  morning  he 
heard  an  unusual  stir  in  the  cock-pit,  and  over- 
heard Mahony,  who  was  in  the  purser's  cabbin, 
aaj,  You  must  lie  still,  don't  stir ;  and  inime- 
dialdy  there  was  a  great  bustle  in  the  cabbin, 
iir  John  crying.  Murder,  and  saying,  llcrc*s 
twenty  guineas,  take  it,  take  it.  He  says,  that 
by  the  noise  he  heard,  and  from  other  circum- 
■ttaces  he  has  mentioned,  he  then  apprehcndfNl 
that  aomebody  was  strangling  the  geutleiuun. 
Bcfbre  the  noise  was  quite  over,  he  sayi;  he 
htturd  the  lock  of  the  cabbin  go ;  upon  which 
•eroebody  within  cried,  Damn  ye,  keep  the 
fast.  The  witness  hearing  this,  called  out 
enquired  whot  was  the  cause  of  the  noise; 
he  say  a  that  the  person  who  then  stood  at 
Ae  door  answered,  It  is  nothing  at  all.    He 

^001  my  who  the  person  was,  but  says  he 
M  that  the  prisoner  (Joodere  was  in  the 
fit  while  toe  outcry  wa«  in  the  cabbin. 

TCNUXVII. 


Soon  after  the  noise  was  orer,  he  says,  a  light 
was  called  fori  ^^^  catrieil  into  tlie  cabbin ;  and 
in  a  little  time  he  heard  the  tread  of  people 
running  out  of  the  cabbin,  and  is  sure  he  heard 
the  prisoner  Mahony  say.  Which  way  shall  1 
go  ?  To  which  answer  was  made.  You  nuiy  go 
by  the  shii^side.  He  aays,  about  this  time  a 
person  stept  up  the  ladder  from  the  cock- pit, 
towards  the  deck,  and  he  then  heard  the  pri- 
soner Goodere  say.  If  my  brother  makes  any 
more  noise,  let  me  hear  of  it.  These  words, 
gentlemen,  if  you  believe  Duncan  Buchanan, 
were  spoken  to  him  at  the  ton  of  the  ladder. 
It  seems  indeed  probable,  that  3lr.  Goodere  waa 
solicitous  to  know  whether  sir  John  made  any 
noise  or  no,'  after  this  time ;  for  this  witnesa 
tells  you,  that  Mr.  Goodere's  servant,  some 
time  afterwards,  came  to  him  to  en(|uire  whe- 
ther he  bad  lately  heard  any  noise  m  the  cah^ 
bin  ?  Yes,,  says  the  witness,  1  heard  something 
at  the  lock.  This  noise  the  witness  supposes 
was  occasioned  by  a  cat  which  had  been  locked 
in  the  room.  This  witness  inspected  the  body 
the  next  morning,  and  tells  you,  that  he  found 
great  impressions  about  the  neck,  and  the  marks 
of  nails  and  Angers  on  it ;  and  upon  the  whole, 
is  of  opinion  that  sir  John  died  by  strangling. 
And,  gentlemen,  whether  a  rope  was  made  use 
of  in  the  business,  or  whether  it  was  done  by 
thrusting  their  fingers  between  the  neck  and, 
cravat,  and  so  straining  the  cravat  close  about 
the  neck,  will  not  be  material ;  for  though  the 
indictment  charges  tliat  it  was  done  with  a  rope, 
yet  if  it  ap|)ears  on  the  evidence-,  thai  the  de- 
ceased was  strangled  by  any  means  whatever, 
such  evitlence  will  be  sufficient  to  maintain  the 
indictment. 

Tiic  next  witness,  and  the  last  that  has  beea 
examined,  touching  what  was  done  on  board 
the  ship,  is  Williaui  Macguinis,  the  centinel  at 
the  gun-room.  And  he  telU  you,  that  after 
two  in  the  morning,  the  prisoner  Goodere  went 
down  into  the  cock- pit;  that noou  afterwards 
the  prisoner  Mahony  push'd  bv  him  ;  he  saya 
he  would  have  kept  liim  back,  but  Mahony 
gave  him  ill  language,  and  passed  on,  and 
called  to  anotln  r  person  to  follow  him.  He 
says  that  Duncan  Buchanan  was  ordered  up 
to  deck,  an<l  that  he  saw  Mr.  Goodere  standing 
at  the  purser's  cahbin-door  ivith  a  sword  drawu 
in  his  hand ;  and  remembers,  that  when  be 
offered  to  come  near  the  ^abbin,  Mr.  Goodere 
ordered  him  to  keep  back :  this  was  at  the  time 
the  noise  and  outcry  was  in  the  cabbin.  He 
says  further,  he  saw*  Mahony  go  into  the  cabbin 
beVore  the  noise  was  heard  there;  and  that, 
about  three  in  tlie  morning,  he  saw  both  the 
prisoners  at  the  bar  go  up  the  ladder  fnmi  the 
cock- pit  to  the  deck  together. 

The  prosecutors  then  examined  two  wit* 
nesses  touchinir  the  gold  watch  which  has  been 
produced.  One  of  them,  Sarah  Culliford,  says, 
that  the  prisoner  Mahony,  the  day  he  was  ap- 
prehended, delivered  the  watch  to  her,  desiring 
she  would  put  it  by  for  him ;  that  she,  upon 
hearing  that  Mahony  was  taken  up  fur  the 
murder,  m  a  surprize,  threw  it  iuto  tlic  vault, 

3Z 


1075]  14ke£OAo£lI.     TfuiqfCiipMnGoddereMdM.Iimm^,    [Nf75 


The  olber  Witneto  teflf  yod,  fhM  be,  by  otctef 
of  Che  magistrates,  opened  the  ?aah,  sna  found 
the  watch  there.  Tnte  wMch  the  prosecutors 
would  fix  upon  the  prisoner  Goodere,  aud  to 
that  end,  it  was  shewn  to  Theodore  Court,  who 
was  examined  before  to  other  points.  And  he 
says,  be  cannot  be  positive,  but  believes  it  to 
be  Mr.  Goodere*s  watch,  having  often  seen  it, 
or  such  a  one,  hanging  up  iu  his  cabbin.  The 
prosecutors  then  produced  a  haadkercbief, 
ivbich  was  taken  out  of  Mahony's  |)ocket  the 
night  he  was  apprehended  ;  it  appears  to  be  a 
little  bloody,  but  I  don*t  see  what  use  they 
make  of  that  circumstance. 

The  next  piece  of  evidence  the  prosecutors 
went  to,  was  Mahony*s  examination  and  con- 
fession, which  has  been  read  to  yon.  This, 
gentlemen,  is  Very  prdper  evidence,  and  ought 
to  have  its  weiqht  with  you,  as  far  as  it  con- 
cerns Mahony  himself;  out  with  regard  to  the 
other  prisoner  Goodere,  ^ou  are  to  lay  no  dmui* 
ner  or  stress  u|)Od  it,  it  is  no  evidence  against 
him. 

The  prosecutors  tb6n  proceeded  to  shew, 
tiiat  &.mg-road,  where  tne  Ruby  lay  at  the 
time  the  fact  was  committed,  is  within  the 
county  of  Bristol.  1  thiuk  indeed  that  some 
evidence  of  that  kind  was  proper  to  be  given 
for  your  satisfaction,  and  to  that  end  they  have 
^led  Mr.  Wint  and  Mr.  Lowden.  two  ancient 
officers  well  known  to  you  all.  And  they  say, 
jn  general,  that  Kiug-rotd  has  always  been 
esteemed  to  be  within  thecoimty  of  Brirtol. 
And  they  go  farther  and  say,  that  they  have 
constantly,  as  occasion  required,  executed  pro- 
cess of  all  kinds  in  King-road;  warrants  from 
the  mayor  and  aldermen,  process  from  the 
mayor's  and  shcrifls*  court,  and  warrants 
grounded  on  writs  from  above,  directed  to  the 
sheriffs  of  Bristol.  And,  gentlemen,  I  mu^t 
say,  that  though  another  sort  of  evidence  might 
have  been  given,  touching  the  bounds  of  this 
county  by  water,  I  know  no  evidence  so  proper 
to  prove  the  bounds  of  any  county,  as  the  ecu- 
slant  exercise  of  jurisdiction  in  the  place  In 

Sn^^on,  where  that  sort  of  evidence  can  be 
ad. 

I  think,  I  have  repeated  to  you  the  material 
parts  of  the  evidence  which  has  been  given 
against  the  prisoners  at  the  bar ;  and  you  will 
now  consider  what  they  have  offered  by  way 
of  defence  to  this  charge. 

As  for  Mahony,  I  do  not  hear  him  sfty  any 
thing  by  way  or  proper  defence,  nor  has  he 
CallM  a  single  witness.  He  hopes,  indeed,  that 
it  will  be  taken  by  way  of  excuse,  that  he  was 
a  poor  pressed  servant,  and  acted  by  command. 
But,  gentlemen,  if  you  believe  the  evidence 
which  has  been  given  against  him,  no  com- 
mand of  any  superior  whatsoever  (supposing 
that  to  have  been  an  ingredient  in  his  cose)  will 
excuse  him. 

Mr.  Goodere  saytf,  that  his  brother  was  a 
lunatic,  and  he  being  his  onhr  brother,  thought 
it  his  duty  to  take  care  of  him  in  that  condi- 
tion ;  that  in  order  thereto  he  had  endeavoured 
to  get  a  lodgiflg  in  thhi  dty,  where  he  was  td 


be  confined  under  the  care  of  the  ptisDher  Hi* 
bony,  who  was  to  have  5/.  a  month  for  his  at- 
tendance on  him.  That  not  bein^  able  to  get 
a  lodging  for  the  purpose  in  the  city,  he  took 
him  on  ^ard  the  Ruby,  in  order  to  have  hioi 
taken  proper  care  of  there.  H  e  denies  that  be 
ever  consented  to  the  murder,  or  had  any  know- 
ledge of  it ;  and  insists  on  the  great  improba- 
bility there  is  that  he  should  be  concerned  in 
the  murder,  since,  he  says,  he  knew  that  nr 
John  had  cut  off  the  entail  of  the  family- 
estate,  and  had  actually  made  his  Will,  sy 
which  he  hati  devised  the  estate  to  another 
branch  of  the  family.  8o  that,  sajrs  be,  n 
John  dying  while  this  Will  stands,  I  have  no 
chance  Tor  the  estate :  whereas,  as  long  as  be 
lived,  my  chance  as  heir  at  law  contained ;  ftr 
he  might  have  changed  his  mind,  and  ahcicd 
or  destroyed  his  Will. 

The  first  witness  he  called  was  Mrs.  Gethinii 
who,  I  suppose,  lets  lodgings  in  the  city ;  asi 
she  says,  tnat  Mr.  Goodere  ne^er  made  a  se- 
cret ot  his  design,  of  confining  his  brother  u  a 
lunatic ;  and  that  about  three  weeks  before  tUi 
matter  happened,  be  spoke  to  her  for  a  gsmt 
in  her  house  for  that  purpose ;  but  she  reromh 
hers  no  discourse  the  prisoner  had  with  her 
about  Mahony. 

Mr.  Goodere  then  called  two  witnesses  ii 
relation  to  something  which  was  opened  againtf 
him,  (but  not  directly  proved  by  any  of  the  wit- 
nesses called  by  the  prosecutors)  touching  hii 
sending  Mahony  and  White  away  in  the  yawl 
the  momiuir  the  fact  was  committed. 

They  were  Mr.  Marsh  and  Mr.  Dagg. 

Mr.  Marsh  sdys,  that  on  the  Sunday  io  tU 
afleinoon,  after  sir  John  was  brought  aboard, 
he  was  ordered  by  Mr.  Goodere  to  co  up  in  tbc 
yaw]  early  the  next  inoruing,to  fetch  letters  from 
the  post-office ;  aud  l:e  tells  you  that  as  he  wu 
setting  out  on  Monday  morning,  he  was  iuflbrnh 
ed  by  some  of  the  ship's  compauy ,  that  Malioof 
and  White  were  to  go  with  him.  Upon  whicn 
he  went  to  the  captain  to  have  his  orders;  for, 
said  he,  I  never  take  any  body  ashore  withoot 
leave.  And  he  tells  you,  that  Mr.  Goodere  did 
order  him  to  take  White  and  Mahony  up  in  tbi 
yawl.  He  says,  that  he  had  no'  orders  to  land 
them  at  any  particular  place ;  and  that  tber 
were  put  ashore  at  the  Giub,  th6  usual  place  n 
landing,  about  six  in  the  rooming. 

Mr.  Dagg  tells  you,  that  Mahony  hid 
charged  onel^lervin  in  his  custody  in  an  actios 
for  wages;  that  the  Wednesday  or  Thursdiy 
before  this  matter  hap[>ened,  he  waited  on  Mr. 
Goodere  from  Mervin,  in  order  to  accommo- 
date matters  with  Mahony :  And  that  Mr. 
Goodere  appointed  to  meet  3Iervin  on  that  af- 
fair the  Monday  following.  He  cannot  say, 
that  Mahony  was  to  meet  on  that  day  (thoop 
indeed  he  says  he  did  tell  a  gentleman  so),  m 
knows  not  of  any  business  White  had  thil 
day  in  Bristol. 

Mr.  Goodere  next  called  three  witnesKSl^ 
the  point  of  sir  John's  lunacy.  The  two  fir  t 
have  lived  with  him  as  servants,  and  they  give 
you  divers  mslances  of  an  eactrmTagint  vSU^ 


t&e  Muiilerq/Sir  Joliu  Goodere. 


A.D. 


GtHinUbla  liBhaTiaur  in  him ;  I'roiu  whicli  liijey    you 
cancluilt  that  be  mitit  bare  been  a  ;nHdiiiiu.  '    '   ' 
Tbe  otbcr  wUoeH  ny*,  thnt  be  kaeyr  air  Juhn 
for  Mne  jt-in;    ami  in  genrral  tiy»,  ilut 
fnwibiiiaciionsbeiook  bim  to  be  niad, 

He  then  cftlleil  xcrcrnl  witiisssei.  KeiLlbraen 
qT  wortb,  wtiu  have  knoun  hiin  many  yean; 
sod  tbcy  all  apce  in  Kiring  l>ini  a  very  gooil 
disncter,  s>  to  his  former  lite  anil  couv^rau- 
tJon  :  Viil  iinrticularly  R;iy,  Ihat  tb^y  alwayt 
took  biro  ii>  be  a  gaud- noiu red,  well  behaved 
■dm,  and  one  thai  merited  tbe  late  ami  nieein 
cf  faia  iieigltlioura.  One  of  Ibeae  wilnt^sseti, 
tb.  Farcffil,  say",  ihal  he  ua«  couslaut  at 
•blircb  on  Sundays  twice  a  day,  Eeneiallj' at- 
ten^d  Ibc  chnrcfi-Hrviee,  BUiTselilum  misaeil 
•Ueniling  al  Uie  sac^ineul. 

Auotber  of  these  wiluessea,  DIr  AshReld, 
blTing  given  the  firisoner  a  good  characler, 
waa  uked  iDuchioK  tir  John,  |tailicutarly  nhh 
regard  in  hia  euniiy ;  and  he  seemi  snrprised 
ttt  bear  sir  John  represenled  as  a  mad-man; 
■mI  tella  y«u,  Ihat  he  always  liiiik  him  tn  be  a 
HMD  of  good  iinderKtanding :  and  goea  so  far  aa 
to  oajr,  that  he  touk  bim  to  he  ihc  man  of  the 
^■t  tenic  in  the  family,  lie  wo*  uked, 
MKbin^  tlie  {irisoner'a  having  been  infnruied 
«f  Ibc  cnntenU  of  hit  brother's  will ;  and  he 
IdlffQiij  that  tbe  priMDer  waa  jnfonneilnf  the 
Btuport  of  the  will ;  but  adds,  that  tbe  prisoner 
dedwed  that  he  did  not  value  the  will;  And 
■IJM,  ibat  theie  had  been  a  lung  miaunder- 
MandiDg  hem  een  the  brothers. 

Mr.  Gouilete  called  a  witness  (Mr.  Walkins) 
tepmrethalhe  wasinfarmed  of  thcconieiiUof 
wJcdin't  will.  And  be  lellsyDii,  that  about 
mtt  K  year  or  three  quarters  of  a  year  ago,  he 
Cd  iaiarm  Mr.  Goodere,  that  sir  John  had 
■wrfa  hi*  will,  and  bad  given  his  estate  tn  the 
FfoU;  who,  it  seems,  are  nephewsto  sir  John 
19^  the  pnaoner.  But  be  tells  you.  that  tha 
inwnerthea  said,  he  Ihunuht  sir  John  lud  no 
fB>er  (o  make  a  wilt.  He  aayt,  that  in  diS' 
flOO*wabnui  the  will,  hei|iokeit  to  the  prisoner 
■a  hi*  Opinion,  that  if  mailers  could  be  recnn- 
"  il  blwecn  air  John  and  him,  Uial  will  would 
^fUdlODg:  Fur,  gentlemen,  he  likewise 
^ifcUlbere  has  been*  long  misuiideraiand- 
em  tbe  brothers.  This  wilness  waa 
lalud,  touching  sir  John'a  lunacy,  and 
■urpriaed  tu  bear  thai  his  sanity  is 

nuon  ;  and  gives  bim  an  ad  van  la- 
icter  in  other  respects  too. 
t,  gentlemen,  is  the  substance  of  iheevi- 
"  '.  has  Iwen  given  on  the  one  side  and 
And  though  ibe  evidence  has  been 
fen  lon^.  and,  as  yuu  observe,  chiefly  pointed 
M  we  pruoner  Goodere ;  yet  with  regard  to 
*Mr  jireacni  eni|uiry,  the  metier  aCler  all  n  ill 
H^B  ft  luiTOW  oompas*.  Yuu  observe,  gen- 
Hbi,  tlw  tudicliuenl  chargea  thai  he  was 
^^■M)  ^ng  and  abeiiiug  the  murder ;  and 
^^■nni  however  inttiumenial  yaa  may  sup> 
fwa  bim  lo  have  been  in  procuring  the  death 
tT  ail  Jc'hn,  by  tarrying  hini  on  Lourd,  and 
liaatiag  hini   ihnw  in  the   manner  y«u  have 


17*1. 

prMent, 


in*  1 


[i«» 


beliefc  IbM  he  was  prraent,  aiding  W|l 
g'  at  ihe  murder,  he  will  not  be  guilt  j 
00  ^^m  indictmirnl-  Dut,  gentlemen,  you 
runst  not  be  deceived  by  tbe  mere  kound  of 
VW's-  't  is  not  necessary,  in  order  lo  render 
a  peraon  gudty  aa  a  principal  in  murder  or 
oihei'  felony,  that  he  akoulij  be  ii 


very  spot  nbere  the  fact  is 
rommilted,  or  even  insight  or  hearing  of  it :  If 
(le  he  engaged  in  llie  design,  and  poili  bimadf 
al  the  lime  of  cxeciuion  in  9  proper  aUtiua  to 
give  assintance,  if  need  he,  or  (o  preventasur- 
luhe,  whereby  the  persoDp  scUiaily  cvwinitling 
Ihe  facl  are  encouraged  in  ihe  periietialioo  ft 
it,  he  is  in  the  eye  ••(  (he  Uw,  present,  aiding 
and  abetting,  and  eqiinlly  a  principal  in  the 
fact  with  iLose  who  Aciually  commit  it-  Au 
instance  or  tno  may  make  Lhi*  rule  better  un- 
derslDoJ.  If  several  persopfi  agree  to  commit 
a  murder  on  lhehighwny,Qrin  the  open  iieldB, 
and  one  party  of  ib?m  1    '    '  '  ' 

fact  commilled  ;  the  olbei 
to  their  several 


underUl(«a  1 

ihemselvea 
and  stand  upon  ibe 
iurpriHe  :  they  are  all 
equally  guilty,  and  in  the  eye  of  the  law  prf - 
seal  at  the  tact.  So,  if  a  number  of  peupje 
Bjjfree  to  Commit  a  murder,  and  to  thai  end 
break  into  a  house,  and  ihen  dls|>erse  Ibem- 
eelves  into  several  rooms ;  or,  if  any  of  ilie 
company  stand  without,  and  keep  the  dnor 
while  the  murder  is  commitled  (vilbin,  they  are 
all  equally  guilty,  and  in  the  eyo  of  tbe  law 
present.  Nay,  Ibough  the  original  intention 
might  be  barely  to  comm'ita  rubbery,  yet,  if  in 
prosecution  of  thai  design  a  murder  is  corn- 
milled,  the  whole  company,  ibose  who  siowl 
upon  the  watcn,aawellBathuiie  whooomtnilted 
the  tact,  are  all  equally  guilty,  and  principals 
in  ibe  oiunjer.  And  therefore,  gentlemen,  if 
upon  the  evidence  which  haa  been  given,  you 
believe  thai  Ihe  prisoner  Goodere  did  stand  pt 
(he  door  of  Ihe  mirser'scahbin  while  the  murder 
waa  cofumitied,  in  order  to  encourage  those 
wilhia  in  the  perpetration  of  the  fact,  or  to  pre- 
vent any  assisiauce  which  might  have  come, 
you  must  tiud  him  guilty.  And,  gentlemen,  I 
must  obaerre  lo  you,  that  it  is  prated  by  fi»tt 
wiluesses,  thai  he  was  in  the  cock-pit  nhih;  ibe 
cry  of  muider  waa  beard  in  the  oabbin.  Two 
(if  ihese  wimesaes  are  jiositive  thai  he  Blood  at 
the  cobbin- door  at  that  lime  witli  adruwn  awoid 
in  hit  handi  ami  lhal  while  he  was  there 
posted, he  ordered  them  to  keep  hack.  And  one 
oflbesame  wilncaie*  is  tikewiw  positive,  that 
Eoon  alter  the  cry  of  murder  ceated,  Ur. 
Gooilere  lumded  a  candle  into  tbecalibia. 

Air.  Goodere  indeinl  baa  called  neveraj  wil- 
neasei,  who  have  given  hiui  an  advanlageoga 
character ;  but,  gcnllemeo,  I  lliink  il  my  duly 
to  tell  you,  that  though  character  ought  to 
Iiave  it*  weight  when  matten  ore  in  ibenisclics 
doubtful,  or  where  the  cbnrge  is  supported  by 
witnesses  of  ikubtful  credit ;  yet  in  clear  cases, 
and  when  the  credit  of  the  u  iinvsses  is  not  isi- 
ponched,  I  think  diaraclvr  aious  unghl  to 
weigh  very  hllle  with  you.  And  upon  the 
irWh  if  J«H  iMtilut  awVitatwa  l»  ti/»kmf. 


1079] 


14  GEORGE  II. 


Tritd  of  Charles  While, 


[iOSO 


you  must  find  him  guilty ;  if  not,  you  must  ac- 
quit him. 

As  to  Mahony,  I  think  you  can  have  no  dif- 
ficully  if  you  belieye  the  evidence  of  Jones  and 
his  wife ;  and  lay  any  stress  on  his  own  con- 
fession ;  and  indeed  lie  now  rather  endeavours 
to  excuse  than  denies  the  fact. 

Tlien  the  Jury  withdrew,  to  consider  of  their 
Terdict ;  and  after  a  short  space,  returned  again. 

C7.  of  Arr.-  Gentlemen,  answer  to  your 
names.    Christopher  Bromadge. 

Christopher  Bromadge,  Here.  [And  so  of 
the  rest.] 

'  CI.  ofArr,  Gentlemen,  arc  you  all  agreed  of 
your  verdict  ?^-Jury.  Yes. 

CI.  of  Arr,  Who  shall  say  for  you  ? 

Jury,  Thei  foreman. 

CL  of  Arr,  Matthew  Mahony,  hold  up  thy 
hand.  You  of  the  jury,  look  upon  the  pn- 
aoner:  how  say  you,  is  Matthew  Mahony 
Guilty  of  the  felony  and  murder,  whereof  be 
stands  indicted,  or  Not  Guilty  ? — Jury,  Guilty. 

C7.  of  Arr.  What  goods  or  chattels,  lands  or 
tenements  had  he  at  the  time  of  the  said  felony 
and  murder  committed,  or  at  any  time  since, 
to  your  knowledge  ? — Jury,  None. 


CL  9f  Arr.  S.inuul  fSoodere,  hold  up  thv 
hnnd.  You  of  the  jury,  ioi»k  upon  the  prf- 
soner:  how  say  you,*  is  Samael  Gtmlerc 
Guilty  of  the  felony  and  murder,  whereof  he 
stands  indictee),  or  Not  Guilty  ? — Jury,  Guilty, 

CI.  of  Arr.  \\\\vii  goods  or  cbattek,  &c.  (u 
before.) — Jury.  None. 

CI.  of  Arr.  Hearken  to  your  verdict,  as  the 
Court  hath  recf>rded  it.  You  xay  that  Matthew 
Mahony  is  Guilty  of  the  felony  and  raurdrr, 
whereof  he  stands  indicted :  you  say  that  Sa- 
muel Goodcrc  is  Guilty  of  the  felony  and  naor- 
der,  whereof  he  stands  indicted  ;  and  that  they 
nor  either  of  them  had  any  goods  or  cbattrii, 
lands  or  tenements,  at  the  time  of  the  nid  fe- 
lony and  murder  committed,  or  at  any  tiow 
since,  to  your  knowledge ;  and  no  yoo  say  all. 

CI.  of  Arr.  Keeper,  take  Matthew  MaWNiy 
and  Samuel  Goodere  the  prisoners,  from  tM 
bar,  and  look  to  them ;  they  stand  conrictedif 
wilful  murder. 

Then  the  Court  adjourned  to  the  lame  plact 
the  next  morning  eight  o'clock. 

With  respect  to  ]\Ir.  Recordar^a  obscm* 
tions  (pp.  1055,  1O50)  upon  Mahony'k  Coa- 
fessioD,  see  vol.  1(5,  p.  70. 


501.  The  Trial  of  Charles  White,  for  the  Murder  of  Sir  John 
Dineley  Goodere :  14  George  II.  a.  d,  1741. 


On  Friday,  the  ^7th  of  March,  1711,  Charles 
White  was?"  lirou<>^ht  to  the  bar  of  the  Court,  to 
be  arrnin^iied  for  the  ninnler  of  sir  John  Dineley 
Goodere,  upon  an  indictment  found  by  the 
flfrand  jury  for  tlie  city  and  county  of  Bristol  on 
the  day  preceding^ ;  and  the  Court  proceeded 
thus: 

CUrk  of  Arraigns.  (Uiarles  W"  bite,  hold  up 
your  hand.  (Which  he  did.)  You  stand  in- 
dicted hy  the  name  of  Charles  White,  late  nf 
the  parish  of  8t.  Stephen,  in  the  city  of  Hristol 
and  county  of  the  same  city,  labourer,  for  tlmi 
you  and  one  Matthew  Mahony,  late  of  tht- 
aamc  parish,  city  and  county,  labourer,  Lot 
having  the  fear  of  God,  &c.  on  tl^e  iQtIi  day  of 
January,  in  the  14th  year,  ^c.  in  and  upon  one  I 
air  John  Dineley  Gomlcre,  in  t!ie  peace  of  God, 
Aec.  then  and  there  bcini^,  felonio:>Kly,  volun- 
tarily, and  of  your  malice  arorethoiiirht,  did 
make  an  assault ;  and  that  the  said  Muttiu'w 
Mahonv,  a  certain  cord  of  the  value,  Sec.  about 
the  neck  of  the  said  sir  John  then  and  there  fe- 
loniously, voluntarily,  and  of  his  n)a1iL'e  afure- 
thou{rbi,  did  put  and  fasten  :  and  that  the  said 
Alatthew  l^luliony  with  the  cord  aturtsaid,  by 
liim  so  about  the* neck  f>f  the  said  sir  John  piit 
and  fastened,  then  and  there,  him  the  said  sir 
John  feloniously,  &c.  did  choke  and  stranj^Ie  ; 
of  whiol)  said  chokhi^  and  8tran((lh^pr  of  him 
the  said  liir  John  by  the  said  Matthew  Mahony, 
in  ananner  and  form  albresaid  done  and  perpe- 
i|ntBd|.ht Um  nid air^oba  then andtlMw in- 


stantly died.  And  that  you  the  said  Cbaries 
White,  then  and  there  telonioush',  &c.  vas 
present,  aidinp;,  abetting^,  comiorlin;^  and  vaio- 
tainin^  the  said  Matthew  Mahony  in  rotnocr 
and  form  aforesaid,  feloniously,  &c.  the  said  sir 
John  to  kill  and  murder ;  and  so  that  you  the 
said  Charles  White,  in  manner  and  fbrmafore- 
feiaid,  the  said  sir  John  then  and  there  felo- 
nioiisly,  &c.  did  kill  and  murder,  a^insK  the 
peace,  ^c. 

How  say  V  thou,  Ciiarles  White,  art  thoa 
Guilty  of  tiic  felony  and  murder,  whereof  tbou 
standest  indicted,  or  Not  Guilty  ? 

IV/tilt..  Not  Guilty. 

(.'.'.  of  Arr,  Culprit,  how  wilt  thou  be  tried? 

If7/;7t .  hy  God  and  my  country. 

(.7.  of  Arr,  God  send  thee  a  geod  deliver- 
ance. 

The  Court  procccde^l  in  hke  manner  a^  upoi 
tile  indictment  agrainst  Mr.  Goodere  and  .1U* 
bony ;  and  the  uames  of  the  jury  sworn,  weit 
as  fuilows : 


John  Xash, 
Joseph  Wilson, 
Samuel  Cave, 
Wm.  Abraham, 
Wm.  Jones, 
liohert  bloody, 


Wm.  Williams, 
W^m.  Aniidd, 
John  Willis, 
Cornelius  8andfoH| 
John  Taylor, 
Thomas  Seed. 


Then    proclamation   for   information  V0 
made,  anii  the  jtn-y  charged  with  the  \ 

4 


for  the  Murder  of  Sir  John  Gooderc. 


A.D.  17«. 


rios2 


ii)/i.  May  it  please  you,  Mr.  Re- 
.  yuu  {rcntlcinrn  of  the  jury,  I  am 

tlie  kiiii;^ag^inst  the  privoner  at  the 
tands  iu(Jirte<l  for  the  niuriier  of  sir 
■lev  Gooilere ;  uiu\  the  indictment 
\i  one  Matthew  Maliony  (who  has 
Jer^^one  the  justice  of  his  country) 
lie  deceased,  and  that  the  prisoner  at 
{ present,  aidiiij;  and  abetting  liim  in 
ation  uf  that  horrid  fact;  and  which 
ill  be  the  same  in  consideration  of 
he  prisoner  had  with  hia  own  bands 
he  deceased,  and  actually  drawn  tlie 
vhich  put  a  period  to  his  life.  Gen- 
is  with  an  achinfi^  heart  1  dischar^fe 
2holy  task  afrainst  the  prisoner,  but 
istice  must  be  administered  as  well 
d  the  great  safety  of  the  innocent  is 
ishment  of  the  goiltv  :  and  of  this 
T  may  be  assured,  tliat  as  be  now 
le  bar  for  his  life  and  death,  and  un- 

counsel  in  matter  of  fact,  I  shall 
ontinc  myself  to  the  letter  of  my  io- 

n  ilhout  any  ag{;rar ation  of  facts  or 
COS,  and  endeavour  so  to  discharge 
11  this  melancholy  occasion,  as  that 
ve  nothing  to  fear  but  from  guilt,  or 
t  from  innocence.  And,  gentlemen, 
istr^etl,  captain  Samuel  Goodere, 
andcr  of  the  Kuby  man  of  war,  and 
die  late  unfortunate  sir  John  Dineley 
aving  on  Sunday  the  18th  of  January 
the  assistance  of  Mahony  and  other 
rcilily  seized  u|>onsir  Juhn,andhur- 
II  l>oanl  the  Ruby  (which  then  lay 
ill  King- road,  witliin  the  body  of 
:y,)  with  a  design  of  murdering  sir 

prisoner  (a  private  mariner  belong- 
Ruby)  was  pitched  upon  by  tiiecap- 
ersou  fit  to  be  concerned  with  Ma- 
te execution  of  that  Imsc  and  bar- 
ign.  And  accordingly,  on  Monday 
lout  one  in  the  morning,  the  prisoner 

up  by  Mahony  to  attend  the  captain 
'in,  which  he  did  ;  and  the  captain 
g  the  prisoiier  pretty  plentifully  with 
osfd  to  him  the  murdering  of  his 

conjunction  with  Mahony  ;  and  no 
I  but  done,  gentleman  :  for  this  in- 
retch  the  prisoner,  inflnrnccd  by  ihe 
ision  of  wirkeilness,  and  temptation 
^n  gain  ;  and  not  content  with  his 
jes,  nor  considering  that  the  wages 
leath,  ga«  e  at  once  into  the  monstrous 
»r  the  sake  of  pliindrr.  In  u  word, 
,  he  readily  followed  Mahony  into 
*s  cabbin,  where  sir  John  lay  con- 
d  as  that  unhappy  gentleman  had 
ime  of  first  seizing  him  been  treated 
actor,  so  they  exetnited  him  as  such  ; 
ly  seizf d  him  by  the  throat, and  thtti 
ihout  his  neck  a  rope,  which  they 
ght  with  them  for  the  purpose, 
him  in  the  presence  and  with  the  as- 
f  the  prisoner  ;  and  indeed  iviihont 
nee,  sir  John  being  strong  and  of  an 
I  spirit,  woald  probably  havt  been 


able  to  hare  defended  hinisdf  against  the  at- 
tack of  Mahony.  Gentlemen,  no  soontT  had 
they  robbed  sir  iohn  of  his  life,  but  they  fell  to 
rifling  him  of  his  watch  and  money  ;  liiey  di- 
vided the  spoil  between  them,  and  thon  hftimes 
in  the  morning  the  prisoner  with  his  accom- 
plice Mahony  made  off  from  the  ship,  nod  look 
refuge  in  this  city  ;  a  very  unfit  sanctuary  ^or 
ruffians  and  murderers,  considering  the  v;ood 
order  and  gorernment  of  the  place,  aiit!  the 
conbtant  care  of  its  worthy  magistrates  in  tfie 
due  execution  of  the  laws.  But  ju^  ice  pur- 
sued, and  will,  I  doubt  not,  overtake  him.  lie 
was  apprehended,  and  made  an  early  confession 
of  his  guilt,  and  comes  now  to  answer  for  his 
detinquenc}'.  Gentlemen,  we  bhall  call  iIig 
I  ship's  cooper  and  his  wife,  who  heard  the 
1  groans  ana  outcries  of  the  decease<l,  and  were 
spectators  of  what  passed  in  the  pursf  r':^  rab- 
bin immediately  after  this  tragedy,  and  saw  the 
prittMier  in  the  very  act  of  riflinjr  the  doccaseif , 
almost  at  the  instant  of  his  death,  ^\e  shall 
i  also  lay  before  you  the  prisoner's  own  confes- 
'  sion,  on  bis  examination  before  the  justices ; 
;  and  then,  geDtleiiien,  we  doubt  not.  but  you 
I  will  be  of  opinion,  that  by  the  lawsuf  his  conn- 
•  try  he  ought  to  die  for  his  traiissfression,  at 
i  some  atonement  for  his  own  guilt,  and  an  exam- 
;  pie  of  justice  to  others. 

Edward  Jones  iworn. 


Mr.  Vernon.  Edward  Jones,  tell  Mr.  Re- 
corder and  the  jury  what  you  know  conceruiiig 
the  deatli  of  sir  John  Dineley  Goodere. 

Jones.  On  the  IBtli  of  January  last,  at 
[  night,  I  was  in  lied  with  my  wife  in  the  Mop- 
I  room,  next  the  purser's  cabbin  down  in  the 
cockpit  in  the  Rub^'  man  of  war,  then  l\ing  at 
!  King- road,  and  sir  John  Dineley  wSs  then 
j  confined  iu  the  purser's  cabbin.  1  heard  hhn 
!  pray  to  God  to  bo  his  comforter  under  his 
I  afflictions;  he  said,  that  he  knew  he  uus  to \ni 
I  murdered  there;  and  he  prayed  that  it  might 
come  to  light  by  one  meansor  aoother.  lUit 
I  took  no  notice  of  him,  because  I  thought 
him  a  crazy  man,  as  J  heard  the  captain  say 
he  was.  After  that,  1  i'ell  asleep  ;  and,  I  l>e- 
lieve  about  two  or  three  of  the  clock  my  wife 
wakc>d  me,  and  said  to  me,  Don't  you  hear 
the  noise  that  is  made  by  the  gentremau  Y  I 
lielieve  they  are  killing  him.  1  then  heard  sir 
John  kick,  and  cry  out.  Here  is  20  guii:e&5, 
take  it,  take  it ;  don't  niunler  me ;  must  I 
die !  must  I  die !  Oli  mv  life!  and  gave  several 
kecks  \\ith  his  throat  liken  dying  man,  and 
then  he  was  still.  I  would  have  got  out  of 
bed,  hut  my  wife  pen^naded  me  not,  for  fear  I 
should  be  killed  too.  It  was  durk  ;  but  alight 
was  hnnde<l  in  to  the  purser's  rabbin,  and  then 
I  got  up  upon  my  knees,  and  I  could  see  a 
light  glimiiierinir  thioujii  the  crack  of  the 
Itoanis  ;  I  saw  Mahony  \«ith  a  candle  in  his 
hand,  sir  John  was  l\ing  on  his  sifle.  Tlie 
prisimer  <-harles  Wliiic  was  (here,  anl  he 
pulled  sir  John  (o  turn  him  about,  and  White 
said  he  could  not  get  lli^  ^^O^  ^>\^  -^^  ^v>^ 


1089] 


H  GEOHQE  II. 


Trial  if  Charlts  IVAite, 


[iObi 


pock?^ ;  and  hie  ivaMfid  him  up  to  come  a^ 
the  money,  apcl  uobuttoned  his  hreeohes.  I 
saw  him  get  hold  of  the  watch-chain ;  and 
White  ga?e  Mahony  the  watch ;  and  White 
put  hii  hand  in  one  of  the  gentleman's  pockets, 
and  curbed  that  there  was  nothing  but  silfer ; 
he  put  his  hand  in  another  pocket,  and  there 
he  found  the  fi;old ;  he  offered  it  to  Mahon^r, 
but  Mahony  Aimned  him,  and  bid  him  keep  it 
till  by-and-by.  White  pulled  out  a  piece  of 
paper  from  one  of  sir  John's  pockets,  and  was 

g:omg  to  read  it;  but  Mahony  said,  Damn  ye, 
on't  stay  to  read  it  now. 

Mr.  Vernon.  Was  sir  John  Goodere  dead 
in  appearance  when  you  saw  them  rifling  his 
pockets? 

Jones,  As  they  were  turning  him  about,  one 
of  his  legs  was  crooked,  which  made  me  think 
he  was  dead,  and  that  tliey  had  killed  him  in 
the  dark.  The  next  morning  I  saw  sir  John 
dead,  lying  in  the  purser's  cabbin,  and  I  bc- 
lie?e  he  was  strangled. 

Mr.  Recorder,  Prisoner,  will  you  ask  this 
witness  any  questions? 

White.  Please  you,  my  lord,  I  desire  yon 
will  ask  Mr.  Jones,  whether  sir  John  was 
lit ing  or  dead  when  he  saw  me  in  the  cabbin 
first? 

Mr.  Recorder.  Mr.  Jones,  the  prisoner  asks 
you  whether  sir  John  was  living  or  dead  when 
you  first  saw  him  in  the  cabbin  ? 

Jone$,  Sir  John  was  dead  when  White  turned 
him  about,  for  they  killed  him  in  the  dark.  I 
beard  two  voices. 

White,  Whether  Edward  Jones  saw  any 
body  strangling  sir  John  besidps  Mahony  ? 

Blr.  Recorder.  The  witness  docs  not  say  that 
he  saw  any  body  8lran<;ling  sir  John,  that  he 
says  was  done  in  the  dark :  but,  he  says,  he 
heard  two  foices  in  the  cabbin,  and  as  soon  as 
thf  liu^ht  was  brought  in,  he  saw  you  rifling 
air  John's  pockets. 
'  Mr.  Vernon,  Call  Margaret  Jones. 

Margaret  Jones  sworn. 

Mr.  Vernon,  Mrs.  Jones,  will  you  give  Mr. 
Recorder  and  the  jury  an  account  of  what  you 
know  in  relation  to  the  death  of  sir  John 
Dineley  Goodere? 

Mrs.  Jones.  Yes,  Sir.  On  the  181  h  of  January 
last,  at  night,  I  lay  on  board  the  Uuby  man  of 
war  with  my  husband,  and  in  the  purser's  cab- 
bin, next  to  where  we  were  in  bed,  sir  John  was 
under  confinement;  the  captain  said  he  was  a 
madman,  and  that  he  brought  him  there  to 
aavc  him  from  a  gaol.  Aboiit  ten  o'clock  Ma- 
Jiony  was  left  there  with  t^ir  John  ;  sir  John 
desired  him  to  go,  but  Mahony  said  he  had 
orders  to  stay  there  to  take  care  of  him.  About 
l*i  oVluck  in  the  night  I  went  to  sleep  ;  about 
two  o'clock  I  awaked,  and  heard  the  •Gentle- 
man talk  to  Mahony,  and  Mahony  persuaded 
the  <|[entleniau  to  go  to  sleep ;  the  gentleman 
said  ne  copld  not :  they  talked  together  a  good 
wrbil^.  1  heard  ion)ebody  say  to  the  gentle- 
man, You  must  lie atiU,  and noiapcaka  ward 


for  your  life ;  and  then  I  beard  a  peat  strag- 
gling ;  who  it  was',  I  don't  know.  The  gen- 
tleman cried  out  Murder!  Help,  for  God's 
sake ;  and  made  several  kecks  in  nis  throat,  u 
though  somebody  was  ati6iug  him.  I  shook 
my  husband,  and  waked  him.  I  beard  two 
people  in  the  cabbin  whispering;  the  gentle- 
man cried  out  Murder  ag^in,  Help  for  God's 
sake!  He  said,  Here's  20  guineas  in  my 
pockets,  take  it,  take  it ;  Must  I  die !  Oh  my 
life !  And  somebody  in  the  out*aide  offered  la 
go  into  the  cabbin ;  but  one  of  them  vithia 
said.  Keep  out,  you  negro;  and  then  a  gicst 
noise  was  made,  as  though  the  cabbin  wooU 
have  been  beat  down ;  and  then  a  candle  was 
brou||;ht  in.  I  got  up  and  looked  throngfa  a 
crevice :  I  saw  a  man,  1  believe  it  waa  White, 
pulled  the  gentleman  upright.  Mahony  IumI 
the  capdlc  in  his  hand.  I  observed  the  other 
put  his  hand  in  the  gentleman's  pockets;  oai 
of  them  said,  Damn  ye,  pull  out  ilia  watdi:  I 
saw  the  person  take  nold  of  the  watch  string, 
and  pulled  it  out,  and  said  to  the  other,  Hf^ 
thee  take  it ;  and  then  searched  another  pocki^ 
and  said.  Here's  nothing  but  silver :  bqt  tbta 
he  searched  another  pocket,  and  aaid,  flat  it 
is,  and  pulled  out  a  purse.  And  aoon  after 
that  I  licard  the  door  unbolttfd,  and  thca  I 
heard  Mahony  say,  Where  shall  i  run  ?  Aii 
another  said,  Follow  me,  boy.  And  they  wal 
upon  deck  through  the  hfitch-hold. 

Mr.  Vernon,  J)id  yon  know  the  Toict  if 
oither  of  the  two  pi;r$ons  whom  you  bssid 
speaking  to  one  another  ? 

Mrs.  Jones.  Yes,  J  knew  Charles  White  Is 
be  one  of  tbe  men  by  his  voice.  1  knew  Ui 
voice  when  he  said  to  Mahony,  Follow  mc, 
boy.  I  am  certain  the  prisoner  at  the  bar  «u 
in  the  cabbin;  I  observed  his  bulk,  hutcouU 
not  look  earnestly  at  him,  being  very  much 
shocked  and  surprized  ;  but  uiy  husband  toU 
me  it  was  Charles  White. 

Mr.  Recxtrder,  White,  will  you  ask  this  wit* 
ness  any  questions? 

White.  Please  you,  my  lord,  to  askb«r, 
whether  she  can  say  that  she  ever  heard  fliy 
voice  in  the  cabbin  ? 

Mr.  Recorder.  Mrs.  Jones,  the  prisonerub 
you,  if  you  heard  bis  voice  in  the  cabbin? 

Mrs.  Vonci.    I  could  not  know  his  voice  it 
tlte  cabbin,  for  he  spoke  low ;  and  wbeo  • 
person  whispers,  the  voice  is  not   so  difus* 
guishahle :  but  as  soon  as  he  spoke  aloud,  I  * 
knew  it  to  be  his  voice. 

Mr.  Recorder.  Did  you  see  him  is  tkt 
cabbin,  3Irs.  Jones? 

31  rs.  Jones.  My  lord,  I  did  not  see  his  facfl* 
but  by  his  voice  when  he  went  out,  I  kaev 
him  to  be  the  same  man. 

White.  Please  you,  my  lord,  to  ask  bffi 
whether  she  ever  heard  me  say.  Follow  \sm% 
boy,  before? 

Mr.  Recorder.  Mrs.  Jones,  you  hear  ilia 
question,  give  an  answer  to  it. 

Mrs.  Jones.  I  never  heard  him  aay  ao  btlqj^; 
but  I  knew  his  voice  perfectly  well,  haHtf 
bean  aG^uaintad  with  htm  f^r  two  jfUk 


/»r  Ihi  MitrdtT  Of  Sir  John  Goodtre. 


A.  D.  1741. 


Ir.  Vetium.   We  must  now  <l«ire  that  ihe 

(«  Enminilion  may  be  rend.     Crj'er, 
/.'Jaran  Britten,  (second  clerk  ig  tbe 
r 
I      Mr.  Bridcn  tworn. 
\non.    Mr.  Briileo,  Wlint  pRi«r  Ii 

irillm.  TheEnaminBiinnof  tlieptisonerat 
btr,  toliFii  before  Mr.  Mayor. 
Ir.  Vernon.    Uiil  you  sre  tlie  prUouer  titan 
bWr.  M»       •       '  -        ' 


)Htt. 


I  ili<I. 


u  see  Mr.  Uayor  sl^n 


Ir.  r«-n<. 

•^BtiUen.   ..-. 

Ir.  Vtrnon.  U  that  his  hacd  ? 

hitttn.  \es. 

tr.  Fredcritk,  counsel  for  tlie  prisoner. 


ttvldukMr.  Brit 
MbA}  inuile  I 


Icn,  Was  III 
__._         ..  31?  For  if  it  was  uoi  TO. 

tifrilr.  It  Pii^lit  Rol  10  be  read. 
Mttordtr.  TliBlisaHTHiproperquesition, 
the  prifonrr  liiil  insuted,  anil  trnde  it 
twt  hli  ease,  thai  his  cont^inn  was  ez- 
»d  b*  thretilB,  cr  drawn  from  bim  liy  pro- 
Mi;  m  ihM  ruse,  iudeed,  it  would  have  been 
tfur  us  to  enquire  by  what  means  the 
Da  was  procured ;  but  as  the  inlauner 
i(H  nothing  nl' thai  bimi,  I  will  not  lufl'cr  a 
fioKi  to  be  uisked  ibe  clerk,  nbich  carries 
Its  reHretinii  on  the  magistral e  Ixilcire  whom 
ItUimiiiaiion  was  lakeu.  Let  it  be  read. 
ST^^rr.  Reads. 

January  SO,  1741. 
It  tml county  Dr>  . 

fifcl  tf  Biwti.1.  J   "*""' 

lb  £xA]it.H*TioN  of  Ckarixs  WHrrE,  a 
•ailur  belonging  to  the  Ituby  man  of 
«»(,  now  King  in  tbis  port,  born  in 
progbeda  iu  Ireland,  aged  about  ibirty- 

Hhi  e«»minant  voluntarily  cotifewelh,  and 
Ik,  That  he  liotb  been  a  sailor  <in  board  the 
l|  Ibip  for  aWiit  >cveutein  months  tnKi  nail : 
U  nmul  one  of  the  clock  in  the  niglil  of 
iilliy  latl.  Ibe  18lb  insUnt,  he  ittkiasleep  ' 


ilunlmook  0 


board  the  said  ship,  Hiid  was 
Mntlhew  Mahnny,  another 
/  laid  !>Iiip  (and  now  in  riis- 
u.  ihai  Ibe  captain  (MrauinK 
xiilv re,  commander  of  the 
>>>iveak  with  hitnin  his^tib- 
i^ly  he  went  tn  bim  ;  and 
'I'lti,  the  capttiin  asked  him 
ri  gave  bim  a  wide  glnss  uf 
'  li'iir  or  Rve  more,  nnd  fiipn 
M  kill  a  Spaniard?  Ai«ltMa 
il  bim,  Thiit  he  ncTer  did. 
:i|>tain  told  biru,  he  had  eol 
,  if  he  would  tinderlake  it  ■ 


And  the  captnio  tofA  bim,  it  was  tn  iViike  M 
with  liis  brritber,  whose  name  (a^  ibis  cian 
nani  is  infiiniied)  wasiir  Jobu  Dineley  Uooder 
barl.  who  was  in  the  purser's  eabbinoo  boM 
tbe  isiil  ship :  And  (be  noid  Mutlhew  MaboB 
told  this  exaiiiiuam,  that  he  cnuiil  go  with  b* 
to  belp  do  it.  Whereupon  Ihe  said  capUd 
weoi  out  of  rbe  cabbin  Uni,  Muhony  folloirr 
bim,  4nd  ibisexaminanl  went  nexl ;  and  wb« 
he  caiite  to  tliu  purser's  cabbin  door,  where  il 
John  Uineley  wa<<,  the  uaplaiu  was  atandiiu 
cenliiiel  himself  ul  the  dour,  with  a  cutlai  3 
bi>  hand,  and  Mnhony  had  entered  tbe  CobUi 
and  this  exaniinBnl  entered  likewia 
Mahony  was  latking  with  the  said 
and  had  a  piece  of  rope,  called  three- quai  (era 
an  inch  rope,  in  his  hand,  about  six  foo'  ' 
length,  and  sir  John  was  lying  on  the  [fed ; 

narticuiarly  Mahony  asked  sir  Johu  how  

head  was,  and  ivbat  he  had  got  abont  it }  AlM 
at  last  told  hira,  il  did  not  signifv  talking  abn 
il  any  longer,  and  then  fell  on  Dim  on  tne  1 ' 
took  fiold  of  hit  tbroBi  with  his  band  {his  at 
bciDg"  on)  and  so  strangled  him  with  hisstuC 
aad  allerWBi'ds  put  tbe  said  rope  aboul  his  net 
(whicli  was  prepared  Ibr  the  purpose,   with 
noose  in  il,  betbre  it  was  brought  out  of  ihe  ci 
tain's  cabbin),  and  then  Blahony  hauled  ihe  r« 
tight  about  his  neck ;  and  upon  tbis  examinanl 
asking  him  what  he  did  that  fur?  lie  said,  F 
fear  he  should  not  be  dead  enough.     And  tl 
exarnin.int  took  a  knife  out  of  his  pocket,  a 
cut  it  olT  his  neck,  and  threw  it  over-boi 
During  all   which  time  the  captain  stood  c< 
lioel  at  the  door  as  foresaid  ;    and  as  soon 
this  examinant  had  so  cut  the  rope  off,  the  cl 
lain  handed  a  candle  to  Mahony,  who  gave 
to  him,  and  Mebony  took  the  Watch  and  n 
ney  out  of  sir  John's  pocket;  andiben  the  cl 
taiu  a«hed  them,  bare  ye  done  ?  Meaning  (I 
thig  exaniioant  apprehended^  murdered  the  si* 
air  John.     And  then  came  m  hioiselF,  and  tl 
cxaminant  went   Ihrough  the  hold,  and  c 
opon  deck,  where  lie    walked  for  about  t 
space  of  half  a  quarter  of  an  hour,  and  the< 
tain  and  Mabony  went  into  the  ca))t8in's  i 
bin  together,  and  then  tbis   examinanl  « 
into  thesteeridge,  and  Mahony  called  ibis  i 
into  the  eahlio,  where  the  captain  b 
order  to  go  to  I    ' 
e  him  five  guii 
this  Maminant  had  receired  of  the  said  rapti 


d  himself  ii 
e  Ibe  captain  gi 


thii  txnminanl  saith.  That  Hihony  shev 
the  capuiu  the  watch  he  bad  taken  out  of 
John's  pockel,  and  the  captain  gave  Mahdt| 
his  uwn  watch,  and  kept  sir  Jof 
and  Mahony  likewise  nhi^wfd  the  Captain  a 
money  he  hud  laien  out  of  sir  John's  p(  *" 
who  (lid  tiim  keep  it ;  and  Mahdhy  cavi 
this  «tanilnant,  who  put  il  ill  His  [idAet,  : 
he  and  Mahony  thared  the  money  on  the  fotij 
castlr.  and  this  e»anjinant  had  Iw*  _ 
one.  (a  cAnsideraiion  that  Muhony  bad  ] 
watch;     and   this   exaniinant    htliete^    f' 


■htred  aatn  tbirt;  fiuhit  mneUt  at] 


H)87]  1 1  GEORGE  IL 

And  further  this  oxaminant  saith,  That  the 
said  captain  told  him  and  Mahony,  that  they 
might  p)  any  whcr«»  Im*  three  weeks,  aud  he 
would  send  tlierii  llieir  tickets.  And  lastly, 
this  examiaant  saith,  That  het^reen  four  aud 
five  of  the  clock  the  same  morning,  the  man  of 
war's  yawl  was  going  to  this  city,  and  he  and 
Mahony  landed  at  the  Gihb  here. 

CuARLEs  White. 

Mr.  Recorder.  Well,  prisoner,  what  have 
you  to  offer  in  your  defeoce  ? 

White.  Please  you,  my  lord,  T  was  in  my 
liammock  between  the  hours  of  twelve  aud 
one,  and  this  Mahony  came  to  me  and  said, 
Charles  White,  Charles  White!  1  said,  What 
do  you  want?  lie  said.  Turn  out.  I  asked 
him  what  he  wante<l  of^ne  now?  He  said 
again,  Turn  out,  turn  out.  And  with  that  I 
turned  out,  and  went  upon  deck  to  make  water, 
and  while  I  was  doing  it,  he  told  me  that  he 
wanted  me  to  go  with  him.  1  asked  him  where 
be  was  going  to  bring  me  ?  But  he  led  ine 
into  the  cabbin  where  the  captain  was.  When 
1  came  in,  the  captain  bid  nic  sit  down.  1  beg- 
(red  him  to  excuse  me  from  taking  so  great  a 
freedom  as  that  in  his  company.  But  at  last  I 
sat  down,  and  I  drank  a  glass  of  rum.  Then 
the  captain  askeil  me,  whether  I  had  ever  kill- 
ed a  Spaniard  ?  I  told  him.  No,  1  never  was 
engaged  with  one  to  kill  him.  Drink  about, 
Mahony,  said  the  captain.  With  that  we  drank 
nboiit,  and  fuiished  a  bottle  and  a  half  in  raw 
drams.  With  that  he  said,  Come  along  with  me. 
I  asked  him  where  he  was  t;oing?  I  went  with 
him,  the  captain  lirst,  and  3Iahony  afler  him  ; 
and  they  went  below,  and  to  what  inti'iit  J  knew 
not,  being  quite  in  licpior  with  drinking  so 
much  rum.  Said  the  captain  to  ine,  when  we 
rarae  down.  Tarry  here  till  J  call  you.  .Soon 
after  Mahony  came  to  me,  and  told  me  the 
captain  wants  you.  Then  I  went  into  the  rab- 
bin, and  sat  down  in  it,  and  Mahony  and  the 
captain  were  talking  together  ;  hut  what  they 
did  I  know  not,  for  1  never  laid  a  hand  near  the 
gentleman. 

Mr.  Recorder,  ^'ou  say  you  were  in  the 
purser's  cabbin,  and  do  you  not  know  what 
happened  there? 

White.  I  cannot  tell,  Sir,  what  past. 

Mr.  Recorder,  if  this  defence  be  true,  how 
came  you  to  be  so  unjust  to  yourself  to  make 
the  confession  which  has  been  read  ? 

White.  Please  you,  my  lord,  I  was  in  liquor, 
and  did  not  know  what  passed  between  them, 
for  I  had  not  my  senses  about  mo. 

Mr.  Recorder,  Why,  it  is  ch;irt;ed  upon  you 
by  the  cooper,  that  you  exainine<l  sir  John's 
pockets,  and  took  out  his  wntcli  and  money, 
aud  a  piece  of  paper  which  Mahony  persuaded 
you  to  throw  away,  as  of  no  consequence,  or 
else  to  put  it  into  your  pocket,  and  read  it  at 
auother  time. 

White.  Please  you,  my  lord,  I  know  nothing 
of  it ;  I  Irave  several  witnesses  to  my  cha- 
raeter. 

Vlt,  Reorder.  Call  your  witnesses. 


Trial  of  Ckarl^Wkiie^ 


[KKS 


Michael  Smith  sfrorn. 


Mr.  Recorder.  How  long  have  yoa  kosini 
the  prisoner? 

Sniith.  From  a  child.  Sir ;  we  wcnttosehsol 
together  for  eight  years. 

M  r.  Recorder.    W  hat  do  you  know  of  bin  ? 

Sniith.  Sir,  I  never  heard  to  the  contrary  but 
that  he  was  an  houest  man,  and  bore  a  good 
character. 

Theodore  Court  sworn. 

T.  Court,  T  never  knew  an^  hann  of  dN 
prisoner  till  this  unhappy  affair  ;  but  I  bsfe 
oeen  informed,  that  since  he  hath  been  nn^r 
confmemcnt,  be  hath  told  several  people  whs 
have  gone  to  see  him,  that  if  he  can  get  dnr 
of  this,  he  will  kill  my  mate. 

Edward  Jones  sworn. 

Jonet.  I  have  known  the  prisoner  forthm 
years,  but  never  knew  aiiy  narm  hy  him ;  I 
was  with  him  in  the  VN'est  Indies,  in  the  KiB|- 
sale  man  of  war,  but  till  this  misfurlnne  ha^ 
l>ened,  1  never  knew  any  harm  by  him. 

Mr.  Recorder.  Are  you  sure  theo,  that  JM 
saw  him  in  the  cabbui  rifling  the  dcecsied'k 
pockets  ? 

Jones,  Yes,  my  lord,  I  am  sure  ofthaL 

Wiiliam  Macguinii  sworn. 

.  JilacguiniSt  Please  yon,  my  lord,  1  kncwtk 
prisoner  at  the  bar  ever  since  be  was  an  idut; 
I  weut  to  school  with  him,  and  never  knew  aov 
harm  that  he  did  before;  I  have  often  bulk 
eat  and  drank  with  him,  and  when  he  is  sober, 
he  is  as  good  and  civil  a  man  as  need  be. 

Daniel  Weliar,  carpenter  of  the  ship,  sworn. 

Wcllar.  I  have  been  about  sixteen  or  leveo- 
teen  months  with  him,  and  he  always  bebat etl 
himself  well  on  board,  and  I  never  knew  acj 
harm  of  him  before;  but  his  voice  is  Juxcma 
from  all  the  meu  in  the  ship. 

31  r.  Recorder.  To  what  purpose,  do yoo  saj, 
that  his^voice  is  known  Irom  all  the  men  in  tLt 
ship? 

UtUar.  Because  they  talk  about  his  voice 
oftentimes. 

Mr.  Vernon,  If  I  apprehend  him  right,  ^'^ 
he  speaks  this  in  couiirmaliou  of  Mrs.  Jodo$'« 
evidenc*c,  who  swore  she  kuew  the  prisoncr'i 
voice,  (ientlemcn,  1  was  in  hopes  the  pn* 
soner  would  havestood  to  his  former  coot'esnuo, 
instead  of  endeavouring  to  retract  it,  and  hate 
given  glory  to  CJod  by  a  public  penitence  asJ 
sormw  for  the  heinousness  of  his  crime,  iofteaJ 
of  putting  Oft  a  shew  of  innocence  against  prM^ 
so  apparent  of  his  guilt. — Defence,  I  appre- 
hend, he  has  made  none  ;  he  has  called  iadcc' 
some  witnesses  to  speak  to  liLs  character  ;  so4 
character,  it  must  be  admitted,  is  of  weighti^ 
way  of  balancing  the  proofs,  wlitre  the  fact'  < 
doubtful  and  uncertain  ;  hut  when  tbe  cfi* 
denee  is  strong  and  pregnant,  and  guilt  stutl 
the  prisoner  in  the  fhce,  character  weighs  i' 
a  single  grain  iu  the  scale  of  justice.    Usv^ 


UGoodere.  A.  D.  1711.  [1090 

of  lie  Weill  into  the  fiurier's  cabbiii,  but  mvs,  that 
ly  ',  beiti£;  inucb  jo  liquor,  he  kooivB  DOtliin^  ot 
he  .  nhal  passed  there ;  aoil  deaies  that  he  had  any 
lie  '  c)oi:«rD  in  llie  tnunl«r.  He  railed  fonie  wit- 
ly  .  nestea  lo  his  character ;  nod  I  miisl  obterre  to 
re  -  you,  ifaal  odg  of  hii  wiloeases.  DaiM  VVellar, 
.iJ  says,  thai  the  priaoner'a  Toice  is  disliDguitbable 
or  I  from  the  voices  of  nil  llie  men  Id  Ibe  chip. 
Tbis  trill  give  soms  weight  lo  Margaiet  Jonei'i 
:iidence,  that  she  knew  him  by  hia  voice. 

And,  geotlemeD,  upon  the  vhole,  if  you  be- 
laie  the  evideoce  for  tbe  kin^,  and  give  credit 
to  the  prisoner's  confetaion,  you  must  find  him 
guiliy. 

Then  (he  jury  wiihdretr,   to  coasider  uf 
their  verdict ;  and  afler  a  short  space  returned 
again. 
CI.  of  Arr.    Genllemeo,  aniwer  to  your 
he    names  ;  Jobu  Nash. 

JohnlHath.  Here.    [And  iciortbereit.] 
CI.  of  Arr.  GentlemeD,  are  you  all  agreed  of 
your  verdictP— Jury.  Yes. 

CLo/Arr.  Whoahallsay  for yoof 
Jury.  The  Foreman. 

CI.  of  Arr.  Charles  White,  hold  np  th^ 
hand.  Yon  of  the  jury  look  upon  the  pri- 
soner; Row  say  you  f  is  Charles  WhiteGuilly 
of  the  felony  and  murder  whereof  he  ilaods  in* 
diclecl,  or  Not  Guilty  7— Jury.  Guilty. 

CI.  of  Arr.  What  eoodsor  chattels, lands  or 
tenements,  bad  he  al  £e  lime  of  the  said  felony 
and  murder  committed,  or  at  any  lime  since, 
lo  your  knowledge? — Jury.  None. 

CI.  of  Arr,  Hearken  to  your  verdict,  as  the 
Court  liath  recorded  it :  You  say,  that  Charles 
*Vhite  is  Guillj'  of  the  telouy  and  luurder 
tvhtreof  he  stands  indicted,  and  that  lie  had  no 
goods  or  chattels,  lands  or  tenements  at  tha 
I  lime  of  the  said  felony  and  murder  coiomitled, 
or  at  any  lime  since,  lo  your  knowledge ;  and  so 
you  say  all. 

CI.  of  Arr.  Keeper,  Uke  Charles  White  Ihe 
prisouer  from  the  bar,  and  look  to  bim ;  he 
stands  convicted  of  wilful  murder. 

On  Saturday  the33lh  of  March  the  prisoners 
were  brought  again  lo  the  bur,  in  order  to  re- 
ceive their  sentence  i  and  tbe  Court  proceeded 
thus: 

CI.  of  Arr.  Cryer.  open  the  Court. 

Cryer.   Oyca,  Oyez,  Oyez :  all  manner  of 

persons  that  have  any  more  to  do  before  tbe 

King's  mnjesiy'ajustic<>a  of  Oyer  and  Terminer, 

I   general   gaul-deh«ery   for   this  city  and 

mty,  and  were  adjourned  over  to  this  time 

and  pCace,  dr«w  near,  and  give  your  atlendanc«. 

Ch  of  ^rr.    Mr.  Recorder,  will  jrou  plea 

iirisonersa' -"■^--  "   '      ■   '    ' 
tcorder. 
CI.  of  Arr.    Keeper,  set  MaUhew  Mahony, 
Snmuel  Goodert,  and  Clisrles  While  to  the  bar ; 
which  was  done. 

Mr.  Recorder.  Ask  them  what  ibey  can  say 
lo  hinder  judgment. 

CI.  of  Arr.     HaUhew  MaUony,  hM  u|i  ihy 
™.i  ._  i,ftBi  K-»**«  ;_  .1-      .'^  1.  .-!'-"«  and 


hand.    Tboa  ha»tbeea  iadiciedut 


1091]  U  GEORGE  IL 

munln',  tbou  hatr  been  thereupon  aTTti^ed, 
ifaou  hut  pleaded  (iiereuDto  not  guilty,  and  for 
ihy  trial,  thoii  Last  put  thytelf  upon  God  uit 
ibji  oouutry,  wbicb  counuy  bath  round  thee 
Ifoilly  ;  what  hail  thou  to  aay  for  tbjwlf,  why 
the  Court  abould  not  proceed  to  giTe  judgment 
of  deatli  upon  thee,  and  Hwud  execution  ac- 
eordiog  to  the  law  f 

[He  offered  nothiog',  but  begged  fot  time  to 
prepare  bimBelf.] 

Cl.qfArr.  Samuel  Gondere,  hold  up  Ihy 
hand.  Tbou  hast  lieen  inilicied  uf  felony  and 
murder,  ice.  what  bast  tbou  to  lay  ?  Sm. 

[He  offered  nothing,  but  lieggedaleo  for  time 
to  prepare  himself.] 

CI.  rf  Att.  Charlet  White,  hold  up  thy 
hand.  Thou  haal  been  indicted  of  fplooy  and 
murder,  &c.  what  bast  thou  to  say  ?  &c. 

[He  offered  nothing,  but  declared  he  wai 
drawn  into  it,  and  be^vd  Tor  tra  Deportation  for 
life.] 

CI.  of  Art.    Cryer,  make  proclamation  for 

Crytr,  Oyez ;  Tbe  king'*  majesty'ajuaticn 
straitJy  charge  and  command  all  manner  of 
persona  to  keep  Bileacc  whilst  Judgment  ia 
giving,  upon  pain  of  imprisonment. 


Mr.  Rtcordtr.  Saranel  Goodere,  Matthew 
Mahony,  Charles  White,  and  Jaue  Williams," 
yon  haro  been  all  convicted,  upon  Tery  full 
evidence,  of  one  of  the  greatest  crimes  human 
nature  ia  capable  of;  deliberate  siiil  uilfiil 
murder.  A  crime,  ubich  ii:  all  ages,  and 
through  all  nations,  Imlh  been  had  in  the 
highest  delHtalion.  For  however  mankind 
have  differed  in  other  mailers,  they  have  heeti 
in  one  scniiment  concerning  this  crime  and  the 
demeritB  of  it;  as  if  ihev  IibJ  been  all  wit- 
nesses to  the  promulgation  of  the  precept, 
'■  Whnc-ver  sheddelb  man's  blood,  by  man 
shall  bis  blood  be  ihcd." 

But  this  crin:ie,  great  as  it  is,  i«  copsble  of  se- 
veral aggravationb,  arising  from  the  cireuin- 
stanc«s  which  attend  it. 

To  lay  viuleut  hands  upon  a  person  who 
never  gave  bis  murderer  the  least  offence, 
whom  perhaps  he  never  saw  till  tbc  moment  he 
was  marked  out  for  execution  ;  and  to  do  thin 
for  hire,  shens  a  mind  lost,  I  fear,  to  all  the 
iinprt-saioDS  of  humanity. 

fiut  what  then  is  the  case  of  one,  who  can 
procure  all  this  mischief,  and  involve  others  in 
this  )piilt;  especially  if  the  person  In  whom 
the  violence  is  olfered,  isnear  tohita  by  the  ties 
ofblood  or  friendship  ? 

It  istnie,  munleraoftbis  kind  are  not  very 
frequenl ;  and  less  so  in  this  nation  than  in  any 
other.  But  in  the  case  in  wliich  ttiree  of  you 
are  concerned,  they  all  concur. 


Triai  of  Oiarta  While.  [1098 

A  gentleman  of  distiocliM  >■  innrdend  by 
pemos.  who,  in  a  maniter,  were  stcaartnio 
nis  face,  and  bit  only  brother  aidiiq;  and  sbel- 
ting  the  murder.  1  may  (ay  thus  niDeb,  be- 
cause your  country  both  upon  full  etidaMC 

1  will  carry  these  reflection!  im  ftHhrr;  ( 
choose  to  leave  that  part  to  jonr  own  seriona 
consideration, 

I  hope  f  need  not  penuad«  yoo  to  Mplsf 
the  time  you  hate  to  live,  in  maUny  yeur 
peace  with  God  :  1  hope,  I  say,  that  a  WMesf 
your  own  condition  hath  already  put  yoo  bm 
that  work.  And  pray  don't  suffer  yourMlvs 
tobe  diverted  from  it  by  the  Iniiii  in  i  ipiilalii« 
of  mercy  from  the  crown.  His  ma.^y'sli^ 
positioD  to  mercy  is  great;  but  bis  nw  rf 
justice,  and  his  love  to  his  people  isstillgrcaler. 
And  because  I  would  not  mislead  you,  nor  b*i« 
you  deceive  yourselves,  in  a  cose  of  this  im- 
portance, 1  think  it  my  duly  to  deal  fredy  wilt 

I  do  not  see  what  room  any  of  you  haTC  M 
expect  mercy. 

You  who  have  been  the  immediate  aelni 
in  this  affair,  what  hare  you  pleaded  in  nMga- 
tioD  of  your  erime?  One  aayi,  be  ia  a  fa« 
pressed  servant;  and  tha  other,  that  he  wa 
drunk  when  the  fact  was  cmnmitled.  Neilbn 
of  those  excuses  can  anil  yon.  You  beihai- 
dertook  the  murder  for  hire,  rifled  the  geUOie- 
man's  pockets,  and  shared  the  plnnder  beiwcci 
you. 

You  hnd,  perhaps,  no  design  upon  the  gen- 
tleman's life,  till  near  the  time  of  executioa. 
This  is  no  excuse.  It  shews  you  were  resdf 
In  she«l  innocent  blond  at  the  first  call :  Tbit 
you  yielded  In  the  first  temptation.  And  if 
ilruiikeimess  could  be  ailmilled  as  an  excuse 
t'<M  crimes  of  this  nature,  this  would  be  ao 
world  ihenofvirtue  and  sobriety. 

You,  Sir,  who  have  bcenthe  principal  actor  in 
this  affair,  what  have  you  offeteil  for  yourself? 

You  admit,  that  you  eraplayed  a  number  of 
people  tu  seize  your  brother,  here  in  the  heiil 
of  the  city,  and  in  the  face  of  the  luo,  and  to 
carry  bim  on  hoard  the  ship  of  which  you  bid 
then  the  command.  This  is  too  evident  to  be 
denied,  and  lor  thai  reason  only,  I  fear  it  is  ad- 

To  give  some  colour  to  this  unparalleled 
outrage,  you  say,  that  your  brolher  was  dis- 
tracied,  and  that  you  took  him  on  ba«nl  in  or- 
der to  put  him  under  confinement.  Admittiag 
that  ynur  brother  was  distracted,  was  the  place 
you  carried  him  to,  or  the  hands  into  whieb 
you  committed  him,  or  the  treatment  which  be 
met  with  from  tliem  before  he  was  got  abaaid 
the  barge,  at  all  proper  for  bis  casn,  orfit  Ibra 
brother  tu  think  uf  i* 

You  called  Mrs.  Gelhins  to  prove,  that  Ha- 
hony  was  to  have  had  5/.  a  month  ibr  looicDf 
aflerhimat  her  house.  Sheremembeiatiolbiaf 
of  Mabony,  Unt,  had  that  been  proved,  com 
it  at  all  avail  yon  to  say,  that  for  three  watb 
before  the  murder  was  comniitteil,  you  inleiM 
M  faavo  conlised  bim  imder  the  care  o(  dw 


Trial  ofAnnetUy  and  Redding. 


A.  D.  IWi. 


[lOM 


ry  iMn  wbo  now  appears  lo  hate  murdered 

nt 

Inilccd,  you  liave  denieJ  all  cnti 

irder,  or  llie  ImiI  koonleiiKe  of 

lb  been  jiroml  by  three  wiinescei,  (hat  you 

re  in  ibe  c«ck-pit  \r\u\e  llie  murilcr  wsi 

nwiltio^,  and  iiiiKht  bare  bctri]  the  doik 

J  ttrugtfle  la  ihe  cabliin,  the  cry  of  muriler, 

1  yoiir  broiber'i  dying  groaDK,  as  weH  a« 

|y  did. 

Nay, two  «rthem  are  posilire,  llinl  you  itooj 

ilinel  at  ibe  door,  mih  a  drawn  <:iitlM  in 

ar  hanil,  wtiile  ibe  f«ct  wai  commitiini;. 

m  of  ilirm  snyii  llial  yau  deliirred  a  oaodle 

B  tlie  eabbiii,  after  tUe  cry  of  mniitercc"    ' 

I  Ibat  vou,  xnonnlier,  lock«d  tlie  Jooi 

kthe  Ecy  nitli  tmi.    And  it  is  a^rfed 

l4a,  ibat  wlii-n  the  door  was  0|>eiifid  ibe  next 

iMiVi  y""  brother  was  found  ibercui 

ciL 

rhuM  fact*,  nilli  otber  circumnancea, 

Ktg  and  preifiiant  nrrxift  ofyuur  coiicen 

.rauriUr;  unlets  the  rrailil  of  Ih 

lU  be  impeacbed,  which  yoii  hate  not  at- 

ipted  to  du. 

li  was  cbareed  as  a  circumstance  ai[ain<il 

I,  that  ahvr  the  fnct  wta  cominitled,  Maboay 

I  Wbilewrreiunt  sshoraby  yon.    Tfaislikf- 

nywt  d*nied.   But  it  came  out  uf  the  mouth 

tmlness  called  by  yourself,  that  tbey  ivi^ot 

ta  ibvyanl  by  1m*«  from  yuu. 

llnte  iiolhin;!  more  to  du,  E>i:f>ui;  I  proceed 

Iwt  vbicb  the  duty  uf  my  place  obligea  me 


to,  than  to  extiortyi 
iih  Uod  by  a 


all  to  make  your  peace 
^  .  and  hearty  repeuuncc. 

mercy  iiiinfiiiite,aiiiltolbat  wemualleuvt 
rou.  For  ibe  judgment  of  iliis  Court  is, 
*  That  you,  Sainitel  Goodere,  MatlhpH  Ma- 
hoDy.Cbaries  White,  and  June  Williams,  gn 
trfiui  heoce  tn  the  prison  from  wbeiine  yuu 
came  ;  and  from  ibeoce  ynu  shall  be  liil  lu 
the  place  nfeveculinn,  where  yen  shall  se- 
rerally  be  hanged  by  the  neck  till  you  ahail 
be  drod.     And  the  Lord  have  mercy 


rcy  on  yo^^_ 

prisoql^^^l 
e;teout»»^g 


On  Wednesday  Ihe  ISth  of  April  follow 
the  prisoners  Matthew  Habany,  Samuel  (Jond- 
ere,  and  Charles  White,  were  Hcectiled  at 
Bristol,  accordmir  la  ibe  sentence  pronounced 
against  them.  Tbey  all  confessed  the  fact. 
The  body  of  Mahony  is  Uuog  in  chains  near 
the  jilace  where  the  horrid  (act  was  uoroniiKed. 

At  the  same  Court  Charles  Bryan,  Edward 
M'Oaniel,  and  William  Hammon,  were  in- 
dicleil.  trivd  and  convicted,  tor  a  misdeineanor, 
in  Torcibly  assistini^  and  seizing  sir  John  in  tha 
parish  nl  St.  Augustine,  iu  the  said  city  and 
cniioty,  sndcarr>inB;  hiro  on  board  the  baig* 
belongitig  to  llie  lluuy  maunfwar;  and  were 
fined  40f .  each,  lo  be  imprisoDMl  fur  one  year, 
and  then  each  tu  give  securily  for  biit  guud  ba- 
hariour  for  one  year  morr 


r  The  Trial  of  James  Annesley*  and  Joseph  Redding,  at  i 
fc Sessions-House,  in  the  OUI-Bailey,  before  the  Right  Hoi 
'.George  Heathcote,  esq.  Lord  Mayor  of  the  City  of  Londoi 
"the  Hon.  Mr.  Justice  Parker,  the  Hon.  Mr.  Justice  W'righl 
Sir  John  Strange,  knt.  Recorder,  Mr.  Serjeant  Urlln,  atH 
I  others  of  his  Majesty's  Justices  of  Oyer  and  Terminer  for  t 
-  City  of  London,  and  Justices  of  Gaol-Delivery  of  Ncwgal< 
j  holden  for  the  said  City,  and  County  of  Middlesex,  on  Thun 
Pday,  the  1 5th  of  July,  for  the  Murder  of  Thomas  Egglestonft 
45  George  11.  a.  d.   1742. 

■ay,  llie  ilb  ilay  of  June,  17-12,  Mr.  j  aperl  of  the  quality  claimed  by  Mr.  Anni 

I'flMiDK  brought  up  by  the  keeper  uf    let  within  Ihe  bar. 

ml,  and  J'lseph    Redding  (having  I      Proclamalion  being  made  for  aikiKe. 
I  himself  l<i  tube  bis  trial,  pursuant  |      Cterk  of'  Ihe  Arraignt.     James   Anni 
Slfe«  giieh  In  tiie  proieculor'a  snlicilor)  j  bold  up  your  hand.     (Which  he  did.)    Jos 
t,  upau   npplicatiuD  lo  Ihe  Cuurl.  in  re-     Redding,  bold  up  your  hand.    (Which  be  diU 

— — — Vnu  Hand  inilicled  iu  the  county  ol'  MidllH 

Thii  is  the  person  that  claimeil  the  title  |  nex,  by  the  names  of  Jomci  Aiinesley,  lale^l- 
Mlalenf  the  eailnf  Angle>ea:  and  had  the  1  Siaines,  io  the  county  uf  MiiidlcM!]!,  labuuMl^fl 
J  in  Ireland,  relating  to  part  of  the  latter,     and  Joseph  Redding,  late  u f  Ibe  stmo.Uhourir 


i>vKtiber,  IT'lS,  and  nicovered  it     Fannii'     fbr  that  you,  not  lining  God  before  y' 
he  1  but  being  inoiail  and  swluceil  by  Ibe 'it 


1095] 


15  GEORGE  IL 


Trial  qfAnnedey  andSeddingf 


[109B 


of  the  de?U,  oo  the  1st  day  of  May,  in  the  16th 
year  of  bis  present  majesty's  reign,  with  force 
and  arms  at  the  parish  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  Thomas  Ej^glestone, 
in  the  peace  of  God,  and  our  said  lord  the  king, 
then  and;  there  bein^,  felon iousiy,  wilfolly, 
and  of  your  malice  atorethooght,  did  make  an 
assault ;  and  that  you  the  said  James  Annesley , 
urith  a  certain  gun  of  the  ?alue  of  5i.  then  aud 
there,  heing  charged  with  [K>wder  and  leaden 
shot,  which  gun  you  the  said  James  then  and 
there  had,  and  held  in  both  your  hands  to 
and  agaiuht  the  said  Thomas  Egglestone,  then 
and  there,  feloniously,  wilfully,  and  of  your 
malice  aforethought',  did  discharge  and  shoot 
off;  you  the  said  James  Annesley,  then  and 
there,  well  knowing  the  said  gun  to  have  been 
charged  as  aforesaid  ;  and  you  the  said  James 
AnuMJey,  with  the  leaden  shot  aforesaid,  then 
and  there  discharged  and  shot  out  of  the  said 
gun,  by  force  of  ue  gun-powder  as  aforesaid, 
him  the  said  Thomas  Egglestoue,  in  and  uj)on 
the  left  side  of  the  belly  of  the  said  Thomas, 
then  and  there,  feloniously,  wilfully,  and  of 
your  malice  aroi'ethought,'did  strike  and  pe- 
netrate, giving  to  him  the  said  Thomas  Eggle- 
stone  then  and  there,  with  the  said  leaden  shot 
so  as  aforesaid  discharged  aud  bliol,  in  and  upou 
the  left  side  of  the  belly  of  the  said  Thomas 
Eggflestone  one  mortal  wound,  of  the  breadth 
of  one  inch,  and  of  the  depth  of  four  inches,  of 
which  said  mortal  wound  the  aforesaid  Thomss 
Egglestone  then  aud  there  instantly  died;  and 
that  you  the  said  Joseph  Reddinp^,  at  the  time 
of  committing  of  the  felony  and  murder  afore- 
said, feloniously,  wilfully,  and  of  your  malice 
aforethought,  was  present,  aiding,  alH>ttin)jr. 
assisting,  comforting,  and  maintaiuiufir  the  said 
James  Annesley  to  kill  and  murder  the  afore- 
said Thomas  Egt^lcstone  in  ibrni  aforesaid ; 
and  so  you  the  said  James  Annesley  and  Jo- 
seph Ue<ldiug,  him  the  aforesaid  Thomas 
E^j^v-lestone  in  manner  and  form  aforesaid,  fe- 
loniously, wilfully,  and  of  your  malice  afore- 
thou&^hu  did  kill  and  murder,  against  the  peace 
of  our  loril  the  king,  his  crown  and  dimity. 

How  say  you,  James  Annesley,  are  you 
Guilty  of  tfiis'ftlony  and  murder  whereof  you 
stand  indicted,  or  Not  Guilty  P 

Ati'iesU^/.  3Iy  lord,  I  ohservc  that  I  am  in- 
dictetl  by  tho  name  of  James  AnncKley,  la- 
bouror,  the  lowest  addition  my  onomics  "c^uld 
possibly  make  use  of;  but  though  1  claim  to  be 
earl  of  Anjriosea,  and  a  peer  of  this  realm,  I 
suiimit  to  plead  Not  Guilty  to  this  indictment, 
and  put  myself  immediately  upon  my  country, 
conscious  of  my  owu  innocence,  and  impatient 
to  he  acquitted  even  of  the  imputation  of  a 
criu)e  fio  unhecoming  the  di(>^nily  1  (Jaim. 

Clerk.  How  Kay  you,  Joseph  Krddinc,  are 
you  Guilty  of  this  felony  and  murder  whereof 
you  stand  indiited.or  Not  Guilty  ? 

Riddinfi.    Not  Guilty. 

Clerk.    Gulprit,  how  will  you  be  tried  ? 

Htddin^,  By  God  and  my  country. 

Cl*'rk  James  Aihk  bley,  Hcdd  up  your  hflnd. 
Joseph  Redding,   hold    up  3  our  hand ;   you 


stand  likewise  charged,  apon  the  eoraiier's  n- 
qnisition,  by  the  names  of  James  Annesler,  late 
of  the  parish  of  Staines,  in  the  coun^  of  MM- 
dle!ex,gent.  and  Joseph  Redding,  onbe  pariA 
and  county  aforesaid,  yeoman ;  for  that  jon  00 
the  1st  day  of  May,  in  the  year  aforesaid,  Gsi 
not  hafing  before  your  eyes,  hot  being  moved 
and  seduc^  by  the  instigation  of  the  de? il,  witk 
force  and  arms,  at  the  parish  aforesaid,  in  the 
county  aibresaid,  in  and  upon  Thomas  Enl^ 
stone,  in  the  peace  of  God,  and  our  said  M 
the  king,  then  and  there  being,  fekmioarijr, 
wilfully,  and  of  your  malice  aforethought,  M 
make  an  assault ;  and  that  you  the  said  Jamn 
Annesley,  a  certain  gun,  of  the  value  of  5f. 
then  and  there  charged  with  gunpowder  tad 
small  leaden  shot,  at  and  against  the  aforesaid 
Thomas  Egglestone,  feloniously,  wilfully,  sad 
of  your  malice  aforethought,  did  discharge  and 
shoot  ofl*,  and  him  the  said  Thomas  Eg^gMStose 
with  the  said  small  leaden  shot  out  of  the  nid 
gun,  by  force  of  the  said  gnnpnwder  dischaiffd 
as  aforesaid,  in  and  U|K)n  theleilsideof  thebellj 
of  him  the  said  Thomas  Egglestone,  neartM 
liip-hone,  then  and  there  feloniously,  wilfnllyi 
aiul  of  vonr  malice  aforethought  did  strike,  ffii- 
iug  unto  him  the  said  Thomas  Egglestone,  then 
and  there,  with  the  small  shot  aibresaid,  so  ai 
aforesaid  discharged,  in  and  upon  the  said  left 
side  of  the  belly  of  him  the  said  Thomas  Eggfe- 
stone,  near  the  hip-bone,  one  mortal  wound  of 
the  breadth  of  two  inches,  aud  the  depth  of  tm 
inches,  of  which  said  mortal  wound  he  the  said 
Thomas  Egi^lcstone  then  and  there  instantly 
died ;  and  for  that  you  the  said  Joseph  Red- 
din:;,  at  the  time  of  the  felony  aud  murder 
aforesaid,  in  form  aforesaid  done  and  commit* 
ted,  feloniously,  wilfully,  and  of  your  malic* 
aforethought,  was  present,  aiding,  abetting,  as- 
sisting, comforting,  and  maintaining  the  said 
James  Annesle}',  him  the  said  Thomas  Ecfgle- 
stone,  in  form  aforesaid,  to  kill  and  murder; 
and  so  you  the  said  James  Aniiesley  and  Jo- 
seph Ked(lin«r,  the  said  Thomas  £gglestiHie,iD 
matmer  aud  form  aforesaiil,  feloniously,  wil- 
fully, and  of  your  malice  aforcthtiught,  did  kill 
and  muiiler,  against  the  peace  of  our  said  lord 
the  king,  his  crown  and  diguii}*. 

How  say  you,  James  Annesley,  are  you 
Guilty  of  this  felony  and  murder,  or  Not 
Guilty  ? — Annesley,  Not  Guilty. 

Clerk.    Culprit,  lu»w  will  you  he  tried  ? 

Annesley.    By  God  and  my  country*. 

Clerk.  How  say  yon,  Joseph  Redding,  ara 
vou  Guiltyof  the  said  felony  and  murder,  or 
Nfii  Guilty  T—Htddin^.  Not  Guilty. 

Clerk.    Culprit,  how  will  you  be  tried  ? 

lledJitii;.    \\\  God  and  my  country. 

CUrk.  Juines  Annesley,  hold  up  your  band. 
You  Mand  a!so  indicted  in  the  county  of  Mid- 
dlesex, hy  the  name  of  Jumes  Annesley,  late  of 
the  parish  of  Siaiucs,  in  the  county  of  Middle- 
sex, lahmirer ;  for  that  you,  not  regarding  ths 
lat»s  and  stuiuies  tif  this  realm,  nor  the  paiM 
and  p'/zialtU'H  tiieri'in  contained,  after  the  firit 
day  o  iJuiir,  l7'2a,  «ii  wit,  the  first  day  of  Mafi 
in  the  I6ih  yi>t»-  ot  tie  reign  of  our  fOfcrrigi 


nm 


for  the  Murder  of  Thomas  EggleHone. 


A.  D.  1742. 


[lOOB 


tthe  second,  now  kin^  of  Great  Bri- 
vhh  force  and  arms  at  the  parish 
I  the  county  aforesaid,  with  a  oer- 
»aded  with  gfonpowder  and  leaden 
you  in  both  your  hands,  then  and 
ad  held,  wii fully,  maliciously  and 
did  shoot  at  one  Thomas  EcfgW* 
St  the  form  of  the  stdtute  iu  such 
ind  nruvided,  and  against  the  peace 
;he  King,  his  crown  and  dignity. 
'  you,  James  Annesley,  arc  you 
is  felony  whereof  yon  stand  indict- 
Juilty  ? — Annesley,  Not  Guilty, 
ulprit,  bow  will  you  be  tried  f 

By  God  and  my  country, 
jlod  send  you  a  good  dellrerance. 


ha?e  been  arraigned,  and  tbereanto  pleaded 
Nbt  Guilty,  and  for  their  trial  have  pnt  tbem- 
aekes  upon  their  country,  which  country  3*00 
are :  your  charge  is  to  enquire,  &c. 

BIr.  Brown.  My  lord,  and  you  genilemep 
of  the  jury,  this  is  an  indictment  for  murder. 
Tlie  indictment  seta  forth  that  James  Annesley 
and  Joseph  Redding  did  make  an  assault  with 
a  gun  on  the  body  of  one  Thomas  Egglestone; 
and  that  the  prisoner  Annesley  did  discharge 
the  said  gun  against  the  left  side  of  the  said 
Thomas  Eipilestoue,  and  did  make  a  wound 
on  the  left  side  of  the  belly  of  the  said  Thomas 
£ggle8tone,  of  which  he  mstantly  died ;  and 
that  tlie  said  Joseph  Redding  was  aiding  and 


assisting  the  said  Jamei  Annesley  to  murder 
odants  being  thus  arraigned,  the  the  said  Thomas  Egglettone.  Gentlemen,  it' 
ht  the  day  too  far  spent  to  proceed     we  prove  our  charge^  1  hope  you  will  find  the 

prisoners  Guilty. 


so  much  expectation,  and  therefore 
)  come  on  the  next  morning ;  but 
for  the  prosecutor  alleging  they 
:iend  the  next  day,  and  desiring  to 
trial  to  this  present  sessions,  the 
pleased  to  indulge  them,  upon  their 
hat  the  defendants  should  be  ad- 
il. 

on  Mr.  Annesley  was  ordered  to 
ireties  in  250/.  each,  and  Joseph 
ir  in  50/.  each  ;  and  this  being  done 
ey  were  both  immediately  set  at 

« 

esday,  the  11th  day  of  JnW,  1742, 
or's  counsel  moved,  that  the  trial 

on  the  next  day,  which,  by  con- 
defendant's  sohcitor,  was  ordered 
;  notwithstanding  which,  the  next 
he  two  defendants  had  surrendered 

and  were  ready  with  their  wit- 
»ro9ecutor  moved  to  jiut  the  trial  off 
lay ;  but  not  alleging  any  sufii- 
)  for  the  delay,  the  Court  were 
irect  the  trial  to  go  on. 
;ly  the  defendants  were  again  ar- 
I  pleaded  as  at  the  last  sessions,  and 
no  challenges  to  the  jury, 
.viug  gentlemen  were  impunnelled 

JURT. 

»  Robert  Ilarrop, 

nmps.  Win.  Duck, 

»lils,  Wni.  Boucher, 

w  Edmund  Siowell, 

vlins,  Tho.  Whitrhead, 

rich,  Francis  Tredgold. 

f  any  one  can  inform  my  lords  the 

inies  Anneblcy,  hold  up  your  hand. 

eddiog,  hold  tip  your  hand. 

he  jtiry,  look  upon  the  prisoners, 

I  to  tlieir  charge. 

lid  indicted  by  the  names  of  James 

itc  of  StainoH,  in  the  county  of  Mid- 

urer,  and  Joseph   Redding  of  die 

rer ;    for  that  they,  •Sec.  (as  in  the 

I,  and  upon  these  iudictmeots  llibjf 


Serj.   Gapper,     Gentlemen,  the  prisoners 
stand  indicted  for  the  murder  of  Thomas  Eg- 
glestone ;  James  Annesley  was  the  person  who 
killed  the  said  Thomas  Egglestone,  and  Jose|)h 
Redding  be  was  aiding;  abetting  and  assisting 
in  the  murder,  and  so  they  are  both  gnitty  of 
felony  and  muider.    And,  gentlemen,  there  is 
an  act  of  parliament  made  in  the  9th  year  of 
his  late  majesty  king  George  1,  that  if  any 
person  does  wilfully  shoot  at  another,  it  is  fe- 
lony without  benetit  of  clergy.     Gentlemen, 
the  case  is  thus :  On  Saturday  the  first  of  May, 
Thomas  Egglestone,  the  deceased,  and  his  sea 
were  going  to  fish,  at  a  place  called  the  Bloor, 
near  Staines ;    they  had  a  casting-net,  and 
there  was  a  string  which  belongs  to  the  net, 
and  this  striug  was  alwut  the  decetMd's  r^t 
arm :    tiicy  were  fishing  in  a  miuinw  Mong- 
ing  to  one  Sylvester ;  and  as  Ifccf  were  fishing 
towards  the  north  of  the 
ceased,  seeing  the  prisoner^ 
back  again ;    and  as  tbcj 
again,  instantly  cameaplfcr 
Redding,  and  seized   oe 
shoulder,  and  demanded  Ai 
ceased  cast  the  net 
on  his  right  hand ; 
prisoner,  Annesley, 
and  swore  at  tlie 
you,  surrender,  or 


?i 


pointed  the  gun 
liefbre  a  wwdaf  ij§fc 


force  of  the 

thed 

his  band 

whatbafeiv 

im 

took  a 

of  the  Ml; 

tniVBd 

YevMKf 


•rtew-,r.i 

■d  sh'.l  in* 
»  sb'j;  ipf ' 
bor.'r:    ^  ^ 


the  de- 

aod  werrf 
geirig  l»ack 

J<iS#. 

by    t'.t 
;  fcot  fliV'  <^^ 
er,  tihicii  w:.* 

op    th«r  r\z»' 

in  hif  :ir 
d  IT  *? 

8    ff-   * 


*4    ' 


.*  ■• 


1099J 


15  GEORGE  II. 


Trial  ofAnneiley  and  Reddiagf 


[iin 


they  were  on  the  other  side  of  the  rirer,  about 
160  yardi  from  the  place  where  the  accident 
happened;  they  heard  a  gun  tired,  and  the 
young  man  cry  out  that  his  father  was  killed ; 
•nd  when  they  came  to  the  rifer-side,  he  bad 
dragged  the  net  out  of  the  rirer ;  upon  this 
they  crossed  orer,  and  found  the  man  dead,  or 
to  bad  that  he  could  not  live,  and  thereupon 
directed  the  son  to  go  and  fetch  Mr.  Cole,  a 
suigeon  at  Staines :  he  went  accordingly  to 
Mr.  Cole,  and  desired  him  to  come  along  with 
him,  for  his  father  was  shot,  and  he  believed 
he  was  dead.  "Why,  says  Mr.  Cole,  if  he  is 
dead,  it  does  not  signify  my  coming ;  1  can  do 
hhn  no  good :  so  then  the  young  roan  went  to 
Mr.  Russel,  a  constable  at  Staines.  But  1 
should  tell  you,  gentlemen,  that  as  soon  as  the 
prisoners  saw  these  three  persons,  Fisher, 
Bettesworth  and  Bowles,  coming  towards  the 
river,  they  ran  away.  Afterwards  Russel,  the 
constable,  and  some  other  persons  coming  up, 
they  thought  proper  to  pursue  the  murderers : 
accordingly  they  went  to  a  farm-house,  where 
Annesley  and  Redding  used  sometimes  to 
lodce,  and  there  they  found  Aimesley,  and  ap- 

Erehendcd  him,  and  sent  him  to  tlie  round- 
ouse  at  Staines:  Redding  could  nercr  be 
found  ;  but  he  has  surrendered  himself  sinco, 
in  order  to  take  his  trial.  The  prisoner  Annes- 
ley was  carrie<l  before  a  justice  of  the  peace,  I 
think  sir  Thomas  Reynell ;  he  was  carried  to 
nounslow,and  from  thence  to  Lalfeham ;  what 
that  enmination  was,  I  cannot  tell.  They 
made  application  to  this  youug  man  to  be  fa- 
vourable, and  not  to  carry  on  the  prosecution : 
says  ho.  Gentlemen,  I  will  not  sell  my  father's 
blood.  This,  gentlemen,  is  the  nature  of  the 
case ;  aud  if  we  prove  otir  charge,  that  they 
have  been  guilty  of  murder,  gentlemen,  you 
will  tiudtbem  Guilty. 

John  E^glestont  sworn. 
Serj.  Capper,  Give  an  account  of  what  3'ou 
know  of  this  matter,  and  speak  the  truth. 
J.  Eggli'ttone.  An't  please  you,  my  lord,  on 

$uitnrday  the  first  of  May 

Sen,  Capper.  Speak  slow  and  deliberately, 
that  the  Court  and  tne  jury  may  hear  you. 

J,  Egglcstone,  .4n't  please  you,  my  lord,  on 
Satunlay  the  first  of  May  last,  I  and  my  father 
were  gomg[  up  Staines  river,  to  catch  a  dish  of 
fish  in  Staines  moor,  in  the  parish  of  Staines, 
with  a  casting-net ;  we  fished  all  the  way  up, 
till  we  came  to  this  pound. 

Serj.  Capper.  In  whose  possession  was  the 
ground  ? 

J.  Ei^gUstone,  It  was  one  Mr.  Samuel  Syl- 
vester's meadow  ;  wi*  were  turning  back 
again,  an't  p!ease  you,  my  lord,  in  order  to  tjfo 
home  ;  my  father,  he  carried  the  net  uj>on  his 
aim,  and  the  string  was  fastened  to  his  arm. 

Serj.  Canpfr.  Well,  as  you  were  coming 
back  from  tl^hing,  what  happened  then  ? 

J.  Egglestonc.  By  that  time  we  had  got 
half-way  in  the  meadow,  we  saw  Joseph  Red- 
ding and  Mr.  Annesley  running,  and  Joseph 
Redding  out- run  Mr.  Annesley,  and  cane  up 
U  my  father  first. 


was  the  got  ti 


Seri.  Capper.  When  they  came  up^  sbl 
was  the  first  thing  they  did  r 

J.  Egglcstone.  Redding  took  my  ftthoky 
the  collar,  and  demanded  uie  net,  and  be » 
fused  to  deliver  the  net. 

Court.  Did  you  see  him  takebimbythi 
collar  ? — J.  Egglcstone.  Yes,  my  \oti. 

Serj.  Capper.  What  became  of  the  o(tifi» 
wards  P 

J.  Egglcstone.  My  father  threw  it  iitotk 
river. 

Serj.  Capper.  How  far  were  you  fm  thi 
river  then  r 

/.  Egglcstone.  I  was  about  two  yardsfiM 
the  river.  After  the  net  was  thrown  into  tki 
river,  Annesley  came  up  with  his  yua,  wi 
swore,  God  damn  your  blood,  deliver  yoor  Ml, 
or  you  are  a  dead  man  ;  and  he  fired  off  bdbe 
he  received  any  answer  from  my  father. 

Serj.  Capper.  In  what  manner  did  Aaaed^ 
hold  his  gun  ? 

J.  Egglcstone.     In  this  manner.    [Poisliif 
the   gun  straici[ht  forward,  holding  it 
breast-high,  stooping  a  little.] 
Serj.  Capper »     liow  near 
your  father  when  he  fired  it  ? 

J.  Egglcstone,  It  was  close  to  my  fatiMi^ 
side ;  he  put  the  ^un  between  ReddinjrandBj 
father,  and  shot  directly  into  his  lefl  side,  Iwr^ 
(holding  his  hand  to  his  hip)  he  bad  a  phk 
button  there,  which  was  bruised  to  pim; 
then  my  father  said,  You  rogue,  what  han 
you  done  ?  I  am  a  dead  man ;  and  dmpfii 
immediately. 

Serj.  Capper.  What  did  Annesley  sayte- 
fore  he  fired  ? 

J.  Egglcstone.  He  swore,  if  he  did  DOtd^ 
liver  the  net,  lie  was  a  dead  man;  aodtiua 
fired  immediately. 

Serj.  Capper.  What  did  you  do  afler  joa 
heard  your  futlier  say  he  was  a  dead  mum  ? 

J.  Egglcstone.  1  took  a  knife  out  of  my 
pocket  to  cut  the  string  of  the  net :  and  Aod^- 
ley  said,  You  rogue,  1  will  knock  out  jonr 
brains  too ;  and  held  up  the  butt  end  of  hit 
gun ;  upon  that  I  jumped  into  the  stream,  aod 
cut  the  strini;,  and  drew  the  net  over  to  tbe 
other  side  ol  the  river :  then  says  AoDeslev, 
The  rogue  has  gut  the  net,  let  us  go  oa  the 
other  side  after  him. 

Serj.  Capper.  Who  did  you  see  when  jos 
came  on  the  otlicr  side  of  the  river  ? 

J.  Egglcstone.  I  saw  John  Betteswortli, 
John  Fisher,  and  John  Bowles  ;  and  wben^o* 
nesley  and  Redding  saw  these  three  men,  they 
ran  away  directly. 

Serj.  Capper.  How  near  were  Bettesirordi, 
Fisher  and  Bowles  to  you,  before  AnnesWy  aud 
Redding  ran  away. 

J.  Egglcstone.  As  sopn  as  1  got  on  tbe  other 
side  of  the  river,  they  saw  these  tlirec  men 
coming,  and  then  they  ran  away ;  and  Bettff" 
worth,  Fisher,  and  Bowles,  came  through  iht 
river  to  the  side  where  my  father  ky  deiij 
they  came  from  one  side  to  the  other, 
sen.  Oapper.  What  did  you  do  ihmf  .  , 
J.£gglatmi€.  Thty  bid  Be  get  a  MPfNii 


•1 


w 


Murder  if  Tfiomai  E^ghslonc. 


A.  D.  1742. 


t  Clittttes  Cole, 


lurgeoD  at 


r.     Wben  vou  came  to  Staines, 
illi  Cole  ? 

re.    Yfsi    tni  I  tolil  him  my 

t,  tnil  i  believed  he  wu  ilmil,  ot 

e  never  came  near  my  I'lther; 

Kusael  ttir  coustahle,  auil  he 

nsmeu  willi  liim,  anil  went  to  old 

houie  >t  Yeoieney  f«nn,  to 

an  that  killed  my  fitlier ;  we 

.11  ruu[i'I.  and  found  J  nines  An- 

How  long  nere  yoa  tbere 

I  was  lliere  about  a  quarter  of 
KtUe  III  ore. 
■.    Were  you  present  then  f 
e.  Yes,  I  WBi  there  all  llie  lime : 
le  you,  my  lord,  tliey  polled  hiu 

'.  Where  was  he  hid  f 

e.  Me  was  hid  in  a  place  which 
ftwl  from  the  ground,  wliere  lliey 
•ail  any  aort  of  iuiober ;  it  is  a 
~  er  the  waslihouEc; 

makes  raediciues  fur 

la  there  r  chimney  io  il  ? 
~^f.  I  ito  not  know. 

Wai  he  Blandin);  op  or  lyiog 

*as  lie.  when  he  was  found? 

.    t  do  nnt  knotr  ;  lor  1  did  not 

ic  was  palled  down:  he  was  car- 

"r  into  Ihe  yard,   and  sal  there 

:  of  an  hour,  and  Ihen  was  put 

Bhal  brought  up  my  father,  and 
lb«  round  house  al  Slainet. 
This  is  all  you  knot* ;  is  it 

An't  pictse  you,  my  lord,  I 
great  deal  more. 
"•-  Who  pulled  him  down  ? 
\e.  1  do  not  know. 
-.    Wb*  this  If  ouad  the  occasion 
I  detih  f 


Voi,i 
Goon 


"  ^7  y« 


lay  in  ihe  round-house  all 

ICxt  day  Anneiley,  the  prisoner, 

10  e  justice  at  llouoslow ; 

Ubc  Kercher  there,  who 

Im(  Hoc  Kei'cher  laid  ia  no  evi- 
'iBfrisoner^, 

We  wilt  lei  this  alone  •  lilile. 
yan  prete  he  was  any  ways 
M  •gent  by  the  prisoner  J 
r.    1  belie*e  we  can. 
ihtjury.  My  lord,  please  to  ask 
'       was  no  quarrel,  bustle,  or 
I   Annnlay,  Redding,  and 
I'm  the  gun  weui  nH'. 
.  There  wa*  no  ijoarrel  or  jost- 
rer  gair  him  an  ill  word. 


iX: 


/.  Eggleitone.  No,  no  reslHlance  al  all. 

Q.  Was  there  no  Jostling,  nor  miy  thing  ela« 

J.  EggUito'K.  Yes  :  Bedding  took  my  fa* 
tber  by  (he  collar,  and  Anuesley  cam«  up  in 
the  mean  lime. 

Court.  What  happened  between  your  falbet    ' 
and  Redtling  bel'ore  Anneiley  came  up? 

J.  E^gtesiont.  He  demsnded  bis  net. 

Court.    I  Ifaoughl  you  said  there  was  (Oiiie 

J.  EggUtlarif.  No  other  jostling  than  laying 
his  hand  upon  my  father's  collnr  ;  hut  my  fa- 
ther oeier  laid  his  hand  upon  him. 

Mr.  Bruien.  Hoiv  near  were  you  when 
iteildiiig'  laid  his  hand  upon  your  fallierf 

J.  Ef!gleilone.    Aliouta  yard  and  an  half  off. 

Mr.iJruii:n.  Y'ou  say  he  shot  off  the  gun  ;  I 
ask  you  wliat  you  mean  by  shooling  offihe  gun? 

X  Eggletlonr.  Why  he  fired  the  gun  to 
shoot  myfalher. 

Mr.  Broirn.  What  do  you  mean  by  sbooting 
off  the  gun  ? 

J,  Egglfstone.  Hecamcupdirectly,as  irhs 
was  going  to  shoot  a  dog. 

Mr.  Broan.  Did  you  see  him  draw  the  trig- 
ger of  tbe  gun  f 

'   "     Ustone,     No,  I  did  not. 

•n.     Was  Ihe  gim  cocked  belbre  \m 
came  up  .'—J.  EggUslane.     I  do  uot  know. 

U.     Did  nol  yuu  say  that  il  was  ? 

J-  EggUstonc.     I  do  not  know  IhHt  I  did. 

Mr.  Broan.  Pray,  was  any  body  prncnt  it 
the  lime  t 

J.  Eggldiont.  There  was  nobody  near  but 
Betleswurih,  Fisher,  and  Bowles ;  uor  nnbody 

Mr.  Brown.    Did  Ihe  prisoner  offer  you  any 
money.' 
J.  EggUitont.    \ei,  he  offered  to  settle  SOf. 

Mr.  Brotsn.     Where  wa«  Ihis  T 

J.  Egglafotie.  When  I  was  at  Lalchlln, 
the  next  day  after  my  father's  death. 

Serj.  Capper.     How  came  you  there  ? 

J.  Egelalone.  We  went  to  a  jnstice's  at 
Brentford;  but  he  not  being  at  home,  we  pnt 
up  at  the  Ited  Lion  there  ;  and  while  we  were 
there,  sir  Thomas  Reynell  came  in,  and  order- 
ed us  to  go  to  Laleham  ;  accordingly  we  went 
10  one  Mr.  [jee's,  into  ft  little  room,  aud  there 
was  Jack  Lane,  Mrs.  Chester,  and  the  prisoner : 
young  John  Lane  offered  uie  ]00/.  a-year;  but 
the  prisoner  said  he  could  nol  settle  ldo'.s>year 
upon  me,  lor  he  had  more  to  du  lor ;  but  he  said 
lie  woulJ  settle  50/.  a-yc»r  oo  me.  This  was 
said  in  the  presence  of  the  prisoner. 

klr.  Brott'n.  Did  he  mention  what  he  would 
give  vou  50/.  ayear  for? 

/.  Egglfiione,  Because  I  should  not  come 
in  as  an  evidence  acainst  him. 

Serj.  Capper.  What  is  Ihe  rcMon  you  did 
nol  comply  with  this  offer  ? 

/.  EggleHoat.    I  told  them,  1  would  not  sell 

ray  father's  blood  at  any  I'ale.     [The  counsel 

tor  the  prosecutor  having  datM  ■ii\\Vk  v\Cuk  wV.-.    . 

I,  Iw  wMWWiS-e»TO\n«A«aX*fto*^^ 


1105] 


15  GEORGE  II. 


Trud  ofAnuedejf  aud  Reddiiigt 


[UM 


Q.  Pray,  in  what,nianner  did  Mr.  Aunesley, 
ileddiog,  and  your  fatber  stand,  when  this  ac- 
cident happened  ? 

J.  Eggleitone.  Reddinff  stood  between  An- 
oe^ley  and  my  fatber,  and  had  bioi  hold  by  the 
collar. 

Q,  Do  you  know  William  Duffel,  and  had 
not  you  some  talk  witli  him  ab«mt  the  manner 
of  your  father's  death  ? 

J.  Egglestone.  No,  I  neyer  saw  him,  oor 
had  any  talk  with  him. 

Q.  Had  you  any  conversation  with  one  John 
Dalton  at  Laleham,  where  you  say  you  were 
offered  that  money  ? 

J.  Egglestone,  I  came  out  of  the  room  to 
ask  him,  whether  I  should  take  the  money  or 
not ;  for  he  said  1  had  better  take  the  money, 
and  not  hangf  the  man. 

Q,  Then  you  said  nothing  at  that  time  about 
the  manner  m  which  your  father  was  killed  ? 

J.  Egglestone,  No,  Sir. 

Q.  You  say  you  stood  by,  and  saw  Mr. 
Annesley  point  the  gun  to  your  ^ther  :  did  you 
^ee  him  cock  the  gun  ? 

J.  Egglestone.  I  did  not  see  him  cock  it ; 
the  gun  was  cocked  when  he  came  up  to  my 
father. 

Q.  Do  vou  know  one  Giffard  ? 

J.  Egglestone  Yes. 

Q.  Vvlien  did  you  come  to  he  first  acquainted 
with  him ;  before  ur  since  your  fatlier'^  death  ? 

J.  Egflestone,  After  my  father  was  killed. 

Q.  DiJ  not  you  meet  with  him  at  Staines? 

J.  Egglestone.  Yes,  1  believe  I  did>. 

Q,  Did  you  ever  see  him  ther^  before  ? 

J.  Egglestone.  No,  never. 

Q,  ijid  you  give  him  any  orders  or  authority 
to  prosecute  upou  the  account  of  your  father's 
death  ? — J.  Eaghstone.  No. 

Q,  Do  you  know  one  Williams  ? 

J.  Egglestone.  Yes. 

Q.  Where  does  he  live  ? 

J.  Egglestone,  He  keeps  tbe  White  H 01*56 
in  Piccadilly. 

Q.  How  did  you  come  acquainted  with  him  ? 

J.  Egglestone,  He  came  to  Staines,  and  sent 
for  me. 

Q.  What  did  he  want  with  you,  wheu  he 
sent  for  you  ? 

.   J.  EggUUone.  I  don't  know  ;  I  went  to  live 
with  biui  as  a  servant. 

Q,  What  business  were  you  of,  when  your 
father  died  ? 

J.  Egglestone.  1  worked  with  my  father  as  a 
carpenter. 

Q.  If  you  were  brouglit  up  a  carpenter,  how 
came  Williams  to  find  you  out  for  a  servant  ? 

J.  Egglestone,  1  can't  tell. 

Q.  (luw  long  have  you  live<l  with  him  ? 

J.  Egglestone.  Ever  since  my  father's  death, 
and  1  live  with  him  now. 

Q.  Havc  you  not  seen  my  lord  Anglesea  at 
Williams's  ? 

[H^re  the  Court  interposed,  and  Hud  the 
question  was  improper.] 

Q.  You  say  you  ore  WiiUama'a  aartaaii 
bMwe  yoa  not  liuicd  with  hin  al  UttMrf 


J'  Egglestone.  Yes. 

Q,  Do  vou  dine  at  his  table  now  t 

J.  Egglestone.  No,  I  am  hisservoDt 

Q.  Do  you  know  the  rcatoo  why  ym  vm 
sent  from  dining  at  his  table  to  draw  ftieer? 

J.  Egglestone.  No,  Sir. 

Q.  Do  yon  know  one  Paul  Keating? 

J.  Egglestone.  Yes. 

Q.  Do  you  know  any  thing  of  a  Bflli  b( 
drew  for  you  at  the  Oxford  arms  ? 

J.  Egglestone.  He  did  draw  something  of  i 
note,  but  [  tore  it. 

Q.  What  made  you  tear  the  note  ? 

J'  Egglestone,  Because  1  did  not  liks  hii 
proceedings. 

Q.  W|iat  were  the  proceediogi  that  jn  id 
not  like  ? 

J.  Egglestone.  I  do  not  know ;  I  did  Mt 
understand  them. 

Q.  W^hy,  did  not  you  read  tbe  note  bdbrc 
you  tore  it  ? — /.  Egglestone,  No,  1  did  bm. 

Q.  How  came  toe  DOte  to  be  wrote?  N 
he  say  nothing  to  yon  aboat  writing  of  i  Mk 
before  he  wrote  it  ? 

J,  Egglestone,  Nothing  at  all ;  but  be  d^ 
sired  me  to  copy  it. 

Q,  What  did  he  sav  to  you  when  he  kmd 
you  to  copy  the  note? 

J.  Egglestone,  Nothing;  it  lay  ipoa  ik 
table,  and  1  tore  it« 

Q,  What  did  you  tear  it  for,  if  yon  hid  m 
read  it  ? 

J.  Egglestone,  Because  it  was  about  th^p 
that  1  did  not  know  what  they  were. 

Q.  Did  not  he  desire  you  to  copy  tbe  Mil - 

J.  Egglestone  Yes. 

(2.  \V  hat  did  he  say  then  ? 

J.  Egglestone.  1  cannot  tell  what  be  wi 

Q.  Were  you  ever  at  New-prison  to  see  Mr. 
Annesley  ? — J.  Egglestone,  Yes. 

Q.  W  hat  did  you  go  lor  ? 

J.  Egglestone,  I  cannot  tell. 

Q.  1  ask  you  what  you  went  for  ? 

J.  Egglestone,  1  went  for  my  own  ftoey. 

Q,  Did  you  not  send  np  word  to  bish  jfW 
were  sure  he  would  be  glad  to  sec  you  ? 

J.  Egglestone.  I  l>ertbve  I  might. 

Q.  What  was  the  reason  for  which  jm 
thought  l\Ir.  Annesley  would  be  glad  to  see }N* 

J.  Egglestone,  I  cannot  tell ;  1  was  wuiiB; 
to  see  him. 

Q,  Did  you  never,  iu  speaking  of  ;«> 
father's  death,  say  that  it  was  done  acdwB 
tally  ?  ] 

J,  Eggkstone,  J  do  not  know  that  I  did. 

Q.  Did  you  never  sav  to  Keating,  that  J<b 
were  to  have  SOO/.  or  had  a  promise,  or  ilui  ; 
you  were  to  have  security,  and  from  whon? 

J.  Egglestone,  No,  Sir,  1  never  did. 

Q.    Did  you  ^ive  the  same  account,  wilhi^ 
spect  to  the  holding  of  the  gun,  as  vou  do  Wt  ■ 
before  the  coroner's  inquest,  and  ^^^^^\ 
justice  ?— J.  Eggle$ton§^  Yes,  I  am  sua  1  d>>  ■ 

Q,  Did  not  you  give  two  aooounts  bslifi^ 
conMMH^aiaqucst;  partat  onatiiM^aBd  « 
ooL.  mmI  thin  mMuidar  wha«  jw  ~^ 


JtiT  tkt  Murder  of  Thonuu  EggUaone. 


id  you  iMTer  njr  lliRt  the  bait  «n<l  of 

na  up  to  his  tlioulilcr,  »ud  tha  muzzk 

awnirard? 

iltitone.  No,  f  did  not. 

1  youneierny  any  tbiagrtoany  boily 

loner  of  Mr.  AoDetley'i  ilntwio:;  oue 

t  back  ?— J.  EgglatoM.  N".  otvcr. 

in  you  tell  nbicb  tit'  bis  lege  bt  ilrevr 

'.Itttone.  No,  I  caonot  tell  vUich  he 

k. 

J  you  Dctreruy  hIugIi  T 


Utten 


No. 


ncAoJy  i 
■letlont.  No,  Mver. 
japptr.    You  t^  yon  ircDt  lo  thi 
Irmi  with   KealioK,  uirl    tlieie  wa: 
g  talked  at'  relalinji  to  a  note  ;  va: 
F  ofler  made  to  ^ou  thera  ? 
•latone.  No,  Sir. 
iapptr,  Vou  talked  ofa  paper  tbat  wai 

Tou  know  llie  coiiti^Dts  of  it  ? 
Uttone.  No,  Sir,  I  do  not. 
Jii/in  BctteSKOrth  inoro. 
la/iptr.  Tell  u*  irbat  you  knov«rihi! 
D(l  wheie  you  were  when  you  heard  i 

on-Oie  in  oFAIay  ? 

vorth.  Tliotuai  U,gg[ataBc  and  liii 
!  B-liihlDz;  I  wai  169  yanb  lome 
ea  from  ue  river,  aa  near  ti  I  could 

hat  ground  naa  It  in  ? 

morth.  They  were  iu  the  pound  called 

"Sapper.  Are  there  many  hed|;«B  on 
if  ibe  river  where  ibe  deceased  nan  t 
aorth.  There  were  a  pretty  many  nil- 

any  body  tniglit  *ee  Ibrougb  them. 
iapptr.  What  did  yon  scef 
rortk.  1  MW  Joseph  Iteddiog  aod  Mr. 

come  over  the  hedge. 
tapper.  What  hedge? 
tiorth.  The  hedge  that  parted  Mr. 
-'fl  grouad  fran  Mr.  lUddiug'a  groaod ; 
.  know  whether  one  of  them  did  oal 
«  the  itile;  then  they  both  rau  after 
ne  and  bis  mm  ;  yonpg  Reddiofr  came 

i^ptr.    Did- he  by  hold  of  Eggle- 

tacrth.  Whether  he  laid  hia  hanil  upon 
',  or  wbal,  I  cannot  tell ;  but  the  boy 

ho  was  it  laid  hold  of  the  aboolder  or 


Korth.  Reddug;  I  sawhiahantlnpon 

Ider  or  collar  of  the  deceased,  bui  1 

ay  poMiively  whether  he  had  him  by 

Ider  or  collar. 

iafper.    How  long  was  it  after  that, 

caky  came  up  t 

worlA,   The  boy  was  gone  but  a  liltli 

a  hi*  father,  an8  when  Bfr.  Anneslcy  . 

to  his  father,  he  carae  back  a^in. 

iapptr.  HownearwaabotolutrBlte, 

a  accident  bappetied  t 

XVII. 


ADnealev  and  Jtedfiaf  CMae  ■(>  aisM.  w- 
gelher,  but  Annealey  ome  np  ^k;  mm.  urr 
gan  weal  off  after  be  cine  i^.  J  mir  im 
■moke  and  beard  Ibe  fire. 

Hejj.  Capper.    Ak  job  wen  ItH-  yani-.e£ 
how  came  you  to  come  up  ? 

BcltaaQrth.  Theboyc«lMlD  ik   bul^ 
bis  falherwaa  killed. 

Serj.  Gapptr.  Wbocaaci^Mif;  wA   *«.  ' 

Belltnsorlh.  JahaBowl«,B4iaiMM  i^rr 
We  come  lo  the  nver  jort  a^MMr.  !•>■  ^vw 
where  Hr.  Eggleslonc  lay,  tmt  «•-  t*^  ^ 
gel  over  ihero  without  Im^  ut>  luw  mg. 
(pulliag  hb  band  lo  his  iwijii'^  t«t  ■■  miv 
over  in  a  ahallower  place  a  liilt  JmIw 

Serj.Gappet.   Were  Aoneiitrr Mi  ihwiMK 
there  iiheu  you  esme  over  f 

JitUeiwarlh.  No,  they  taBaM*}'ki^,M 

SerJ.  Gapper.  WasE|[glMU>MM»4>M^- 
when  you  cams' op  ? 

Bcltcaeortli.  He  Was  uol  deaa,  bat  uccai 
nat  speak.  I  desired  the  Uay  t>r  y«.  iv:  .*, 
geou,  and  he  weol  away  diieMij . 

Serj.  Gapper.  Whooaiuc  hMSW^^Mr 

Bettnwarth.  I  do  tM  kMOW. 

Serj.  Capper.  Did  yoM  all  Ifaaasi^M^ah. 
together  ? 

ficKesvorfA.  Ya,  1  wanMai^^^^ 
tore  the  hoy  cried  out,  fur  1  ■ 
I  ouulil  not  see  tlw  bay  tm  4 
he  was  in  (be  river,  Ud  h 
his  father's  ■ 
but  I  saw  the  buy  • 
iTben    I  cime  up, 
broii(j:ht  cross  Ik 

Serj.  Gapper. 

Btttrsaorlh.  Hi 

up  hi*  head,  he 
could  not  siieak : 


1107] 


15  GEORGE  il. 


Tri4d  ofAnnesley  and  Redding^ 


[1108 


between  Annesley,  Redding,  and  the  de- 
ceased? 

Bettemorth.  No  other  than  their  stri? ing  to 
take  the  net  away. 

Q:  Do  yoQ  remerolier  any  thing  that  passed 
in  tho  Round-house?  Did  the  prisoner  say 
any^ thing  there  ? 

Beitesworth,  Yes,  the  prisoner  said  he  de- 
mred  to  be  killed  out  of  the  way,  for  being  ac- 
cessary to  such  an  inuocent  man's  death. 

Mr.  Brown.  What  did  he  tell  von  besides  ? 

Bettetworth.  He  said  he  woofd  have  gone 
home  for  more  men,  but  Joseph  Redding 
would  not  let  htm. 

Mr.  Brown,  What  did  he  want  more  men 
for  P — Bettetworth,  To  take  away  the  net. 

Q.  What  answer  did  he  say  Redding  made 
bim  to  that  ? 

Betiesaorth.  I  believe  it  was,  that  he  said 
we  can  do  it  well  enough. 

The  prosecutor's  counsel  having  done  with 
this  witness,  he  was  cross- exammed  as  fol- 
lows. 

Q.  Did  yon  see  Mr.  Annesley  and  Redding 
before  they  came  up  to  the  deceased  T 

Beitesu'orlL  Yes,  1  did. 

Q.  Did  you  observe  Mr.  Annesley  making 
any  use  of  bis  gun  before  he  came  up  f 

Betuncortk.  I  saw  bim  oiler  to  shoot  at  a 
crow. 

Court,  How  long  was  that  before  this  ac- 
cident happened  ? 

Bettesworth,  1  believe  about  half  an  hour. 

Q.  Was  the  crow  flying  or  sitting* 

Bettesworth.  Flying. 

Q.  Did  you  observe  whether  he  diil  sliool  at 
the  crow  ? —  BcttcszcorUi,  Not  then,  he  did  not. 

Q,    How  far  were  you  otf  then  f 

Bettcswitrth.  About  as  far,  1  think,  as  \s  hen 
I  saw  the  man  killed. 

Q,  What  was  the  |K>sition  of  the  gun  when 
you  saw  him  come  up  rnoninf;;  ? 

Bettesjcorth,  It  was  in  this  manner,  [holds 
it  as  if  the  gun  was  with  the  muzzle  haoging 
a  little  slanting  towards' the  ground.] 

Mr.  Brown,  You  say  you  saw  Annesley  and 
Retlding  in  the  other  ground  before  they  came 
into  that  ground  which  belongs  to  Sylvester — 
what  were  they  doini;  there ;  were  they  stand- 
ing, sitting,  or  what  1' 

Bettesworth,  They  were  sitting  or  lying 
voder  the  hedge,  I  cannot  tell  wliicb. 

Q.  For  what  pur|M)sc  do  you  imagine  they 
were  sitting  or  lying  there  ? 

Bettesworth.  I  cannot  say  that,  1  may  ima- 
gine iliey  came  to  take  the  net  away,  1  cannot 
imagine  any  thing  else. 

Q.  Did  you  see  the  boy  fifo  into  the  river? 

Bettesworth,  Yes,  and  it  was  just  afler  his 
father  was  shot. 

John  Fisher  sworn. 

V 

Mr.  Brown,  Do  you  know  tbe  prisoners  at 
the  bar? — Fisher.  1  know  Mr.  liedding. 

Q,  Do  you  believe  this  to  be  tl»e  person  who 
WAS  jk\ou^  Willi  3ir.  Reddiug  at  (be  time  that 


\ 


Mr.  Egglestone  was  killed?— LiM>k  at  Mr. 
Annesley's  face,  and  see  whether  that  is  the 
man. 

Fisher,  I  see  Mr.  Annesley,  but  I  eamflt 
say  that  he  is  tbe  man ;  I  saw  two  men  lia 
under  the  hedge  a  considerable  time,  and  saw 
a  piece  in  one  of  their  hands. 

Mr.  Brawn.  In  which  groond  were  ihey  ? 

Fisher,  I  believe  in  Mr.  Redding's  gnNmd. 

Mr.  Brown,  In  what  ground  was  Eggle- 
stone? 

Fisher.  He  was  in  Sylvester's  int^ond.  Bet- 
tesworth called  to  me,  and  said,  There  is  Red- 
ding running  after  Egglestone,  and  Redding 
laid  hold  of  Egglestone,  the  deceased,  sod 
then  came  uu  tbe  other  with  a  piece ;  1  caoaot 
say  whether  he  Uniched  him  or  no. 

Court.  In  what  mannec  dkl  Redding  Isj 
hold  of  him  ? 

Fisher,  I  cannot  say,  I  was  at  aoch  a  dis- 
tance; but  I  thought  he  laid  hold  of  bit 
shoulder. 

Mr.  Brawn,  Did  Egglestone  make  awij 
from  him  ? 

Fisher,  Yes ;  for  he  knew  he  was  oat  of  the 
bounds  that  he  ought  to  have  been  6ahiogin; 
and  there  was  a  sort  of  astrugq^lc  to  take  awsj 
the  net ;  and  I  thought  that  liedding  and  dn 
other  person  did  botli  snatch  at  the  net,  mi 
then  the  gun  went  off. 

Mr.  Brown,  In  whose  hand  was  the  gna? 

Fixhcr.  Not  in  Redding's  hand,  but  in  thi 
hand  oMhe  other  person. 

Mr.  Brown,  Were  not  you  attentive  at  dnt 
time,  to  see  in  what  manner  he  carried  tin 
gun  ?  • 

Fisher.  It  may  be  this  way,  or  this  way,  I 
cannot  say  wheiher  he  had  the  gun  against  bs 
shoulder  or  no. 

3Jr.  Brown.  How  near  was  he  to  tbe  de* 
ccasfd  ? 

Fishrr.  Very  nigh,  1  believe  not  abofs  de 
length  of  a  guii. 

Serj.  Gapptr,  Did  you  see  John  Egglettan 
by,  when  you  tirst  came  up? 

Fisher.  He  was  near  tbe  river. 

Mr.  Brown,  Did  you  bear  the  boy  cry  ostf 

Fisher i  Yes,  he  said  his  father  was  killed; 
he  saw  me,  and  called  me  by  my  name,  ssd 
said.  My  father  is  killed,  and  I  came  direetlj 
cross  the  river. 

Mr.  Brown.  What  then  became  of  Anacdcy 
and  the  other? 

Fisher.  They  ran  away :  we  hallooed  after 
them,  but  I  did  not  think  the  man  was  sbot, 
though  I  saw  the  smoke  and  fire  of  tbe  goa. 

Q.  Who  went  over  tbe  river  first  ? 

Fisher.  We  were  all  three  together  alotflil- 
I  cannot  tell  who  was  over  first,  but  I  believt 
I  was. 

Q.  What  was  said  to  the  boy  then  ? 

Fihher,  Nothing ;  only  to  gu  and- get  aaor- 
geon. 

Q,  Who  bid  him  go? 

Fisher.  Somebody  did,  I  did  not  I  bciiiN 
it  was  Ikttesworth,  and  the  boy  riiu  away  ^ 
rectJy. 


1109]  fur  the  Murder  of  Thomas  Eg^edone.  A.D.  174S. 


[1110 


Q.  Was  there  any  sursfeon  brought  there? 

FUhtr.  No. 

Q.  Who  came  there  aAerwardt? 

Fisfter,  Mr.  Sylvester ;  he  sair  the  deceased 
lying  upon  the  ^und,  bat  he  was  DOt  there 
when  the  murder  was  committed. 

Q.  Were  you  in  the  house  when  he  was 
tMheuT—Fukcr.  No. 

Q.  Were  you  with  him  before  the  justice  of 


Fiiher.  I  was  examined,  hut  I  was  not  pre- 
•ent  when  the  other  witnesses  were  examineil. 

BIr.  Brown,  What  distance  was  there  be- 
tween you  and  tlie  deceased  when  the  gun 
went  oirf 

FUker.  One  hundred  and  sixty- nine  yards. 

Q.  Do  vou  include  the  breadth' of  the  ri?er  ? 

FUher/Y€8, 1  do. 

Cross-examined. 

Q.  Yoo  say  you  think  that  both  Redding 
and  Annesley  snatched  at  the  net  f 

Fisher,  I  think  they  did. 

Q.  Do  you  think  it  was  possible  for  you  to 
kear  what  passed  between  them  ? 

Fiiker.  I  could  not  hear  one  word. 

Q.  1  would  ask  you,  whether  young  Eggle- 
itooe,  before  he  was  examined  by  sir  Thomas 
Aej neU,  did  not  say  to  you  be  believed  the  gun 
diaiio  off  by  accident  ? 

fiiker.  He  said  he  believed  it  was  not  done 
wilfully.  I  was  called  into  a  room  with 
Cbeiter  and  Lane:  he  bad  money  offered  him, 
in  Bay  bearing,  by  John  Lane ;  he  offereii  him 
lOOlTayear. — Mr.  Annesley  said.  He  could 
not  give  him  100/.  but  he  would  give  him  50/. 
far  be  had  others  to  do  for :  then,  said  the  boy, 
I  do  uot  care  to  sell  my  fatlier's  blood  ;  but  1 
will  do  as  my  friends  direct  me ;  I  believe  he 
was  in  liquor. 

Q.  What  did  you  say  to  him  ? 

Fisher,  1  said  your  father  is  dead ;  the 
ttMmey  will  do  you  good ;  do  not  swear  any 
thioff  against  him,  if  you  tiiink  it  was  done 
aecioeatallv ;  he  said.  The  money  will  do  me 
9ood  if  I  had  it ;  and  then  said,  I  believe  the 
gentleman  did  not  do  it  wilfully. 

Q.  Had  you  not  some  conversation  together 
tfher  his  examination  before  the  justice  ? 

Faker,  1  asked  him,  after  he  was  examined. 
What  he  had  done ;  and  how  he  could  swear 
against  liim,  when  be  had  said  so  and  so  to  me ; 
■aid  be,  I  did  uot  know  what  I  said. 

Q.  That  he  did  not  know  what  he  said,  to 
Wbooi? 

Fisher,  I  asked  him,  how  he  could  swear 
against  him  when  he  knew  what  be  said  to  me; 
laid  be,  1  do  not  know  any  thing  of  the  mat- 
ter; be  did  not  remember  what  he  had  said  to 

Q.  Do  you  know  Mr.  Williams  the  clergy- 
^u?— FmA^*  Yes. 

Q*  Did  not  you  make  a  declaration  of  this 
labial? 

Fkher,  Yes;  and  I  told  him  what  I  now 
aay,  1  naan  what  passcul  between  us  at  the 
b«  want  before  the  justice :  I  said  tg^Mr. 


Williams,  that  Egglestone  told  roe  be  really 
lielieved  that  tlie  gentleman  did  uot  do  it  wiU 
fully. 

Q,  Repeat  all  that  you  said  to  Mr.  Williams. 

Fisher.  That  the  boy  said  to  me,  Mr. 
Annesley  had  offered  him  50/.  a- year,  that  the 
money  would  do  him  goiid  if  he  had  it,  and 
that  he  believed  the  gentleman  did  not  do  it 
wilfully. 

Mr.  Brown,  Did  not  be  say  it  was  wilfully 
done,  as  you  were  going  along  to  the  justice's  ? 

Fisher,  All  the  way  he  went,  he  said  he  be- 
lieved he  did  it  wilfully «  but  at>er  the  prisoner' 
bad  been  talking  with  him,  he  said  he  believed 
it  was  not  done  wilfully. 

Samuel  Sylvester  sworn. 

Serj.  Capper.  Did  yon  see  the  deceased 
after  he  was  dead  ? 

Sylvester,  He  lay  dead  on  the  ground  that  I 
rent  near  the  river  side,  1  think  about  the  middle 
of  the  ground. 

Serj.  Gapper,  Do  yon  know  how  he  cama 
by  his  deatii  ? 

'Sylvester,  J  was  going  npto  look  after  my 
ground,  to  see  if  there  was  any  cattle  in  it,  or 
any  thing  amiss. — I  called  at  \be  Cock,  and 
drank  two  pints  of  beer,  and  when  I  came 
within  two  hundred  yards,  or  thereabouts,  of: 
my  ff round,  1  met  three  men,  who  told  me  old 
Egglestone  was  killed  ;  1  did  not  believe  it ; 
they  then  pointed  to  my  ground,  and  said. 
There  he  lies ;  I  saw  several  |icop1e  there,  upon 
which  1  thought  there  was  something  more 
than  common,  and  so  I  went  up,  and  saw  Tom. 
Egglestone  lie  dead  in  my  ground. 

Serj.  Gapper,  Do  you  know  where  the  pri- 
soner Annesley  was  taken  ? 

Sylvester,  He  was  taken  in  a  back  building 
belonging  to  Mr.  Redding's  house ;  I  was 
searching  the  rooms  myself,  and  heard  the 
|>eople  say.  Here  he  is  ;  and  I  saw  Mr.  An- 
nesley, who  is  the  gentleman  there,  come 
down  out  of  the  place. 

Mr.  Brown,  What  sort  of  a  place  was  it  he 
was  found  in? 

Sylvester,  It  was  a  place  to  put  odd  things 
in  :  it  was  not  boarded  up  to  the  top. 

Q.  Did  he  come  down  voluntarily,  or  was 
he  pulled  down  ? 

Sylvester,  1  do  not  know  whether  they  pulled 
him  down,  or  helped  him  down. 

Mr.  Brown,  Did  you  hear  him  say  any 
thing  at  that  time  f 

Syhetter,  I  did  not  hear  him  say  any  thing  ;, 
I  believe  he  was  in  a  tit,  for  he  trembled  and 
fell  down  behind  the  door. 

Mr.  Brown,  Did  you  see  him  at  the  Round- 
house P 

Sylvester.  No,  I  did  not,  for  [  was  gone  to 
search  after  the  other  prisoner.  Redding. 

8erj.  Gapper.  Were  you  at  Lalebam  before 
the  justice  ? — Sylvester,  Yes,  I  was. 

ISerj.  Gapper.  Had  uot  the  boy  been  drink - 
ingy  and  did  he  not  sleep  before  he  went  in  to 
the  justice  ? 

Sy/reitcr.   1  VMXv«ia  >Dk«  ^v^«lttti^va^s\>^« 


nil] 


15  GEORGE  II. 


Trial  ^Annesky  and  RmlSiigi 


[IIB 


quarters  of  an  hoar ;  I  do  bdiere  be  had  been 
ia  liquor,  but  he  was  refreshed  afterwards. 

Upon  the  cross-ezaminatioD. 

Q,  HsTo  you  not  received  roone^  to  pay  the 
witnesses  fur  attending  here  on  this  cause  the 
last  sessions,  and  from  whom  ? 

Syhetter.  Yes,  Ijpaid  bomeof  them,  I  think 
it  was  by  Mr.  GifTard's  direction,  who  sub- 
pcenaeil  me  up ;  I  asked  him  who  was  to  pay 
me ;  he  said,  I  should  be  paid  half  a  crown  a 
day  for  my  time,  which  was  as  much  as  he 
thought  1  oould  earn  at  my  business. 

Q.  What  business  is  this  Giffard*  of  P 

Sylvester.  He  is  a  stranger  to  me. 

Q,  Do  yon  know  whom  he  said  he  was  em- 
ployed by  ? 

Syheiier,  He  said  be  was  concerned  for  the 
kiiig. 

Q.  Did  yon  send  notice  of  this  accident  to 
any  body  as  soon  as  the  man  was  killed  f 

&wheiter.  No. 
■  Q.  Do  ytu  know  Mr.  Williams  ? 

S^lvetter,  Yes,  i  know  him,  but  I  nerer  was 
in  bis  company  upon  this  occasion. 

Q.  What  business  does  young  Esglestone 
foUow? 

Syhaier,  I  cannot  say  what  business  be 
fellows,  1  believe  be  draws  beer  now. 

Q,  How  long  hare  yon  known  him  ? 

Syheiier,  I  have  known  him  five  or  six  years. 

Q.  What  business  was  he  bred  to  f 

SfhcMier.  Sometimes  he  would  be  out  at 
service,  and  sometimes  be  would  be  with  his 
father  in  the  business  of  a  carpenter. 

Q,  Where  does  he  draw  beer  now  ? 

Sytvcster,  I  think  it  is  at  Nr.  Williams's,  at 
the  White-Horse,  in  Piccadilly.  But  this  is 
not  the  Williams  1  was  speaking  of  before. 

Q.  Have  3K>u  never  been  in  company  with 
this  gentleman,  and  had  some  convetsation 
with  him  about  this  affair  ? 

Sjfhetter,  I  have  been  at  the  gentleman's 
house  in  Piccadilly  since  this  business  has  been 
in  band,  but  never  bf  fore ;  and  I  have  been  in 
company  with  the  gentleman  there,  but  never 
had  anv  talk  with  him  about  this  trial. 

Q.  Was  not  this  WiMiams  down  before  the 
justice  ? — St/hcttcr.    I  do  not  know. 

Q.  Did  you  ever  see  biro  at  Staines  P 

Sylvester.  I  saw  him  in  the  town  of  Staines, 
I  believe,  about  a  week  after  the  accident  hap- 
pened. 

Q.  Have  you  seen  the  boy,  Egglestone, 
there  since  P 

Sylvester,  I  never  saw  him  at  Staines  after- 
wards. 

Q,  What,  he  has  lived  with  Williams  ever 
since  ? — Sylvester,  I  cannot  tell. 

Q.  I  ask  you  whether  you  have  not  seen 
him  at  Willmms^s  hoiiiie  every  time  you  have 
been  there  ?—^ylvesier»  Yes,  i  believe  I  did. 

Serj.  Onpper  tlien  said,  they  would  rest  it 
here;  and  havthg  observed  upon  the  evidence. 


*  He  innkes  a  considerable  figure  in  the 


\ 


conduded  with  aayingv  he  hoped  it  had  fally 
made  out  ^  the  charge  against  the  prisonen; 
that  the  groond  where  the  nan  was  kiNed 
being  the  property  of  Sylvester,  the  prisstri 
were  trespassers  by  coming  into  it,  and  there- 
fore answerable  for  the  conscquenoca.  That  u 
to  Mr.  Annesley,  there  was  not  only  impUed, 
but  express  malice  proved  opon  him,  for  ikst 
after  he  had  killed  the  father,  he  waslbr  beatug 
out  the  son's  brains,  only  because  they  woali 
not  let  him  and  the  other  prisoner  nm  away 
with  their  net. 

Court,  Blr.  Annesley,  yon  are  indicted  m  a 
very  unhappy  case,  what  have  yoo  to  say  Ar 
yourself  P 

Annesley,  Mv  lord,  I  am  very  mnUe  to 
make  a  proper  nefence,  having  by  the  cmchy 
of  those,  whose  duty  it  was  to  protect  me,  ban 
deprived  of  the  advantages  of  an  educalkiB  I 
was  entitled  to  by  fny  birth. 

All  I  know  of  the  melanoholy  accideBt  ia 
question  is,  that  on  the  unfortunate  day  atea- 
tioned  in  the  indictment,  I  went  out  with  ay 
gun,  in  company  with  my  innocent  fellow-pn- 
aoner,  to  shoot  sparrowa,  aa  I  nsnally  did.  As 
we  were  going  along,  Mr.  Redding,-  who  ii 
game- keeper  to  the  lord  of  the  maaor,  saw 
aome  people  a-[K>aching  within  the  rayab]^, 
upon  which  he  proposed  to  go  and  aeiae  ibos 
nett.  I  followed  him,  the  deceased  tluaw  tbe 
net  into  the  river,  and  the  boy  jumped  ia  ts 

f>ull  it  across,  to  prevent  which  I  aloopsd  ti 
ay  hold  of  one  of  tne  ropes  that  trailed  upon  Ibe 
ground,  and  at  the  aame  instant,  the  fatal  is- 
stmment  1  had  in  my  other  hand,  banging  kf 
my  side,  went  off  without  my  knowlecwe,  aad 
to  my  great  grief  as  well  as  surprize.  My  be- 
haviour, immediately  after  the  accident,  was,  1 
hope,  inconsistent  with  a  temper  that  ooaM 
murder  a  man  I  bad  never  aeen  before,  wilbsst 
one  word  of  provocation. 

Whatever  may  be  the  determination  of  ysor 
lordship  and  the  jury,  great  as  the  misfortasa 
of  my  life  have  been,  I  shall  always  connrftf 
this  unfortunate  accident  as  the  grcatot  d 
them  all. 

Court,  Mr.  Redding,  what  have  yontooj 
for  yourself  P 

Redding,  My  lord,  I  am  game  keejier  tonr 

John  Dolben,  lord  of  the  manor  of  \eofcoeT. 

On  the  first  of  May  last,  in  the  afieruoon,  Mr* 

Annesley  and  I  went  out  a- walking ;  we  nw  i 

cm w,  and  Mr.  Annesley  made  an  offer  to  shoot 

at  her,  but  1  called  to  him  not  to  fire,  for  duS 

she  was  too  far  off:  Soon  after  1  saw  "Ej^^ 

stone  and  his  son  fishing  with  a  casOng<«it, 

upon  which  I  said  to  Mr.  Anueslfy,  1  wooU 

go  and  endeavour  to  take  their  net  away,  u  it 

was  my  duty  to  do ;  accordingly  I  went  op  li 

the  deceasedlj  and  demanded  the  net,  which  bt 

refusefl  to  deliver  to  me,  and  threw  it  into  ihi 

river,  one  end  of  the  string  being  about  hisana ; 

I  then  laid  hold  of  ttie  stnng,  and  pulled,  wlnht 

the  boy  endeavoured  to  draw  it  cross  tbe  river, 

and  presently  I  heard  tlie  gun  go  oflr(aiy  hack 

being  towards  Mr.  Anneal^),  and  saw  tbe  ■■• 

faU  dowa.«*I  said  to  Mr.  AiMMrifiy.  I  hoped  hi 


,^r  Ike  Marker  <>f  Thomas  JLggUilont. 


bad  Doi  (lioi  ilic  nuH ;  h*  n\A  No,  but  liming 
up  llie  IU|>  of  hU  MHt,  trc  •aw  be  was  shot ; 
upon  which  Mr.  Aonesley  oriol nut,  Wlisl  shtll 
I  do !  aail  fsptctaail  ao  inncli  uonctru,  tbat  I 
MD  ■o'Ut  "US  quite  an  iMiilfiiitnl  ihing. 

Hr.  HunK Campbell, at'  counsel  fur  (he  pri- 
•OBen,  stiid.  tiiai  Bltliont;!!  be  tii>ew  by  (lie 
eOBTM  ol'  tlir  t-ourt  at  (he  OliUltnikey,  he  ttas 
OMai  liberty  lo  obur?e  upon  ilie  |in>seciiior's 
CTidvnce,  yei  he  appebeii<li-<l,  ibat  I'oc  the  taae 
,  ofthe  Court,  be  migbtjnn  open  ibe  nature  ol 
tba  ilertiiicc,  without  miuliij;  any  olfurTaliODS 
vponit. 

Tb«i  tlie  ilefence  wliicli  th«  prJaoMra  in- 
•iMeil  upon  wsi,  that  the  ^un  went  off  merely 
lijp  Mcidtnl;  that  Reildiog  wai  game-k«eper 
ta  nr  Jofan  Dolbee,  lord  of  tlie  minnr  of 
Y«0*«iiFy,  anil  had  a  proper  and  legal  depula- 
Im  for  Mixing  of  nets  am!  oiber  engines,  for 
dcMroyrng  nf  gime.  That  tbe  deceased  and 
V»  WD  were  poacbing  triib  a  castin^-oet 
wilbio  tbe  inanour ;  thai  Mr.  Annestey  went  in 
aud  of  ibe  (pime-lieeper;  and  Iherefore  the 
yriwiMH  bring  about  a  lawful  act,  were  not  to 
Mllcbas  trespassen,  and  the  dcdlli  ibal  wai 
iba  sociilentBl  cunseqtience  of  thai  art,  would, 
ia  point  of  law,  make  Mr.  Aanesley  g'lilly  ooly 
of  cbaace-medl  ey . 

Mr.  Tltomal  Sluplet  tvOTB. 

Q.    D«  you  know  the  manor  of  Ycoreney  ? 

SutfUt.  Yei:  I  am  deputy  In  my  father, 
t*ba  W  steward  tu  air  John  Dolben,  as  ford  ol' 


Herj.  Gu/i/irr.   How  do  yon  know  tbia  to  be 

St'.plti.  t  hftfe  the  grant  of  tbe  maaor 
Wtnu  the  dnn  and  chapter  in  my  pocket. 
Serj.  Ciipptr.  Are  there  any  cnpy-holden  ? 
Staplei.  Yea,  I  bate  admitted  tome  copy- 
bokkra;  I  know  It  lo  he  a  mauo),  because  1 
tkt«e  held  one  court  there  fur  my  father,  and 
b**»  »e«ii  hini  bold  aereral. 

Sctj.  Ciiitprr,    Is  there  any  mansion-house 
'-^—  -ing  lothismunor? 

ilti.  There  I*  a  manEian-hnoie  belnngitij^ 
Vbtch   I  think   is  tbu  house  ibat  Mr. 
U*M  in. 

'  .,        What  conrl  waa  it  you  held 

'•^Stapltt.  A  court  bacon. 

Hr,  TAtHnai  Burlin^u/n  sworn. 

Q.   Mr.  BurllngKDn,  look  upon  ibii  deputa- 

^•k     Are  yoD  a  soWcribiog  wiincas  to  ilT  If 

R  BK,  JhI   ynil   see  ibis  executed,  and  by 

•tatften.    Yet,  8ir,  Ibat  is  my  name ;  I 
ir  Jnba  Doltien  execute  tl;  ibiN  is  bis 
aeal. 
!.  Wu  it  executed  at  ibe  lime  it  bears 

Yes;  IbdiereontheTcrydiy. 

Mr.  Jam/:*  Edmoailt  sworn. 

Q.  Mr.  Ritinonds,  look  upon  that  endorse- 


taloagrBg 

m 


(he  peaof!  for  Ibe  connly  (if  Mlildtesex,  and 
heard  biin  ackooo  leilge  ihia  to  be  his  band, 
and  that  it  was  entered  according  to  tbe  act  of 
pafllnmflnt. 

Svx'y  Gapper.  Did   you  seeany  entry  vftt  ? 

FAiBoadt.  H«  nii)  it  was  entered,  und  ac- 
H'Udged  ibis  to  be  his  hand,  end  lukl  me 


thai  nai 


infficiei 


Q.  My  lord,  we  pray  the  depntalion  may  b« 
read ;  we  will  sand  for  the  clerk  of  the  peac» 
to  bring  tbebookitieirwbetcit  is  entered. 

Cl'rk  reads. ^ 

"  Know  nil  men  h^  these  presents,  that  I  air 
John  Dulben,  of  Thingdon  al.  Findon  in  tba 
county  ol  Nortbatnploo,  baroucl  and  doctor  of 
■Jirinit}^,  lord  of  tbe  manor  of  Yeoreney,  in 
the  parish  of  Staines,  in  the  county  of  Aliddla- 
■ex,  by  virtue  of  the  se* eral  acta  ol*  parliament 
iaiely  made,  tor  tbe  preeerTBtian  of  tbe  ^nme, 
hare  made, nominatetl,  nulboriied,  constituted, 
and  appointed,  and  by  Ibese  presents  du  make, 
nominsle,  authorize,  constitute,  and  ap|>oint, 
Joseph  Rcddini;,  the  younger,  of  Yeoteney 
aforesaid,  in  the  said  pariiJi  of  Siainea  and 
county  of  Middlesex,  husbandman,  to  be  my 


■    of 


VeoTetiey  aforessid,  of  all  and  a 
game,  of  what  kind  or  nature  sourer,  which 
now  is,  or  hereafter  shall  be,  upon  or  within 
Ibe  bounds,  limits,  or  precincts  of  Ibe  same, 
with  full  power  and  nutborily,  according  lo 
the  directions  of  the  statute  In  that  case  mado 
and  prntidi'd,  to  kill  any  hares,  partridges, 
pbeasauts,  fish,  or  other  game  whatsoeier, 
upon  or  within  my  said  manor,  and  Ihtt  boands, 
limit?,  and  precincts  of  ihe  same:  And  also  lo 
lake  and  seize  all  such  guns,  gjey-bounds, 
aeiiing-dogs,  and  other  dogs,  bare- pipes,  maret, 
low-belli,  ferrets,  tramels,  baya,  tunnels,  or 
ntbei  nets  orengines,  for  the  taking,  killing,  or 
destroyiog  of  ham,  partri'lges,  pheaaants,  fixb, 
or  other  (fme,  within  Riy  taid  manor,  and 
the  precincts  thereof,  that  ahall  be  kept  or  used 
by  any  person  af  persons,  not  legally  qualified 
to  do  the  same :  And  further  to  act  and  do  alt 
and  every  thing  and  things  which  belonga  lu 
the  office  of  a  gamekeeper,  pursuant  10  the 
directions  of  the  said  act  of  parliament.  And 
loKlly,  I  do  direct  that  tbe  name  of  the  said 
.Toseph  Redding  be  entered  as  such  game- 
keeper of  i^y  said  manor,  with  the  clerk  of 
the  peace  for  the  raid  counly  of  MiddleMX, 
pursuant  or  according  tn  the  act  or  acts  of  par- 
lismunt  in  that  case  made  and  provided.  In 
witness  whereof,  I  hare  hereunto  act  my  hand 
nnd  teal,  the  second  day  of  July,  in  the  year  of 
ourl'ird  i;*l.  J.  IJornEN." 

"  Sealed  and  delivered,  being  flnl  ilnly 
■taropid,  m  the  presence  of  Jamca  AlBick, 
Thooiss  Burlingsou." 

'■  Midiltcacx.  These  are  to  certify,  that  the 
namp'of  ibn  within  mentioned  JoMpn  Itedding 
is  this  day  entrTed  in  my  office,  pnr^aui  to  the 
■ininiein  tiicb  ('aw  nisilu  and  provided,  Daied 
this  a9ib  liay  uf  January,  ITil.     P.  Ww 


11151 


15  GEORGE  II. 


TrUU  ofAnnedey  and  Redding^ 


Joseph  Redding,  the  elder,  sworn. 

Q,  Do  you  know  the  place  where  this  uo- 
happy  casehap|)ened?— Kf<i(/iR^.  Yes. 

Q,  Give  an  account  of  what  you  know. 

Redding,  i  was  in  the  next  field,  called 
Chantrv  Mead.  This,  where  the  accident  bap- 
peuedi  IB  called  the  llare  Mead. 

Q,  What  manor  is  it  in  ? 

Redding.  It  is  in  Yeovcney  manor,  which 
behNigft  to  sir  John  Doll)en. 

Q.  Where  were  you  when  this  happened? 

Redding.  I  was  in  Chantry  Mead. 

Q.  Uow  far  were  you  oil' then  ? 

Redding.  As  near  as  I  can  guess,  it  is  ahout 
forty  pole. 

Q.  What  did  you  observe  there  ? 

Redding.  1  saw  noy  son  and  Mr.  Annesley 
coming  up. — I  did  not  know  who  they  were 
till  they  came  up. 

Q.  Did  you  see  them  imme<liately  after  the 
accident  happened  P — Redding,  Yes,  presently. 

Q.  Uow  did  they  behave  upon  this  occasion  ? 

Redding.  They  were  so  troubled  they  could 
bard  I V  wag  or  speak  :  My  son  said  lie  was 
afraid  the  man  was  killed  ;  and  he  said  to  Mr. 
Anne&ley,  How  did  you  do  it  ?  Mr.  Anneslcy 
said,  I  did  not  think  of  the  gun^s  going  off. 

Q.  You  say  you  saw  them  coming  up ;  did 
you  observe  them  when  the  accident  happened? 

Redding.  Yes,  i  looked  at  them  all  the 
while. 

Q.  How  was  the  gun  carried  in  hen  it  went 
off? 

Redding.  Just  ns  I  may  hold  this  sword. 
(Holding  it  in  his  right  hand,  hanging  down 
near  the  pocket  a  t'aw  inches  from  his  body, 
almost  upon  a  level.)  He  had  it  in  one  hand, 
as  ]  have  the  swoitl  uow. 

Q.  Did  he  cxprtss  himself  concerned  ? 

Redding,  He  was  so  conrornod,  that  he  did 
not  run  ten  pole  befure  he  fell  donn,  and  beat 
himself  thus  upon  the  belly,  and  said.  What 
have  I  done? 

Q.  Did  yo".i  ever  hear  of  any  quarrel  between 
him  and  this  nmn?—*Rcdding.  Never. 

Serj.  Capper.  (On  the  cross  examination.) 
Where  did  you  stand  when  the  accident  hap- 
pened ? — Redding,  in  Chuntiy  Mfa<l. 

Q.  Is  there  not  a  hed|>e  between  Chantry 
3Iead  and  Hare  I^Iead  ? 

Redding.  Yes,  I  b€:lieve  there  is. 

Q.  How  could  ytm  see  tlirough  tlic  hedge? 

Redding.  It  is  a  new  hedge  not  above  a 
yard  high,  and  1  could  see  niiy  thing  that  was 
doing  there  as  clear  as  I  tan  see  yuu. 

Q.  Was  Aunesley  with  his  face  or  his  back 
tow  ards  you  ? 

HcJu'ni^.  He  uas  side-ways  to  me. 

Nrij.  Oapper.  Why  Chantry  Mead  is  north 
of  II lire  Mead  ;  then  his  face  could  not  be  to- 
w  anis  you  ? 

JitJdivg.  No,  I  say  his  side  was  towards  me. 

Seij.  Capper.  You  were  speaking  as  to  this 
being  a  uiuuor ;  how  do  you  know  it  to  be  a 
manor  ? 

Redding.  Because  there  have  been  courts 
kejn  therv^ 


\ 


[Ills 

Serj.  Capper.  By  whom  ? 

Redding,  By  sir  John  Dolbeo. 

Q.  What  is  Sylvester? 

Redding.  He  occupies  thia  ground:  llett 
the  farm  to  Sanders,  and  Sanders  letts  it  to  bin. 

Q.  On  which  side  of  Hare  Mead  does  the 
river  lie?  Is  it  east,  west,  north,  or  sauth? 

Redding.  It  is  about  south.  * 

Q.  Does  not  this  river  belong  to  another  per- 
son.— Redding.  No. 

Q,  Has  not  sir  John  granted  the  ftshcry  ts 
any  body  ? 

Redding.  I  rent  the  fishery  ^  the  fishery  U* 
longs  to  me. 

Q.  Do  yoii  depute  your  tea  to  look  lAer 
this? 

Redding.  No,  sir  John  Dolben  depoteahiii. 

Q,  How  came  sir  John  Dolben  to  appoiri 
your  son  to  be  game- keeper  ? 

Redding,  Because  they  robbed  me  daily. 

Q.  Have  you  assigned  that  fiabery  to  uy 
body  ? — Redding.  No,  I  have  not. 

U.  Who  owns  the  land  on  the  other  side? 

Redding.  1  believe  my  lord  Dunmore  ii  tin 
landlord. 

Q.  Were  vou  standing  up  when  the  pn 
went  off,  or  sitting  ? 

Redding.  I  was  standing  up. 

William  Duffeli  s-wom. 

Q.  Do  you  know  John  Egglestone,  theM 
of  Thomas  Egglestone  f-^Di^eil.  Yc-s. 

Q.  Have  you  ever  had  any  convemtiflB 
with  him  about  this  matter  ? 

Duffeli.    Yes ;  on  this  occasion  he  wai  iC 
mv  house ;  1  desired  him  to  tell  the  truth :  He 
said  he  would  ;    and  then  told  me,  thatu  bf 
and  his  father  were  fishing,  they  saw  the  pii- 
soner,  Redding,  coming  up  ;    that  he  dmrril 
his  father  to  give  him  the  net,  and  he  wooU 
run  away  with  it,  but  his  father  would  not  ki 
him  ;     that  then  Redding  came  up  sod  de- 
mandefl  the  net ;     that  Thomas  kggtestonc 
said  he  should  not  have  it,  and  then  threw  tiie 
net  into  the  rirer ;    and  in  the  mean  time  tbe 
other  gentleman  came  up,  and  shot  him  ;  thai 
John  Egglestone  jumped  into  the  river,  uwlcut 
the  line  of  the  net,  to  fiull  it  out  on  the  othrr 
side:    and  that  when  the  gun  went  off,  and  liif 
father  droppc<l  do\iu,  Mr.  Redding  s<aid  to  the 
other  gentleman,  l^rd,  sir,   what  have  \'0B 
done!   and  then  they  both  run  home.    Mr. 
Abraham  Egglestone,  who  mus  present,  asL»l 
him,  if  he  saw  Mr.  Annes!ey  pull  the  uiggt^r. 
of  the  gun ;    and  John  Eirglestoue  answvred, 
that  he  could  not  tell.     1  asked  him,  if  ibeit 
was  any  quarrel  or  words  t  hat  had  passed  be- 
tween them,  and  he  said.  No.     1  said  it  wai 
very  surprising  to  me,  that  this  gentleinaa 
should  come  and  shoot  his  father,  and  oothiii;; 
more  pass  between  them  :  I  then  asked  him,  is 
w  hat  manner  he  held  the  gun  ;    he  had  a  tfick 
in  his  hand,  and  shewed  in  what  manner  tbe 
gun  was  held  in  his  hand,  thus  (in  his  right- 
baud,  the  arm  hanging  down  near  the  poarit 
some  inches  from  his  body,  and  near  opoa  i^ 
level  ^   which  was  tbe  saoie  manner  that  oU 


Jhr  ike  Murder  of  Thtmas  EggUstone,  A.  D.  1742. 


[1118 


said  the  ||run  was  held.)  *  I  asked,  if 
bthe  did  it  wilfully  i  be  said  beoouM 

3fr  long  was  this  discoorse  after  this 

liap|>enefi  P 

^  About  four  hours. 

d  you  ever  see  this  John  Egglestone 

r  lie  says  be  knows  nothini|f  of  you  ? 

I.  I  have  known  him  theie  eight  years, 

18  been  frequently  at  my  bouse. 

lat  character  has  be  f 

f.     1  cannot  siy  much  in  his  behalf; 

could  not  mauage  him  at  ail. 
lat  business  did  be  follow  P 
(,  His  father  was  a  cari>enter,  and  be 
^itb  him. 

len  did  he  leaTe  Staines  P 
f.    Soon  after  this  accidt^nt  happened, 
lere  has  be  been  ever  since  P 
I  I  baveseen  him  at  the  "White  Horse 
Ailly  ;    and  1  beard  at  btaiues  that  be 
for  to  Ix>ndon. 

id  the  man  at  the  White  Horse  come 
him  in  Staines  ? 
^  I  did  not  bee  him  biro  there. 
Japper,    Yoo  say  be  Was  at  your 
rho  gare  yon  directions  about  advising 
<*ak  the  truth  ? 

L  Nobody :  Mr.  Abraham  Egglestone 
lim  the  same  thing, 
bo  was  there  P 

I,  Nobody  but  Mr.  Abraham  Eggle- 
1  myself ;  1  was  desired  to  go  and  see 

man  came  to  be  killed,  and  John 
ne  came  to  me  about  eight  o'clock. 
tapper.    You  say  he  conid  not  say  it 
illy  done ;  so  he  did  not  say  it  was  ac- 
f  done. 

/.  No,  he  did  not  say  it  was. 
town,  l>o  you  apprehend  he  bad  hold 
in  by  the  barrel,  near  the  lock  P 
i.  I  understood  by  Egglestone's  man- 
olding  the  stick,  that  be  meant  that 
lesley  had  bold  of  the  gun  about  the 
r  the  barrel. 

John  Dalton  sworn. 

hat  discourse  had  you  with  young 
)neP 

f.  On  the  Sunday,  when  the  prisoner 
r  was  carried  to  Laleham  to  be  exa- 
I  went  there;  the  company  dined  at 
y  Hound  at  Laleham;  1  staid  and 
iff  a  pint  of  wine  there,  and  imme- 
Aerwards  John  Egglestone  came  to 
,  and  called  me  out  of  the  room,  and 
wanted  to  speak  with  me.-  When  I 
t,  Ke  said  he  wanted  to  ask  my  advice 
ng  this  accident:  I  said,  1  wonder  you 
mk  my  advice,  when  tou  have  rela- 
advise  with ;  be  said,  I  thouebt  tit  to 
,  18  you  are  my  master.  While  we 
king,  Samoel  Sylvester  came  out,  and 
ras  persaading  the  boy  to  sell  his  fa- 
9oAi  the  boy  said,  What  do  you  mean, 
yoo  P  My  master  is  fiersuaciiog  me  to 
JflNif  •    i  then  asked  him,  whether  he 


thought  it  was  accidentally  done  or  not ;  be 
said,  be  believed,  it  was  accidental,  rather  than 
any  other  thing.  I  said  to  him.  Well,  if  you 
think  so;  Wu  will  be  examined  when  you  c<»me 
before  sir  Thomas  Reynel,  I  desire  you  would 
not  forswear  yourself,  but  be  very  careful  what 
you  say. 

Q.   What  character  has  the  boy  ? 

Dation.   He  was  very  irregular,  and  used  to 
lie  out. 
'  Q.  How  do  yon  know  that  ? 

Dalton,    He  was  my  servant. 

Q,  What  trade  are  yoaP 

Dalton,    I  am  a  butcher. 

Scrj.  GappeK  You  say  he  has  a  bad  cha^ 
racter;  do  you  think  he  would  forswear  him« 
self? 

Dalton,  I  can  say  nothing  to  that. 

8er|.  Gupper,  When  was  it  you  had  this  dis- 
course with  bim  P 

Dalton,  On  the  Sunday,  at  the  Grey  Hoond 
at  Laleham. 

Serj.  Gapper,  Was  there  any  talk  of  money 
then? 

Dalton,  Yes,  the  boy  said  he  had  been  of- 
fered money. 

Q.  But  you  say,  he  said  he  would  not  sell 
his  fatber'sblood  P 

Dalton.  No;  I  said  Samuel  Sylvester  came 
and  said  1  was  persuading  him  to  sell  bis  fa- 
ther's blood ;  and  the  boy  said,  My  master  did 
not  persuade  me  to  any  such  thing. 

Seij.  Gapper,  Are  you  sure,  that  this  is 
trneP 

Dalton,  Yes,  I  am ;  I  think  I  am  in  m  j 
senses. 

Serj.  Gapper,  What  did  you  say  to  him 
afterwards? 

Dalton.  I  told  him  he  had  lost  his  father, 
and  had  no  friend  to  take  care  of  him,  and  be 
knew  best  what  he  had  to  do. 

Q.  Did  not  you  say  it  was  better  to  take 
money,  than  hang  the  man  P 

Dalton,  No ;  Isaid,  1  thought,  by  what  he 
told  Die,  that  the  man  was  in  no  danger  of 
being  hanged;  and  therefore  he  had  better 
take  money  than  endeavour  to  hang  a  man, 
that  he  thought  did  not  do  it  designedly. 

[Mr.  Higgs,  belonging  to  the  Clerk  of  the 
Peace,  being  sworn,  produced  the  book  whervin 
all  the  game- keepers  of  all  the  manors  in  the 
county  of  Middlesex  are  entered ;  (Ileads)  Sir 
John  Dolben  of  Northamptonshire,  baronet,  to 
Joseph  Redding  the  younger,  dated  July  2, 
1741.     Entered  January  29,  1741.] 

Mr.  Richard  Chester  sworn. 

Q.  Give  us  an  account  of  what  you  know  of 
this  matter. 

Chester.  I  drove  the  chaise  from  my  own 
house  to  the  Red  Lion  at  Brentfonl,  and  then 
to  the  Grey  Hound  at  Laleham;  I  Went  up  to 
young  Egglestone,  and  asked  him,  how  this 
unfortunate  thing  happened ;  whether  it  was 
done  designedly,  or  happened  by  accident? 

Q.  Where  was  lh\«? 

Chett^r.  This  ¥i%a  iX  \ji\«V%m  \  V^  ^iA"^^ 

\ 


A  .^.i% 


». 


Jii5i 

J 

Q.  I' 
haj»py  V 

Q.  C.i 

licUm 
Chantr\ 

• 

|ieu(.'il,  IS 
(I  \M 

Q,  U. 

Bcdtit 

Q.  IJ. 

lictUi. 

forty  |io! 

d  ^^ 

coming :  ^ 

till  thev  . 

accident  > 
Q.  III. 

licddir 
banlly  u.. 
afraid  llu  ; 

Anne&IeVt 
iaiil,  I  (iid  i 

Q.  You 
you  observe .  * 

JReddin^, 
itliilc.  "» 

Q.    How  ^ 
off? 

JRcddinff,  , 
(lloidincr  U  ii.  •- 

rii-ar  the  pock 
almost  upon  n 
aS  I  h:\\v  the  > 

C?.  Dill  hoc 

iicdditig,  II( 
not  run  ten  pole 
himself  tiius  uji 
liavf:  i  (lone  ? 

(^.  1)i(lyo:icvi 
him  nnit  tliis  mun 

S;?ri.  Oappir. 
W  hiTij  (iid  you  St. 

().    Is  ihcic  not 
3Ic-ail  iiiid  Hare  ?.h 

JidtJiu^.  Yes,  I 

I.*.  How  could  yo 

JU'ijin^.    It  is  a 
yard  lii^'h,  and  1  coui 
dji'!!^  iluTc  as  clear  as 

(i.    Was  Anuesilcy  w. 
*'vai«ls  \ou ';'  ^ 

/x :  1/  //  v.;.   We  w as  sid. 

S  ;i.  (;i.y.;,cT.     Why  C 
VI   ii..iv-  .^Kad  ;   tlienhia 

>t.l»''..S     \   fill.' 

. .  t  .;i. .  '!^,  No,  I  say  his  s 
Ni;j.  Of./ycr.  You  uero 

hiij.^  a   iiKiiiui  ;    how  do  yt 

2ii.1r.or .' 

Iltddtnu',    iiccausc  there  1 
k('|it  Lhi-rc. 


r  ::a  /  Annesley  and  Redding^ 


iSV 


..  .iUL^e 


.sai  «riHfra«^<» 


•  I.      V 


4B  -"Aic^aere 


4u 


..»  •<*' 


■*«««M 


.  ..IVi. 


^      ..«m;i*«Mi 


.  «Slk        •*.**« 


V 


A 


't 


[1190 


•u  .1  because  in  an  affair  of  jco  great  coom- 
uieDce  to  him,  1  think  lie  has  a  ri^ht  to  mj 
'--iience;  and  1  do  it  Hjth  lessi  scruple,  as  I 
iin  IKS  attorney  without  fee  or  reward.  Mr 
•«^  vo  the  4th  of  Mav  I  went  to  Staines,  to 
isiruti  the  coroner's  jury ;  thoug^h,  as  1  bad 
Msc  -.se  to  enquire  into  the  fact,  and  prepan 
fir  Kr.  Aunesley 's  defence,  I  cuuld  do  him  but 
',c.  ti  lerrice  more  than  by  cross -examining  the 

V  LuetAa  for  the  crown,  and  making  ohsertt- 
iMirc  -c  their  etideoce;  one  of  the  witnoMes 
rm  >^n  Egglestoue,  who  has  lieen  exatniad 

.*-:."'?.  As  to  any  thin^^  in  his  hebavioiir, 
^  ni  nky  gif  e  evideiice ;  but  not  of  any  jhai 
.!^:  «is  reduced  into  writing. 

7  i^,"»n.      1    can  only  apeak  as  to  wku 
«  sa.'d  before  the  coroner ;  and  I  admit  ibr 
-  *•  tr'tirns,  taken  at  that  time,  were  redaicd 
^1-  writing  by  the  coroner  or  liis  clerk. 

M*.  King,  the  coroner,  sworn,  whoprodorH 
.«  Minuttis  of  the  Depoaitions  made  htkte 

Sf-n.  Capper,  Were  thcsi*  drawn  np  wIicd 
)Lc£  :ftone  was  examined,  or  afterwards  ? 

x.%£.  They  were  not  drawn  up  ifKr* 
« :  -^.s ;  the}'  were  drawn  up  at  the  same  tine. 

«^.     Read  them  as  far  as  they  relate  to  JfLs 

Sff]i.  Capper,  Did  E^^lestone  sign  bistk- 
iK^iSA*o  ? — king.    He  did  not. 

S#ij|.  Capper.  As  this  j^entlcman  is  coroier. 
«A&;  hr  has  taken  down  ought  to  be  signeJ 
»v  ihe  deponent ;  and  if  it  is  not,  I  bomUj 
V^'wheud  it  cannot  he  read. 

K.A\>fl  /'or  the  Prisoner.  The  gentkflKi 
na%  obuse  whether  the}*  will  have  the  3IinttKk 
t:».'.  v»'  \Thether  we  shall  give  parole  eiideocfi 

V  .vjte  what  Egglestone  said  at  that  tioie. 

^  \'\it  C!*ouosel  for  the  prosecutor  prel'enir^ 
•u*  M.  jutca,  tliey  were  read,  and  are  ai  fcl- 


if  •^ 


May  4,  1742. 


*.*^  •••H.T'.«»>s  relating  to  the  death  of  Taottf 
b'v'.i-a  C.4T0NC,  who  was  shot  in  the  foriaA 
jt  Staines,  in  the  county  of  Middleses. 

.  wiv  E^^lestone,  son  of  the  deceased,  livifl: 
1  Su;ae$,  saith,  That  on  Saturday,  the  iMtf 
M  i>.  be  and  bis  father  went  a-fishiaffiBNi 
^  *.«  tfvter'i  (grounds ;  and  says,  that  one  JMffk 
icsMUusg  came  up,  and  bid  hohl  of  his  fubcr. 
ami  i«mauded  his  net ;  upon  which  his  iitk> 
<«4ky  bt  should  not  hare  it ;  then  the  prisoo0i 
.oiiMfa  Annesley,  came  up,  and  said.  Dm 
^v«ir  blood,  surrender  your  net,  or  you  an  1 
41,^  laian ;  and,  upou  bis  refusal,  the  prisMtf 
K«u  vti*  his  piece  to  his  shoulder,  and  presnM' 
!•»  |»«ec«tu  the  said  Egglestone,  nearttthi 
iiiutiie  part  of  his  body,  on  his  leA  side,  v^ 
>«hH  ib«  said  Egglestone,  who  dieil  prescatij 
i»likr.  Savs,  the  gun  was  cocked  before  N 
^i«uie«  auJ  that  the  piece  went  off  Ijefore  ki 
»ilMr\  refusal  to  deliver  the  net.  lie  san 
4iirikKv«iNU  dapped  Ui  hind  to  hia  sde,  ip 


for  the  Murder  of  Thomai  Eg^estone. 


A.  D.  174^ 


[list 


a  roiifue,  you  have  shot  roe,  I  am  a 
Q.  That  after  the  discharge  of  the 
father  dropped  instantly.  Sa]^ a,  that 
saw  his  father  shot,  he  took  his  knife 
be  string  of  the  net,  and  jamped  into 
;  upon  which  the  prisoner  said,  He 
le  net,  and  went  to  strike  at  him  with 
?nd  of  the  fn^un  ;  and  said,  Let  us  go 
ther  side  of  the  river,  and  fetch  it. 
It  Ileddingr  had  hold  of  the  deceased 
liar,  when  the  piece  went  oiT.  Says, 
»t  offered  any  money  by  any  body. 

I  for  the  Prisoner,    This  is  the  4th  of 
he  now  says,  that  on  the  2nd  of  Blay 
f!i?red  money  at  Lalcliam. 
rapper.    Arc  these  all  the.  minutes 
took? 

ing.  My  clerk  was  there ;  these  were 
e  mentioned  that  he  took :  if  I  may 
hing  more  from  my  memory,  I  will 

len  we  will  go  upon  the  parole  e?i- 

"lapper,     AVhen  an  officer  has  taken 
wii  in  writing,  it  is  of  dangerous  con- 
to  admit  parole  evidence  to  be  given 
ne  things, 
e  do  not  insist  upon  it. 

Lev.  BIr.  Eusebius  William  sworn. 

r,  do  you  know  John  Fisher  ? 

ns.     Yes. 

ail  you  any  talk  with  him  about  £g- 

5  bemg  killed  ? 

m,    f  happened  to  be  at  Laleham, 

1  the  depositions  that  were  made  before 

us  Reynell:  Fisher  said,  if  he  was 

I  before  the  justice,  he  would  declare 

^lestone  had  said  to  him. 

'hat  was  that? 

7».    Fisher  told  me,  that  Egglestone 

d  not  believe  tlie  gentleman  killed  \\w 

Bignedly  ;  but  that  it  was  an  accident. 

you  know  how  this  young  man  Eggle- 

ne  from  Staines  to  London,  and  who 

he  keeping  of  him  since  ? 

w.    1  know  nothing  hut  by  hear-say. 

^ereyou  never  at  the  White  Horse  in 

ns.     I  never  was  there  since  this  ac- 

Mr.  Betliunt  called. 

tapper.  My  lord,  this  is  another 
at  IS  brought  to  contradict  tlie  evidence 
slone,  in  what  he  said  witli  respect  to 
00  of  the  gun. 

crs^  Counsel.  Egglestone  said  the 
pointed  downward.  Now  we  shall 
I,  fitHD  tlie  nature  of  the  wound,  that 
lorally  impobsible  it  should  be  so ;  for 
id  is  slanting  upwards. 

James  Betbune  sworn. 
ir,  yoQ  are,  1  think,  a  surgeon  at 
1:  did  yoo  see  the  body  of  tnii  Ug- 
that  was  killed  ai  Staines  f 

xvn. 


BcihuM.  Ob  Sunday,  after  the  aecidentt 
my  lord,  1  happened  to  be  aiLatehaVy  aad 
sir  Thomas  BeyneU  gave  me  leave  to  come 
in  and  liear  the  depositions :  I  was  afterwards 
sent  for  by  Mr.  Perkins,  a  surgeon  at  Staines, 
to  attend  at  the  opening  of  the  body  belbre  ihe 
coroner  ;  there  were  several  of  the  coruner'e 
jury  in  the  room.  I  found  the  wound  on  ihe 
left  side,  about  an  inch  and  a  half  below  the 
ridge  of  the  hip-bone :  The  wound  1  apprehend 
to  be  about  an  inch  and  a  half  wide ;  1  foimd  il 
went  into  the  cavity  of  ibe  belly. 

Q,  Did  the  wound  go  upwards  or  down- 
wards into  the  belly  ? 

Betkune.  When  I  found  it  went  into  the 
cavity  of  the  belly,  1  reraeml>cred  in  what 
manner  Egglestone  held  the  gun  when  be  was 
before  sir  Thomas  ReyudI,  to  shew  how  Mr. 
Annesley  held  it  when  he  fired :  1  remember 
very  well  be  held  it  to  his  shoulder,  slanting 
downwards :  I  attempted  to  put  my  probe  into 
the  wound,  in  the  same  direction  as  he  df* 
scribed  the  gun  ;  but  there  was  no  passagc-for 
it  in  that  position  ;  it  would  not  go  iu  down- 
wards :  then  1  put  it  in,  in  this  manner,  cront 
the  belly,  and  it  went  in  without  obstruction, 
and  theu  upwards,  and  it  went  in  with  the 
same  ease,  in  this  manner,  i  observed  several 
large  blisters,  full  ok'  black  serum  on  the  right 
aide,  opposite  to  tlie  place  where  the  shot  went 
in ;  the  blisters,  which  were  on  the  opposite 
siile,  were  three  or  Jaur  inches  higher  tlian 
where  the  wound  was :  the  wound  was  on  the 
left  side,  and  the  blisters  on  the  right :  when  I 
found  this  was  so  plain  to  me,  I  desired  it 
might  l>e  as  plain  to  the  jury,  and  every  one 
there,  as  it  was  to  myself,  because  this  war  a 
matter  of  fact,  and  not  of  judgment ;  and  1  de» 
sired  the  foreman  to  come  ai^  put  the  prolie  in, 
and  trv ;  he  did  so,  snd  found  the  wound  as  I 
have  described  it:  1  was  the  more  careful  in 
this,  because  I  had  observe<l  the  evidence  that 
the  boy  gave  on  the  Sunday,  and  there  w&a 
some  variation  between  that  and  the  nature  of 
the  wound ;  therefore  1  desired  them  to  take 
the  more  notice  of  it ;  and  said.  Gentlemen,  i 
shall  ha? e  oocasion  to  speak  to  this  by  and  bye, 
and  therefore  I  desire  you  would  mmd  what  1 
say  to  you. 

Q.  What  do  yon  think  those  bibters  on  the 
other  side  were  ocoasioned  by  ? 

Bethume,  I  apprehend  tliey  were  occasioned 
b?  the  force  ot  the  powder ;  aud  that  if  the 
shot  had  jrone  through,  it  must  have  come  out 
three  or  four  inches  higher  on  the  other  side 
than  it  went  in. 

Seij.  Ompper,  According  to  your  account, 
could  he,  holding  the  muzzle  of  the  gun  up- 
wards, have  made  this  wound  ? 

Betkune.  He  could  not  have  made  it  with 
the  muzzle  downward. 

Q,  l>id  you  observe  how  the  woiwd  was 
upon  the  bone,  and  whetlier  tliere  wore  any 
allot  remaining  in  the  wound  ? 

Bethune.  No,  Sir ;  but  1  found  some  shot  iu 
the  cavity  of  the  1  wily . 

Mr.  hrosrn.    Now  the  queiliott  isr  *«r 

4C 


1123] 


15  GEORGE  IL  Trial  qfAnneslcy  and  Redding^ .  [1181 


the  sliot,  cominfT  upon  thii  bone,  might  not  be 
thrown  upwards  ? 

Bcthune,  No;  for  the  shot  went  through  the 
bmi^,  BO  that  the  gnn  must  have  been  held 
oblioHflly,  pointing  upwards:  the  shot  could 
nut  have  gone  through  in  that  direction,  it'  the 
muzzie  of  the  gan  had  pointed  downwards. 
This  is  not  nnatter  of  judgment,  hut  1  hafe 
gifen  you  demonstration  of  it. 

Serj.  Gapper,  You  say  the  wound  went  from 
the  M%  side  to  the  right,  and  that  if  the  muzzle 
of  the  gun  was  downwards,  the  wound  would 
be  in  the  same  manner  ? 

Btthune.  Certainly,  Sir ;  if  the  muzzle  of 
the  gun  is  held  downward,  the  shot  cannot  go 
upward. 

Forttnan  nf  the  Jury,  He  makes  it  appear, 
that  the  prison  er'could  not  hold  the  gun  to  his 
shoulder,  hi:t  that  it  was  held  horizontally; 
and  that  it  was  impossible  for  him  to  wound 
him  in  the  manner  the  bov  has  described,  if 
the  muzzle  of  the  gnu  had  been  jrainted  down- 
ward. 

Bethune,  I  beg  leave  to  speak  a  few  words 
more  to  your  lordship.  While  1  was  giving  in 
this  evidence  before  the  coroner  and  his  jury,  if 
your  lordship  remembers,  I  said  I  had  shew- 
ed them  how  the  wound  was;  therefore  I 
desired  ihetn  to  consider,  how  consistent  it  was 
with  the  evidence  that  Mr.  Egglestoue  had 
g;iven :  I  believe  I  proved  it  to  Uie  coroner's 
jory,  and  others  that  were  there,  that  it  was 
impossible  it  could  be  done  in  that  manner,  if 
the  gun  was  held,  as  he  said,  to  his  shoulder ; 
upon  that  he  comes  up  again,  and,  says  he, 
The  gentleman  stooped  when  he  did  it. 

Counsel  for  the  Prisoner.  This  shews  how 
lie  departed  from  what  he  had  said;  for  he 
said  (jrst,  that  Mr.  Annesley  stood  upright 
when  he  fired ;  and  then  that  he  stooped,  in 
order  to  make  his  evidence  correspond  with  the 
wound. 

John  Perkins^  Surgeon,  sworn. 

Q.  Did  you  see  the  body  of  Thomas  Eggle- 
stone  ? 

Perkins,  I  opened  the  body  on  the  4th  of 
May,  and,  on  iuspection,  I  found  one  wound 
about  an  inch  and  an  half  diameter ;  on  the 
lower  part  of  the  \e(i  side,  it  passed  throuirh  the 
spine  of  the  os  ilium,  about  an  inch  and  a  half 
below  the  ridge  of  the  hip-bone:  I  put  iu  my 

Iirobe  seven  or  eight  incnes,  by  which,  and 
ikewise  upon  inspection,  i  found  it  run  horizon- 
tal, a  little  upon  the  ascending.  I  put  my  two 
fingers  into  the  cavity  of  the  bone,  and  shewed 
the  jury  how  it  was  ;  and  observed  on  the  con- 
trary side  four  or  five  blisters,  which  1  think  to 
be  occasioned  by  the  force  of  the  powder  from 
the  other  side ;  but  the  shot  did  not  go  through 
the  skin. 

Court,  I  ask  you,  whether  these  blisters 
were  higher  or  lower  than  the  wound  ? 

Perkins,  Four  or  five  inches  higher,  my 
lord. 

Mr.  Broscn,  Do  you  think  tliefc  blisters  were 
•eeasiiiMd  by  the  shot? 


Perkins,  I  apprehend  they  were,  beetnc 
there  were  no  other  blisters  on  any  other  part 
of  the  body. 

Mr.  King,  the  Coroner^  called  again. 

Q.  Was  any  application  made  to  yo«,  at  asy 
time,  to  send  Mr.  Annesley,  a  prisoner  to  New* 
gate? 

King,  Yes,  I  think  it  was  Mr.  Giffiud ;  be 
came  along  with  another  gentleuiaDy  whsie 
name,  I  think,  is  Carrington. 

Q,  What,  captain  Carrinfftoo  ? 

King,  I  believe  it  was :  I  said,  I  think  the 
gentleman  is  secure  enough  (there  was  a  M 
mentioned,  but  I  cannot  remember  that  he  wu 
named :  Mr.  Giflard  wisely  kept  him  from  say- 
ing who  it  was  ;)  I  thought  it  was  too  sevcte'li 
send  him  to  Newgate ;  and  said,  that  sir  TV- 
mas  ileynell  was  the  justice  of  peace  «b 
committed  him,  and  he  had  takeo  sofficial 
care  about  it. 

Paul  Keating  sworn. 

Q.   Do  you  know  any  thing  of  Egglataser 

Keating,  Yes. 

Q,  Where  did  yoa  come  acquainted  wiib 
himP, 

Keating,  At  the  White  Horse  in  PicodOIj. 

Q,  What  countryman  are  you  ? 

Keating,  I  came  from  Ireland  on  bssrii 
merchantman  from  Waterford:  I  wasreoea- 
mended  to  the  earl  of  Anglesea,  to  say  vbul 
know  as  a  witness  about  the  estate. 

Q,  How  came  you  to  the  White  Honef 

Keating,  There  was  one  Lawler,  that  earn 
over  in  the  same  ship.  When  I  came  totov% 
1  went  and  enquired  for  him  at  the  earl  of  Ai- 

flesea's,  and  he  seut  me  to  the  White  Homii 
Iccadilly  to  live,  and  there  I  came  aoqusislid 
with  Egglestone. 

Q.  Alter  your  acquaintance,  do  yon  retscS' 
her  any  conversation  with  him,  about  wbalki 
was  to  have  for  swearing  in  this  cause  ? 

Keating.  1  do,  my  lord,  remember  might 
well ;  a  little  time  alter  he  came  to  the  ioB,lM 
and  1  got  acquainted  together,  and  went  oat  i 
walking  to  see  the  town,  and  particularly  os  a 
Sunday  morning ;  the  Sunday  dfler  he  csBi 
to  Piccadilly. 

Q.  What  month  was  that  in  ? 

Keating.  In  the  month  of  May :  I  beliert  il 
was  the  second  Sunday  in  May.  As  we  wet 
walking  abroad,  1  asked  him  now  he  osoae  H 
live  there ;  says  he,  I  am  here  at  the  espCBCt 
of  the  earl  of  Anglesea. 

Court.  This  is  not  proper:  if  you  can  cal 
any  body  to  contradict  Egglestone  yoa  maj ; 
but  this  is  reflecting  upon  a  noble  pcnosli 
character. 

Q.  Did  he  tell  you  how  he  cane  to  bs  il 
that  inn  ? 

Keating.  He  told  me,  that  Mr.  Williaaii 
who  keeps  the  White  Horse,  brought  him  fnm 
Staines ;  and  that  he  should  be  very  well  pfv- 
vided  for,  if  he  wouM  prosecute  the  gmlls— 
%vho  is  now  in  custody  for  this  norder ;  sad  he 
desired  1  might  soatrive  aonie  way  thsl  fet 

\ 


f.^the  Murdernf  Thomas  Egglatone.  A.  D.  1742. 


low  came  lie  1o  lake  copies  or  tliem ' 
ng.     Because  I  ilid  not  ca\e  my  lianil 
lie  knaitn.    I  h««e  a  copy  of  one  of 
raypockei.    [Itnds.] 


upon  tbe  lOlh  day  uf  Juae  oext,  llie 

r  90al.  tlerlJng,  for  value  received  from 

«eflse*I  fitbcr  anit  hini  in  cnrpenter's 

&c.    Witaesi  my  han<t  this  loili  clay 

r,  17*1.' 

Wta  to  be  Binned  eilber  by  WillJams,  or 

lAnglcM*. 

leyon  know  of  tuy  discourse  nilh  Pa- 

uner? 

j^.    Yes;  he  i«  my  lord  Aogletea's 


■are  you  erer  leeu  ihe  ci 
le  WliiteHoTEe:' 
'tng.  Heis  tbereoAen. 
'hat,  baa  tlie  earl  uT  Aofflt 


«e- 


toy  thiog 
Hit  cotcb  and  barees  are  kepi 


Baw  long  bave  tliey  stood  there  ? 
mg.  They  atand  tliere  coDsuatly. 
GepftT.   IV hat  TTas  that  note  for? 
inf-    It  ii  only  a  copy  of  what  1  wrote 
itwtone;  for,  as  I  told  the  Court  hcfore, 
Aoft  that  loy  Land  should  be  aeett  ia 
ih  tbiog  ss  bnbery  and  corrruplioD. 
Capper.    Where  ims  lliis  note  signed  ? 
ing.  I  cannot  say  nhether  it  was  sijj^ned 
be  Utlil  me  it  iras  to  be  signed. 
Did  not  you  put  this  into  Egglestone'a 

ing.    No,  upon  my  oalb,  I  did  nol. 
Braam.     Did  not  you  receiTe  money  to 
■wberc,  Olid  you  and  he  went  and  Epeot 
ney  ? 

Mf .  1  received  a  crown  to  go  tu  Wool- 
low  came  you  muI  to  go  to  Wootiricb  ? 
out.  1  litd  not  a  miuiTio  fu- 

Gapptr.   8o  vou  had  a  mind  to  make 
lOtM  dnmk  with  this  crown  i> 
iflf.  That  ia  a  diflerent  case. 
)id  not  you  treat  him  P 
*«.  Yes.  I  did. 

VM  reMoa  bad  you  to  treat  him  P 
Jnj.   Because  be  had  no  money  of  his 


for  the  prisoners  bung^  ^ne 

Iba  jury  should  be  of  opinion  that 
'  off  by  acoidenl,  tb<  bomicidc 


lit,  in  point  of  hw,  be  either  maiislnughler, 
chince'medlry  :  I  shnuld  be  chtd,  in  that 
cote,  la  make  it  chanoe-ranHey ;  hul,  in  order 
In  thnt,  it  iTKislappesr,  that  what  Mr,  Annt^tey 
wns  dain^  was  |)erfectly  lawful,  olherwise  ha  ' 
will  lie^piiilty  of  manslaiichier. 


acls  of  pnrliamenl  made  for  the  preserta  . 
the  game,  authority  to  seixe  the  deceawd,  wha 
was  clearly  aclini;  in  riolatioQ  of  thuie  laws, 
Bui  it  is  doubtful  whether  tlie  aulhorily  of  a 
gnmc-kceper,  being  perRonal.  Ihe  other  prisoner  • 
acted  lawfully  in  assisting  him.  ' 

The  SrssTuicE  of  the  ABGuncND  by  tha  - 

CiHiDsel   lor  Ihe   Prisoner*,   tiz.    Mr. 

Uume  Campbell,  Mr.  SerJ.  Bayward,  : 

3fr.    Clarke,  Mr.  Wyrley,   and  Mr. 

Smith,  was  as  follows: 

My  Ford,  ulihough  a  game-keeper's  Butho> 

ly  be  personal,   we  submit  to  ynur  lordship,  '. 

that,  am  ihe  deceased  was  conf>;s»edl^  doing  an  ' 

unlawful  acl,  Mr.  Annesley's  catcbmg  at  lb« 

string   of   the   net,  which   Ihe  deceaifd   had  ' 

thrown  awai^,  and  which  mig-hl  be  only  to  pre- 

falling  into  Ihe  water,  was  iiul  such  > 

trespass  in  him,  as  will  alter  the  nature  of  Ih* 

consequence,  and    make  that   roanslanijhler, 

wliicb  appears  to  hafe  been,  in  tad,  a  luohl  u»- 

Ibrtunale  accident. 

humbly  apprehend,  my  lord,  that  it  if 
not  necessary,  that  the  act  Air.  Annt^ley  wsa 
about,  when  tbe  accident  hap|)«ncd,  should  ba 
strictly  1^)  ;  if  it  was  an  act  of  an  InditTcrent' 
nature,  not  an  unlawful  one,  wc  hope  it  will  b«  ' 
sufiicieni  to  excuse  him  from  the  guilt  of  man- 
slaughter. 

Jfa  man  throws  a  ttnne  into  a  place  of  pnb* 
lie  resort,  and  kills  another,  Ihat  will  be  uisn- 
slaufj'hter,  because  the  acl  itself  was  unlawful, 
supposing  Ihat  dismal  consequence  had  not 
followed  it. 

Bui  if  a  man  it  playinr  at  bowls,  and  unde- 
signedly kills  another,  tliere,  us  tbe  first  act 
was  of  an  iudifltrent  nature,  the  law  will  not 
impute  the  accident  twusequeotial   to  it  as  a 

As  to  Sft  Aoneslcy's  entering  ihe  close  lliat 
belonged  lo  Sylvester,  wbalerer  it  roiKht  be 
with  r«ganl  to  him,  it  was  on  acl  of  an  iodif-  • 
ferent  nature  wiih  respect  lo  Ihe  deceased,  wh» 
;laimed  no  proi>erty  in  the  ground,  and  m 

i  no  more  right  to  be  there  than  Mr. 

intess  you  will  suppose  him  to  hart 

had  the  owner's  cooseni,  which,  as  il 

Crated,  may  and  ought,  with  eiiualjUB 
e  supposed  in  favour  of  the  prisoner. 
The  young  man's  evidence  being  put  out  oC,^ 
ihe  case  (and  considering  the  maoner  in  whiclt  ^  j 
he  contradicted  himsell,  and  bos  been  contra*  • 
dieted  by  others,  what  he  says,  we  auprphend,  J 
ought  lo  slnud  fur  nothing),  Mr.  Anne>ley*4 > J 
acl  appears  to  he  no  more  tTian  ainnping  tn  -  -' 
veiltllic  siring  of  the  net  from  falling  in(< 
river ;  in  doing  of  which,  suppose  a.  qtitul  Iv 
gone  tjff  in  \v\  ^^V«!i,  <nim,V&  V  — '  ^"" 


entty  hai 
inesley,! 


11S7] 


15  GEORGE  IL 


TruU  ofAnnesley  and  RidtHngf 


[1188 


hardest  case  id  the  work),  to  sa^  thai  this  acci- 
dent should  make  him  cruilty  of  manslaughter  ? 

Bat  allowing  it  necessary  that  the  ad  Mr. 
Aonesley  was  doing  must  be  lawful,  we  hope 
to  shew  your  lordship,  that  Mr.  Annesley's  in- 
terposition in  this  case  was  so. 

There  are  two  acts  of  parliament  relating  to 
the  game  applicable  to  this  case;  the  one 
made  in  tiie  li^d  and  SSd  years  of  Charles  3, 
cliap.  26,  and  the  other  in  the  4th  and  5th 
years  of  William  and  Mary,  chap.  23. 

The  first  recites,  that  divers  disorderly  per- 
sons, laying  aside  their  lawful  trades,  betake 
themselves  to  the  stealing  of  conies,  hares, 
pbea^iants,  partridges,  and  other  game,  with 
uels  and  other  engines. 

For  remedy  whereof  it  enacts,  That  all 
lords  of  mani»rs  may,  by  writing  under  their 
liando  and  seals,  authorize  one  or  more  game- 
keeper or  game-keepers,  within  their  manors ; 
Vfiio,  being  so  authorized,  may  seize  such  nets, 
or  other  engines,  as  shall  be  used  by  any  person 
or  persons  prohilnted  to  keep  or  use  the  same. 

Then  it  recites,  that  divers  idle,  disorderly, 
and  mean  people  do  betake  themselves  to  tne 
stealing  of  fish  ont  of  ponds,  and  other  several 
waters  and  rivers,  to  the  great  damage  of  the 
owners  thereof. 

Therefore  it  enacts,  That  if  any  person  or  per- 
sons shall  use  a  casting*  net  in  any  rrrer,  &c. 
without  the  consent  of  the  lord  or  owner  of  the 
MHd  water ;  and  being  thereof  convicted  before 
any  justice  of  the  |ieace,  shall  give  the  owner 
such  satisfaction  (not  exceeding  treble  damages) 
as  the  justice  shall  appoint,  or  be  committed  to 
the  House  of  Correction.  And  that  it  shall  be 
lawful  for  the  justice  to  destroy  all  such  nets, 
or  nHicr  engines,  wherewith  such  offenders 
shall  be  taken  or  apprehended. 

I'he  other  act  of  parliament  recites.  That  di- 
vers good  and  necessary  laws  had  been  made 
for  preservation  of  the  game;  notwithstanding 
vhich,  or  <(M-  want ol'llie  due  execution  thereof, 
the  game  hail  been  very  much  destroyed  by 
many  idle  persons,  who  af^erwtirds  Make 
tiiemselves  to  robberies,  burglaries,  or  other 
like  ollVnccif,  and  neglect  their  lawful  employ- 
ments. 

For  remedy  whereof  it  enacts,  TlUt  no  per- 
son or  persons  shall  have  or  keep  any  net  or 
eiigine  for  taking  of  fish,  except  the  owner  or 
occnpier  of  a  river  or  tishcry.  And  that  it 
shall  Ik?  lawful  for  such  owner  or  occupier,  and 
uil  and  every  other  person  or  persons,  by  him 
(HT  them  for  tiiat  purpose  appointed,  to  seize, 
detain,  and  keep,  to  his  and  tneir  own  use  and 
uses,  every  net  or  engine  which  they  shall  find 
used,  or  in  the  custody  or  possession  of  any 
person  or  persons  whatsoever,  fishing  in  any 
river  without  the  consent  of  the  owner  or  oe- 
oupimr. 

Mow  tb«  qacstioD  which  your  lordship  puts 
«#y  t»  to  argue,  is,  Whether  a  person  duly 
undar  these  acts   of  psrliament, 
in  th»  eaecation  of  liii  ofiice, 
"^^otiMrpefSQBto  hU  assif* 


Year  lordship  will  consider  we  areargnng 
in  favour  of  lite,  and  therefore  will  constme 
these  laws  in  the  most  beneficial  manner  for 
the  prisoner,  tnd  the  rather,  because  such  con- 
struction will  tend  to  put  the  laws  themselves 
in  force,  which  were  intended  for  seen  ring  nea 
in  their  property  from  the  violation  of  idle  aad 
disorderly  persons. 

These  acts  suppose  the  ofTeodera  to  he  des* 
perate  people ;  ror  it  describes  them  to  be  such 
as  afterwards  betake  themselves  to  rohberiei 
and  burglaries ;  and  likewise  supposes  (what  is 
also  true  in  fact)  that  they  go  in  numben  to 
destroy  the  game. 

That  circumstance  seems  to  imply,  tbtta 
gfame-keeper,  or  other  person  duly  appointed, 
mav»  in  such  cases,  call  in  other  persons  to  bit 
assistance. 

To  constme  the  law  otherwise,  weold  render 
it  inefTectoal ;  for  it  is  absnrd  to  suppose,  that 
every  lord  of  a  manor,  or  owner  of  a  fishery, 
shouid  appoint  as  many  game- keepers  as  there 
may  be  fiersons  incKned  to  invade  itis  propertr. 
This  would  entirely  tend  to  defeat  the  secwiiy 
intended  by  the  law,  and  therefore  can  never 
be  agreeable  to  the  meaning  of  the  legislator. 

As  these  are  late  acts  or  parliament,  it  cu- 
not  be  expected  that  we  shoitltl  pvo«Hice  cssei 
directly  in  point,  and  resolutions  of  the  jodgis, 
oo  the  censtmctwn  ef  those  acts  iu  this  tfaa- 
tion. 

But  suppose,  upon  some  of  the  acts  of  psr* 
liament  made  against  smirgglers,  an  efBeer  of 
the  revenue,  or  at  the  common-law  a  constsMe, 
being  resisted  in  the  execution  of  his  office,  calls 
in  other  persons  in  the  neighbourhood  to  hk 
assistance,  and  mischief  or  death  ensiiei; 
might  not  those  persons  avail  themselves  of  ibe 
authority  vested  in  the  officer  or  constable,  so 
as  to  be  justified  in  what  they  do,  i\ii'  themsni- 
fest  sup|M)rt  and  execution  of  the  law  .• 

A  man  has  undoubtedly  aright  to  drive  awij 
cattle,  which  he  fimli  daiua^'e  faisunt  in  bis 
ground.  Suppose  then  he  should  dem  • 
stranger  to  assist  him,  co«aid  the  owner  of  tie 
cattle  maintain  an  action  ogainst  the  stracger 
for  the  trespass  iu  driving  his  cattle  ? 

Suppose,  in  the  present  case,  the  deceased 
had  not  unfortunately  been  killed,  and  htd 
broocrht  an  action  againit  the  prisoners  for  so 
assault,  might  not  the  defendants  (one  of  which 
was  game-keeper)  hare  pleaded  speciallv,  s»d 
justified  under  the  act  of  parliament!^  AtA 
surely,  whatever  in  pleading  i^-ould  have  ben  i 
justification  in  such  a  case  as  this,  will  beassf- 
ficient  excuse. 

But  we  apprehend,  that  in  all  eases  wheretbe 
law  makes  offences  punishable  by  justices  of 
the  peace,  whoever  sees  a  person  coromittid^ 
snch  an  oflfbnce,  has  a  riglit,  without  any  spe- 
cial authority,  to  take  him  up,  and  cany  hiOi 
together  with-  the  instrument  of  his  ODenee, 
before  a  justice,  in  order  to  his  conviction;  and 
that  whatever  is  neetssary  for  this  pnrpose  if 
lawful. 

If  this  was  not  hw*,  ofRhiders  would,  in  nM 
cases,  escape  with  inpuMty;   Ihr,  observisp 


Jiir  tht  Murder  of  Thoinas  Eggieilone. 


A.  U.  17+«. 


ttrannrtTn ta  be  diacof rrfd,  Ibfj  wnnM  hanlly 
■tB*  till  lli«  DbstTTCr  could  Ksorl  Id  a  proper 
■iiiborii^  :  and,  lieinB:  mean  anil  unknown  pn- 
anat,  miglit  narvr  allnirarilB  be  rbunil. 

Eteti  Ihej'uuDg;  man  wLowai  bo  rvry  far- 
mm  tn  Eji'iog  his  eriiltner,  ailinits  that  bia 
lidber  aed  he  wtre  acliially  tisbiii^,  that  ja, 
eaminittiDg  an  offence  against  iheae  acts  of 
parliantrat ;  thai  Refilling,  wbii  bad  a  legal 
anthorily,  came  up  first  to  lite  HcneBsrd,  and 
dnlMHlded  tbenet;  Ibat  ifacdeceaied  refn^eil  lo 
driiferii;  anil  thai.whilatthcy  wer«alrugg1ing 
lirthe  act,  Sir.  Anneslpy  came  ujiandanaicbtS 
atil. 

Ufiou  Ihe  whole,  we  hope  Mr.  Annesley 
WM  well  warranlnl  to  go  to  Reddriig's  Bssht- 
aaue;  nnit  iliut  llie  uiiliapiiy  acciilent  that  lell 
out  at  llial  lime,  shall  [ict  be  im|niied  \u  him  as 
a  et^ma,  bat  construed  to  be  no  more  than 
dUBoe- medley.* 

The  Substance  of  the  Abguhcnts  by  the 
Couuxel  for  ibe  I'roseculnr,  viz,  Mr. 
Bcrj.  Gapner,  Mr.  Serj.  Wynne,  Mr. 
tii»«n,  and  Mr.  Johusmi,  was  as  fo)- 

Mjr  lord,  the  counaci  for  the  prisnnvra  have 
BtrfcrtakeD  to  juslify  under  t»a  acta  of  par- 
liaiDent. 

Aa  Ui  lh«  nd  and  ^3i  arCbarles  3.  ne  beg 
leare  to  uliwrve,  that  ibc  cbuse  eropoweriog 
hrda  of  maoors  to  afipoini  gante- keepers,  whu 
aaUitiritjr  to  aeize  imU,  dnes  not  extend  to 
fiahcaica.  The  clause  which  relates  to  iishing, 
•nlj  iTiretrta  tbnl  the  oHendera  nliall  be  punished, 
■pmi  0011*1  ctioD,  btifure  a  Justice  ef  peace;  bnl 
4m*  mm  etDpower  any  one  (a  seize  either  then 
•r  tItMr  iM*.  'I'hc  regular  way,  ondonbleilly, 
i*  tt  lay  a  conijilBiiit  lierore  n  jaslice  ot'  the 
pa»M,  who  is  to  grant  liis  warrant  lor  appM- 
MndiDg  Ihe  olTender,  and  then,  upon  conviction, 
b*  naydcitray  Ibe  net.  Iteaidea,  it  was  sworn 
hf  oUl  lUddinK,  that  lliis  was  liis  fishery  ;  if 
aa,  air  John  I>olben  hnd  no  authority  at  all  to 
■ppoinl  a  game-  keeper  to  take  care  of  it,  aod 
eaweqitCBtiy,  even  the  deputaliun  itself  is  Toiil. 

Bat  if  it  was  not  void,  yet  still  the  power  is 
ptfaoual,  and  cannot  he  ilelcguled  lu  another, 
anil  ttwrefore  caddoI  aerre  lo  exouse  Mr.  A-a- 
aaaley,  who  ajipenrs  |li  have  acted  iitliciouBly, 
wilbout  bring  calted  tipon  by  aoy  body. 

As  to  iliF  iiiber  act  of  parliament,  the  41h  nod 
SIta  or  William  aai  Mary,  Ibot  no  ways  relates 
to  gainG-ke*per» ;  but  only  empowers  IliF 
Manrra  or  oecirpten  0(  llaheries,  ar  pnmas  by 
ihcin  fur  that  pnrpnse  appointed,  to  Knze  Ihe 
net*  ;  ao  ibat  this  power  is  confined  to  old  Ited- 
fling  hinuH.'ir,and  it  ilnes  not  B|i|>car  he  has  a^i- 
KiMad  nther  of  the  nrisoncrs ;  and  there- 
tan,  a*  they  had  no  auliiotity  at  alt,  they  were 
:,  anil  roast   autwer  fur  the  COUe- 


M 


•  SscLeaafi'tHavrkins's  pleas  ofibeCRiiTn, 
haiilc  I,  c.  99,  t.  tJ.  Sfi*  also,  as  lo  (be  que*- 
lias  Uere  maifr,  the  olntrvatitiQS  in  Eut'*  1*1. 
^rt».ft.i-ar. 


As  to  the  liberal  consirticiitin  of  the  adU  of 
pHriiameat,  wiiidi  ihe  gciitVuwn  coblend  for, 
we  say,  thai,  at  the  cumman  law,  every  man 
had  a  right  to  lisli  in  riters;  and  consequentlJT 
those  siHinies  are  an  abridgment  of  the  common 
law,  and  therefore  to  be  (Iriclly  construed.  By 
the  came  rule  of  eonslrnciion,  which  they  i»- 
Giit  upon,  any  man  may  claim  a  right  lu  come 
every  day,  and  search  anotber's  hmiie  for  nets 
■III  engines  fOr  destroying  of  game.  Hot 
(that  nnrder*,  besidea  other  inconvenience-', 
must  he  the  conseoucoce  of  auch  an  onlimited 
Iiower,  we  leave  all  the  world  lo  judge. 

We  admit,  that  this  is  a  new  case,  and  there- 
(bie  Ibe  cases  put  of  a  constable,  whose  office 
is  as  ancient  as  any  in  the  kingdom,  are  by  no 
means  parallel.  We  iiiaisi,  Ihereliire,  that  Ihe 
prisoners,  at  least,  9Tr.  Annesley,  having  been 
wrong-doers,  mutt  answer  fur  the  consequence, 
which  being  the  death  of  one  of  his  miijcsty's 
Bubiecti,  make  tbeiD  guillv  of  innnslaiightef, 
supposing  the  gun  went  off  hy  accident. 

Then  Mr.  Hume  Campbell  said  in  reply ; 

My  lord,  I  beg  leave  to  trouble  ynu  with  a 
few  words,  on  behalf  of  tile  unliappy  gentleman 
who  stands  diai^*d  before  yoo  w'itfi  a  crime 
Hhich  affects  htt  life. 

If  that  cnnseiitience  was  Ihe  motive  for  the 
charge,  be  may  rely  upon  the  justice  of  this 
conrt  OS  bis  security;  to  your  justice  he  ii«i 
siirremfered  hhiRelf,  and  eqoally  trusts  in  (bat 
and  Irisinnocence. 

In  argftihiK  the  point  now  before  (be  Court, 
I  m«y  talic  it  for  granted,  that  the  gun  went 
offfcy  accident,  witliont  Mr.  Anneslcy'sknot** 
tng  il;  and  only  consider,  whether  bis  inier- 
posiug  to  assist  Redding  was  or  was  not  lawful. 

My  lord,  I  take  it  I'nr  a  general  rule,  that  all 
persona,  on  request,  not  only  may,  but  are 
bound  by  their  duty  and  allegiance,  lo  assist 
legTll  officers  in  the  execulion  of  their  duty. 

I  shall  not  repeat  any  of  Ihe  eridence  ;  the 
Cotn-t  will  remember,  that  a  request  of  the 
game-keeper's,  or  what  amounts  to  sucb,  hai 
Lceu  proved. 

I  mentioired  the  case  of  a  consfable,  which 
the  gentlemen  of  the  other  side  etidcarour  (ft 
<t'i3lingui$h  ft-om  (hat  of  a  game-beeper,  by 
aayinjr,  that  hli  pDWer  ia  great,  and  ihil  bil 
office  IS  very  ancietil.  I  aihoit  bclb  these  po- 
aitions :  but  iDsist,  that  his  power  does  not  arisA 
Irom  Ihe  antiquity,  but  from  the  legality  of  hi* 

A  game- keeper  is  a  legal  officer,  particularly 
sppoiiiied  under  the  acts  of  parliament  fur  (b« 
Iireaerration  of  tlie  game ;  lie  is  for  lUat  pur- 
pose fully  empowered  to  put  the  laws,  relating 
ro  (he  name,  m  execution  :  nobody  can  lettatl^ 
I'cBist  Him,  and  consequently  ihedeceBneiranil 
his  son  were  doubly  criminal  ;flr«t,  io  breaking 
Ihe  law,  and  then  ia  resisting  the  legal  officvr, 
who  came  to  put  that  law  in  force. 

What  did  Mr.  Annesley  do  in  thUcaser  Fl* 
stooped  to  take  up  the  net,  which  the  deceased 
had  unlawfully  thrown  into  Hie  water,  io  on- 
rtat  the  ^me-beeper  tnitt  n""" 


1131] 


15  GEORGE  IL 


Tbu  a  ipeeial  autlMnly,  my  Ion),  ii  Dot  ne- 
cwHu-y  in  all  case*,  will  bardly  be  dupuled  ;  ■ 
coiwlable,  if  Iba  Utr  U  broke  in  hb  preeenee. 


EggMeat  had  ■bandoned  it ;  tncl  will  any 
sue  mainlain,  tbat  when  a  Ireipaner  timwa 
away  the  iotlrumeDtof  his  crime,  it  ia  Hula trfnl 
in  anolher  person  to  take  it  up?  N^y,  the  aa- 
■tatant  of  bim  to  whom  the  atalule  gitea  it  f 

Tfaey  lay  a  man  may  •■  well  go  enrj  day 
into  peO|rie'«  houaea,  nnter  pretence  of  tearch- 
ing  n>r  nela,  Ace  No,  they  cannot  do  that  by 
law :  arery  man's  houM  isliii  caitle ;  and  the 
law  baa  provided,  that  be  thall  not  be  moletird 
there  without  aapeeialantbority. .  Noriathwe 
tW  aame  reaaon  (br  that,  m  there  ia  for  «eiEiD|i> 
vflendara  in  the  aclani  comBuanon  of  tbe  of* 
fence.  TIm  very  case  tfaey  put,  impljea  the 
ofibider  may  be  fonnd  and  come  at  by  ttie  or- 
dinary forma ;  but  is  the  other,  he  may  not  be 
known,  and  will  hardly  «Uy  till  yon  apply  for 
n  wartani  to  q>preheo(l  him. 

So  that  the  neeeaait*  of  tbe  ihiug  maket  that 
venaooable  and  lawful  in  the  one  caae,  which, 
fbr  want  of  that  oeceewty,  ia  not  no  in  ifae  other. 

m... :.i  -utlionly,  my  lor"  ' — '  — 

I,  will  hardly  be 

iwiabrokeinh     , 

may,  by  virtue  of  bia  general  power,  Mice  cog- 
nisanoe  of  the  ofTenoe,  and  arreat  the  offender. 

In  the  pcetent  case,  tbe  game-keeper,  who 
ia  a  legal  officer,  and  in  natnro  of  a  constable 
Ibrthia  particular  purpose,  (Bw  tbe  deceased  a- 
fiabii^,  and  consequently  bad  a  right,  without 
any  special  wamut,  to  seixe  him,  and  wben 
letiatM,  to  call  Mr.  Anneeley  to  bia  assistance. 

It  ia  said,  the  acta  of  parliament  are  an 
abridsoient  of  the  common  law,  and  therefore 
•hould  Ik  construed  strictly.  My  lord,noman, 
by  the  common  law,  had  a  right  to  fiih  in  an- 
Other's  property.  It  was  an  offence  at  tbe 
coQimoii  law  ;  it  is  '  malum  in  se;'  ind  tbe 
■lalulea,  that  bate  been  mentioned,  only  make 
thnl  uffeuce  punishable  by  a  justice  of  peace ; 
as  ihey  lend  iherefore  to  secure  tbe  property 
which  a  man  had  at  ihe  common  law,  they  are 
an  Bildition  lo  the  common  law,  fixing  a  pu- 
nishment fi-r  the  breach  of  law ;  and  taererore 
lo  be  so  construed,  as  will  best  answer  so  sa- 
lutary an  end, 

l(  it  is  B  neiT  case,  as  the  gentlemen  seem  to 
lay  a  slreas  upon  it,  let  us  consider  what  wilt  be 
the  cunsequcnre  of  your  lordship's  determine- 
lion,if  ■(  should  b(!  against  us. 

The  law,  my  lord,  I  apprehend,  will  become 
vain  anil  idle ;  for  if  offenders  zet  together  in 
any  number,  it  will  be  impossible  for  a  game- 
keeper to  restrain  them. 

Nay,  my  lord,  tbe  law  itself  will  become  a 
■nare  to  all  wtiu  bare  not  (he  act  of  parliament 
in  tlieir  pocket,  to  tell  ibem  they  must  not  in- 
tcrfere ;  Ibr  suppose  a  persoa,  legally  apjiointed 
under  en  act  of  parliament,  going  lo  do  his 
duly,  is  resisted,  can  it  be  imagined  that  his  fel- 
lon-Berrant,  bis  neighbour,  or  bis  friend,  would 
not  ibitik  bimseir  Justified,  nay  bound  to  assist 
him,  when  he  aees  his  authority  thus  trampled 
upon? 

Mmoat,  my  lord,  it  could  be  only  an  impru- 
dent act  in  Mr.  Annesley  to  interpose ;  but  we 
hope  yoiu  lordship  will  not  construe  it  to  be 


Tr'itU  {/  4nnetley  and  Reddtngt 
■Dcb  an  imlawful  act  as  will  ma! 


[IIM 


tiip  wUI  please  lo  obaervc,  that  it 
depends  entirely  on  the  credit  of  EggtesUM:, 
whether  Ihia  gentleouD  did  anylltuv  or  not. 
Befureyour  lordship  du«clslhe  jury  aalnlhU, 
it  i*  my  duty  to  aoijuaiDt  yonr  loraibip,  that 
there  is  an  indictment  on  the  coraner'a  inqniri, 
and  likewise  an  indictment  on  ihe  black  act, 
egaiosl  the  prisoner  Mr.  Annesley. 

Court.  That  is  for  shooting  mafieiiMdy': 
But  there  is  no  evidence  tending  thai  way. 

Serj.  Capper.  My  lord,  we  deaire  to  call 
some  eridenu:  to  enppori  the  character  of  Joba 
Eftgtestonc. 

Q.  For  what  ?  We  have  calleil  no  witneit  H 
impeach  it. 

Court,  Hare  you  not  examined  every  wit. 
ness  that  has  appeared  to  tbeboj's  cfaaradw.' 
If  you  cnnid  have  called  more,  it  is  to  be  sap- 
posed  you  would  hare  done  it 

Joli»  Gardner  Bwom. 

Serj.  n^nne.  Do  yon  know  this  yeoaf 
En;lestoue  f— GnrifiKr.  Yea. 

Serj.  Wynne.  How  long  have  yon  kasn 
him? — Gardaer,  Seven  or  eight  year*. 

Serj.  B^nne.  Wbal  is  he,  a*  lo  hia  hoBSilj 
and  veracity  ? 

Gardner.  He  is  like  Other  boys,  ■ometnsM 
good,  sometimes  indmrent 

Serj.  Wynnt.  I  do  not  mean  as  to  a  little  os- 
lockmeH:  But  do  yon  think,  from  fatsgcnml 
behaviour,  that  he  woold  forswear  bimsrifF 

Gardner.  No,  1  donutthinkthatbewooU. 
Thomai  Syhater  sworn. 

Serj.  Wynne.  Do  you  know  this  Egghstoee? 

T.  Syheitir,  Yes,  I  have  known  him  aboot 
threeyears;  helived  by  me  ata  boteher's- 

Serj.  Hynnr.  What  was  he  as  to  bis  cbi- 
BCterenil  behaviour? 

T.  Syhttter.  He  iras  sometimes  idle  ssA 
given  to  piny. 

Serj.  Wynne.  Do  yon  think  he  would  ftr- 
sweat-  himself? 

2'.  SylwiifT.  No,  Idonottfaink  hewooU. 
Samuel  SyhcUer  called. 

Seij,  Vynne.  How  long  have  you  koDWI 
this  buy  ? 

S.  Sylvetler.  I  have  known  this  boy  a  goeJ 
while. 

Serj.  Ifyn. 
do  you  think  .._ ... 

S.  Syhetter.     1    have  bail   no 
witlihim,  so  I  do  not  know  what  he 
William  Palmer  sworn. 


Serj,   Wynne,     llorr  long  have  you  knon 

Palmer.  I  bavp  known  him  as  long  al  I 
have  known  any  person  of  his  age:  He  caM 
of  very  honest  parents. 

Serj,  H^ne,  Do  you  think  be  vrould  ftr- 
swear  himself. 


J<ir  Ihe  Murder  of  Tlioinsi  Eoalalene. 
I  do  not  tliiok  fae  would  rorewesr 


A.  U.  17+2. 


bimwir. 

Q-V(    . 

much  iiliticted to Ijing ? 

Palmir.  V/by.tiiilitaoUiV'mgiftlaeaatiu 

Patrkk  laaler  sivorn. 
Serj.  \Vj/nne.   Do  you  know  Paul  Keatinfcr 
ZoKler.    I  liaie  Luowd  bim  crer  lincc  the 

IStb  of  MatfM  laaU 
Q.  Wbnl  w  hisgencralcliaracterr 
laaler.    I  tlo  not  knuw  bit  general  oliarac- 

Mf;  but  I  knuw  lie  lias  )>cbitted  very  baiJ  of 


Q.  Di>l 


op  01 


nil  uever  oRl'r  tiini  any  monpy  to 
the  iToy,  nnti  not  ai>j>ear  at  tliU 

LaaUr.    No,  not  I ;  bnt  lie  uid  he  noald 

gire  them  ft  Konlnnil  Ibr  their  OliTer. 

Q.  Doyon  know  nhat  bemeant  by  IhatF 

IjoaUr.  No  ;  only  lliat  be  saiJ  it   my  loril 

Anglesea  iliil  nut  give  bim  money,  he  tTould 

tiini  eridence  i>u  llie  oilier  side. 

Q.  What  did  vou  iliink  he  meant,  wben  be 
(aid,  if  my  lorJ  Anglescn  did  not  sire  bim 
BODfy.  lie  would  turn  eridence  on  the  other 
jidef  VVhy  surelv  my  lord  ii<  not  concerned  hi 
ikii  prasecutiuTi  f  But  P"y,  Sir,  you  biife 
^TCn  &  bad  account  or  Mr.  Keating;,  hoiv 
«une  you  atiil  be  acqasinteJ  ? 

XiMvicr.  This  KeaUujr  and  1  cimc  oter  In- 
ftethn  tram  lielaod  in  tlie  same  ihin ;  he  told 
nS)  there  were  some  eridtocea  on  toarJ  that 
were  taming  over  to  swear  away  my  lord  An- 
^ncn's  eslato ;  tud  he,  there  are  Ibree  wonien 
moA  two  men,  and  I  have  discovered  Ibe  whole 
thtnif,  bow  tliey  are  bribed  lo  come  here ;  and 
if  1  come  to  Loudun,  saiil  he,  1  nill  giiT  my 
lord  Angleteaan  account  orii. 

Q.  Pray,  Sir,  tell  u«  what  became  of  Keal- 
Isor  wfaen  he  came  to  town  ? 

Xav'^r.  Soon  after  be  arriFed  bo  found  me 
not,  anil  an  I  told  Mr.  Jam  I  Ihouj^ht  he  mi^ht 
4>pmd  noon  ihiH  msD,  becnuse  1  bad  seen  bim 
in  Brtflot ;  said  I,  I  speak  to  you  ubout  ibb 
moB  out  of  charily  ;  for  he  Is  Tcry  poor:  then 
■kfi  Hr.  Jans,  t^t  bim  go  to  the  H'hiie- 
Eiorae  in  Pic^odllly ;  anil  then  he  iTBDied 
d«tliM  ai'd  money ;  and,  taya  he.  If  (hey  do 
Mt  give  me  clothes  and  money,  1  »ill  swear 
Ihal  tbc  earl  of  Atiglesen  wns  to  give  a  note 
WynunE  t'^^teilone  lu  swear  u|ion  tbi"  Irial. 
U.    What  do  yoit  Ibink  he  mehiit   by   his 

aiiOliverf  nbeltier  il 

ir  related  to  my  lord  An- 


r»'« 


.  Row  land 


Lmitr.   I  CI 


letl  what  he  mtatil. 


E«ll(«ncn  of  the  jury,  tbc  prisoners  at  the 
iamt*  Annntey  and  Joseph    RedtliiiK, 
indicted  for  the  wilful  murder  of  Tbo- 
WU  Ec^lmKiDe,  by  ciTinir  'uoi  one  wound  ou' 
th*  li>fl-iiidir  of  ifae  belly,    in   the    pariah  of 
1,  (if  which   be  inalnhily  died  :  Ibe  m- 
»HB>,-  tot  Annisley  fired  ihe 


gon,  and  gaie  the  wound,  and  that  ReiMing 
wax  asaiitiug  and  abetting  bim  in  Ibe  doing  of 
ind  ibey  stand  a  second  lime  indieieil  on 
coroner's  inciueat  for  the  same  [nurder; 
there  is  another  inJicimeoI  agaiiul  th« 
prisoner  Anneslev,  for  fploniouBly,  will'ullr, 
and  maliciously  sboolin^  this  man,  a^inai  lb* 
BlAluteof  the  ninlh  of  king  George  the  Hist. 
The  first  eridence  that  is  called  by  the  prose* 
color  is  John  Eggleatuoe  ;  he  says  bis  f.iibeP 
"  ' 'le  went  a-lisfaing  up  the  river,  till  iii,^j 
!  lo  Samuel  Sylvester's  ground;  Ibal  ibey 
I  net,  and  the  string  of  ibe  net  was  about 
hii  father's  arm ;  that  when  they  gol  abant 
tbc  middle  of  the  field,  they  saw  tiie  nrlsonera 
coming  up ;  that  Redding  came  up  hrsi,  and 
'  10  lay  hold  of  the  net,  and  bit  fslheC 
V  the  net  into  the  river,  about  two  yards 
from  him ;  and  that  Annesley  ibeu  came  up 
andaaid,  Damn  your  blood,  ilelivei"  your  net, 
111  are  a  deadmao,  and  fired  dii'eclly  :  anil 
Iha'l  be  shot  him  near  the  bollnm  of  the  belly 
on  tbe  len.«idc;  that  his  fatlier  said.  Yon 
rogue,  Hhat  bare  you  done?  I  am  a  deed 
man ;  that  be^tbe  witueis,  took  a  knife  out  of 
bis  pnehel,  to  cut  the  string  of  Ibe  net  from 
his  lather's  arm,  and  leaned  mlo  the  river,  and 
dragged  (be  net  lo  tbe  other  side  of  Ibe  rirer  J 
and  that  Atinesiey  said,  The  rogue  has  got 
his  net,  let  ua  go  on  (he  other  side ;  that  be 
taw  I^elleiwortb,  Tisher,  and  Bowles,  on  the 
other  side  of  tbe  tiver,  end  told  them  he  be- 
lieved hia  father  was  dead  ;  that  they  came 
over  tbe  river,  and  advised  him  to  get  a  sur- 
geon ;  upon  wbicb  he  went  to  one  Charles 
Cole,  but  he  diil  not  cnme:  that  then  be  went 
for  Ruasel  the  oonstable,  to  search  liir  the  pri- 
simers,  and  says  they  found  tbe  prisoner  An- 
nesley  in  a  place  about  five  or  aix  foot  above 
tlie  floor,  in  an  out-house,  upon  some  rubbish ; 
that  tbey  carried  him  lo  the  Round-house  ; 
that  lie  &iaid  there  all  night,  and  ibe  next  day 
lliey  carried  him  to  Hounslow  :  he  says  tba 
gun  ^vas  cooked,  but  be  cannot  tell  when  he 
cocke<l  it :  be  says  sir  Thomas  lleynell  came 
into  Uounslow  while  tbey  were  there ;  and 
ttiat  by  his  order  tbev  went  to  tbe  Grey- 
hound Bt  Laleham  ;  nnillbat  one  Lane,  Che»- 
tor's  son-in-law,  offered  him  lOuf.  a  yesr ; 
tliat  Mr,  Annesley  said  he  had  not  iOQl.  ft 
year  to  give  bim,  for  lie  had  more  lo  provide 
Ibr;  but  be  might  have  50[.  a  year,  if  hft 
would  not  come  against  him :  he  said  be  bad 
no  conversation  wi(L  one  Duffcll,  but  Ihal  h« 
bad  with  Daltoo  ;  be  says,  he  bas  sometime* 
dined  at  Williama's  table;  and  that  he  did  not 
Irll  Paul  Keating  be  was  to  have  iOQl. 

Tbe  neiLt  wilnesa  that  ia  produccil  i*  John 
Betleaviorlh  ;  be  says,  that  Eg^lestone  and  hia 
son  were  in  Sylvester's  ground,  on  tbe  other 
side  of  Ihe  river,  and  be  saw  the  pn'aonen 
come  nut  of  Redding's  ground  ioto  Sylvester'^ 
and   when   ibey   were  in    Ihe   middle  of  iba 

Sound  they  ran  after  them :  he  aays,  JoMph 
adding  wa*  loo  nimble  for  Eggleatone'a 
father ;  hut  whether  be  had  bintXi^  ToAwNns, 
he  cannol  \vj :  \»  nk-p.  *vx\  'ft^*  ^p^-<r— 


1135] 


15  OEORQE  II. 


Trial  of  Annedeif  and  Redding, 


[I1S6 


off  flooo  afUr  Mr.  Aoneslfy  canie  ap  to  old 
E^glestone :  be  says,  be  saw  tbe  smoke  aod 
fire  of  the  |^un  ;  aua  cavie  up  soon  aAer  Eggle* 
stone's  father  was  shot,  tie  says,  he  and 
Fisher,  aod  Bowles*  crossed  the  water ;  aod 
Uiat  Aonesliey  aod  Reddine  rao  away ;  that 
IBg^teatoiie  was  not  ouite  dead  when  he  came 
'  over,  but  was  not  able  to  speak ;  and  says, 
he  saw  the  net  on  the  other  side  of  the  river : 
he  says,  there  was  a  place  in  a  wash-house, 
about  six  foot  from  tb«  sfround,  and  there  they 
found  Mr.  Annesley  ;  that  it  is  a  place  where 
they  pat  hoops,  and  other  rubbish :  he  saj^s, 
that  when  Mr.  Anuesley  was  taken,  he  said, 
be  wished  to  be  killed,  for  being  instramental 
in  the  taking  away  an  innocent  man's  life. 
That  about  half  an  hour  before  this  accident 
happened,  he  saw  Mr.  Aunesley  offer  to  shoot 
at  a  crow. 

John  Fisher  is  called  next;  he  says,  he 
saw  young  Redding  in  tbe  ground  wiiu  ano- 
ther man ;  but  cannot  say  that  Annesley  is  the 
man ;  and  that  he  saw  there,  two  men  running 
after  Egfflestone  and  his  son ;  that  Redding 
laid  his  uand,  he  thinks,  on  Eggle&tone's 
ahonldcr ;  and  there  was  a  sort'of  a  scuffle  be- 
tween them ;  and  he  that  carried  the  gun  car- 
ried it  in  a  furm  to  shoot ;  and  he  that  carried 
the  gun  was  very  near  Eggle^toue  when  the 
gnn  went  ofl':  and  he  says,  he  saw  Joseph 
Redding,  and  the  other  man,  go  away ;  and 
lie  says,  he  was  at  this  time  169  yards  off.  It 
■eems  the  ground  has  been  measured,  and  that 
is  the  reason  they  are  so  particular  in  it :  he 
says,  Egglestone  had  money  offered  him  in 
his  hearing ;  he  would  have  had  a  hundred  a 
year;  but  Air.  Annesley  said,  he  could  not 
give  him  an  hundred  a  year,  for  he  had  other 
people  to  do  for  :  but  he  would  give  him  iifty  ; 
and  that  Egglestone  afterwards  said,  he  would 
not  sell  his  fsther's  blood ;  and  he  said,  that 
Egglestone  ai'terwaids  told  him,  he  believed 
the  gentleman  did  not  do  it  wilfully  ;  but  that 
the  boy,  being  afterwards  asked  how  he  could 
s>vear  against  the  gentleman,  when  he  had  said 
he  believed  he  did  not  do  it  wilfully  ;  he  said, 
he  did  not  remember  any  thing  of  what  ho  had 
aaid  to  him ;  and  he  says  he  has  been  in  the 
same  story  ever  since  iiie  accident  happened, 
excepting  that  one  time. 

The  next  witness,  gentlemen,  is  Samuel  Syl- 
vester ;  and  he  says,  when  Mr.  Annesley  cumc 
out  of  that  place  where  he  was  found,  he 
trembled  very  much :  he  says,  he  tents  this 
iandof  one  Sanders,  who  took  it  of  Rcdding's 
father :  he  says,  Egglctitoue  used  to  work 
sometimes  witli  his  father  in  the  business  of  a 
carpenter,  but  that  he  has  lived  some  time  at 
the  White  Horse,  in  l*icx:adilty. 

This  is  the  substance  of  the  evidence  fur  the 
prosecutor. 

The  prisoner  Mr.  Annesley,  in  his  own  dc- 
fcmce,  says,  tliat  he  is  very  sorry  for  the  ac- 
cident tittt  has  happened  ;  that  these  persons 
were  poaching  in  the  manor  that  beli>ngs  to 
■ir  Jqmi  Doiben ;  tliat  they  did  go  up  to  them, 
lui/  tiut^on  cannot  suppose  ha  had  any  spite 


\ 


against  a  man  he  never  saw  in  bis  life ;  be  nys 
that  he  had  a  gun  in  his  hand,  and  that  the 
gun  went  off  by  accident.  l*he  other  nrisooer 
Redding  says,  he  is  gaine-keeper  to  sir  John 
Dolben  ;  that  he  saw  these  men  fishing,  and 
went  to  take  the  net ;  that  he  heard  the  gnn 
go  off,  and  saw  the  man  fail  down,  and  then 
be  said  to  Mr.  Annesley,  Lord  blcM  ne,  I 
hope  you  have  not  killed  the  man  !  and  that  it 
was  done  accidentally. 

To  prove  their  case,  they  called  the  follow- 
ing witnesses.    The  first  is, 

Mr.  Staples ;  he  says,  this  is  sir  John  DaW 
ben's  manor,  and  that  he  has  held  courti 
there. 

The  next  witness,  gentlemen,  was  Thonui 
Burlini;son,  and  he  proves  a  deputation  of  tbe 
second  of  July  1741,  from  sir  John  Dolbca  to 
Joseph  Redding  the  younger,  and  thereby  he 
is  appointed  his  game-kec{ier,  to  seize  the  nets, 
&c.  of  any  person  who  shall  destroy  any  game, 
or  fish,  in  uis  manor ;  and  in  the  book  wLidi 
is  kept  for  the  entry  of  these  things  for  tin 
county  of  Bliddlesex,  it  appears  that  the  eniTT 
was  made  the  129th  of  January,  1741,  wbieb 
was  before  the  committing  of  this  fact. 

Then  Redding,  the  father  of  Joseph  ESed- 
ding',  is  called,  and  he  says,  the  fishery  beloosri 
to  sir  John  Dolben,  who  is  lord  of  the  maoor; 
that  he  lett  the  ground  culled  Hare  Mead  to 
Sanders ;  and  that  the  same  is  now  in  the  pos- 
session of  Sylve.<(ter.  That  he  hinaaelf  iraiiD 
Chantry  Mead  (which  is  next  to  the  Hire 
3Iead)  when  this  accident  happened :  ibal 
when  he  came  up  to  theai,  his  son  said,  be 
was  afraid  the  man  was  killed,  and  asktd  An- 
nesley how  he  came  to  do  ilP  To  which  An- 
nesley answered.  He  did  not  think  of  tbe 
gun's  going  off;  he  says,  they  seemed  fcrr 
much  troubled  and  concerned :  being  vkA 
the  position  of  the  gun  when  it  went  otT,  be 
says,  31r.  Annesley  held  the  guu  iu  onebiotl, 
and  that  it  hung  down  by  his  side. 

The  next  witness,  gentlemen,  is  William 
Duffell ;  and  he  says,  that  some  hours  afUr 
the  aecident  happened,  John  Egglestone  came 
into  his  house ;  and  the  man  that  brought  bim 
to  his  house,  desired  him  to  speak  the  truth; 
and  the  account  the  boy  gave  at  that  time  wai, 
that  Redding  came  up  to  his  father,  and  de- 
manded the  nit,  and  that  his  father  said  be 
should  not  have  it,  and  threw  it  into  the  rirer; 
that  then  Mr.  Annesley  came  up,  and  tbegui 
went  off,  and  his  father  was  shot,  lie  sajs, 
that  Abraham  Egirlcstonc  particularly  asLeJ 
the  boy  whether  he  saw  Mr.  Annesley  pull  tbe 
trii>ger  of  the  gun?  And  that  he  said  he  coutJ 
not  tell ;  that  then  he  asked  him  if  there  were 
any  words  between  them?  And  he  said,  No; 
that  then  this  witness  said,  it  was  a  snamie 
thing  that  Mr.  Annesley  should  shout  bis 
father,  and  have  no  words  ivith  him :  that  beinl 
asked  in  what  manner  the  gun  was  held,  fSr 
glestone,  with  a  stick  wluch  he  had  in  bk 
hand,  shewed  them  in  what  manner  3Ir.  Aa- 
nesley  held  the  gun  :  he  snya  the  stick  wasii 
his  hand,  hau^iug  down  by  his  aide.  He  iaj% 


]  ^  the  Murder  of  Tlumuu  EggleUotu,  A.  U.  174'2. 


[IISS 


^gglettoue  theD  was  asked,  if  be  thought 
iey  did  it  tvilfolly,  and  ihat  he  said  he 
not  tell.  Bcint;  asked  as  to  the  boy's 
;:ter;  he  says  Ke  lias  but  an  indifferent 
:ter,  that  be  cannot  speak  in  tlie  praise 
I,  and  has  beard  bis  Either  often  com- 
)i  him. 

!  next  eridence  is  John  Daltno  ;  and  he 
that  the  next  day  after  the  accident,  he 

0  Lalehara,  and  there  ^\ifr\is%\xiu^  told 
le  believed  it  was  an  accident,  and  not 
lesi^nediy.  He  says  the  boy  has  but  an 
rebt  character,  but  behoves  he  would  not 
rar  himself. 

:  next  witness  is  Uichard  Chester,  and 
,s,  ihat  be  asked  the  boy  at  Laleham, 
er  it  was  accidental  or  wilful;  and  that 

1  he  believed  it  was  an  accident;  for  he 
t  believe  any  gentleman,  in  cool  blood, 

designedly  shoot  another  ;  he  says  he 
whip  in  his  hand,  and  desired  £^:gle- 
;o  shew  him  how  Mr.  Annesley  held  the 
ihat  he  touk  the  \%hip  in  his  hand,  and 
J  him ;  that  he  held  it  in  his  bund, 
ig  down  by  his  side ;  and  he  says  he 
^gglcstone  speak  to  Mr.  Annesley  ;  that 
Kik  hands  with  him,  and  drank  'a  glass 
le,  and  said  he  did  not  think  he  did  it  de- 

Paterson  was  then  called  to  prove  what 
y  said  before  the  coroner ;  but  his  ex!i- 
on  being  taken  down  in  writinpr,  1  did 
ink  proper  to  allow  of  parole  evidence. 
n  Mr.  King  the  coroner  was  called  ;  and 
Mluced  the  minutes  of  the  depositions, 
the  4th  of  May  at  Laleham,  before  the 
t.  The  minutes  have  been  read,  by 
it  appears  that  Egglestone  deposed,  that 
father  and  he  were  tishing  in  Sylvester's 
],  Ke<lding  came  up,  and  laid  hold  of  his 
,  and  demanded  his  net,  which  his  father 
J  ;  that  then  Annesley  came  up  and 
*  Damn  yuur  blood,  surrender  your  net, 
I  are  a  dead  man;"  that  he  held  up  his 
igaiubt  his  slioulder,  and  shot  him  di- 
:  and  his  father  said,  **  You  rogue,  you 
hot  me,  1  aiu  a  dead  man."  And,  gen- 
I,  his  deposition  before  the  coroner  like- 
ly s,  that  when  he  saw  his  father  was  shot, 
k  bis  kuife,  and  cut  the  string  of  the  net ; 
at  then  Mr.  Annesley  went  to  strike  him 
head,  with  the  butt  end  of  the  gun.  And 
cars  in  his  deposition,  that  he  was  not 
I  any  money  by  any  body.  Then  they 
:ed  Mr.  Eusebiijs  Williaius,  and  he  say», 
Fisher  told  lutn,  that  John  Kg;>lestone 
id  he  did  not  believe  Mr.  Annesley  killed 
ber  wilfully,  but  that  it  was  done  by  ac* 
* 

Q  James  Bethinie,  a  surgeon,  is  pro- 
,  and  he  says,  he  saw  the  body  ;  that  he 
lied  and  probed  the  wound  ;  and  he  says 
an  inch  and  an  half  below  the  riduc'of 
)  bone,  and  an  inch  and  an  half  wide ; 
at  when  he  put  his  instrument  downwards 
lid  not  go  m  ;  but  it  %vould  go  in  when 
«be  was  put  upwards,  or  cross  the  b'  lly . 
L.  XVJJ. 


The  next  wituess  is  Joliu  Perkins,  a  surgeon : 
he  says  be  opened  the  body  the  41  h  of  May,  to 
be  inspected  by  the  coroner's  inquest;  and 
there  was  a  wound  aa  inch  and  a  half  diameter. 
He  put  in  his  probe  seven  or  eight  inches,  aud 
found  the  wound  a  little  horizontal,  about  an 
inch  and  a  half  below  the  hip-bone;  he  says 
tliere  were  blisters  on  the  other  side  of  the  boily , 
and  they  were  four  or  five  inches  higher  than 
the  wound.  Mr.  King  says,  that  Mr.  Gitiard, 
who  is  the  solicitor  in  this  prosecution,  made 
application  to  him  to  commit  Mr.  Annesley  to 
Newgate  ;  but  he  thought  that  was  too  severe, 
as  sir  Thomas  ItcynelT  was  a  justice  of  the 
peace,  and  had  taken  sufficicut  care  of  him. 

Paul  Keating  says,  he  liecaiue  aoquaioted 
with  Egglestone  at  the  White  Horse  iu  Picca- 
dilly, wliich  is  kept  by  one  Williams ;  and  that 
he,  at  Egglestone's  desire,  drew  a  note  of  200/. 
for  him,  and  that  the  boy,  Egglestone,  took  a 
copy  of  it. 

Gentlemen,  this  is  the  evidence  given  in  be- 
half of  the  prisoners;  and  there  has  been  evi- 
dence given  to  support  the  character  of  JoImi 
Egglestone. 

John  Gardener,  he  says  he  has  known  bim 
seven  or  eight  years,^— tliat  he  is  like  other 
hoys,  sometimes  good,  and  sometimes  indif- 
ferent, but  he  does  not  thuik  he  would  forswear 
himself. 

Sylvester  was  called  again,  to  Egglestonc's 
character;  he  says,  he  has  known  him  aboui 
three  years,  thathe  was  sometimes  given  tf* 
play,  but  Lelieves  he  would  not  forswear  him- 
self. 

William  Palmer  says  he  has  known  bini 
from  a  child,  aud  does  not  think  he  would  for- 
swear himself. 

Patrick  Lawler  says,  he  has  known  Paul 
Keating  since  the  18th  of  March ;  that  because 
he  could  not  be  supplied  with  clothes,  as  he  ex- 
pected, he  was  to  swear,  tliat  the  earl  of  Angle- 
sea  was  to  give  a  note  to  young  Egglestone. 

This  is  the  state  of  the  evidence  on  both, 
sides. 

Now,  gentlemen,  you  are  to  consider,  whc- 
tlier  the  fact  is  murder,  manslaughter,  oi 
cliaoce-metlley :  murder,  gentlemen,  in  point 
of  law,  is  uhen  a  person  kills  another  with  ex- 
press malice  and  design,  or  with  implied  ma- 
lice, as  when  it  is  witnout  any  offence  or  pro- 
vocation ;  but  if  there  is  a  sudden  fray,  and  in 
that  fray  and  heat  of  blooil,  a  person'is  killed, 
that  is  manslaughter ;  now  there  are  several 
things  in  the  course  of  the  evidence  proper  to 
come  under  your  consideration  ;  you  will  ob- 
serve that  hgglcstone  swears  Mr.  Annesley 
said,  *'  Damn  your  blood,  deliver  your  net,  or 
you  are  a  dead  man,"  and  that  immediately 
the  gun  went  off,  and  the  man  was  shot ;  if  he 
let  the  gun  off  designedly,  if  this  was  the  case, 
though  on  u  sudden,  he  om  be  guilty  of  no 
less  than  manslaughter  ;  but  thru  you  will  con- 
sider what  diifertnt  thin«j;s  the  boy  has  said ;  be 
has  declared  several  times,  he  did  not  believe 
he  did  it  designedly  ;  and  according  to  what 
ilie  Kur;/ 1*0 us  say,  it  i\i  u«\.v*a>Vj*VArV>wR'»^'*'^ 

4D" 


J 139] 


17  GEORGE  II.    Trhl  tn  Fjedmenl  hehUen  J.  Anntdey^  aq.  [1 140 


this  wound  could  be  gifen  in  thesitaHtioD  lie 
•mjr'fl  Mr.  Annesley  was  in ;    for  the  wound 

goes  upwards ;  and  it'  he  held  his  gun  as  the 
^  oy  has  said,  the  wound  could  not  have  been  as 
It  is :  besides  that,  he  is  expressly  contradicted 
in  the  fact  itself  by  old  Reddinir,  ^ho  swears 
he  saw  the  gun  go  off,  and  that  it  was  hangioir 
by  Air.  Anneoley'sside.  Gentlemen,  as  1  said 
before*,  the  question  you  are  to  consider  of,  is, 
whether  this  is  manslaughter,  or  chance -medley 
ID  Mr.  Annesley ;  for  as  to  Redding,  he  must 
certainly  be  acquitteil ;  and  as  to  murder  I  can- 
not think  there  is  any  evidence  to  make  Mr. 
Annesley  guilty  of  that ;  but  as  there  was  some 
hot  blood,  there  may  be  reason  to  consider, 
whether  it  is  not  manslaughter :  on  the  other 
band,  if  Mr.  Anoesley  was  carrying  his  gun 
by  bis  side,  and  it  went  off  accidentally,  then 
it  will  be  chance-medley. 

Then  the  Jury  having  considered  of  their 
Verdicts,  without  going  out  of  Court, 

Clerk  of  the  Arraigm.  Gentlemen  of  the 
jury,  are  you  agreed  in  your  verdicts? 

Jury,    Yes. 

Clerk.  Who  shall  say  for  yon  ? 

Jury.  Our  foreman. 

Clerk.  James  Annesley,  hold  up  your  hand. 
-Joseph  Redding,  hold  up  your  hand. — Gen- 
tlemen of  the  jury,  look  uiion  the  prisoners. 
How  say  you,  is  James  Annesley  Guuty  of  the 
felony  and  murder,  whereof  he  stands  indicted, 
or  Not  Guilty? 

Foreman  of  the  Jury.  Not  Guilty  of  murder, 
but  Guilty  of  cbanci'-medley. 

Clerk,    How  say  you,  is  Joseph   Redding 


Guilty  of  the  same  f^lon  j  and  mnrdcr,  whert« 
of  he  stands  indicted,  or  Not  Gailty  ? 

Foreman  of  the  Jury,  Not  Guilty  of  Os 
murder,  but  Uuilfy  of  chance-medle?. 

Clerk.  How  say  yon,  Is  the  said  Janm  Ai- 
Dcsley  Guilty  of  tlie  lelooy  and  murder,  wfeeie- 
witli  he  stands  char^  upon  the  oofoner*s  io* 
quisition,  or  Not  Guilty  ? 

Foreman  of  the  Jury.  Not  Goilty  of  tbi 
murder,  but  Guilty  of  chance  medley. 

Clerk.  How  say  you,  is  the  aaid  Je«ph 
Redding  Guilty  of  the  same  felony  and  murder 
wherewith  he  stands  charged  upon  the  cmth 
ner*s  inquisition,  or  Not  Guilty  T 

Foreman  of  the  Jury,  Nut  Gailty  of  the 
murder,  hnt  Guilty  of  chance-medley. 

Cfcrk.  How  say  you,  is  the  said  James  An- 
nesley Guilty  of  wilfully  sbootine  atThomis 
Etrglcstone,  against  the  form  of  the  italaie,or 
Not  Guilty? 

Foreman  of  the  Jury.    Not  Guilty. 

Clerk.  Gentlemen  uf  the  jury,  bearkento 
your  verdicts,  as  the  Court  has  recorded  fbem. 
Yon  say  thnt  James  Annesley  is  Not  Goihy  tf 
the  felony  and  murder  whereof  he  stands'in- 
dieted,  but  is  Guilty  of  chance-medley. 

You  say  that  Joseph  Redding  is  ^fot  GtDlj 
of  the  same  felony  and  murder  whereof  bi 
standi  indicted,  but  is  Guilty  of  chaMB- 
medley. 

You  say  the  same  upon  the  coronCr'f  iofi« 
sition. 

You  also  say  that  the  said  James  Annedcf 
is  Not  Guilty  of  maliciously  shooting  at  TW 
mas  Egglestone,  agsinst  the  form  of  the  il^ 
tute.     And  so  you  say  all. 


503.  The  Trial  in  Fjectmcnt  between  Campbell  Craig,  Lessee 
of  James  Annesley,  esq.  and  others,  Plaintiff;  and  the 
Right  Hon.  Hichard  Earl  of  Anglesea,  Defendant;  before 
the  Lord  Chief  Baron  Bowes,  the  Hon.  Mr.  Baron  Mountener, 
and  the  Hon.  Mr.  Baron  Dawson,  Barons  of  his  Majesl/s 
Court  of  Exchequer  in  Ireland.  Begun  on  Friday,  Nov,  II; 
and  continued  by  several  Adjournments  to  Friday  the  25th  of 
llie  s:wd  .Month;*  17  Geokcje  IL  a.  d,   1743. 

'YllFs  Court  iK-injj  sat,  the  Jury  were  called  [  the  Oillowin";  twelTC  were  sworn  to  try  tbt 
ovrr,  and  aijsv.ortij  to  tlicir  names  ;  uf  whom     issue j«Mn«:d  LctweeD  the  parties: 


♦  This  \s;is  the  loivTest  triul  ercr  known, 
l.-istini;  !:»  (<a\s,  un«t  the  jury  (mo^kt  uf  thrni) 
Ijftntlcmen  uf  the  grtMKsl  [»n»iieriy  in  lri'!.';t:J, 
and  almost  all  iiieiubers  ot*  |)at')iam(-nt.  —  J'iu'y 
were  only  to  try  a  men*  matter  ot'  tact,  wlso- 
Iher  lord  Altliam  had  a  fiou  ?  Fonr.cr  Eui- 
tion:  In  whiih  the  Ueport  of  this  Ca«e  is 
incomplete,  and  io  other  rrspccts  fauliv  :  1 
lia?e  corrected  it  hy  retercnre  to  **  Th«*.  Tiinl 
"  it  Biry  hfhvrcn  Campbell   (*raig,   Lessee 

H 


.i 

k( 

%  m 
ih 

t< 

i. 
i: 
i( 
il 


\ 


of  James  Annesley,  esq.  Plaintiff,  andthi 
Rin^lit  Iloucuiable  Hichard  earl  of  Angle 
Sty,  1  )ell.>ndant.  Hefore the  Honourable thi 
liurnns  of  the  Exchefpier,  at  the  Kiof^ 
Com  is  l^ii^lin,  iuTiinity  Terra,  in  the  ift 
and  I7tli  }t.irs  of  the  rri^  of  our  Soverei|* 
lord  (Jcor^L'  ilie  Second,  Kin^^  of  Grcst 
nrii'iin,  !kc,  and  in  the  year  uf  our  LcW 
li4.>.  liOndoM  :  IVin ted  for  51.  Cooper,  si 
the  (.Jobe  in  l*at('r-Nostor-row,  ud  ioUbj 


JMl] 


Mttd  lUchard  Earl  of  AngUtea. 


A.  D.  17<3. 


Sr  Tbo.  T«i)lur,  twn.  Nbi.  Preiinn,  esq.        . 

Rl.  bon.  \V.  Graliaii),  C.  Uxniltnn.  eu|. 

ftich.  Wnlcy,  etij.  Clutwirlliy  tVailp.tfii. 

Her.  L.  lidwley.  ca^.  Thn.Shtw,  e^<|. 

Biek.  (>Qri{C8,  kk\.  Gorjrct  Lowiliei',  esq. 

IpIio  Prealuu,  eiii.  Joseiib  A«lie,  cmj. 

PtiWTirr. 
3|l>pbellCr>ie,1em!eof  Jaine*  Aiineslpy,e«). 

Oe»snu*jit. 
Ihaf%litlinii.  Riclinnl  earl  orAof  lain, 
The  Iuu«  woa  as  follows : 

PhEW  beTore  iht^  Barons  of  Ihp  Exijliequpp.  Kt 

*■'**  Itinr't  CourlB,  Dublin,  of  Uie  Term 

"  rite  Hr>ly  Trinilji,  id  :lie  I81I1  am)  tTth 

•9  of  llie  rei^n  nf  oor  BotereiKo  lord 

"!  the   Snd,   now   kinc  nf  Hreat 

I,  ami  BO  fortli ;   onil  10  Hie  jear  iif 

'  «urLar<),  IT43. 

County  orMesib  lovlt; 
J^  U  Temeiiibereil,  tbat  iu  [bis  lamc  lerin, 
bgiflbdt  CraiK,  genl.  a  <l«litor  of  our  lord  ihe 
nr  Uiat  DOW  if,  came  before  ibe  BarDiit  of 
pp  Excluiiuer,  by  CUailes  Caldvrell  bia  at- 
■roqr.  luiil  brou^ril  liere  iolo  Uii«  Courl  bis 
■D  agaiiut  tbe  ri|{bl  boo.  Rictiaj'ij  earl  ut 
b^leM>t  of*  *  pica  of  ti'eipaas  and  ^ecllnent 
M  |t  farm,  tbe  lenor  of  nliich  Bill  fnllawa  in 
\mm  worda;  tliat  19  lu  say,  Ciiunly  of  Meath ; 
IXlHplMll  Craic:,  gcat.  a  debtor  of  our  lord  tbe 
djif  ibat  now  ia,  come*  btfore  lli#  Barons  of 
iHftBfclieiiuer.  on  ibe  3rd  day  of  Juur.iu  tliit 
f(M,  by  Clisrlei  Caldwell  bia  attorney;  and 
n.Iui  Bill  complaini  against  tbe  right  hon. 
GcllUil  evi  uf  AcifFlesea.  (iresenl  liere  in  Court 
kn  llie  same  dnyliy  Tbamas  Burrouglia  bis 
Moniey,  of  opiea  oflresiiasKand  ej«cln)vnt  of 
k  f^nn  :  For  iliut  wbereoi  James  Annefiley, 
i|.  on  tbe  HI  day  of  Alav,  Mh%  at  Trim,  in 
■K  county  of  Mealb,  ifeinisetl  lo  ibe  laid 
(^pbell  30  messuages,  30  lofu,  &0  col- 
Ipgn.  3  milli.  50  gardens,  9Q0  acres  of  arable 
W.  300  acretf  of  oieaduw,  GOO  acres  of  pat- 
IMi  so  acres  of  furxe  and  heatby  ground, 
W  acrts  of  moory  ground,  wiili  iGe  appur- 
jlWi''  "t  in  (ireat  Stna^ine,  otherwise  Sta- 
■MN»i.iiltLeSian)ine,otherRise»U[DQcn.  Little 
Dtmoantey,  Sballon,  Kilkarran,  otbrrwiae 
Kilwhtfraa,  CrufTey,  Annagor,  utbvrwisc  An- 
Mpr,  and  Little  (ialfnev,  situatr,  Ijiug  and 
kaug  in  Uie  inutily  of  fHeaih  afbreiuid:  All 
irhiGlt  faid  pieiniasea  were  formerly  tbe  e^tale 
ff  Ibe  riglit  boo.  James  earl  of  AugUtea,  de- 
fnaod,  and  lately  ih«  estate  of  tbe  right  bon. 
Aaltvr  bajran  ol  Allbatn,  also  deteased :  Ti> 
tfa>r  villi  \-i  bold  the  aaiil  deouaed  premisae*, 
I'liaucea,  to  him  tbe  aaid  Camp- 
'!■<,  admiuialralors,  and  umigns, 
.  \  of  May  aforesaid,  in  tbe  year 
ii'jrvtAid,  for  the  term,  tiiuc  and 
ars  from  tlienvE  next  ensuing, 


\\ua 


and  fully  ta  be  comjiUu  and  taAti.     teJ 

irlicrcas  also  tbe  ligbt  faaa-  Jaaws  tari  mT  A«> 
gleacn,  nn  Ibe  oauie  liil  day  ul  Hay  lfliniai<, 
lU  llie  year  of  our  Lord  iif'ftMtuI,  >t  TnM 
afurewid,   in  tbe  cuuniy  of  Mralli  afori^Mj. 

deroised  to   tiie  said  Cam. 

30  Infis,  50  cntlages,  2  nii     ,  .  _ 

acres  of  arable  land,  300  ucrca  of  ninmnr 
600  acres  of  pasiore,  50  ar.tM  of  iiata  •»! 
beatliy  ground,  50  acres  of  moorf  ^rMiad, 
-  ith  Ibe  appurteuHncea,  in  Great  Htaminr, 
berwtse  8||n>i!en,  Siamioc,  oiIictwim:  Ku- 
een.  Little  Unnacarney,  8b a) loo,  Kdl' 
irvan,  aiherwiw  KilUliarvan,  CruRcy,  iit- 
■lagor,  otherwise  Annager,  and  Little  Gaffiicy, 
aituaite,  lying,  and  being  In  ihe  count)  nfBIeilti 
afurcaaid ;  all  which  said  preroisfcs  w^ra 
formerly  the  eatste  of  the  rigbt  lion.  Jauira 
enri  of  Anglesea  deceased,  and  lately  llie  L'slste 
of  the  rii-bt  hon.  Arthur  baron  of  Altham,  aim 
deceased :  To  baie  and  la  bold  tbe  said  du- 
isfd  premisses,  with  the  appurtenaoccs,  lit 
hioi  il>e  said  Campbell,  his  eieuiilors,  ad- 
mi^tralurs  and  assigns,  from  ihe  isi  day  of 
May  aforesaii),  in  IbeyearMl'nur  Lord  afnreaaldi 
Ibr  the  terra,  time,  and  space  of  ^'1  years  fmm 
bence  neateiisiiinif,  and  fully  tu  be  cumplete 
inj  enJi-d,  And  wliereas  also  ibi^  hon.  Jamva 
Anuesley,  only  son  and  heir  of  Arthur  late 
baron' Altham,  of  A  llham  de  erased,  otherwise 
the  right  hon.  James  baron  Allhani  of  Altlutra, 
''  Isi  liny  of  May  aforesaid,  in  the 

IjOrd  nforeaaid,  at  Trim  afuresaid, 
demised  to  llin  said  Campbell  30  rnessunKes, 
30  tolls,  50  collages,  3  mills,  50  gardens,  BOO 
of  arable  laud,  300  acres  of  meadow, 
eres  of  pasture,  50  acres  of  furze  and 
be  a  Lby  ground,  50  acresofiooary  ground,  with 
'be  an|iurieoances,  in  Great  Sianiine,  otlier- 
riae  Slameen.  Little  Siamine,  otherwise  Sta- 
Dcen,  Lillle  Donacarney,  Shallon,  Killcarran, 
itherwise  KillBbarvau.  Cruffey,  Annsfjor, 
ilhernise  Aaiisger,  and  Liitlu  GatTney  ;  iilu- 
itr,  lying  and  being  in  ibe  county  of  Mealb 
aforesaid:  All  which  said  premisses  were  fur' 
in«rly  the  estate  of  tbe  right  bou.  Jumes  eari  of 
Anglesea  deceased,  and  lately  ib«  eslale  of  Ibe 
right  bon.Arlliur  baron  gf  Allliam,  aim  de- 
ceased :  to  have  and  tu  hold  tlic  said  demised 
premisses,  with  the  apiiurtrnimccs,  to  him  tbe 
said  Campbell,  bis  eifeculors,  adminiairalors, 
and  asslKus,  from  tht  Itt  day  of  May  afore- 
siiid,  in  tbe  year  of  o«r  tioriV aforesaid,  liir  the 
term,  lime,  and  tpnce  of  91  years  from  ibeacs 
iivxt  iosuing,  aud  fully  to  be  uainplele  and  end- 
ed :  By  virtue  of  wliicb  aaid  ai^feral  demises 
be,  tho  said  Campbell,  aiteri*arda,  ta  wit,  nn 
the  End  day  of  May  aforaaaid,  in  the  year  of  our 
Lord  uliiresaid. entered  into  tbe  aaid  demised  pre- 
misses, with  the  apiinrtenancea,  and  was  there- 
tbe  aforesaid  Ilichard  earl  of 


of  puKseased  until  tl 


alierw 


ds,  to  w 


)  the  3d  day  of 


with  t'orve  and  arms,  In  wit,  wiib  hworils, 
clubs,  aud  ao  l^th,  entered  iplu  the  said  de- 
mited premiaaes,  with  tbe  aiiparteBaDMti  iu 
and  upon  Ibe  t<asacaaiaa^^way^Sj|'     *"^ 


JI43J    .       17  GEORGE  11.     Trialin 

fln»l  rjectr*!,  <^\jif?llH,  oiid  removed  him,  Hie 
5:ii(J  Campliell,  I'rotn  his  snid  farm  (his  trTni  ih 
t|if2  pn»nussrs  not  being  then  or  since  dctcr- 
n-iinril)  niid  the  said  Campliell  hciii^  so  rjccted 
from  liis  said  farm,  be.  the  said  Richard  earl 
of  Acgflesea,  hath  ever-  since,  and  Ftill  doth 
^vith-hohl  the  posse ns ion  thereot'from  him ;  nnd 
then  and  there  did  otiicr  wronp^s  and  injuries 
to  him,  against  the  prace  of  our  said  lord  the 
king^  that  now  is,  and  so  forth,  and  to  the  dam- 
age of  the  said  Campbell  100/.  sterling;  hy 
means  whereof  the  said  Campbell  is  less  able  to 
pay  the  debts  he  now  owes  to  our  said  loni  the 
king,  at  the  recript  of  his  said  Exchequer ; 
a:id  thereupon  he  brings  his  suit,  and  so  forth 
pledges  to  prosecute  John  Doe  and  RichanI 
line.  To  which  the  aforesaid  Richard  earl  of 
Anglesey,  by  his  said  nttorney,  comr.s  and  de- 
feuds  the  force  and  injury  when,  and  so  forth : 
And  sr.ith,  That  he  is  uot  guilty  of  the  trespass 
imd  ejectment  aforesaid,  iD  manner  and  form  as 
ttie  said  Campbell  Craig  above  a^^ainst  him 
liath  declared,  nnd  of  this  he  puts  himself  upon 
the  country.  And  the  said  Campbell  Craig  doth 
hkcwisethe  same.  Therefore  let  a  jury  there. 
of  be  made,  and  the  shcriltof  the  county  of 
Aleatb  aforesaid  is  commanded,  that  he  cause 
to  come  here,  and  so  forlh. 

The  counsel  for  the  defendant  having  con- 
fessed lease,  entry,  and  ouster  ;  Mr.  Lill,  of 
counsel  for  the  lessor  of  the  plaintilf,  opened 
the  declaratiuD,  iu  substance  as  follows : 

Thnt  the  plaintiff  had  broup^hthis  ejectment 
for  thirty  messunges,  lifiy  cottages,  two  mills, 
fti'ty  gardens,  eight  hundred  acres  of  arable  land, 
throe  hundred  acres  at'  meadow,  six  Imudri'd 
r.cres  of  past  mo,  fifty  acres  of  furze  and  htath 
grouiul,  fifiy  aciisof  mnnry  ground,  with  the 
;ippnrtcna:n:o»s,  in  (ireal  Stainine,  f>tlscr«  i.se 
JSti'mcrn,  Jjltio  Sinjninc,  otherwise  Stinicen, 
liiltfc  Donararney,  Shallon,  Killcarvan,  otlicr- 
wise  Killsharvaii,  (Tnircy,  Anna;:or,  otherwise 
Annager,  and  Tiiulc  GaiTiicy,  *;ituate  in  the 
tf'onnty  of  Meatii,  demised  to  liini  by  JauH  s 
Anncslcy,  esq. ;  that  if  they  provi d  the  lessor 
of  tl'c  plaintiff,  James  Annesle}',  esq.  to  be  the 
only  sen  nnd  heir  of  Arthur  late  lord  JAItham 
decease  i!,  («ho  enjoyed  the  said  premisses)  he 
hoped  the  jury  would  find  a  \trdict  lor  the 
|dainti(r. 

Srrj.  Marsha  fi.  I  am  in  this  case  of  counsel 
with  the  lessor  of  the  plaiutifl*,  uliose  title 
stands  thus:  Tht^  lands  in  quest  ion  vire  the 
vstate  of  Arthur,  late  lord  Althain.  r  f  >\l!ich  he 
died,  scisol,  and  the  lessor  i>f  the  |i:;.i;ilinis  his 
<iuly  son  and  heir,  -"My  lord,  if  this  were  a 
rommou  case,  I  siiould  have  rested  liere ;  but 
;is  il.e  course  of  descent  has  been  interrupted 
oil  a  supposition  that  lonl  Altham  died  without 
issue;  and  as  tiilu  is  a  matter  ot'grrat  expecta- 
tion, \ery  extraordinary  in  its  nature  and  eir- 
rumstnnce^:,  and  inny  lie  much  more  so  in  its 
consi-qiu  nccs  ;  so  it' will  be  incumbent  on  me 
|iarticuiarly  to  point  out  to  your  lordship,  and 
po  the  jury  f  (be  time  aud  place  when  and  where 


Ejectment  beitccen  J>  Annedcij,  esq.   [1144 

the  lessor  of  the  plaintiff  was  born  ;  for  on  that 
imporiant  birth  this  cause  must  depend. 

My  lord,  in  the  year  1706,  Arthur  late  lord 
Altham  was  marriecl  to  I^lary  Sheffield,  natural 
daughter  of  Jfdin  duke  rd'  Buckingham.    After 
the  mnrringc,  lord  Altham's  affairs  required  bis 
attendance*  in  this  kingdom,  and  in  the  year 
1709  he  came  over  ;    hut  his  lady  remained  ia 
England  till  theycar  1713.  when  shecameintn 
Ireland  ;  and  in  the^ear  1714,  lady  Altham  re- 
sided in  the  city  ot  Dublin  with  lord  Altham 
her  husband,  and  proved  with  cbtld.    Wbcii 
she  had  been  some  months  advanced  in  bcr 
pregnancy,  and  at  the  latter  end  of  the  ycv 
1714,  lady  Ahbam  went  to  his  Iordalnp*t  hnuM 
at  Dunmaine,    in  'the  county    of  Wezford, 
where  it  was  publicly  known  in  the  neighboiir- 
hood  that  lady  Altham  was  with  child,  and  Ite 
then  dowager  lady  Altham  (who  was  married 
to  Mr.  Ogle,  one  of  the  commissioners  of  the 
revenue  iu  this  kingdom)  made  lady  Altham  a 
present  of  a  very  rich  quilt  against  her  lyin^- 
rn  :  and  it  will  appear  to  3*our  lordship,  and  to 
the  jury,  that  lady  AlthamN  pregnancy  was  w 
well  known  in  the  country,  that  interest  w 
made  by  several  women  to  nurse  this  child 
when  it  should  be  born  ;   and   that  «rreat  care 
was  taken  in  examining  (he  niiik  of  the  seitfnl 
women  who  did  apply  to  be  nurses,  and  thit 
one  Joan  Landy  was  approved  of  to  he  the 
nurse.     My  lord,  in  the  Ix'ginning  of  the  veer 
17ir>,  lady*  Altham  fell  in  labour,  and  was  deli- 
vered of  I  he  lessor  of  the  plaintiff  by  MrK.Shiel, 
a  midwife  of  skill  and  reputation,  who  ihn 
lived  at  Ross,  about  three  miles  from  Dun- 
maine ;  ami  it  will  appear  to  your  lordship  ind 
to  the  jury,  that  lord  Altham  expressed  gmt 
sati«»fa-tion  and  joy  upon  the  hirlli  of  this  sou; 
that  a  biuitire  was  made  upon  this  happy  crefii, 
and  drink  puldicly  given  lo  the  neighbours aod 
people  who  came  in  to  testify  their  joy  upon 
such  an  occasion.     It  will  likewise  appear  to 
your  lordship,  and  to  the  jury,  that  great  pre- 
parations were   made  for  the    christrning  of 
this  son  ;  and  that  about  a  month  after  the  Urih, 
the  lessor  of  the  plaintiff  w;is  chrisleiied  atllie 
late  lord  Allham's  house  at  Dunmaine,  in  the 
parisit  of  Tynternc,  by  one  Mr.  Llovd,  who 
was  his  Irr.dship's  chaplain,  and  at  that  time 
curate  ef  I  Joss,  by  the  christian  name  of  James, 
iti\eY  i:is  grandlaiher  the  third  carl  of  Anglesei, 
I'rotn  whom  lord   Altham  had   receiveil  gi«l 
favouif,  and  the  sponsors  on  that  occasion  were 
Mr.  rolclou;;h,  l\Ir.  Cliff,  and  Mrs.  Pigot.    I 
mentioned  to  your  lordship  before,  that  Joaa 
r^indy  was  appointed  the  nurse;  her  fatbfr'l 
house  was  about  a  quarter  of  a  mile  from  Don- 
maine,  where  the  child  continued  for  about  a 
montli  ;    and  then  the  nurse's  father's  hoiBe 
being  first  made  fit  for  the  reception  of  such  i 
child,  he  was  carrini    to  that   place  with  hif 
ntirse  :  and  it  will  appear  to  your  lordship,  sad 
to  the  jury,  that  for  the  convcniency  of  lady 
Altham,  and  that  she  might  visit  this  child  is 
often  as  she  pleased,  a  coach-road  was  made 
from  the  house  of  Dunmaine  to  the  nune'i 
father's  house.    When  the  child   was  abovt 


1145] 


and  Richard  Earl  nf  Anglesea. 


A.  D.  1743. 


[1146 


■ixtpen  mnntlis  old  lie  was  weaned,  and  bron^ht 
back  to  lord  Allliaiii's  bouse  at  Dunniaine, 
wberi;  one  Joan  I^ffan  was  appointed  his  dry 
nurse :  and  it  will  appear  to  jonr  lordsbip,  and 
to  the  jury,  that  while  lonl  and  lady  Altham 
were  united,  the  ffreatest  fondno^  was  shewn 
to  this  infant  by  both.  My  hxd.  in  February 
1716,  there  were  some  very  unhappy  difierpnces 
between  the  late  lord  Altham  and  his  lady, 
upon  which  they,  by  at^ecment,  separated ;  | 
bat  lady  Altham,  as  was  extremely  natural, 
desired  to  have  the  company  of  her  child, 
which  loni  Altham,  but  nith  (firat  expressions 
of  rcfi^aril  and  trnderness  for  the  child,  refused ; 
■od  it  will  appear  to  your  lordship,  and  to  the 
jury,  that  lady  Altham  lc'f\  her  son  with  the  ut- 
most concern  and  regret.  After  this  unhappy 
ieporation,  lord  Altham  forbade  lady  Altliam*s 
access  to  this  child,  and  directed  that  she  should 
by  no  means  see  him,  and  that  the  child  should 
oot  be  carried  to  viMt  her.  The  lessor  of  the 
plaintifT,  thus  dpprlved  of  his  mother,  continued 
at  Dunniaine  in  the  care  of  servants,  until  the 
year  1718,  and  in  that  year  lord  Altham  re- 
mnved  his  family  to  Keima,  in  the  county  of 
Kildare,  where  he  con  tinned,  about  two  years  ; 
■ad  it  Mill  appear  to  your  lordship,  and  to  the 
jury,  that  the  jpssor  of  the  plaintifl' was  educated 
there  with  the  trrentest  aHeclioo,  and  was  con- 
stantly reputed  anri  deemed  to  be  lord  Altham^s 
son  and  heir.  My  lord,  in  the  latter  end  of  the 
year  1719,  or  hej^inninir  of  the  year  1720,  loi-d 
Altham  removed  tu  Dublin,  and  had  a  house  in 
this  to;vn  hir  some  time,  to  which  the  Icf^sor  of 
the  plaintiff «« as  ako  broiitrht ;  and  it  will  ap- 
pear to  your  lordship  and  to  the  jury,  that  he 
was  then  ( lothcd  in  a  very  extraordinary  man- 
ner, and  was  treated  and  esteemed  as  the  son 
and  heir  of  tiie  lord  Althum.  My  lord,  some 
time  in  the  year  1720.  lord  Altham  removed 
tn  a  place  called  CarrickdiifTH,  in  the  county  of 
Carlow ;  and  it  will  appear  to  yniir  lordship, 
and  to  the  jury,  that  as  th<t  lessor  of  the  pluin- 
tiflf  was  then  of  yenr<t  capable  of  instruction,  so 
lorfl  Altlinm  (i^vided  a  tutor  for  him  in  the 
house  ;  aiid  when  afterwards  lord  Altham  sent 
the  lessor  of  the  plaintiff  to  a  public  school  at 
UuDcfody  in  the  county  of  Carlow.  that  he  was 
there  Mttendcrl  as  the  son  of  a  nobleman,  and 
trcatt;d  as  such.  My  lord,  in  the  year  17SJ2, 
(it  was  a  year  extremely  fatal  to  my  client) 
lord  Altham  bei;an  a  criminal  rorres|ioiidence 
with  one  Miss  Uresfory,  and  in  the  wintri-  of 
that  vcar,  lord  Altham  settled  in  Dublin  with 
her,  iualiousein  Cross- lane  ;  and  it  will  ap- 
pear to  your  lordship,  and  to  the  jury,  that  this 
Aliss  Gregory,  liefore  she  had  made  her  in- 
tercut in  lord  Altham  quite  srrure,  behaved  tolcr- 
aMy  well  to  the  lessor  of  the  plaintilf;  and  the 
lessor  of  the  niaintift'  was  broucfht  to  the  house 
where  lord  Altham  resided  with  her,  and  was 
ient  to  a  public  school  in  this  city,  and  was 
used  with  great  care  and  tenderness  by  his 
father,  and  at  school  was  deemed  and  taken 
to  be  the  ton  of  lord  Altham.  It  will  be  necessary 
to  mention  to  your  lordship  and  the  jury  what 
fcccame  of  Jady  Altham  ancr  this  separation. 


She  resided  in  the  town  of  Ross  for  about  three 
years,  and  her  aflection  for  the  lessor  of  the 
plaiutitTwas  so  stronsf,  that,  notwithstanding- 
lonl  Altham's  prohibition,  she  foimd  means 
privately  to  see  the  child,  and  always  expressed 
the  greatest  regard  and  fondness  for  him,  and 
complained  much  more  severely  of  being  de- 
privefl  of  the  comfort  in  her  child,  than  tbeloss 
of  her  husband.  In  the  year  1720,  or  there* 
abouts,  lady  Altham  came  to  reside  in  Dublin  ; 
but,  unhappily  for  this  lady,  she  had  in  her 
lyinnf-in  contracted  disorders,  which  at  last 
ended  in  a  dead  palsy,  and  not  only  took  from 
her  the  use  of  her  limbs,  but  also,  in  some  mea- 
sure, deprived  her  of  her  memory  and  senses  ; 
hut,  notwithstanding,  it  wilt  appear  to  your 
lordship  and  to  the  jury,  that  during  the  time 
she  continued  in  this  kin£;dom,  she  kept  a 
secret  correspondence  with  tJiis  family,  relative 
only  to  this  child.  In  the  year  1723,  lady  Al- 
tham was  carried  fnim  this  kiotrdom  to  London 
in  a  very  languishing  condition,  and  there, 
during  the  remainder  of  her  life,  lived  upon 
the  bounty  of  some  persons  who  had  charity 
enough  to  support  her.  My  lord,  from  this 
langiiishiiig  condition  of  lady  Altham.  Miss 
Gregory,  who  had  gained  a  prodigious  influence 
over  lord  Altham  (who  will  appear  tu  your 
lordship  to  have  been  a  very  weak  man),  had 
hopes  from  him  of  every  thing  in  his  power, 
expected  to  I)e1ady  Altham,  and  had  assumed 
the  title  even  iu  the  life- lime  of  lady  Altham  ; 
and  therefore  considered  the  lessor  of  the 
plaintitr  as  the  greatest  bar  to  her  h^pes,  in 
case  (die  should  have  issue  by  this  lord,  and 
thereupon  grew  very  harsh  and  severe  to  the 
lessor  of  the  plaintiff;  she  raised  doubts  in  the 
lord  Altham,  that,  thou<rh  this  uuh  the  son  of 
the  l.idy  Altham,  it  niiiflit  not  he  the  son  of  his 
lordship,  that  so  she  might  take  ofi'  that  pa- 
ternal aflrction  from  the  lessor  of  the  plaintiff', 
which  he  had  always  shewn  to  him  hefiire ; 
and,  my  lonl,  she  gained  such  an  influence  at 
last  upon  this  unltnppy  lord,  that  she  firevailed 
on  him  to  remove  theh'-sorof  the  plaintiff  out 
Of  his  hou'ie  ;  and  in  the  year  172-1,  the  lessor 
nf  the  plainiiff  was  sent  fiy  lord  Altlinm  tu  one 
CoopcrV  in  Shin-street,  in  this  town.  But 
the  heart  of  loru  Altham  was  not  at  this  titne 
quite  estranged  Irom  his  son,  for  he  {;>a\e  direc- 
tions there  that  the  lessor  of  the  plaintiff  should 
he  taken  great  care  of,  that  he  should  be  put 
^o  school  ;  and  it  will  appear  to  your  lordship 
and  ti)  thejury,  that  he  \\i\s  put  to  ncIiooI  at  one 
Dunn's,  in  Warhnrgh-strLtt,  in  this  town,  and 
that  lord  Altham  rauie  pri\:itc1y  sometimes  to 
see  him  there.  My  h»rd,  it  will  uppcar  to  youi 
loniship,  and  to  ihV  jurv,  that  about  this  time 
the  necessities  of  the  I :it*e  lord  Altham  were  so 
extremely  great,  that  he  hioked  out  to  raise 
money  by  all  manner  of  ways  and  means ; 
and  lord  Aithain  l>ein^^  advised,  that  if  the 
lessor  of  the  pluintifl'uere  out  of  the  way,  large 
sums  mii^ht  be  raised  by  the  sale  of  reversions, 
in  cunjunctioD  niih  the  remainder-man  iu  tail  ; 
and  this  scheme  being  agreeable  to  the  inclina- 
tions of  Miss  Giegor^'  ^  wb^^  y{^\  V\^vw^>a  ^JN- 


1147J 


17  GEORGE  II.     Trial  in  Ejceimeni  heiXK^een  J.  Annesley^tiq.    [1 148 


rid  of  the  lensor  of  the  plaintiff  at  any  rate,  it 
was  detennined  that  this  g^eat  ohstacle  to  lord 
Altham's  desire  of  raising  money  should  be  re- 
moTed ;  and  to  that  end  tkie  lessor  o^'  the  plaintiff 
was  sent  to  the  house  of  one  Cavena^h,  with 
directions  to  be  kept  quite  private,  so  as  it  should 
not  be  known  where  he  was.     What  farther 
was  designed  ai^dnst  him  I  cannot  say ;  but  it 
will  appear  to  vour  lordship,  and  to  the  jury, 
that  though  tne  lessor  of  the  plaintiff  was  at 
this  time  a  very  vouog  lad,  yet  he  was  a  little 
too  sprightly  to  be  confined  in  thai  manner ; 
he  fouiid    means   to  make  his    escape  from 
thence,  and  being  denied  admittance  into  his 
lather's  house,  he  roved  about  from  place  to 
place  (as  will  be  more  particularly  git  en  an  ac- 
count of  to  your  lordship  and  to  the  jury,  by 
tlie  witnesses)  for  tlie  suace  of  two  years  be- 
fore the  death  of  the  late  lord  Altham,  his 
father,which  happened  on  the  16th  of  November, 
1787.    But  during  all  that  time,  be  was  taken 
care  of  by  several  persons  of  extreme  good 
credit,  and  considered  as  the  lord  Altham 's 
sun  and  heir.     Upon  the  death  of  the  late  lord 
Altham,  in  the  year  17S7,  the  lessor  of  the 
plaintiff  was  extremely  young ;  he  was  by  the 
mother's  side  destitute  of  all  friends  whatsoever 
in  this  kingdom  ;  and  the  now  defendant,  the 
earlof  Anglesea(I  must  take  the  lilierty  now 
of  mentioning  him),  he,  my  lord,  upon  the 
death  of  the  lord  Altham,  claimed  the  title  of 
lord  Akliam,  as  brother  and  heir  to  the  deceased 
lord,  upon  a  supposition  that  the  late  lord  died 
without  issue  male.    My  lord,  it  will  appear  to 
your  lordship,  and  to  the  jury,  that  many 
people  whohad  known  the  lessor  of  the  plaintiff 
for  several  years  before  bis  father's  death,  ap- 
peared to  be  greatly  surprised  that  the  de- 
fendant assumed  the  title  of  lord  Altham,  iu 
regard  that  they  believed  the  lessor  of  the  plain- 
tiff to  be  tJie  sou  and  heir  of  the  lord  Altham  ; 
and  there  were  murmurings  among  the  ser« 
f  ants,  and  a  great  many  people  who  were  ac- 
quainted with  the  lessor  of  the  plaintiff,  on  that 
account.  It  will  appear  to  your  lordship,  and  to 
the  jury,  that,  in  order  to  remove  every  (iltstacle 
out  ohhe  way  of  the  defendant,  and  to  take  from 
the  lessor  oi  the  plaintiff  all  possibility  of  ast- 
serting  liis  right,  and  claiming  the  title,  an 
attempt  was  made  very  early  after  the  death  of 
the  late  lord  Altham ;  an  attempt  was  made, 
I  say,  to  kidnap  the  lessor  of  the  plaintiff;  and 
it  wdl  appear  thnt  the  tirst  attempt  was  in  vain ; 
a  second  attempt  of  this  kind  was  made,  and 
Jikeu  ise  defeated ;   but  the  third  attempt  was 
luure  successful ;  and  in  about  four  nnonths 
afler  the  death  of  tlie  late  lord  Altham,  the 
lessor  of  the  plaintiff  was  sent  into  America, 
and  there  sold  for  a  common  slave.    I,  my 
lord,  have  not  taken  upon  me  to  mention  by 
whom  tliose  several  attempts  were  made,  it  will 
much  more  properly  come  out  of  the  mouths 
of  the  witnesses  ;  and  when  they  shall  s|»cak 
it  here  upon  the  table,  every  body  will  judge 
with  what  view  and  deaign  such  a  wicked 
attempt  could  be  made.    My  lord,  the  lessor 
of  the  plaintiff,  while  hewu  in  shtveryi  auf- 


fered  many  and  various  l)ardalu|Wt  u  ef cij 
body  in  those  unhappy  circumstances  doei, 
and  did  make  an  attempt  to  regain  his  liberty  i 
but  being  retaken,  he  suffered  according  to  Ue 
law  of  that  country,  and  continued  aboot  13 

{i^ears  in  shivery :  But  it  will  appear  to  yoor 
ordship,  and  to  the  jury,  that  even  in  tbit 
miserable  condition,  when  he  bad  an  oppor- 
tuoity  of  rcdating  his  misfoitunes  to  any  bodj 
that  had  compassion  of  them,  he  did  menlioa 
the  unhappiness  of  bis  case,  and  by  what 
means  he  was  reduced  to  such  circumslancci. 
It  will  appear  to  your  lordship,  and  to  the  ionr, 
in  what  manner  the  plaintiff  was  brongbl^ 
the  care  and  bounty  of  Admiral  Verooo,  iohi 
the  kingdom  of  Great  Britain.  There  an  oa- 
happy  misfortune  detained  him  for  some  lime; 
he  happened  by  an  accidental  shot,  to  kill  a 
man  near  London,  ibr  which  he  was  iadided, 
stood  his  trial,  and  was  honourably  acquitted. 
How  that  prosecution  was  carried  on,  or  ftr 
what  purpose,  1  shall  not  take  upon  me  to  ay, 
though  it  will  have  its  weight  in  the  case ;  m 
it  was  necessary  to  meation  this  circiiiH 
stance,  to  shew  that,  when  we  were  at  kboty 
of  coming  into  this  kingdom,  and  prosecntlDf 
our  right,  we  did  it  as  recently  as  was  in  for 
power.  When  these  facts  are  laid  before  joor 
lordship  and  the  Jury,  we  of  counsel  for  the 
lessor  of  the  plaintiff,  do  apprehend  there  ii 
such  a  connection  in  every  one  of  them,  that 
the  force  of  truth  will  prevail,  and  that  yoor 
lordship  will  direct  the  jury  to  find  a  verdid 
for  tlie  lessor  of  the  plaintiff. 

Serj.  TudalL  My  lord,  Mr.  Serjeant  Mar- 
shall  has  so  fully  stated  the  case  of  the  lesnr 
of  the  plaintiff,  that  I  have  no  further  facu  lo 
mention,  unless  the  gentlemen  on  the  other  siih 
should  require  of  us  to  prove  the  title  of  the 
late  lord  Altham  to  tlie  lands  in  question;  if 
they  do,  we  arc  ready  to  enter  into  it,  sad  tt 
shew  that  by  the  will  of  James  earl  of  Angl^ 
i»ea,  a  remainder  of  the  lands  in  the  declartlius 
was  limited  to  the  lessor  of  the  plaintiff,  alter 
the  death  of  his  father. 

Mr.  LehunU,  of  counsel  for  the  defendant. 
My  lord,  I  hope  they  uill  read  the  remaimlen 
in  the  will  of  James  earl  of  Auglesca,  and  the 
codicils  ;  whereby  it  will  appear  that  the  neil 
remainiler  of  the  fanthi  in  question,  ai\er  failure 
of  issue  of  Arthur  late  lord  Altham,  was  limited 
to  Arthur  earl  of  Anglesea,  and  not  to  the  pre- 
sent defendant,  who  was  brother  to  the  late  lord 
Altliam.  . 

8crj.  Mar$hal.  We  ailmit  that  the  late  lord 
Altham  was  tenant  for  life  of  the  lands  in  the 
county  of  Meath,  and  tliat  Arthur  late  earl  of 
Anglesea  had  a  remainder  before  the  present 
defendant,  and  did  enjoy  it  aoccordingly. 

Serj.  Tisdall.  My  bird,  the  legitimacy  of  tht 
lessor  of  the  plaintiff  is  the  material  point 

Mr.  Recorder,  for  the  defendant.'  My  lord, 
the  lessor  of  the  plaintiff  insists  thai  he  is  lbs 
legitimate  aon  of  the  late  lord  Altham ;  if  thil 
be  proved,  there  will  be  no  neceMity  to  km 
tho  wills  and  codidls:  for  we  a4aiii  thtf  ■ 


Hfei 


flflrf  Jik^ard  Eart  of^ngUiea 


A.  D.  I7«S. 


[m^ 


Arihur  lord  AlHram  left  ■  soa,  ihe  prweni  mi 
of  Anglne*  bu    no  rigtit  to  the  laait  i 


Iwd  Allbam  intennarrieil  in  the  year  1706  witli 
Marr  Sheffield,  nuural  dau;;hler  or  the  date 
of  RockincrbaRi  (which  was  sdmilled).  My 
■laril,  we  hcve  been  so  happy  u  to  be  itile  not 
*aly  to  trace  the  leawrof  the  plsintiff  from  libi 
"blttn,  but  to  shei'  some  preceding  circum- 
Mace*,  rendering  it  liig^hly  pmbible;  oiih 
Wlich  we  •hall  begin,  by  Uving  before  ymir 
MiMitp  ind  the  jniy,  tb*l  imninliitely  after 
^ij  Aliham's  coining  into  this  cuuntrr  slic 
frttred  iriih  clilld,  that  bIic  miscarried  at  Diiu- 
wdne  or  that  child,  that  she  proved  prc^naitl 
■  Koondtinie.  sad  was  delivered  of  the  lessor 
tfttlejibintilf. 

'  X.  C.  fi.  Boicri.  GenltFTneti,  from  the  evi- 
4nce  as  optiipd,  I  see  this  is  like  to  prove  a 
fiat  of  lenglh,  09  well  as  expectation  ;  and  I 
tUnk  it  is  to  the  honour  of  your  country,  as 
iHfl  U  for  the  s^Iinntogr   of  the  [<Hrlret  con- 

§ed,  thai  itten  of  your  rank  and  known  pro- 
atteriil  the  trial  of  thia  issue  :  Dut  E  fear  it 
Bot  be  in  the  power  ol  llie  Cunrt  to  take  Ihe 
4|ridetice  >vj(li   nicb  eiaeloesi  as  to  g-ive  you 
l^ha  usual  assislBDce,  by  aiimining  of  it  ii|l  at 
4b  md  ot'the  trial.     I  must  iberefors  rei|i»e«t 
4ig,g^nlle(nen,to  lake  notes  as  we  proceed. 
Mrs.  Dorothy  liraco  sworn. 
Says,  she  ktiew  lord  and  lady  Allham  at  lite 
iaconenl'B  lather's  house  in  Brulc-street,  Uuli- 
jflh     TIjU  her  father's  name   wu  Temple 
SIko,  and  was  called  captain  Brisco.     That 
kCn  and  Inily  Aiibam  came   to  her  father') 
WiK  in  1713,  abont  the  laller  enil  of  Octolivr 
H)iD*«mbrr,  and  went  froro  IbeDce  lo  tndge 
Wfitt  Mrs.  Vice's  at  Tern  pie.  bar,  near  ih'r  Mip. 
'Thtt  she   iilleriTarJs  was  at  ihnt  liousc,  and 
iflied  with  them  there.    Says,  tliat  she.  with 
K  r«at  of  Ihe  ramilv.  were  desired  to  ten  lord 
idlady  Althatn  to  bed  at  her  father's  bouse, 
Itlit  mi|;lit  be  knonn  they  were  reconeilrd. 
'Hmtfrnm  Mr*.  Vice's  houae  lord  otid  ladv 
UliRin  went  to  Dnoiftaine.  In  the  county  <if 
Wttftrrd,  about  Chrialmas.  1713.    That  she 
tjfUtmuia  saw  lord  and  lady  Allham  bI  Mrs. 
|9|M'a,tbe  latter  end  of  summer  1714. 

Settrklla  Coin,  iworn  to  the  Voire  Dire. 
9ayi,  she  never  was  promised  any  thing  for 
'^0*iB^  her  testimony  in  this  cause. 
C^^UK  Kworn  in  chief,  de|><isclh,  that  tht 
|%fttw  the  laic  lord  Allham  and  his  lady,  io 
^13,  by  a  reconciliation  b«np  made  between 
Iktei  at  her  father's  house.  That  it  was  snme 
tfne  about  Cliristnias  that  they  lodged  at  her 
JMber's  bniisc  four  or  fi<e  days,  and  went  front 
Hwe  taTemple-bar  to  Imige;  observed  them 
live  coinlbrtably— dii>  see  lady  Allham  at 
igJnple-bar.  That  my  lord  aitd  lady  went  10 
-IhniDkine  about  Christmas.  That  tlie  depu- 
jftk  and  her  mother,  being  invited,  wont  la 
■'■itiDRiae  aboulUlB  »pdBg,  ITl*.    That  My 


Allham  waa  with  child  while  deponent  wa* 
there,  bnl  received  a  fright  and  toiscarried. 
That  the  fright  was  occasioned  by  my  brd't 
being  in  a  great  rage  at  their  bringing  some 
saucers  to  table  coulrary  to  bis  eiprets  order* ; 
upon  wliich  he  threw  tlie  saucer*  inle  tha 
chimney  just  b;)r  my  lady,  nho  was  trtted  al 
the  upper  cml  of  the  table.  That  llie  deponent 
lay  with  her  mother ;  sod  thai  in  the  nigbl  of 
thai  day  h«r  iiialhEr  wa*  called  np  by  Mary 
Heath,  her  ladyship's  woman,  who  tidd  her, 
that  lady  AKham  was  ill,  and  desired  her  U> 
come.  Says,  that  my  Isdy  miscarried  that 
niylit,  and  deponent  saw  the  abortion  in  a  bason 
next  morning.  That  deponent's  mother  said, 
if  lady  Altham  was  so  easily  fri^itetied,  she 
never  would  have  a  cliihl.    i&ys  her  nntlhcr  is 

[Cross- eXB  mined] 
Say*,  she  is  about  4i  years  eld->Mn't  rv- 
memW  who  were  the  •errants  when  ihe  waa 
■I  Duiimaiue.  She  nas  asked,  betiig  so  young, 
hoiv  she  kocw  it  to  be  an  abortion  ?  Says  she 
beard  il  from  her  molber.  She  wai  asked, 
wbst  kind  of  sauocrs  were  thrown  f  Say*,  they 
were  china  saucers  with  udil  kinds  at  fi^nirea 
on  them,  and  that  lord  Akhare  had  then  be- 
fore he  was  married,  and  ordered  Ibeni  not  to 
bo  bronghl  10  laUc  to  hia  lady.  Says,  she  aad 
her  roothEr  were  at  isble,  and  thai  she  sat  ■! 
Ihe  latly's  riglit  band.  Mte  was  nHbed  whM 
Ihe  butter's  name  »u  then  ?  She  ssiil,  he  wa« 
called  Holph.  She  waHaskeil,  was  bo  proaanlf 
Mays,  to  Ihe  bosl  of  her  knowledge,  Iw  nas, 
and  brought  in  ilia  second  conrie.  Say*,  Iar4 
Altliam  nstil  Ihrse  word?,  when  lis  ilirowUiw 
sanctrs,  Tb«*e  aaucr*?,  ya  know,  I  orderod 
ne'crtocoow  to  tobl*  j  sad  Ibat  ibereotum  Ike 
lady  Allham  fell  into  a  dt  of  tears.  Ssys,  sk* 
never  was  pvomisad  any  lease.  Wat  asked,  if 
any  pbysioinus  were  called.  Nays,  ibe  do*! 
nol  remember  any.  Says,  that  lord  Alth«» 
said  aftenrarda,  itwaslhe  hidy'suna  fault  ihal 
she  had  miscarried. 

.^/iceSo'M  sworn. 
Soys,  she  knaw  lady  Allham  al  captain 
Brisco's  in  Bride'Streel,  in  1713,  aad  ol  her 
lodging*  in  E ••«):■  «treer,  in  November  171*. 
al  Mit.  Vice's,  and  that  lady  Allham  watf 
ihee  with  child.  Says,  that  lard  AlthaM 
mentioned  these  words  to  deponent.  By  <M, 
Ally,  HoU-H  with  child;  ss>s.  she  -^M 
lady  Allham  joy  of  her  beini;  wiib  ebiM,  m0 
that  lady  Allhsm  thanked  her  in  \inmmm  ^ 
my  loriT  Hays,  she  saw  tady  Alllinn  iiwe^ 
three  tiine«  alter,  bel'ore  Iter  ladyrfBi|i  wmii^ 
of  town,  and  spoke  lo  her  of  it ;  and  Mfc  ^ 
lady  Allham  always  owned  it.  Aad  4mm^ 
saw  her  growng  bigger,  and  bad  ^  ^f^^ 
nity  of  dresaing  her. 

Says,  she  can't  tdl  mtm  a^^  '__  ^ 
pregnancy.    Kays,  she  vraNMl^  *fc«-   "■ 
andalteniled  ihere  soBfli^v^a^  ^*^* 


17  GEORGL  II.     Trial  in  Ejectment  bclveen  J.  AuneJey, «»/.    [  1 1  jg 


HjIJ 

Bcinpr  aske«]  of  wbat  size  lady  Aliliani  was  ; 
and  oi'  ivhat  roiuur  her  hair  ?  Says,  the  was  a 
middle -sized  woman,  and  Iter*  iiair  a  dark 
brown.  Sbc  was  aske<l,  it'  Airs.  CiisiH)  went  to 
J)unmaiiic  1'  She  says,  she  w (.at  in  tiiu  spriu;^ 
1714yand  one  oFher  !Jau;;hiersulon^  with  hu'. 
fcihc  \t'a«  a>kcil,  how  ohl  that  daiitfhlci-  was; 
and  if  fcho  was  marriagcahlL' ?     Shcsa^sshe 


got  a^liair  to  go .      .   . 

fche  was  told  in  the  family,  that  lati}'  Althani 
\%B3  with  child;  aaw  her  about  three  times  at 
her  master's,  and  at  her  lodgings.  She  was 
asked,  How  many  daughters  captain  Brisco 
had  ?  Site  said  five  ;  but  could  not  tell  ivhich 
of  them  were  at  home  uhcn  Mrs.  Brisco  went 
to  Dunmaine.  Said,  Miss  Harriot  was  in  the 
country  with  lady  Aliliam  ;  and  s:iys,  she 
heard  tier  master  and  mistress'  say,  tliat  the 
lady  Altham  miscarried  in  Dunmaine,  and  has 
heard  Mrs.  Cole  say  so. 

Catharine  M'Cormicl:  sworn. 

Says, she  knew  lord  and  lady  Altham,  when 
they  lodged  at  Mr.  Vice's  near  Temple -bar, 
M'here  depontnt  was  servant  in  the  year  before 
(|ueen  Anne  died,  in  or  about  the  latter  end  of 
suDimer ;  says,  that  the  lirst  time  of  their  lodg- 
ing there,  u  running -footman  came  with  my 
kiril's  slippers ;  and  there  was  a  rumour  at  lirst 
that  my  lord  was  married  to  one  of  captain 
Brisco's  daughters,  but  it  was  soon  afterwards 
known  that  lady  Altham  was  come  to  town. 
That  lady  Aliham  went  to  Dunmaine  from  her 
master's   houvr,  and  about  the  latter    end    of 
May,  or  be^itniitig  of  June  following,  came 
from  the  country  to  Mr.  Vice's  the  second  time. 
That  there  wl;s  some  talk  in  the  family  at  Mr. 
Vice's  of  the  miscarriage  at  Dunmaine.     Says 
that  my  loid  one  evening  having  words  with 
my  lady's  woman,  Mrs.  Heath,  made  a  great 
Doise,  n|K>n  which  my  lady  was  frightened  and 
screamed  out.     That  Heath  then  tohl  u)y  hud 
that  my  huly  had  miscarried  or  was  going  to 
miscarry  ;    whereupon  he  sent  for  one  Mrs.  | 
Lucas  a  mid VI ilc  in  the  neighbourhood;  that  : 
one  Mris.  Law  ler  another  midwife  was  also  sent 
for;  says,  that  lady  Altham  miscarried  al»out 
siv    we(>ks  after  fur  conting  to  Mr.  Vice's: 
heard  it  from    Mrs.   Heath   her  woman,  and 
Heath  said  the  lady  ivould  be  a  fruitful  woman, 
only  for  my  loids    usage.      That  about  two 
mouths  alter,  she  heard  lady  Altham  was  a^ain 
with  child,  and  was  told  so'by  Mrs.  Heatiriier 
woman,  who  mentioned  to  her  she  had  good 
news,  for  that  my  lady  was  again  with  child. 
Says,  there  were  great  changes  in  my  lord  lor 
the  better,  upon  my  lady's  being  with  child 
again  ;  that  he  used  to  come  home  earlier  tiian 
usual,  and  that  a  pair  of  low-  heeled  slip|Mrs  was 
bought  for  my  laily,  for  f.-ar  of  her  siuuilding 
and  thereby  occasioning  a  miscarria^'i  ;   sa^s) 
tliat  at  a  certain  time  the  de[M)nent  ob^iTving 
my  lady  pretty  big,  she  wished   her  la.lyship 
umch  joy  of  tier  )ittl«  big  belly  ;  that  uiv  lutd 


said  that  was  an  Irish  bull,  and  mcnliontd  to 
depoueot  that  he  believed  she  mif^bt  uiakei 
I  good  nun.e;  says,  this  was  in  Deccmlier, about 
:  teu    days    before   Christmas,  the  year  qae«>n 
I  Auiie  (!ied  ;   says,  lady  Ahhaai  did  not  lace 
he:M-lf  as  usual.    Thought  and  btlieved  lady 
'  Altham  to  be  big,  and  had  the  w.dk  of  a  fioa>:rn 
:  big  with  child.    That  jellies  aod  broths  iierc 
i  made  for  her ;  says,  her  husband  remaioed  a 
!  servant  to  my  lord,  and  she  parted  from  Mr. 
Vice's  family  ;  says,  the  lady  not  seeing  com. 
pany ,  made  her  first  beiieve  she  w as  w  iib  child; 
says,  she  gave  herself  full  ease  end  libertvioa 
night  ^own.    Said,  the  occasion  of  my  Jailv'f 
miscarriage  at  Mr.  Vice's  was  by  my  loil'i 
coming  in  one  night  in  liquor;  aud  some  dis- 
putes hapjiening  between  his  lordship  and  Mn, 
Heath,  my  lady's  woman,  a  stool  was  tbrova, 
which  mude  a  n(»ise,  and  frirrhtcncd  my  ladj; 
says,  Mrs.  Heath  said  to  my  lord.  You  lia'ie 
done  a  tine  thing,  my    lady"  has  miscarried; 
says,  she  was  servant  at  Mr.*  Vice's,  when  lady 
Altham  kept  her  bed  a  fortnight ;  dou'i  re- 
member the  names  of  captain  Brisco's  chiMm, 
or  when  they  visited  laily  .-\Uhara.     But  ayt, 
Mrs.  Brisco  was  au  intimate  acquaintance  of 
lady  Ahham's. 

[Cross-examined.] 
Being  asked  in  what  manner  she  got  her 
livelihood  ?   Says,  by  her  honest  industry,  acJ 
tliat  her  employment  is  stamping  or  priatio* 
papers  for  rooms.     Being  asked  whether  the 
had  any  discourse  with  one  31  rs.  Shaw?   Ssu 
she  had  ;  and  that  having  mentioned  her  lifjin; 
at  i\lr.  Vice's  lumse,  she  was  askiit  if  she  knev 
that  Mr.  Annesley  was  a  sou  of  lady  .4l(han].* 
or  if  ihe  could  swear  that  my  lady  wasirilli 
child  of  that  very  boy  ? 

Dorothy  B/isco  called  up  again  by  the  Defend* 

ant's  Counsel. 

Says,  she  hoard  lady  .41«ham  was  nithchiR 
and  miscarried  at  Duiiiuaiiie :  cau't  charfrc  brf 
memory  if  lady  Altham  was  a  second  liuiewiiii 
child !  says,  her  mother  aud  sister  came  ia 
about  thn^  months  home  from  DuDinaiiir< 
Sa\  s,  that  lord  and  ludy  Altham  came  to  Duuiii 
after  (juccn  Anne  died.  Don't  rcmeinlKT  l^r 
ladyshiji's  being  with  child  ;  for  dLpoucol  wti 
in  the  small < pox  when  ^uCcmi  Anne  died,ao4 
her  mother  came  to  tov%n  on  her  having  ibe 
sniall.po\:  says,  lord  Altham  came  from  IMin- 
maine  auout  Auiju^t.  She  was  asked  wlicibfr 
she  knew  the  witness  Alice  Bate:>:  ta^s  sli' 
docsi,  uikI  that  slu'  is  au  honest  worthy  uoiuas 

■ 

Mrs.  CoLs  called  up  again  by  the  Dcliiidint* 

Couusel. 

Says,  she  n  members  Alice  B.Mes  to  lie  asff 
vantat  M\.  \  ice's  :  c;tn't  n^colliri  if  she  luM 
her  that  liiii>  Aliham  was  with  cliiid.  ^»»^ 
tliat  lad  \  .\i'thaui  cuuie  to  town  after  hnr  an" 
ilicr.  towards  liie  winter :  believes  bhe visitalil 
hrr  liui!»c  :  can't  rcmeuibev  it»  being  laikdul 
that  lad^  Aiaium  was  wuh  child.  S.j\k.  >!»« 
was  at  Dubl.u  when  she  he^ij  of  the  4«iewl» 


mnd  Richard  EaH  ofArtp 
ri  ihat  my  liJy  oom  ffom  tbe-cauotrj 
awioter:  uvi,  •beremiined  at  Bur- 
fbr  nix  weeks,  and  in  DtiomBlne  ibe 
KHtih  of  Mtr,  and  that  ibe  left  Uiiy 


A.  D.  1743. 
[CnMa-examiDed.] 


[1154 


Charlet  M-C<trly  t^ma. 
he  knew  lanl  Altbam,  and  knew  hit 
ca  tliey  lireit  it  Vice's,  in  Ihe  Tear 
1716.  Drpoiwnl  krpi  aa  inn  al  Col- 
en,  ■adloru  Allham  liulacoach'hoiwe 
M from depODent.  Tbataftertbedeaih 
Anne,  ab<iut  ■  year  or  s  year  and  half, 
!porleil  InHy  Alibatii  had  a  cliild.  {D«- 

lam.aiilieThrra- Tun  tavern,  butwaa 
il  Iberofrvm,  it  being  malter  of  hear- 
ayi,  that  the  fiirliament  nu  litting 
ril  Althain  l<M)){ed  at  Mr.  Vice's,  and 

Iiyor  Richard  iFilzgrmld  aworo. 

he  kneiv  loid  Allham,  and  wu  ac- 
I  witn  liJE  lordiliip  in  1711,  at  a  (ilacc 
ros|in;t'II,iil  in  tlie  county  of  ^Vater- 
1  al  Uiiniiiaiae,  and  knew  la.ly  Attbam ; 
onent  waa  at  Donmiine  aonie  lime  iu. 
Being  aslccd  if  he  wai  *ure  il  waa  iu 
'  1715?  aayn.  be  ia  c^laio;  hut  sayi, 
I  iHil  then  tee  U'ly  Alih'am,  liccauie  ihe 
ng  in  at  that  tiiiic,  and  that  ihc  Kent 
)wn  to  lite  ileponrnt,  lliat  If  she  couU 
bndy,  Hhe  woiilit  gcehim.  Ueinj[a»ked 
jiun  nf  liis  coinin-f  to  Danmaine,  aayi, 
loM  Allham  at  IIom,  wlin  iiitited  drpo- 
Jine  wiili  him  the  next  dny  ;  that  de- 
leitired  lo  be  excusinl,  because  he  waa 
with  aume  utlicers ;  but  lard  Altli 
ponctit  must  diiie  with  liim,  and  co 

■oou:  groao in); -drink,  for  Ihat  bii  wife 
abour :  riejinneiit  told  liim  thai  waa  a 
he  uiighl  nut  in  go  ;  but  lord  Altharo 
ool  lake  an  excuse,  ai>d  aent  the  de- 
word  the  next  ilay  lo  Itoas,  that  his  wife 
Bjcht  to  bed  ot  a  ann  ;  and  the  deponent 
>  Dnnmaiae  and  dined  Ibere,  and  bad 
loouraeabautthe  child,  and  lord  Allham 
Jiat  the  i)e|ionent  should  lee  liiiion; 
mliQKly  the  nurse  hroujj'bt  the  child  to 
It,  anif  deponent  kisicil  the  child,  and 
ilf  a  guinea  to  the  nune ;  ami  some  of 
ipaoy  toasted  the  heii^apparent  (0  lord 
«al  dinner.  That  this  waa  the  day  aflei 
d  waa  born ;  and  deponent  aayi,  be  left 
atrythencxtday.anil  weDllotliecoaDi] 
terfard,  to  his  own  house  at  Proapect- 
Sayi,  deuonent  saw  the  woman  to  whom 
t  the  balf-g'uinea,  ibia  day  of  bia  em- 
n;  that  he  remembers  her  well,  beuauae 
notice  of  her  when  he  gave  her  the  half- 

that  the  was  very  handsome ;  Ihit  he 
■lay  at  Dunmaine  that  night,  bul  came 

■t  nigtil-lall,  and  wot  attacked  in  the 

robber*:  that  he  croned  the  fcnv  oo 
im  home — remembers  that  the  lord  Al- 
■m  in  bigh  apirita  with  Ihe  Ibougbti  of 


DeiwBent  waa  aaked,  did  he  erer  return  ta 
lite  conoiy  of  Wexford  i  Says,  he  never  did  i 
he  was  asked,  hnw  far  Prospect-Hail  ia  from 
Dunmaine?  Says, abootlS miles.  Hewaaaak- 
ed  nn  what  oecaaion  lie  was  at  Roas7  Sayi, 
that  deponent't  ancle,  BIr.Figetl,  lived  in  the 
counly  of  Wexford,  and  at  bi*  death  left  cla- 
poLieDt  a  legacy,  which  occaeioued  deponent'! 
l.r^m{  there:  and  saya,  he  waa  a  good  while 
dead  before  deponent  got  on  account  thereof. 

JoAn  ZVrner  sworn. 
Snyt,  he  lived  at  Unnniaine  ten  years,  and 
lew  lord  and  lady  Allham:  deponent  wae 
sencieballo  the  lord  Angleiea,  and  visited  lord 
Allium;  tbal  he  merried  in  December  1714, 
and  he  and  hia  wife  went  to  Dunmaine  ami 
KLaiil  there  about  three  weeks  about  Lent  time, 
and  lady  Altham  wo*  big-bellied  at  the  tinw 
he  vienl  there.  Saya,  laily  Attham  told  depo- 
nent ihe  nen  time  he  saw  her,  that  the  had  « 
son :  afterwards  aaw  the  bny  al  Uonmaiue  ft 
Y-caranda  half  old:  staid  a  uightal  Dunmaine, 
Hiid  had  the  child  iu  hia  arms:  taw  Ihe  lady 
leailingtbe  cliild  acnMs  the  pariour:  saw  the 
lord  Allham  kiaa  ibe  child,  and  Im  called  him 
Jemmy  :  saw  Ihe  child  anerwardt  at  Roaa, 
ami  It  Klonay  in  the  counly  of  Kildare ;  saw 
tliPi'hildoDceat  ItosKwhen  lady  Altham  lodged 
ilicia  at  one  Bullci's.  Deponent  being  atked 
hi>iv  the  child  was  treated  at  Kinnay,  says,  he 
was  drened  as  the  son  of  a  uolleman,  and  ih* 
si'iiBnta  called  him  naaier;  saw  him  at  Kin- 
Liay,  IS  he  believes,  three  or  four  tinea:  tb« 
(jliilj  could  walk  at  Kinnay,  and  used  lo  bo 
wheeled  about  in  a  little  carriage:  aaw  tho 
tliilil  afterwards  at  Carrickdiiff  in  1730,  and 
lui'il  Allham  waa  fond  of  tiie  chUd.  That  inj 
InrJ  •    ■    ■ 


iraa,  I 


I  am,  he 
D  DuUin, 


liis  GOn  that  deponent  might  aee  him,  ood  the 
chilJ  accordingly  was  sent  for:  that  be  waa 
then  about  eight  yew*  old,  and  lord  Al- 
thaio  Boid  to  deponent,  you  were  aeoeachal  to 
eati  Artfaur  and  earl  John,  ftnd  you  any  bo  ' 
si-ntschal  lo  the  child :  and  deponent  ai  ' 
l>Fti?vea  he  saw  the  child  once  after  in  J 
hut  did  not  know  him,  onlj  waa  told  it  w 
and  that  waa  about  two  or  throe  year*  afW  tho 
mrt'ting  atihetaveni;  that  the  child  bad  no 
(^lollies,  and  waa  BO  much  altered,  that  although 
(he  people  of  til e  town  told  him  ho  waa  ine 
liird  Allham'*  son,  he  did  not  know  bow  to  be< 
lieve  il. 

[rroas-exainined.^ 
Deponent  was  asked  where  my  lord  lived  at 
ihu  lime  he  saw  the  child  in  Ihat  poor  condi- 
tion? aaya,  he  does  not  know,  hut  believe*  at 
liicliicore;  admitahe  did  hot  enquuv  where  he 
uat,  001  al>nul  the  cliild,  iMringneard  that  Ibe 
child  bom  at  Dunmaine  was  dead  many  year* 
ago,  tbal  deponent  was  settled  near  Camolin 
IXfT-park :  aayi,  il  ivax  visible  the  lady  was 
u  ivii  child :  de|>iinent  was  aakcil  what %\t.*  wo- 
man my  lady  waai  lww»,B>Vtttfk.-jwcA*>'^«'^1 
4E 


1 155]  17  GEORGE  II.    Trial  in  Ejeciftmt  bcftveen  J.  Annuley^  esq.    \  1 156 


vroman,  and  Ler  liair  brown :  knows  not 
neighboura  visited  at  my  lord's,  but  has 
colonel  Pailiber  there.   'He  was  asked  if  he 
knew  the  servants  P  Says,  he  did  not  know  one 
servant  by  name:  believes  he  night  then  know 
them,  but  does  not  now  recollect  them:    has 
seen  my  lady's  woman,  but  does  not  know  her 
name  was  f leatli :  knows  Owen    Cavenagh 
now,  but  did  not  know  he  was  lord  AUham's 
iervant.    He  was  asked  if  he  knew  Rolph  the 
butler  ?  says,  he  has  heard  the  name  of  Kolph, 
but  could  not  tell  whether  or  no  he  was  butler. 
He  was  asked  if  he  knew  the  name  of  the  ser- 
vant who  made  his  bed  P  says,  he  does  not  re- 
member her  nsme.    He  was  asked  if  he  knew 
the  name  of  the  cook  ?    he  said.  No — or  the 
nurse?   be  said.  No:  saw  the  child  at  Mrs. 
Butler's  house  at  Ross,  and  afterwards  at  Dub- 
lin when  he  was  10  or  11  years  old,  and  in  a  mi- 
•erable  bad  dress :  never  saw  lad  v  Allham  but  at 
Dunmaine,  at  Koss,  and  in  Dublin :    said,  he 
never  heard  till  within  these  two  years  that 
lord  Ahham  had  a  bastard.    He  was  asked 
when  lord  AUham  died,   says,  about  17S8^- 
■aya,  he  saw  the  boy  in  a  rsgged  condition  be- 
fore lord  Altham  died,  at  the  upper  end  of  Arran 
Quay  in  Dublin,  and  heard  some  little  boy  call 
him  my  lord  :  says,  lord  Allham  applied  to  him 
in  17  2S,  to  speak  to  lord  Augfeaea  to  help  to 
maintain  his  son,  which  deponent  did ;   and 
carl  Arthur  ffave  deponent  50/.  for  that  pur- 
pose.   That  wis  was  about  six  years  before  bis 
death  :  savs,  that  being  recommended  bv  BIr. 
Ceesar  Colclough  to  the  present  earl  of  Angle- 
sea,  deponent  went  trcipiently  to  sco  him,  and 
defendant  used  to  entertain  deponent  with  tell- 
ing him  how  much  he  was  iierplexed  by  law- 
suits ;  that  deponent  asked  uim  one  day  what 
was  become  of  Jemmy  ?  to  which  the  detcudant 
answered,  that  he  was  dead. 

jyennit  Redmonds  sworn. 


what  j  child  was  nursed  abont  a  quarter  of  a  mile  from 
seen    the  house  upon  my  lord's  land,  and  nobody 
lived  in  the  noose,  but  the  nurse's  father  and 
mother  and  a  servant  maid  of  the  house ;  and 
lord  Altham  and  his  lady  went  often  tbm  to 
see  the  child,  and  to  bring  htm  to  DnnmaiDe, 
and  that  lady  Altham  had  a  coach -road  made 
on  purpose  to  go  to  see  the  child ;  that  tbs 
child  was  at  nurse  about  a  year,  and  then  re- 
moved to  Dunmaine.  That  m  the  beginning  cf 
1717,  my  lady  went  away  from  Dunmaine,  oa 
occasion  of  Mr.  Thomas  PaUiser.     That  ladv 
Altham  had  the  child  in  her  arms  as  she  was  ui 
the  chariot  going  away,  and  was  kisnng  it,  bot 
the  lord  Altham  came  out  in  a  passion  and  took 
the  child  from  mv  lady,  and  gave  it  to  Jou 
Laffan ;  and  the  lady  begged  to  have  the  child 
alon^  with  her,  and  cried  necanse  roy  lofd  r^ 
fused  her ;  that  she  sent  for  the  child  to  Ken, 
but  could  not  have  it  as  he  knows  of.    That  tke 
child  had  gold  lace  on  his  hat,  and  was  Ansxi 
like  a  nobleman's  cliild.  &»a^8,  he  saw  the  child 
(as  he  believes  six  years  after)  at  Carrickdoff, 
and  the  lord  behaved  to  it  as  to  his  own  child; 
and  deponent  knew  him  by  his  face  to  betfae 
same  child  he  saw  at  Dunmaine.  Deponratdid 
not  stay  at  Carrickduff ;  came  to  my  lord  solj 
in  order  to  break  some  horses  (deponent  bei^ 
a  horse -rider).    That  he  saw  the  lord  walkisp 
atioutwith  the  child  at  CarrickduflT.    Sayi,he  { 
has  heard  that  Mr.  Lovd  who  cbristcoed  Ik 
child  is  dead,  and  that  the  godfathers  and  god- 
mother are  dead. 

[Cross-examined.] 

^ays,  he  was  servant  to  lord  Altham  abrict 
f«vo  years,  before  his  lady  came  to  Dunmaim-. 
That  she  was  bi  ou":ht  to  bed  about  3Ia  v.  Si\i- 
deponent  was  not  ]iresent  at  the  christtfoioj; ; 
believes  the  mid^vife  (fur  whom  deponent  mi^ 
sent  to  Hosh)  is  dead.  Says,  that  Joan  Ijindj 
was  the  nurse,  and  that  she  atterwards  married 


to  Daniel  M*Cormick  ;  that  she  had  a  child  b^ 
Says)  he  knew  lord  and  lady  Altham,  and    fore  her  inirria^c ;  and  some  said,  a  sailor,  v.d 


deponent  was  servant  to  lord  Altham  at^cr  he 
came  to  Dunmaine,  about  thirty  years  ago,  and 
was  three  years  in  his  service,  and  knew  that 
lady  Altham  was  with  child,  because  he  saw 
her  when  she  was  big-bellied,  and  it  was  the 
talk  of  all  the  servants ;  says,  my  lady  was 
brought  to  bed  at  Dunmaine ;  and  deponent  was 
sent  ibr  the  midwife  the  day  before  her  delivery. 
Being  asked  how  he  was  employed  in  the  ser- 
vice ?  says,  ho  looked  ai^  the  hunters ;  says, 
it  was  Mrs.  Heath  who  sent  him  for  the  mid- 
wife (whose  name  was  SUiels)  and  that  depo- 
nent brou<^ht  her  from  opposite  the  barracks  in 
Koss,  and  that  the  child  was  christened  when 
he  was  about  three  week!«  old,  hy  one  Mr. 
Liiyd  (lord  Altham*s  chaplain)  by  the  name  of 
James;  that  the  godfathers  were  counsellor 
Cliff  and  Mr.  Colclough,  and  the  godmother 
madam  Pigott,  and  that  the  nurse  (who  nursed 
the  child)  was  Joau  l^ndy,  who  was  preferred, 
as  he  was  told,  because  she  had  the  best  milk  ; 
that  there  was  a  bonfire  made  and  other  re- 
joiciDgs  ibr  the  birth  of  the  child.    That  the 


some  that  litrd  Altham  was  the  father  of  it 

r  Hereupon  the  Lord  Chief  Baron  said,  tbatit 
looked  odd,  that  lady  Altham  should  send  ber 
child  to  bf  nursed  to  a  person  suspected  tu  hvi 
a  child  by  her  ladyship's  husband.] 

Says,  that  Joan  Laudy  was  brought  to  bed 
many  months  befoie  my  lady  AUham;  sau 
he  saw  Laudy 's  child,  and  that  one  faiJic: 
Michael  Dowiies  christened  it.  That  her 
mother  and  sister  took  caru  of  her  child,  irbei 
she  nursed  my  lady's.  That  Landy's  cbi^^ 
died  at  the  age  of  three  or  four  years,  of  tk 
small- pux,  after  my  lord  had  letl  Dunmuae* 
and  deponent  \tas  at  his  burial.  lie  was  askfi 
by  what  name  l«undy's  diild  was  calledf  be 
said,  sometimes  it  was  calltHl  Laudy,  and  some- 
times M'Curniick.  That  he  never  beaid 
Laudy 's  son  called  Annesley.  That  Jan* 
Landv,  the  nui-se's  father,  lived  in  Dunmaiae; 
tliat  the  old  house  was  put  in  repair  for  the  it- 
ception  of  my  lady's  child.  That  depoocfi 
was  never  examined  before  his  present  depoft- 
tiou.    Says,  that  col .  PaUiser  in  some  discoorie 


r 


ind  Riahard  Earl  ef.lngltiea. 


A.  D.  17+S. 


[115S 


ilcpoaent,  tWtircil  dejioatiil 
tou;  tu  tlii*  affair. 


a,  itie  liii«>T  lord  and  lailv  Allium,  aiwl 
In.  Sliivti  llie  iTiiilwitb  I'llil  ilepilurDl  lilie 
rcU  Lily  Aliliaici  ut'  a  diiM  sWiit  A|iril  or 
about  twenty- n ins  jrars  a^-o.  fThia 
liiNirMy-eiiilcnce,  was  olyectril  lo  liy  d«- 
il'a  eouusel,  aod  lli«  Cuuit  aliuwcil  tUe 

ilary  Dav^ciwnrn. 
r>,  »U»  knew  lurJ  am)  Uil;  Althani ;  tUat 
■1  liictil  by  liie  iiiiivaril  to  U>  a  acrvant 
1  Allbam'i  icn  kc.    That  >.lie  Vitti  wiib 

Allbam  tbrci-  monttii  before  alie  was 
;IM  lo  f>eC,  ■nil  wat  in  tbe  raum  wbtii  laily 
n  WM  drlivFreil  al  Dunniaine.  Thai  Mrs. 
i  ^10  lived  Hi  Itmia  (rai  th«  niidivila  ;  and 

Eedinooda  uaa  tent  For  tier.  Tliai  tbere 
Ibrce  or  four  piescnt  wbcn  Udy  Althim 
rnughl  Ifi  bell,  and  the  rlirisltning  nt  lh« 
mu  public.  Thai  Mr.  Anlliony  Cutclough 
luairllur  Cliff  "ere  tb«  Kodlalherg,  and 
I*'Kirvi  tbe  tfodroother,  and  Mr.  Lovd 

WM  my  lonTa  cbaplaio)  cbrislencd  tlie 

a  lid  tbere  were  great  r^oiclngt  tor  llie 
Kod   pteal;  of  vice  and  otber   liiguori 

on  Ibat  nccuiao.     That  leiera)  nuraes 

recommend eil,  but  Joan  Lnndy  wni  ap- 
h1  uurie,  ub'i  was  atln«ards  married  ta 
I'Connicti,  an  dejMiirni  lias  liMrd ;  (bat 
aaa  clean  tij;lit  giil;  ihac  tbi*   wan  ru- 

tu  be  married  to  a  aailor,  nod  baie  tlie 
by  her  busband. 

[CraMejtamtned] 

F»t  *l>*  lived  three  monlbaat  Dimroaine 
I  thccbild  waa  born.  Thai  >be  remerabtrrs 
re  aeen  tnajor  Pilzqerald  tbere  in  a  fvw 
bAw  lady  Altbam  waa  delivernl.  Tbal 
Mil  wan  present  nl  the  ohrislanioij:. 
r  kusw  of  any  peraiia'*  being  bruugbt  tu 
hare  but  liidy  Allbaui,  Tbal  t'la  vhild 
hmleoed  in  ibe  iiarliiur  abuut  lliree  w«eks 
il>  birtb,  and  Mr*.  Il«atb  waa  pteienl  at 
ihrl(t«nin|{.  Belierva  Landy  wm  llieu 
•d  to  ooe  M'CMmick  who  lived  at  Dun- 
:.  Beiiuvet,  (hot  moJM-  i'Uxtterald  did  liv 
HUUaiiia,  und  Hlaid  ibero  tur  «oi»«  lime, 

ibai  Jnan  LaiMly  nnrMd  tbe  ohtid ;  naoer 
I  ha  bixise  ;  but  heard  frvni  the  sartaula 
rcre  Iherr,  thai  Joan  Laudy'*  bouse  waa 

two  Kebla  rrnm  ibe  I>i>uu  of  Onumalne, 
hat  ibe  tijnc'a  houa*  waa  flnely  wbile- 
A  Saysi  Ibal  Cliarles  Meagber  noa 
Mlar  Ibea.    Tbat  one   nMulani   Itutkr, 

Unrpby,  and  Mra.  Healb  wato  IhCTe  al 
lime.  Sity*,  Udy  Allbam  w*i  ahnoiil 
hnura  in  labour ;  that  it  waa  dutbiah  nlieii 
'HbrouKbi  In  bed,  and  tbat  kbe  nas  taken 

day  trafvrv. 
Mta.  Vrlxirah  Anneilti/  sworn, 
n^aha  knew  lonl  Alllium,  al  a  ^Uco  nllod 
^^  UiM  Munty  al'  Eildare.     Tlpl  lord 


hare  any  I  Allhain  Ured  Ihiire,  and  deponent  lived  iriibia 
three  milea  of  ilial  place,  at  Dallyihanniii. 
Thai  lord  Althain  was  ber  husband's  rclalioo, 
and  visited  deponent.  Thai  lurd  Allhim't  sna 
at  ibis  thiie  and  deponent's  broiher,  Mr.  Paul, 
uied  oRen  lo  drink  hi*  beallb.  Ueiii|r  asked  if 
she  riiited  bird  Altbam  at  Kinnaf  says,  tbe 
did  not  care  le  go  lo  tbe  bouae,  becau«e  lord 
Altbam  bad  bruuj^ht  down  a  bouse-kceper 
■  -         Say*,  Ibal  Ihia  waa  in  1717  oi    


Sbjis,  her  brother  tisiied  my  lord.  lleiDK 
aiked  if  she  believed  tbe  child  was  my  tord^  I 
lawful  van  f  says,  she  believed  he  wa«  bis  Iairv9 
ful  Ri>o,  and  never  beard  (be  conlrary.  <^ay%l 
(he  cLild  was  i;>11ed  James,  Tlial  her  brulbtf  | 
was  a  sober  grave  i  , 
not  hare  toaslrd  lh<  heallh  of  the  chdd  if  b^l 
bail  been  a  bastard.  Says,  ibal  ihe  child  wsotfl 
with  lord  Abbam  to  CarrickdulT  in  llie  cuunlg'^ 
of  Calberlotiij^b,  and  dejianenl  never  hcsrd  t 
him  allerwaids.  Says,  ber  brother  IreqiienthiS 
after  ihe  deulb  of  lord  A llliam,  enquired  whwfl 
WAS  beoome  of  ihal  boy,  hul  never  uould  teBrB|V 
whifili  made  tb^m  all  conclude  be  was  dead.  ''■ 
[Cton.  examined.]  , 

Sayi,  she  never  doubled,  bul  alivaya  belieralq 
Ibe  child  WHS  lord  Altliain's  too,  but  adn  ~ 
aim  did  not  hear  of  Ihe  child  until  he  came  to 
Kinoa.      Says,   that  afUr  lady  Allbam  cama 
over  a  second   lime  frure  England,  she   wag 
supposeit  tu  be  wiib  child.     Says,  deponent 
once  vinileii  lady  AlllUHn  when  *be  came  to  ll 
country,  bat  ber  husband  soon  alier  dyin^,  tl 
deponent  b«ing  in   alfliclioni  nevar  had   aiqf  1 
oorrespoiidcuce   wiih    lb*  family   arteTivardfc  I 
tjay  s.  Uial  she  berwtfdi'aiik  lonl  Allham's  sok^  | 
Ileal ih  olteo  witen  my  lord  lived  al  kinna, 
2'homat  Barm  of  Klllkenny,  alderman,  colled^  1 

9Ir.  Bams  being  called  to  give  hisevidenOt 
was  asked  by  delendant's  couusel,  if  lie  hud  not 
a  leaae  of  some  lands,  partoftba  defeDdaiit'a 
estate?  i^r.  Barns  sdinilted  be  had  a  lease  of 
Si  years,  which  was  expired,  ur  near  eipirinf. 
Whereupon  ln»  was  dijecled  to  by  defendanfc  -^ 
oouoael,  for  lliat  be  was  iotereslad,  and  there*  U 
fnre  could  not  give  hi*  testimony.     In  answaf^ 
to  »iiicb,  ihe  oiiUDsrl   (or  Ibe   lessor  uf  llw'' 
plaintilT  said,  that  Ibe  lease  was  nnt  of  any  sf 
llie  land*  in  tbe  declaration,  and  therefore  bia 
eridenceconld  not  be  objected  In. 

To  which  tbe  ilviendanl's  counsel  replied, 
tliat  though  Mr.  Batiis's  lease  was  not  i^'  ihe 
lands  in  questiott,  yel  all  the  eslale  migbl  Iw 
affected  by  the  verdict,  and  ibcrcl'ore  as  be  naf 
interested,  he  was  an  incnropeleDI  wimeas. 

To  this  it  was  autwered,  (bat  since  Mr. 
Barn*  had  not  any  l«s«e  i>f  ihe  lands  now  m 
dispute,  he  could  only  be  supposed  U  . 

etqiienlially,  and  not  immrdiately  intercste^fl 
and  tbereliire  might  pmperly  give  bis  tealta 
monyi   and  the  folluwiag  case  waa  cited  W.| 
sliew,  that  a  |wr9un  consequculially  inli-iesUl 
in  a  suit  at  law  may  be  aduiilled  lo  give  «r^ 
dencc:  Two  persons  coming  from  Paragaie 
Dublin  iu  oa<  sbi^,  b>AUb%'\Va«v'E  v*^"* 


1 159]  17  GEORQE  11.    Trial  in  Ejectment  bettoeen  J.  Amtesky^  esq.    [IIGO 

teaus  fitolm  from  on  board  the  said  ship ;  one  < 
of  ihe  persons  sued  the  master  of  the  ship  for  i 
the  value  of  the  goods  he  had  lost,  and  produced  ; 
the  other  person,  (who  hsd  likewise  lost  his  j 
portmanteau)    as    his  evidence.     It  was  oh-  ! 
jccted  by  tlie  couiiscl  for  the  master  of  the  ship,  ^ 
that  the  witness  was  a  party  interested,  and 
should  not  be  admitted  to  give  testimony  ;  be- 
cause, if  the  plaintiff  succeeded,  the  witness 
would  have  the  same  title  to  recover  against 
the  defendant,  in  which  case  he  would  bring 
his    action    against    the   defendant,    and  the 
plaintiff  rice  versa  miglit  lie  a  witness  for  him. 
Vet  notwithstanding  the  objecQon  the  Court 
admitted  the  other  person  to  be  a  witness,  be- 
cause he  was  not  a  party  iu  the  suit,  and  not 
immediately,  though    consequentially    inter- 
ested.   Therefore  the  coupsel  for  the  lessor  of 
the  plaintiff  insisted,  that  Mr.  Barns  should  be 
admitted  to  give  his  testimony  in  the  present 
cause. 


sation  he  bad  with  lord  Altham  about  his  sob 
at  Dunmaine.  Says,  thai  deponent  dined  and 
supped  there,  and  rcmembecs  lady  Aitbaai  it 
dinner,  but  not  at  supper.  ^y*»  he  thiain 
one  Mr.  Sutton  was  at  dinner.  He  was  asked, 
if  he  knew  my  lord's  agent,  or  any  of  his 
servants  ?  Says,  he  did  ;  that  he  saw  them  it 
that  time,  but  cannot  recollect  they  said  ssy 
thing  to  him,  or  he  to  them.  Says,  he  ta 
not  remember  seeing  the  nurse  tfam. 

[Cross-examined.] 


Which  the  Court  agreeing  to,  Mr.  Barns 
was  sworn. 

Says,  he  very  well  knew  lord  and  lady  Al- 
tham. Being  asked,  if  he  knew  that  lord 
Altham  had  a  son  ?  Says,  he  knew  nothing  of 
my  lord's  having  a  son,  but  what  he  was  told 
by  my  lord.  That  he  went  to  Ross  in  spring, 
1715,  and  lord  Altham  came  to  the  inn  where 
he  was,  and  meeting  him  in  the  kitchen,  said, 
he  was  glad  to  see  deponent,  and  asked  him 
where  he  had  been  ?  That  he  told  my  lord  he 
had  been  in  Dublin  about  affairs  of  the  dukfe 
of  Onnond  ;  uiy  lord  said  to  deponent,  I  hope 
we  shall  dine  together:  deponent  said,  with 
all  my  heart ;  and  afler  that  they  went  up 
btairs  and  dined  t'ogetlier  ;  that  after  drinking 
some  wiue,  my  Idrd  said  to  deponent,  Tom, 
ni  tell  you  good  news,  I  have  a  son  by  Moll 
Shefiicl(i ;  deponent  thereupon  shook  his  head, 
(not  remembering  she  was  my  lord's  wife) 
and  said,  Who  is  Moll  Sheffield  ?  My  lord 
taking  notice  of  deponent's  meaning,  said, 
Zounils,  man,  she  is  my  wife :  upon  which 
deponent  said.  My  lord,  I  humbly  beg  your 
pardon,  I  am  sorry  for  what  1  said.  Says, 
that  until  my  lord  had  mentioned  she  was  his 
wife,  he  took  her  to  be  a  naughty  pack  ;  but 
afterwards  doponent  recollected  that  my  lord's 
wife  v^as  the  duke  of  Buckingham's  daughter; 
and  depon(fnt  then  advised  my  lord,  that  since 
he  had  a  son,  to  take  trare  of  his  wife,  and  dis- 
charge all  oilifr  women.  Siiys,  he  knows  tlie 
year  he  went  into  the  country,  because  he 
went  upon  hearing  of  his  father's  death.  »Sa>8, 
that  my  lord  lived  at  linnmaine  after  the  dis- 
grace of  the  duke  of  Ormond  ;  deponent's 
rcii^oii  of  remembrance  is,  that  he  was  re- 
ceiver to  Uie  duke  for  4.i  years,  and  came  to 
Dublin  from  the  country,  by  order  of  Mr. 
Motley,  «vho  was  concerned*  for  the  duke. 
Says,  that  dopuneut  was  at  Dunmaine  the  day 
after  my  lorfl,  and  he  had  the  discourse  at 
Boss,  being  asked  if  he  saw  a  s«)n  there  P 
Says,  he  does  not  know  but  he  might,  but  is 
aoi  certain ;  does  not  remember  toy  coav er- 


Dcponent  being  asked,  what  moath  be 
to  Ross  ?  Aifswered,  either  in  April  or  Nay, 
but  cannot  fix  which.  Says,  be  might  hirt 
seen  Bolph  the  butter,  but  did  not  know  Ub. 
Did  not  know  the  servants  Dwycr  or  Cafe- 
nagh  ;  hot  knew  Mr.  Taylor,  but  bad  no  dis- 
course with  him  about  the  son.  Says,  my 
lord  did  not  tell  him  whether  or  no  the  chifl 
was  christened,  nor  what  his  name  was.  Sayt, 
nolNidy  was  present  at  Ross  when  my  M 
S|>oke  to  denoncut,  and  the  dtsciinrae  was  aftff 
dinner,  and  as  common  distxiurse.  He  wn 
askeil,  how  he  came  not  to  understand  my  lord's 
expression  of  his  having  a  eon  by  Blolf  Shef- 
field ?  Says,  he  did  not  recollect  who  she  wii. 
Says,  he  is  65  years  old.  He  was  then  ariurf, 
how  long  he  served  the  duke  of  Onnond? 
Ho  said,  since  ninety- five.  He  was  thfs 
asked,  if  he  did  not  say  he  served  him  45  ysan? 
lie  said,  he  meant  to  this  day.  Says,  be  bi 
beard  five  hundred  at  Aoss  say,  lord  Ahhin 
had  a  son. 

Southxcell  Piggot^  esq.  sworn. 

Says,  He  knew  lord  and  lady  Altham ;  and 
that  it  was  generally  reported,  wiihout  aor 
contradictiun,  that  he  had  a  child   about  30 

J^ears  ago.  Deponent  came  over  from  Esc* 
and  about  the  year  1712.  Says,  there  waii 
great  intimacy  between  his  step- mother  (Mrs. 
Piggot)  and  lady  Altham.  That  Mrs.  Pigfoi 
died  about  172U  or  17121.  Says,  he  never  bwd 
that  the  child  (which  he  heard  lady  Alihan 
had)  was  a  daughter. 

The  counsel  for  the  lessor  of  the  plaintiff 
were  going  to  ask  Mr.  Piggot,  what  he  beard 
his  stepmother  say  about  her  being  iriKjiuodicr 
Li>  the  child  ;  but  this  was  objected  to  by  de- 
fendant's counsel,  who  insisted  that  hearsay 
was  not  evidence,  and  that  the  vi  itness,  Mr. 
Piggot,  ought  not  to  be  suffered  to  gite  aoy 
acc<»unt  thereof. 

In  answer  to  this  the  counsel  for  the  lessor 

i  of  the  plaintiff  insisted,  that  matter  of  hearar, 

which  cuuld  not  be  supposed  originally  id* 

tended  to  be  made  use  of  in  the  cause  (•^uch  i« 

what  the  deponent  heard  several   year«  ag**) 

ou^ht  to  be  ada)itte<1,  and  the  rather  as  it  «as 

produced  to  corroborate  |>OBilive  proofs.    Thii 

if  Mrs.  Piggot  said,  she  was  sponsor  tu  ibe 

\  child,  it  must  have  some  weight ;    tor  .Vif. 

-  ^^ifsiTO^  could  not  foresee  that  what  she  said  «■ 

,  that  occasion  tvas  ever  to  be  given  in  evideficfi 

;  and  therefore  her  declaration  could  not  be  lep- 

poied  caicuhited  for  any  particulnr  parpone. 


[ 


1161] 


and  Richard  Earl  ofAnglesea, 


A.  D.  1743. 


[1162 


Fbat  where  a  lease  i«  loit,  an  old  reot-roll  may 
M  giveo  in  pmof ;  because  it  cannot  be  sup- 
Mwed  to  bare  been  ileaigned  for  that  iiarti- 
nilar  purpose.  The  declaration  of  a  wife  has 
leen  admitted  to  be  ^wen  in  evidence  against 
I  busband ;  because  at  the  time  it  was  made 
t  could  not  be  supponed  to  be  ifktentled  to  Le 
nade  use  of  as  evidence,  and  a  case  in  Skia- 
ler's  Reports  was  cited  to  this  purpose. 

It  was  farther  urged  by  plamtilps  counsel, 
bftt  there  was  no  stated  rule  of  evidence;  but 
diat  the  rules  of  evidence  vary  according  to 
nrcuHMtanoes  of  the  case.  And  though  it  must 
be  allowed  that  hearsay  is  the  lowest  degree  of 
andenee,  yet  it  was  evidence  to  be  submitted  to 
Che  jury. 

It  was  answered  bv  the  council  for  the  de- 
hodant,  that  any  declaration  of  Mrs.  Piffgot, 
ivhicb  was  not  made  in  the  presence  of  the 
Btrl  of  Anglesea,  oucht  not  to  be  civen  in  evi- 
JcBoe.  That  Mrs.  Piggot  is  dead,  and  where 
penons  are  dead,  the  law  hath  nut  provided 
Ifar  their  testimony,  nor  will  it  substitute  a  mere 
jcdaration  in  the  place  of  an  oath. 

As  to  a  rent-roll  (if  it  appears  that  it  was 
Rmiid  among  the  deeds  and  papem  o^  the 
BuDily,  knd  not  designedly  left  there)  it  mav 
hm  evidence  in  case  of  a  lease  lost  or  mislaid, 
lo  ahew  the  value  of  lands  ;  but  not  to  prove 
tint  there  was  a  lease  in  being.  The  nature 
of  the  case  may  require  such  a  proof,  and  it 
Dsay  be  necessary  to  produce  the  rent-roll : 
bat  that  is  very  different  from  the  hearsay- 
eviflence  of  Mrs.  Piggot's  declaration  in  the 
present  case. 

That  the  admitting  hearsay- evidence  in  the 
present  affiiir,  would  introduce  a  dangerous  pre- 
cedent, in  regard  the  other  side  could  not  have 
Ibe  benefit  of  cross  examining. 

In  some  cases,  it  is  true,  hearsay- evidence  is 
admitted  from  the  necessity  of  the  thing ;  as 
if  a  roan  receives  a  mortal  wound,  his  decla- 
ration at  the  point  of  death  would  be  evidence ; 
but  that  is  in  case  of  the  crown,  in  a  criminsJ 
affair^  and  in  a  case  of  absolute  necessity ; 
which  is  distinguished  from  a  civil  case. 

That  in  civil  cases  there  is  not  the  same  ne- 
eessity,  because  a  bill  in  equity  may  be  filed 
to  perpetuate  the  testimony  of  ancient  wit- 
nesses, and  then  the  evidence  may  be  cross- 
enmined.  But  Mrs.  Pit^got  being  dead,  no 
declaration  of  her*s  can  be  evidence,  because 
the  defendant  has  no  opportunity  to  cross- 
aamioe  her. 

An  affidavit  of  Mrs.  Piggot's  could  not  be 
read  in  the  present  quostioU'S  therefore  much 
less  a  declaration  of  her's  made  several  years 
ago,  and  which  was  not  upon  oath.  If  bear- 
aay- evidence  of  this  nature  were  to  be  ad- 
nutted,  such  precedent  would  be  attended  with 
evit  consequences. 

The  Court  would  not  admit  the  hearsay  of 
Mrs.  Piggot's  declaration  to  de)>onent  to  be 
made  nse  of  as  evidence^  on  the  principal  rea- 
•OQy  that  hearsay  evidence  ought  not  to  be  ad- 
mitted, because  of  the  adverse  party's  having  no 
e|>pertaBitj  of  croii*examiaiDg.    And  that  if 


declarations  of  persons  dead  were  to  be  ad« 
mttted,  they  would  in  efiect  have  the  force  of 
original  testimony. 

Fhilip  Breen  sworn. 

.Says,  Deponent  knew  lord  and  lady  Altbnm 
about  thirty  years  ago,  at  Dunmaine,  where  de- 
ponent's fatlier  and  mother  lived.  Says,  that 
de|)onent  saw  lady  Altham  with  child  at  Dun- 
maine, and  heard  by  the  people  of  the  place  that 
she  was  with  child ;  and  that  about  S8  or  29 
years  ago  (a  little  before  or  afler  May)  there 
were  great  rejoicings  at  Dunmaine  for  the  birth 
of  a  child.  Says,  that  Joan  Landy  nursed  the 
child  at  her  ovm  father's  house :  that  it  was  a 
thatched  house,  and  repaired  on  that  occasion. 
Says,  l^e  has  seen  the  child  with  lord  and  lady 
Altham  in  the  coach.  Says,  he  remembers  the 
child  Joan  LAndy  had,  and  that  it  died  of  the 
small  pox  af\er  lord  Altham  left  Dunmaine ;  be- 
lieves about  a  year ;  and  deponent  was  at  the 
wake  and  burial.  Says,  that  the  child  which 
Landy  nursed,  was  removed  to  Dunmaine,  and 
delivered  to  Joan  Latfan,  one  of  the  maids  at 
Duumaiue ;  says,  that  there  was  a  coach -road 
made  between  Landy 's  house  and  Dunmaiue- 
house ;  and  deponent  has  seen  the  coach  go 
that  road.  He  was  asked,  whether  he  re- 
membered Mrs.  Heath  at  Dunmaine  at  the  time 
he  saw  the  child  ?   Says  he  did. 

[Cross-examined.] 

Being  asked,  who  he  heanl  was  father  of 
Joan  I^ndy's  child ;  he  answered  that  some 
said  lord  Altham  was,  and  others  said  a 
sailor  was  the  father  of  it.  Says,  Joan  Landy 
was  married  to  Daniel  M'Cormick  after  lord 
Altham  lefl  Dunmaine ;  and  that  lord  Altham 
was  supposed  to  have  got  the  child  in  the  house 
of  Dunmaine,  when  Landy  was  dairy-maid ; 
says,  Joan  Laindy's  child  was  a  year  older  than 
lady  Altham 's ;  says,  he  was  often  in  every 
room  of  the  house.  Says,  lady  Altham  was  a 
tall  woman  ;  and  that  Mrs.  lleath  was  a  tall 
thin  woman.  That  Joan  Landy's  child  was 
called  James  Landy.  Does  not  remember  his 
being  ever  called  James  M^Cormick.  Says, 
he  does  not  know  who  christened  the  child. 

Eleanor  Murphy  sworn. 

Says,  that  she  knew  lord  and  lady  Ah  ham  at 
Dunmaine,  about  28  or  29  yean  ago ;  says, 
that  she  was  a  servant  there  when  my  lady  was 
brought  to  bed,  that  deponent  was  called  to 
bring  up  some  water  to  my  lady's  room,  and 
that  she  went  into  the  room  with  a  bason  of 
water,  immediately  at\er  lady  Altham  was  de- 
livered ;  that  Mrs.  Sbtels  was  the  midwife,  and 
Dennis  Redmonds  was  sent  for  her  to  Ross« 
Being  asked,  who  was  in  the  room  when  she 
went  in  ?  Says,  madam  Butler,  Mrs.  Heath, 
and  Mary  Doyle.  Says,  deponent  came  to 
live  at  Dunmaine  about  the  beginning  of  sum- 
mer, and  remained  at  Dunmaine  about  t\vo  or 
three  months  after  my  lady's  delivery  of  the 
son.  That  Joan  Lnmly  waa  the  nurse ;  and 
there  were  several  QlVMi^^xD«^%Y^t^^^^^^ 


1 163]  17  GEORGE  IL     Trialin Ejectment  bettoeen  J.  Annalei^, esq.    [1 16i 


nurse's  place.  Remembers  there  were  bon- 
fires and  rejoicings  at  Dunmaine  for  the  birth  of 
a  son ;  tSiat  the  child  was  about  three  weeks  at 
Dunmaine  after  its  birth,  and  then  the  nurse 
took  it  to  her  own  house ;  that  a  little  road 
was  made  from  Dunmaine  house  to  the  nurse's, 
for  the  chariot.  That  one  Air.  Anthony  Col- 
cloiigh,  and  Mr.  CUflT,  were  the  godfathers,  and 
Mrs.  Pigott  the  godmotlier,  as  she  heard  from 
several  of  the  servants.  Knows  that  Mr.  Cliff 
of  Ross,  and  madam  Pigott  used  to  come  there, 
and  has  seen  them  there  olWn.  Sa^,  de- 
ponent was  in  the  house  at  the  christeuiug,  and 
was  servant  under  the  laundry- maid.  Re- 
members Mrs.  Heath  was  in  the  room  when 
the  lady  was  brought  to  bed  :  the  christening 
was  about  three  or  four  weeks  aAer.  Saj's, 
Joan  Landy  had  a  house  of  her  own,  and  be- 
lieves her  mother  and  sister  lived  with  her ; 
but  does  not  know  if  her  father  was  alive  when 
she  took  lady  Altham's  child  to  nurse.  She 
was  asked  how  long  Joan  Landy  had  her  own 
child  before  lord  Altham's  child  was  born  ? 
Says,  about  three  quaiiers  of  a  year ;  and  that 
Landy 's  child  continued  with  her  in  the  house 
after  she  took  my  lady's  child  to  nurse.  She 
was  asked,  if  the  house  was  (he  t^ame  it  was 
before  ?  Savs,  stie  believes  it  was,  except  that 
it  had  another  room  ;  but  says  she  did  not 
know  the  house  well  before  Landy  bad  the 
nursing  of  the  cliild.  She  was  asked,  what 
sort  of  a  house  it  was  ?  Says,  a  httle  house 
hard  by, 

[Cross '  examined. } 

Being  asked  if  she  did  not  go  inio  the 
house ;  Says,  No,  no  farther  than  the  door. 
She  was  then  asked,  how  she  cnuid  know  that 
there  was  another  room  ;  says,  that  the  room 
was  built  as  an  aihliiion  to  the  old  house. 
Being  asked,  if  she  ever  saw  Joan  Landy's 
(*hild  ;   says.  Yes.    She  then  again  named  the 

t people  in  my  lady's  room  at  the  birth,  and  that 
lerself  went  into  the  room  after  the  birth  of  the 
child  With  the  water,  and  that  it  was  about 
duskish  ;  and  that  lady  Altham  kept  her 
chamber  a  month  or  j^ix  weeks,  and  that  the 
child  was  christened  before  my  lady  left  her 
loom,  and  was  christened  in  the  yellow  room 
iif)  one  pair  of  stairs,  but  does  not  know  who 
uere  at  the  christenlug.  Says,  she  was  three 
ot^Miths  in  the  service  before  the  birth  of  the 
child,  and  a  quartor  of  a  year  after.  Sa3'8, 
liiat  Mary  Doyle  came  inti>  tlie  service  before 
tier  does  not  remember  that  they  had  any 
pan  :ular  conversation  about  tbe  child  at  that 
xr.iiv,  and  has  never  scon  iicr  since,  and  knows 
{.ill  if  she  should  know  her  now  :  kuows  not 
u-iicther  she  or  Mary  Doyle  left  the  house 
f'ljueii.  Says,  she  did  m.t  wash  any  of  my 
i  idy's  linen.  Sh«£  was  asked,  if  she  was  mar- 
ried 'C   Says  she  is,  and  has  chiidi-ec. 

The  examination  of  these  witnesses  having 
ta!;en  up  all  Friday  till  eleven  of  the  chick  at 
iii^hi,  the  Court  observed  to  the  counsel,  that 
»s  there  wu  a  great  number  of  witDesses  more 


to  be  examined  on  both  side«,  to  it  woald  ba 
impossible  for  them,  or  the  jury,  to  contioue 
hearing  the  cau»e  through,  withoot  an  id- 
journment;  and  therefore  recommended  it  to 
the  parties  to  consent  to  auch  adjoummeBi: 
Accordingly  both  parties  readily  expre«cd 
their  consent,  and  the  sarac  being  reduced  ioto 
writing,  and  signed  by  the  atloruies  oo  both 
sides,  the  Court  adjourned  till  9  o'clock  the  am 
morning. 

The  Lord  Chief- Baron  made  a  complimnt 
to,  tbe  jury,  and  expressed  his  sense  id'tbcir 
honour  and  integrity ;  that  the  nature  of  die 
thing  reqmred  an  adjourn ment,  tkongb  there 
was  out  one  precedent  of  adjoarning  a  jury  w 
a  trial  of  that  kind ;  but  as  they  were  gentlemca 
of  such  strict  honour,  any  confidence  might  be 
re|)osed  in  them,  without  danger  of  any  pnjtt' 
dice  resulting  from  it. 


Saturday,  November  12, 1743. 

Tlic  Court  being  met  about  9  o'clock  ui  tbi 
morning,  according  to  adjournment,  the  jury 
were  called  over,  and  ausw^reti  to  tlieir  nauM; 
and  then  the  counsel  for  the  pluiutiffprocecM 
to  exaniiue  their  witnesses,  as  follows : 

Christopher  Brown  sworn. 

Says,  he  knew  the  late  lord  Altham  aboat 
S3  years  ago,  and  knew  lady  Altham  on  ha 
first  comin«|f  to  Dunmaine  about  SO  years  agt^ 
and  knew  her  to  have  a  son  about  28  or  99 
years  ago.  Being  asked  bis  caui»e  of  koow- 
Icdge,  says,  he  lived  a  servant  to  esq.  Anthoej 
C'litf,  who  wsa  invited  to  the  christening  of  die 
said  child.  Tliat  deponent  went  to  DuDroaise 
that  day,  and  waited  at  table  on  his  master. 
Says,  he  remembers  Mr.  Anthony  rolcloii;;h, 
Mr.  Clifi'of  Koss,  Mr.  Anthony  Cliff,  anil  (■«()• 
tain  Tench  were  at  the  christening,  but  Umi 
not  recollect  the  other  persons.  Says,  it  nu  is 
the  beginning  of  summer  as  near  as  he  can 
tell :  being  desirud  to  point  out  the  monlb ; 
says,  it  was  in  May  as  near  as  he  can  gufti. 
Says,  he  did  not  see  any  lady  there  but  Mr*. 
Pigott;  and  said  there  were  plenty  of  eat«r- 
tainment  and  great  rejoicings  there ;  sa«9t 
deponent  was  sent  seveiul  times  nith  niessai,'ii 
from  his  said  master,  (who  livod  at  C.'linyihid', 
about  three  miles  from  Dunmaine)  to  einiLiri: 
how  my  lord,  and  lady,  and  the  child  did  :  ^tr 
the  child  afWrwards  at  Dunmaint'  in  my  lady's 
lap,  and  with  the  nurse  Joan  Landy,  ainl  ntntr 
saw  him  but  at  Dunmaine.  Dcponeut  waiit'l 
at  table  the  day  of  the  christciuiig',  and  LetrJ 
them  toast,  The  lady  in  the  straw  and  the  youn;; 
christian. 

[Cross-examined.] 

lie  was  asked  as  to  the  time  i;f  drinking  of 
the  above  health  ?  Says,  he  can't  tell,  wbetber 
it  was  liefore  or  after  dinner.  Says,  be  is  sure 
Mr.  Colclough,  Mr.Clilf  of  Ross,' and  Mr.  As* 
thony  Cliff  were  there,  and  says  there  were 
several  others  at  diuner,  whom  deponent  caa'l 
recollect.  Says,  my  lady  did  not  dine  with 
them.    Ueard  it  was  Mr.  Loyd  that  duif 


B] 


V!td  R'uharA  Earl  of  AngJettn. 


Itie  cliiM,  Boil  remembciT  tbnl  he  dined 
\  Mj*.  Iir  knt'H  himitrv  vfW,  and  tbat 
H  il  Bn*s ;  saj's,  Mr«.  Pigoii  ivai  kt  »be 
l)«fti)  of  ihcr  Ubie ;  mjt,  that  ill  ihnt  dineil 
IbcK,  totiMi  (if  deponent'i  remembnince,  are 
dead  ;  t*r>,  tltnl  ile|inuMl  dined  along  wilh 
■he  Mtr>['iti;  rememlwrs  Mr,  Taylor  and 
Itaiaji  nprtmnnih  to  dine  tber«;  say*,  no 
woman' lerTnnli  dini-d  iriili  deponent ;  sbjb, 
be  tbinkii  ATilbuny  Uwrer  wan  llie  biillcr,  but 
BWer  saw  him  befiire  'ibal  day.  He  was  de- 
■ired  by  drtroitsnt's  cniuixcl  lo  name  the  tee- 
nnta  wlio  dined  llirrc.  He  tnys.  1  cannul 
iMBia  tli«tn,  would  you  liavF  me  lell  yaw  what 
t  don't  biio*r '!  Says,  iJe];K>ni,'nt  drank  seTeral 
fccattbs,  and  wax  very  merry,  but  hnnwa  not 
WbrnlpaiticulBrhealtliawcredranb :  tayt,  ther« 
manvla  buntire  on  (he  nigbl  oMbecbrivten* 
iaf,  but  bein)  Iben;  wn*  one  the  tiiifht  follnir- 
ing,  bill  drjionenl  wai  n<il  ihtre.  Bein|^  osked 
wEat  meal  there  wni  for  dinner,;  tayi,  1  don't 
Icaow  ;  would  you  have  nie  keep  an  almanack 
!■  my  head  ?  aiiy«,  he  cannot  tell  tthelhcr  the 
diRMcnii'^  WIS  aliDie  or  below  Etairs^  aay«, 
fa:  did  not  ace  the  child  till  day  of  Ihcrhriilen- 
laf.tior  Ihe  nurie ;  cannot  tell  nbether  he  Nw 
a^i^  Sutluii  there  thai  day,  01  (hat  he  dined 
iMK :  taya,  h«  reinenibers  captain  Tench  be- 
ta^ there,  liKCBiise  he  vraa  married  to  his 
— iHii'a  liiirr,  and  Ihnt  Mr.  Cwlcloiigh  waa 
Ifearai  becauii;  lie  wus  one  of  the  pjsaii'* ;  eaj-t, 
MlHMalcrdiihiutaiav  at  Dunmiunelhatnighl. 
'Mag  a)l«  d  if  l.e  kneiT  Thomas  llolph  the 
biMhr;  myt,  thnione  Dwyer  waa  boiler,  and 
tttradcdthai  day  ;  anya,  lie  did  nut  know  my 
hf^  woman.  Bein^  asked  if  he  aair  Sirs. 
^^}  aaya,  he  did  not  know  her.  Bring 
I  lo  irliom  he  dclirereil  Ihe  roeuages, 
■'ke  eatne  from  hia  maslcr  and  inisireig 
JberftaMioDiinmaine;  lavs.  be  dehrared 
■10  onr  Mr.  Taylor,  and  thul  Ur.  Tnjlxr 
mot  tbe  ani«er«  lo  dejiorient.  lie  waa 
nfced,  bow  he  came  to  deliver  mesugcs  at- 
mjni  to  Mr.  Toylor.  and  nol  lo  (h« other  ser. 
VUli;  lie  iiyi,  t>ecauiei  he  waa  my  lord's 
MOUcmaii  ;  oml  deponent  bIm  aya  enquired  (or 
Bra.  iteine  asked  if  Mr.  Taylor  iarepnteilto 
betfnd  oraTive;  laya,  he  duel  not  know,  and 
^mm  Dot  leen  him  these  SO  y^an  paat,  Ueing 
■ahs)  if  he  knew  Mary  Duyle,  or  Eleanor 
Korphyi  aay«.  No.  DeiiiK  aatied  if  he  eror 
nw  lady  Ahliam  ;  uyi,  Yc*,  at  (lie  boaae  uf 
Zhtnnwine,  in  th«  parlour,  with  Ihe  child  in  her 
•nn*.  &uyi,hnbelievea  he  aaw  the  chilli  about 
aycaraAerwardt.  8av«.  my  laify  woiaiull  fine 
dndcr  woinau.  RelieVcE  nha  was  uHer  ihan  ile- 
paoent,but  tayi  he  nrter  meaninKl  her.  Saya, 
*hr  mw  thin  in  t}ie  fkirvr,  Heing  uakeil  if  «lic  wh« 
■  bawbame  woman,  Gaya*h«ap|ieareilii»  tude- 
Mail.  Say*,  lie  cannot  tell  the  colour  of  her 
Mift  f'*f  >b<il  ■'"!  bid  nowdrr  in  it  the  day  de- 
fHWnt  *nw  her,  and  that  he  neier  saw  her  hill 
a  down.  Uc  wai 
a  tall 
^■n  -.  Hyi,  ahe  appenrcil  to  be  tall  by  her 
kraw  figare.  Saya,  he  hred  with  Aulbony 
" aothr*!  tear*:  layi,  thai  my  lord 


A.  D.  Mix 


[1166 


rbited  opponent's  masln-  at  his  house,  but  mj 
lEidy  did  not,  Dor  did  deponent's  master^  sialera 
viiit  my  lady.  Bein^  ashed  whereibe  company 
dined  theday  of  ihe  chrisiening';  aiys,  in  the  par* 
lour  of  ihe  hanseof  UonmBine,  as  near  u  depo- 
nent ran  guess,  fronting  the  ^reat  y&rd,  tays,  he 
(Toes  nut  know  ibat the  mam  hail  any  other  nnn« 
Ihan  111?  parlour.  Uein^  naked  who  wosai  the 
sideboard  ;  says  some  of  Ihe  aerrants  stood 
there,  bni  deponent  dues  n"l  know  who  it  was : 
8ajs,  Anthony  Dwyer  attended  na  bullir,  aeil 
deponent  allendeit  hia  master.  Says,  eiery 
gentleman's  aervant  wuilednl  table,  is  snre  Mr. 
ClifTof  Rosa  dined  there,  and  that  one  M'Gee 
hia  terTaiil  waited  on  hiin.  Ssya,  he  dne*  not 
remembrr  the  names  of  nil  llie  aerranta  thai 
dined  with  him  at  the  aauie  table;  but  thinks 
thai  at)  iIm  serrants  dined  there.  Does  nut 
know  how  miuiy  tables  there wvre there:  ean'l 
Ivll  psrticnlarly  whether  Ui.ilmonds  or  M'Oee 
dined  wilh  deponent  at  the  tatne  table,  tays, 
(lie  ser  ranis  dined  in  thecOnimon  hall  at  a  lon)r 
t-able  ;  and  deponent  ninenilieis  bntunetabli 
there.  Ssys,  the  hall  was  on  the  same  Boor 
wilh  the  parlour  where  the  genllemea  dined; 
says,  the  common  hall,  the  parlour  and  tbe 
kitchen  wi^e  on  one  floor,  lo  the  best  of  depo* 
nent's  remembrance;  «aya,  he  does  not  know 
but  same  dined  in  the  kitchen ;  doen  nol  tliiok 
lie  went  down  stairs  lu  ibe  kitchen. 

John  Scan  sworn. 

Says,  liewas  servant  to  Ttir.  PigotI,  who  lir. 
ed  within  three  ot  four  milts  of  Dunmaiaeabont 
33  or  34  years  ago  (betoia  Mr.  Anneslry.  lord 
Allhani'a  son  was  born]  at  a  place  called  Tyu- 
tern ;  and  depoueDl  knew  lord  Allh'atn  at  Dun- 
maine about SOyearsagv.  Says, depuuent  went 
tor  Englaod  with  air  HaiTy  Pierse's  son,  and  air 
Harry  followed  in  May,  and  returned  in  July, 
about  S3  or  S9  years  a^o.  He  was  aaked  if 
Ilia  niBEler  was  in  mourning' ;  says  be  was,  but 
knows  not  on  what  occasion,  tjayssir  Harry 
I'ierae  married  a  daughter  of  Mrs.  Pigotl'a. 
Says  be  wa*  sent  teveral  tin>es  from  Hia 
PiffoM  lo  lord  and  lady  Allham,  with  n 
and  liow-tlo-youa,  loknow  bow  their  child  i)i 
Bcinffuked  whallherGputatiofiof  the  c<  ^ 
was,  in  relation  to  my  lord's  having  a  son; 
s^yi,  it  wai  commonly  undersiood  hy  all  tbe 
ueighbourbood,  that  my  lord  AlthaKi  had  ■ 
son  by  his  Udy  ;  says,  he  has  seen  the  cbiU 
brought  l>y  ihe  niirte  toMrs.  I'igott. 
|_Croas-«xaminoil ") 

Knew  tbe  honse  at  Dunmaine  very  well ; 
nys  he  nscd  to  gts  thtougih  the  yard  to  t)ie 
kilcbrn.  Being'  isked  if  llie  kitchen  was  on 
the  same  Boor  niih  the  parlour:  says,  it  iaoot; 
that  ilia  under  the  best  pnrlonr  ;    says,  tbat  de- 

Conenl  was  bom  near  Unnniaine-fniitte,  and 
new  it.  Saysil  is  about  luor  Iflstrpsgoin^ 
np  to  ihe  front  uf  the  house.  Kays,  tbere  n  a 
lltlje  parlour  below  siairt  on  the  left-hand,  •»! 
that  the  other  parlour  is  on  the  rif^ht  band  m 
you  go  in.  Says,  the  commun  ball  was  be 
tweeu  Ihe  kilcbrn  imi41.WV«*.*.  ^^mw  .  *w^■i 


Id^. 


1 IG7]  *        17  GEORGE  11.    Trial  in  Ejeptment  between  J.  Anntdey.  esq.   [1168 


asked  if  the  hall  where  the  servanUi  aseil  to 
dine  was  on  tlie  same  flo<ir  with  the  parlour  ? 
says,  No.  That  when  you  came  into  the  house, 
it  was  into  a  lubhy  or  entry,  which  deponent 
belierea  was  about  5  or  6  foot  broad,  and  16 
foot  loncjr.  Says,  deponent  was  servant  to  coun- 
sellor Pig^ot ;  and  that  it  is  about  28  or  29 
\ear» ago  deponent  went  to  England,  as  near  as 
he  can  guess,  and  continued  in  EngUind  from 
the  latter  end  of  March  till  the  be^innini;  of 
July-  Says,  sir  Harry  Pierse  was  m  London, 
and  lodged  at  St.  Martin's.  Can't  tell  whe- 
ther queen  Anne  was  living  or  dead  then.  He 
was  asked,  if  he  ever  was  in  Yorkshire  P  saySi 
he  was  not.  Said,  he  landed  at  Parkgate,  eo- 
ing  to  England,  and  look  shipping  there  at  his 
return  home,  lie  was  asked,  if  he  took  no- 
tice of  the  proclaiming  of  the  king  ?  Says,  he 
did  not.  He  was  asked,  if  he  could  tellwhe- 
ther  the  rebellion  of  Preston  was  lie  fore  or 
afler  his  going  to  England  ?  Says,  he  cannot 
tell.  Says,  he  never  was  in  Enj^land  but 
once.  Says  it  was  alWr  his  return  from 
England,  that  lord  and  lady  Altham's  child 
was  born.  Says,  he  cannot  tell  upon  what  oc- 
casion sir  Harry  Pierse  went  to  England. 
Says  he  cannot  recollect  whether  thrir  return 
from  England  was  before  or  after  1713  ;  but 
as  near  as  he  can  guess,  it  was  about  28  or  '29 
years  ai(o.  Says  he  lived  in  Mr.  Piggot's  fa- 
mily for  7  years  ;  and  that  he  lived  there  about 
a  year,  or  a  year  and  a  half  before  deponent 
went  to  London.  Deponent  mentioned  al'ter- 
wnrds  some  gentlemen  with  whom  he  had  liv^d 
a  servant. 

An  application  was  then  mai!c  to  the  Court 
by  one  of  the  defendant's  counsel,  for  liberty 
to  call  one  Mr.  BVelian,  soverei<;n  of  the  town 
of  Ross,  to  view  this  witness.  Brehan  accord- 
ingly appeared,  and  viewed  hiui,  and  said  he 
knew  him  ;  and  Scott  said  he  also  knew  him 
very  well ;  and  then  Brehan  was  ordered  to 
retire. 

Christopher  Broan  was  ordered  by  the  Court 
to  be  called  again «  to  be  examined  as  to  the 
situation  of  the  house  of  Dunmaiue^  and  to 
tell, some  of  the  servants'  names. 

Says,  the  house  of  Duiimaine  had  a  front 
and  a  back  door  ;  but  does  not  recollect  whe- 
ther he  went  up  to  the  frunt  part  of  the  house 
by  steps  or  not ;  nor  was  he  sure  whether  or  no 
tlie  gentry  dined  in  the  best  parlour.  Said,  the 
parlour  he  spoke  of  was  the  room  on  the  left 
hand  going  in,  and  that  the  kitchen  was  on  the 
same  floor  with  it.  Says,  he  remembers  An- 
thony Dwyer  lived  there  in  the  quality  of  a 
butler.  Believes  one  John  Lambert  was  there, 
and  one  Uolph  under-butler ;  but  does  not  re- 
member Owen  Cavcnagh  there.  Says,  that 
Martin  Neefe  and  Mrs.  Heath  might  live  there ; 
but  does  not  remember  them.  Believes  he 
spoke  once  to  Anthony  Dwyer  to  deliver  a 
nicasage.  Says,  that  deponent  lived  at  Dun- 
nuine  with  Aaron  Lambert,  es(}.  before  lord  Al- 
tham  lived  at  Duomaioe. 


Joan  Lmffan  sworn. 

Says,  titat  she  knew  lord  and  lady  Althan. 
That  deponent  lived  at  coluoel  Dean'a  in  tbe 
year  king  George  came  to  the  crown ;  after- 
wards deponent  left  that  service,  and  went  for 
some  time  to  h've  with  her  frieods,  and  in  tbe 
year  following  went  into  tord  Altham's  service. 
Says,  it  was  not  a  whole  year  between  tlia  dme 
of  her  living  with  col.  Dean  aad  coming  tt 
lady  Altham's  service.  Does  notremcmba 
the  month  she  came  to  lady  Altham's,  butssyi, 
it  was  in  the  year  1715 :'  and  that  she  mu 
there  in  the  station  of  «  chamber  maid,  tad 
was  employcil  to  attend  lord  and  lady  Althtn's 
child  (who  was  called  master  James  Ani^eslev) 
when  it  came  from  the  wet-nurse  ;  and  that  be 
was  kept  like  a  nobleman's  chiU.  That  tbe 
child  was  about  three  or  four  months  oM 
when  deponent  came  to  tbe  service,  and 
was  about  a  year  and  a  half  in  depooenfi 
care;  (hat  liiy  lord  and  laily  were  very 
fund  of  the  ehdd,  and  my  ladv  used  to  wad 
for  him  up  in  a  morning  and  take  him  inio 
the  bed,  and  generally  called  biai  ray  dcir. 
That  allerwards  the  child  was  taken  from  de- 
ponent and  sent  to  a  place  called  Kinna,  in  the 
county  of  Kildare.  That  de|M>nent  did  not  go 
with  the  child,  but  remained  at  Dunmaine ;  tial 
the  butler  (whose  name  was  Charles  Field) 
was  sent  w  ith  the  child.  Says,  that  lord  asd 
laily  separated  in  a  very  angry  manner  oo  ac- 
count of  Tom  l^allisdr,  (when  the  child  «■ 
almut  3  years  old  ;)  and  deponent  was  presnt 
when  Tom  Palliscr's  ear  was  cutoff.  Sajf, 
that  after  the  separation  lady  Aliham  went  froa 
Dunmaine  to  Ross,  and  lodged  there  at  ooi  cap- 
tain Butler's.  Suys,  that  she  was  present  whea 
my  lord  and  lady  parted  ;  that  she  saw  mj 
lady  at  the  door,  with  the  child  in  her  arms; 
that  my  lord  r^me  out  uf  the  house  in  a  gml 
rage,  and  aske^l  where  his  child  was ;  and  U)ioa 
being  told  that  he  was  with  his  mother,  he  raa 
up  to  her  and  snatched  the  child  out  of  htf 
arms:  that  my  lady  beggeil  very  hard  ibe 
might  take  the  child  along  with  her ;  but  that 
my  lord  swore  he  would  not  part  with  his  child 
upon  any  consideration  ;  that  my  lady  iiDtlinr 
she  could  nut, prevail,  burst  out  a  crying,  aod 
h6g't;e<l  she  might  ut  least  give  the  cbdd  a  part- 
ing kiss ;  that  my  lord,  with  some  difficullji 
consented,  and  then  my  lady  drove  away  w 
Ross  :  that  as  soon  as  uiy  lad}'  was  cone,  my 
lord  gave  the  child  to  deponent  with  a  strict 
charge  to  deponent  and  to  Mr.  Taylor  not  tf 
let  my  lady  have  any  access  to  hiQi :  but  s-iyii 
that  notwUhstanJing  these  orders,  some  of  Um 
servants  found  means  to  carry  the  child  pn« 
vately  to  Ross  to  sec  my  lady,  which  when  m/ 
lord  was  told  of  he  tlew  into  a  very  great  pai- 
sion.  Says  that  the  child  was  carried  to  Kai^ 
without  deponent's  privily,  for  that  sometiflMi 


deponent  used  to  go  to  Waterford  to  see  a  bfs> 
tlier  of  her's  who  lived  there,  and  some  otbff 
friends ;  and  in  her  absence  some  of  my  loid^ 
servants,  for  the  lucre  (as  she  believes)  of  (Trt** 
ting  a  piece  of  money  from  my  lady  AltliuSi 


9]  end  Rkkard  Earl  ofAn^ 

Ihoar  opportDDities  to  carry  the  child  to 
Ko-B.  Says,  that  the  Cliriitniu  etc, 
the  Reparation,  the  pre«ent  earl  ofAnf^e- 
irba  was  then  captaio  Anaealej',  wan  at 
naire  boose,  aod  nut  weiag  the  child,  said 
poiient,  H'here  ii  Jemmy,  or  where  ii 
rother'n  child  ?  Haw  dii]  hji  tnuther  1>C' 
i[  parting  will)  liiin  ?  Tu  n  liicli  depimeut 
ned,  that  my  lady  liad  br);ged  iif  my  Inrd 
hard  to  hhTe  the  cliild  with  liur;  where- 
the  iiresent  earl  made  iiK  ol'  no  extraor- 
1  oalh,  and  laid.  That  lie  wished  hia  bro- 
lad  kept  none  of  thK  lireed  ;  and  thatwhcD 
inwd  awav  the  luother,  lie  should  hare 
nl  oft' the  ctiitd,  and  sunt  them  iMHh  la  the 
-1.  Says,  iliat  she  is  of  a  gnoA  liimily, 
ruutd  nut  haie  nailed  on  (he  cliiM,  if  ihe 
idieTcd  bioi  to  be  a  baatanl. 
^C  ross-  examined.^ 
fi,  ^eat  notice  was  taken  nf  the  child  bnth 
y  loni  mid  lady.  Says,  she  sai*  the  child 
atiately  alter  ilie  came  into  the  service, 
aweet  uliey  and  broth  were  made  eTery 
I  toy  (ord'»  [muse  lor  Juan  L.indy  the  nurse, 
rMU  meat  canalantly  a«ut  to  her  haute, 
h  was  about  a  quarter  ot'  a  mile  Trura  Ihe 
tofUnnmaine,  and  the  nurse  was  chained 
)  nt  Kri'cna  ar  salt  meat.  Saya,  that  my 
heraeTt'  would  ([o  aumetimes  in  the  eTcti- 
1  the  nurse'it  ami  carry  the  child  home. 
,  lonl  Uonneraile  was  at  Donmaiue  altotit  a 
It  when  deponent  had  the  care  ul'  the  child, 
Dok  ilrlighl  in  plsyitiir  with  him,  and  once 
onta  handful  ufgold  thatthe  cliild  mi|{lit 
bis  choice  of  some  of  the  pieces.  Snys, 
a  giarticular  as  Id  roy  lord  Donoeraile's 
'  at  Duniuaiiie,  because  she  parliculurly 
inbera  bin  ruumn^-tooinian's  Tunning  a 
for  six  goineaii;  aayi,  lonl  Dunneruile 
.  be  went  away,  look  Khippln<{  hi  lially- 
(•  sea-port  near  Uuninaine.) 
1%,  ibat  the  child  was  always  nr  ffencrally 
a  to  the  ca[ii|)any  that  came  tn  Dunmaine 
I.  Deponent  was  asked,  if  .lira,  tiiiiard 
tin  Gill'i>r.l'H  wile)  TJsited  lady  Althnm? 
that  as  near  as  she  can  puesi,  deponent 
cr  three  or  lour  timrs  there,  hut  that  hlie 
wt  so  grand  n  wonian  as  to  IfC  intimate 
my  lai^ ;  dots  ni>t  know  wh'Ehcr  Mn. 
■i  saw  toe  child  at  Dunmaine,  lli«  tiini;  of 
imiDg  tliere  bein>;  muob  out  nf  dtrponent's 
try.  Believes  y\n.  UifTinl  lirinl  al.'.nl  ■ 
rom  Dunmaine ;  and  mii(bt  vi^it  my  I.idy 
;  the  cliild  was  under  deponent's  care; 
thai  Mrs.  Gilfard  did  not  viiit  Diintiiuiiie 
ihe  separation,  ^mjs,  that  the  child  wiw 
■ery  fine,  and  was  [;i-ii(r:illy  dr(<!s«4  with 
riet  veliel  bai,  while  li-ailitr  and  lai;ed 
when  he  lued  tu  b<'  shi:"!!  to  'wiiipanv, 
id  cambric  and  liollui.d  lliii.:".  of  all  km  Ji, 
that  one  Nancy  llniir  »hh  Imjintry 
Being  asked, if  .Mrk  (Jiltorl  .(iiii-d  wi||| 
rd  and  lady  hIk-usIk:  riiii.e  >Iiiri'f  S'a^| 
elieres  that  sijc   did.     Mn:  tfa-.  a-.fcp,|^  j 

Lambert  liintd  my  U'ly'  >>■)»,  •he  i\ 
rcquently,  and  that  ftlik.  I'l^c'iil  ,iiid  jtln 
U  XVJl. 


Boiler  Al  alaa  rrtnanrtlv  •t«i 
Bskad,iftheebiM.*nsstM>i 
Saji,  it  WM  nAn  ^hnm  ;ii 
wel-nune,  aT'lnf-nunr.  .*«n 
shewed  the  ehiU  in  .hn  (enl 


accident  of  the  sepanlion  b»l  n-r-:*r  i»it'>>^ni^>t  _ 
Says,  she  remembers  that  the  lU/  t-*  «•■'  *  *^ 
cut  off,  she  bad  Ihe  child  ia  her  iia.-.'l.  a''--l  '-•e 
child  sbeirtd  deponenl  some  of  ihc  blon-1  w  i->^k^ 
hsd  fallca  from  Pelliaer'aearnn  the  fft-iii-"  5 
says,  he  shewed  it  ber  by  uninUni;  biA   iin3*»- 
to  the  fTound  where  •ome  drops  nl  Vinad  «<>t«. 
She  wa*  asked,  if  Hr.  Thomas  FaJliser  aaw  tb« 
child  ?    Says,  be  did.    8ays,  thai  tbe  immrnn^ 
of  mj  kinl'seiittin|[off  Mr.  I^Uoirf  sar.  ▼»> 
that  some  of  Uie  famUy  had  inade  mf  iv>f 
jealous  of  biot,  and  eontrif  ad  iliat  aanniif  ^* 
(ret  him  into  mj  lady's  cbamiv  ■*■«  ^W  "■'' 
in  bed  and  a^eep,  a«4tkM*ev9n>sei>'  "'T 
lord,  who  bein^  by  Ibis m^V^csHvm'^  '" 
his  suspicioDB,  ortknrillHMbsrvMJrai,'-' 
geil  out  of  m^  la'lj'abiitf^ta^K'ar  iiio  sor- 
vants,  and  with  aMHrf^a^if  .■nnin  .lirti 
through  the  bodjibB^MMHiaiR^w^!, 
sod  beji^ged  ujrlariiasiiiB'flTCTBii  i..-, 
and  only  to  cn.tKMmmwmfitt'.\i't  i-^  -^  ■ 

and  I liinlj  aifc^^  is     .  1. . 

cutoff  bia  e^,«AMAAiBilMr^i,i,, 

the  ytllow-rast.  ^m^  mttaau   ^  '  .  ' ' 


\  then 


.liislaw- 
that  luril 
y,  1»I>"|H 


eiu:;  shew' 
n  t.'ouTi,  t 
i  th<'  sain 
'puuent  tail 
ntical  per!W>i 
.ked  how  ih 
le  had  n.  la<^( 
ht«,  and  drji 
1  UsA  >iv*.'& ' 


1 1 7 1 J  17  GEOIIG  E  II.     Trial  in  Ejectment  betrveen  J.  AnneJey,  esq.  [1 171 


htv  a  mcssaic^e,  having  heard  fas  she  beliefes) 
that  she  hail  livMJ  in  lord  and  lady  Altham's 
<(ervice ;  that  thereupon  she  went  to  hino,  and 
he  asked  deponent,  it'  she  knew  of  any  child 
that  hird  and  lady  Allham  had?  that  she  an- 
gwerefl  hinrt,  she  did  know  of  their  havingf  a  son 
called  James,  but  (added  deponent)  what  siji^ni- 
ties  that  now  ?  he  was  Ion);  since  transported, 
and  I  believe  he  is  dead.  To  which  Henderson 
jeplied,  that  he  wus  iiut  dead,  that  he  was  very 
well,  and  then   in   liundon.    Says,  that  one 

Bridtret    Hoiilet,  Joan  Landy,  and 

Now  Ian,  went  in  the  same  ship  with  deponent, 
filie  w^s  asked  it'  she  made  any  afEdavit  before 
Mr.  Uoherl  Snow  of  ^Valcrtord?  Says,  she 
never  did,  and  that  he  never  took  any  thing  in 
firitingf  from  her  in  relation  to  the  child ;  but 
sa^'s,  she  was  &i\iorn  before  a  master  of  Chan- 
cery in  London,  and  examined  there.  Says, 
that  rite  chief  uf  her  business  to  £n^;)and  was 
to  see  lier  iieplieu  «i,  who  were  sailors  on  board 
snme  of  the  kin;;'s  ships,  ezpectin<>;  to  get  some 
ninney  from  them,  and  that  she  did  not  go  on 
account  of  l^Ir.  Anuesley.  Says,  she  never 
received  a  penny  for  giving  her  evidence; 
says,  that  Juan  Landy,  Bridget  How  let,  and 
deponent  went  from  Bristol  to  London  with 
Henderson  (whom  thcv  met  at  Bristol)  in  a 
coach  and  four ;  says,  siic  paid  a  crown  for  her 
passage  to  Bristol,  and  a  pistole  for  her  coach 
hire  to  London,  all  of  her  own  proper  money. 
Believes  Henderson  pitid  lor  the  rest  of  the 
company,  and  that  he  paid  all  the  bill.?  and  ex- 
penccs  on  the  road  to  London.  8.>.>s,  slie 
would  have  goi!e  to  London,  if  KeudersiMi  had 
not  a[)plied  to  her ;  says,  that  Henderson  took 
lodgings  (in  the  seme  street  where  he  li\es)  for 
Joan  LariHy,  Bri«lget  Hf)xvlft  and  deponent, 
and  believes  that  he  paid  for  Ihrin;  saysHm- 
dcrson  told  dq^nncnt,  t!int  if  she  would  live 
wiih  him,  he  wo;;!;!  ^ive  her  os  good  u aires  as 
any  in  Irehml  ;  tliiit  arcordingly  deponent 
hired  with  hir.i  rr;  a  s«  rrant  f(;r  about  a  year. 
S.iys,  t'.ial  one  !Vf r.  Tate  r:,on  an  attorney,  and 
Mr.  M'Kcrchtrr  spuk'j  to  her  in  Ijondou  ubuut 
the  present  afiuir. 

[iMr.  Hiiroii  r.Tmintcne}'  said,  he  knew  3Ir. 
ratci'son,  aiiu  '^:*\f.  him  a  go.td  c-liurdcter.] 

Deponent  v  ;;s  ?-;kr-.!,  if  Joan  Landy  lived 
a»»v  tiiO!^  at  Iiind:?rson's?  S.:ys,  she  did 
0'«  I;iicli(  n  n  :•."•!.  Mi"  \vas  asked  what  con- 
nliiuii  Joan  f.:)M'!\'s  huiise  Mas  iu  at  the 
lisiic  oi'  Ik  r  i:-.-:>I:.ji:  o:'  li.e  child?  JSays,  it 
V  :vi  put  i;tlo  li-^ht  c^iiriloi  table  order,  tit  to 
rirrl\.'>  !!>;.  lor  i  and  lady')»c!illd  ;  says,  thatshe 
rliil:!".-.  tijio  rl(»{lirs  were  always  k«pt  at  the 
great  house  of  Dunmaine,  to  dress  him  in 
when  company  came  to  my  lord^s  Says,  that 
alter  deponent  left  my  lord's  service,  she  went 
to  Jvinna,  in  the  county  nf  Kiidare,  to  get  her 
wages  from  my  lord,  and  there  she  saw  the 
child,  which  was  then  about  four  years  old,  in 
the  care  of  one  Mrs.  Mary,  and  says  it  wu  the 
same  child  tl^at  had  beeo  under  deponent's  care 
Bt  Dnnmaine;  laF-  **»*  ^««b  Lnndr  bad  a 


when  she  was  taken  to  nurse  Mr.  Anoedej, 
I  and  says,  thf^y  called  the  nurse*8  child  Jarod 
Landy ;  says]^  she  heard  many  yearsago  ihalbs 
was  dead  ;  says,  that  it  was  reported  that  Jttn 
Landy  was  married  to  a  sailor,  and  that  the 
child  was  his,  and  that  he  was  gone  abroid; 
and  afterwards  it  was  said  to  be  my  lord's  chiM ; 
but  says,  that  my  lady  never  heard  of  my  k»nl'i 
iK'ing  the  father,  till  ufler  she  had  parted  from 
him.  Believes,  that  if  niv  lad^^had  known  it 
before,  &he  wotdd  never  have  admitted  Joia 
Landy  to  nurse  her  child.  Beiug  asked,  if 
she  had  ever  seen  father  Downs  at  Dunmaine 
house  ?  says,  she  has.  She  was  asked  as  It 
her  religion  ;  suys,  she  is  a  Roman. 

Thomoi  Brooks  sworn. 

Says,  he  is  a  piece  of  a  surgeon,  and  b  tboul 
43  years  old,  and  that  he  lives  near  Farree  in 
the  county  of  Wcxfbid,  between  Ross  anJ 
^Vexford,  within  three  miles  of  Dunmaine: 
says,  that  about  twenty -eight  or  twenty -Dine 
years  ago,  a  inr<%i'ngcr  came  from  lord  A'tbaa 
to  deponent's  t'aiiu  r*s  house  (who  was  a  farowr) 
to  fetch  deponei:t,  in  Gfrtat  haste  to  oiy  Inrd'i 
house.  Cannot  recollect  particularly  the  tiac 
of  the  year,  but  to  the  best  of  deponent*s  know- 
ledge It  was  in  the  spring,  for  the  boaghs  cf 
the  trees  were  green,  and  It  w  as  in  the  evema|{, 
and  light  enough  for  deponent  to  do  his  bn» 
ness  ;  say*;,  that  when  deponent  came  to  Dai' 
maine  he  saw  31rs.  ShieU  of  Ross  (the  midwifr) 
witli  whom  deponent  m  as  acquainted,  and  sk 
shewed  deponent  the  way  into  lady  Althao^ 
bed-chamber,  and  deponent  was  ordered  tf 
breath  a  vein  r>r  to  bleed  my  lady,  which  ()^ 
poncnt  arc'ordin^ly  did.  He  was  asked  bnw 
he  knew  she  was  lady  Altham  :  says,  shew 
railed  my  lady  ;  that  t-he  was  sitting  in  bff 
bed,  andns  deponent  supposed  very  unvdf, 
for  she  cried,  O  my  (Jod  !  several  times.  Tte 
immediately  after  deponent  had  doue  bit  4bIJ 
of  bleeding  her,  he  quilted  the  room  and  wa 
shewed  inlo  another,  w  here  defionent  got  Dflt 
and  drink,  and  refreshed  himself:  says,  tint 
deponent  staiil  in  the  house  a  good  part  of  tke 
night  ;  and  that  some  time  after  deponent  M 
eat  and  drank,  Mrs.  Sliiels  came  down  to  tk 
room  smiling,  and  said,  the  lady  was  delirottf 
of  a  fine  ihoy.  lie  was  asked,  if  heknrt 
Mrs.  Heath  ut  Dnnmaine;  says,  hedidiMti 
and  that  he  had  no  business  to  take  notice  stt 
was  in  the  house  when  he  went  on  sudi  kO' 
sions.  Says,  that  the  messenger  caiueftc** 
ponent  to  his  father's  house,  and  desired  W 
to  go  to  my  lord's  house  at  Dunmaine ;  bu** 
not  say  on  whiit  account  he  was  wanted  there. 

[Cross-examined.] 

Suys,  he  went  up  one  pair  of  stain  to  ■/ 
lady's  room.  Says,  he  saw  the  servanu gfl* 
and  fro,  but  did  not  see  my  lord,  and  iras  i' 
paid.  Sii3'f?,  that  he  went  into  the  lw*J 
Btreetway  s.  Says,  that  he  knew  one  Rrtlinw* 
a  serTant  in  the  house.  Says,  it  was  » jy 
that  wore  a  1 1  very  that  came  for  d«|ius» 
.  Bdn^  asked,  if  it  vfai  nsuai  to  Meed 


H7S] 


and  Richard  Earl  of  Anglesea. 


A.  D.  1743. 


rii74 


labour ;  tiyf,  he  was  not  tolil  she  was  iii  la- 
boor  ;  and  that  he  did  not  see  any  signs  of  la- 
bour about  her.  Says,  he  staid  a  i^ood  part  of 
the  ni||rht  in  Duntnaine  house.  Says,  he  hied 
my  latl  V  in  the  arm,  hut  cannot  tell  which  arm. 
Says  she  asked  deponent  no  questions ;  that 
ihe  reached  out  her  hand  hyMrs.  Shiels'sdirec* 
tiODS,  who  held  the  pewter-plate,  in  which  the 
blood  was  receiTed.  He  was  asked,  how  many 
>uoces  of  blood  were  taken  from  my  lady  ;  says, 
lie  cannot  tell  the  quantity,  for  he  bled  "by 
rueas ;  that  the  midwife  bid  him  not  take  much 
Clood.  Says,  he  cannot  tell  uhat  hour  the  boy 
»me  for  deponent.  Says,  hehroug^ht  no  horse 
or  deponent,  but  deponent  (;ot  one  for  himself, 
lod  ro<le  hard,  because  the  boy  told  him  he  was 
(ranted  in  fi^rcat  haste,  lie  was  asked,  if  the 
ady  tvas  dressed  ;  says  he  took  no  notice  whe- 
lier  alie  was  dressed  or  not.  The  hed-clotiies 
rame  up  to  about  her  middle,  she  had  a  {{own 
ID,  and  was  sitting  in  the  bed,  and  there  were 
,hree  or  four  people  In  the  room. 

He  was  asked,  if  Sutton  the  surgeon  was  in 
Ross  at  that  time ;  s:iys,  he  cannot  tell.  lie 
vaa  aiiked  if  lady  Allhum  was  a  fair  woman ; 
AjTS,  lier  person  is  greatly  out  of  his  knowledge, 
or.  be  dill  not  take  much  notice  of  her,  but  says, 
ihe  was  not  fair.  Says,  deponent  had  bled  some 
if  the  serf  ants  betore.  Savs,  he  does  not 
now  whether  he  had  heard  of  the  queen *s 
ioAtb  before  that  time  or  not.  Says,  he  never 
leard  any  lady  called  lady  Altham  but  one ; 
IM  teen  her  before  and  after  that  ti'.ue,  hut 
SODOt  tell  bow  long  before,  fur  he  nerer  book- 
id  It.  Says,  he  does  nut  know  but  he  saw  her 
aore  than  once  before  he  bled  her.  He  was 
laked,  how  he  came  to  know  she  was  lady  Al- 
ibam  ;  says,  she  was  called  so.  Says,  he  has 
heen  in  all  about  three  times  at  bimmaine 
banae.  Says,  he  bled  many  people  before  he 
Hcdlady  Altham ;  that  he  is  now  aliout  forty- 
C^rht  or  forty- nine  years  old,  and  has  prac- 
ilKd  surgery  about  twenty  years  ;  hut  says  he 
Ibmw  how  to  bleed  when  he  bled  my  lady  Al- 
tban  ;  that  he  learned  to  bleed  of  one  Graham 
C*bo  fifed  in  the  Queen's  county)  but  did  mit 
■ttfe  histime  to  him.  Says,  he  does  not  know 
vini  age  he  was  of,  when  he  was  taught  to 
Ked,  but  when  he  bled  lady  Altham,  he  was 
■Mr  bis  manhood.  Being  asked  if  he  icniem- 
^9  all  the  persons  whom  he  bled  twenty 
youi  ago ;  savs,  he  does  not.  Being  asked 
u  he  ef  er  bleu  any  other  woman  in  labour  ; 
^a,  he  bled  madam  Sutton  when  she  was  in 
ttour.  Says,  he  received  a  summons  about  a 
ight  ago,  to  give  bis  evidence  in  this 
Says  he  does  not  understand  anatomy. 

BIr.  Lawrence  Miuet  sworn. 

Sajs,  he  knew  lord  Altham,  when  he  lived 
^  Kinnav  in  the  county  of  Kildare,  about  two 
2^ti  and  a  half  from  the  place  where  deponent 
w^%  nya,  deponent,  when  about  17  or  18 
tapMoldi  went  to  school  to  a  place  called  Dow- 
■■W%liii»u,  and  that  there  was  a  boy  then 
tqtlM  aame  acbool,  whom  the  scholars 
\  Jmi  AWmib*!  toil.     Deponent  tbinki 


the  child  could  not  be  less  than  six  ve:\rs  old» 
and  says  he  continued  about  a  month  there; 
says,  the   school- master's   name  was  Bryan 
Connor  ;   that  being  a  Papist  he  was  perse- 
cuted by  a  Protestant  sc It ool- master  in  the 
neighbourhood,  who  wanted  to  banish  tarn  from 
those  parts ;  that  some  of  the  ueighbours  being 
concerned  that  the  poor  man,  who  had  lived  so 
long  among  them,  should  be  banished  or  dis- 
turbed, requested  my  lord  to  take  him  under  his 
Crotection.    And  deponent  says,  that  having 
ad  the  honour  to  hunt  sometimes  with   my 
lord,  he  took  the  opportunity  to  speak  to  his 
lordship  about  it;  to  which  my  lord  answered, 
that  he  had  been  spoke  to  on  Connor's  Iwlialf, 
and  intended  to  send  his  son  to  school  to  him, 
which,    he   believed,  would  hinder  the  other 
school- master  from  disturbing  him  ;  that  ac- 
cordingly,  at  the  request  of  the  neighbour- 
ing farmei-8,  my   lord  sr:it  his  sou  to    Cnu- 
nor's  school:    says,  he  cannot  remcinber  the 
year  that  this  happened  ;    believes  it  mi^ht  bo 
some  short  time  after  iiiv  lord  came  to  live  at 
Kiiinay,  but  does  not  know  either  when  my 
lord  came  to  Kinuay,  or  when  he  went  away, 
but  thinks  he  knew  his  lonlship  there  a  year 
andahiilf;    that  deponent  is  about  42  or  43 
years  old  ;  says,  that  lord  Altham  continued  at 
Kinnay  after  his  son  came  to  Connor's  school. 
Being  asked  where  the  child  dieted  and  lodged, 
says,  he  does  not  know,  but  from  hearsay,  be- 
lieves it  was  near  Kinnay ;  says,  he  does  not 
remember  the  hoy's  being  attended  with  a  page 
or  a  footman,  but  says,  lord  Altham  used  fre- 
quently to  call  for  him  himself  at  the  school. 
Says,  deponent  generally  called  the  boy  young 
lord  Altham,  but  did  not  know  how  he  was 
oalled  by  his  father ;  says,  he  saw  Uuh  at  Kin- 
nay  af\er   be    had   quitted  Counorl  school ; 
savs,    that    deponent   and  |Mr.    Connor   the 
school -master  used,  on  Saturdays,  to  go  a  fish- 
ing near  my  lonl  Altham's  house  at  Kinna}', 
and  my  lord  met  deponent  and  Connor  twice  or 
thrice  at  the  river  a-fishing,  and  invited  them 
into  his  house,  where  deponent  saw  the  boy  ; 
that  lord  Altham  brought  him  into  their  com- 
pany, and  introduced  him  as  his  son  ;  but  de- 
ponent could  not  distinguish,  at  the  years  de- 
ponent was  then  of,  ^^heiliiT  it  was  as  his  law- 
ful or  unlawful  son  ;  but  remembers  that  lord 
Altham  once  said  to  deponent,  Lally,  I*- hope 
you  will  see  this  boy  earl  of  Anglesca  ;  and  de- 
ponent i^ays,  he  was  reputed  in  the  ntighbour- 
hood  where  lie  lived  to  be  lord  Ahham'sson. 

[Cross-examined.] 

Says,  he  has  heard  that  Mr.  Annesley  was  a 
son  got  of  my  lady  when  she  was  away 
from  my  lonl — Mr.  Annesh^y  bein;;  shewn 
to  deponent  on  his  examination  in  (^*ourt,  to 
know  if  he  could  say  he  was  the  same 
person  he  saw  at  Kinnay,  deponent  said, 
he  could  not  say  he  \t  as  the  identical  person, 
it  being  so  long  ago.  Being  asked  how  the 
child  was  clad  at  scliool ;  says,  he  ha«l  a  laced 
hat,  and  was  in  a  coat  and  breeches,  and  d«fv<^ 
nent  takei  hiuk  to  Vmn«  Vy^cik^M  Vnia  ^^qaw  ivL 


1 175]  17  GEORGE  II.     Trial  in  Ejectment  between  J.  Annedey^  esq.  [1176 


years  old.  Deponent  beiuj^  asked  what  liis 
own  ag^  was  at  that  time ;  says,  he  believes 
lie  was  alK>ut  16  years  old,  for  that  by  tlie  re- 

Sutation  of  lits  family,  he  was  13  years  old  last 
lily,  and  deponent  has  been  married  13  yeara 
last  April.  Being  asked  if  he  was  at  Connor's 
•ohool  in  the  South-Kea  year;  says,  he  re- 
members to  have  heard  of  the  South-8ea  year, 
but  does  not  think  he  was  at  Connor's  school 
then  ;  cannot  say  how  near  it  was  to  the  time 
of  the  rebellion  of  Preston  or  the  death  of  queen 
Anne ;  bat  says,  that  by  computaiion  he  roust 
then  hai  e  been  about  17  years  old;  says,  he  went 
to  oilier  schools  besides  Connor's  school.  Being* 
asked  if  be  might  not  be  SO  years  old  at  that 
time;  says,  he  does  not  think  he  was;  re- 
members he  was  g^wn  up.  He  was  asked  if 
lord  Altham  was  free  and  familiar  with  the 
lioys  who  hunted  with  him ;  says  he  was.  De- 
ponent was  then  asked  again,  whether  he  was 
16,  17,  18,  or  19  3[ear8  old  at  that  time ;  says, 
he  cannot  be  certain  whether  he  was  16  or  17 
years  old  ;  says,  he  went  to  France  in  1723 ; 
that  after  leavinp^  Connor's  school,  he  went  to  a 
school  at  a  place  called  Nauss  to  learn  the 
mathematics,  and  that  he  did  not  go  to  France 
till  some  time  after  his  leaving  that  school. 
Deponent  was  again  desired  to  ascertain  the 
time  of  his  own  age  when  he  saw  the  child  at 
K-innay ;  says,  he  would  willingly  do  it  if  he 
could,  but  that  it  is  a  long  time  ago,  and  there- 
fore he  could  not  be  exact;  but  says,  he  is 
sure  he  must  have  been  15  years  old  at  least, 
liecause  be  could  wade  through  the  river. 

James  Walsh  sworn. 

Says,  he  knew  lord  and  lady  Altham,  and 
kncnvs  that  lady  Altham  had  a  child  ;  savs, 
there  wa8  some  dispute  between  them  whicli 
caused  a  separation  ;  and  thereupon  lady  Al- 
tham parted  fri>m  Dunniaine,  and  came  to  iodoe 
at  the  house  of  Mr.  Hutlcr,  (who  was  depo- 
nent's stepfather)  at  New  Ross,  in  the  county 
of  Wexford  ;  says,  that  he  saw  her  the  day  she 
raroe  there,  and  that  she  was  in  very  great 
trouhlc  and  affliction,  and  shed  abundance  of 
tears ;  tint  she  coni|)lained  lord  Altham  had 
used  hrr  so  ill,  that,  if  it  were  not  for  two  con- 
siderations, the  cruel  treatment  she  had  met 
with  would  break  her  heart.  Deponent  being 
asked  whether  he  knew  what  these  conside- 
rations were,  says,  that  my  lady  said,  one  of 
them  was,  that  she  had  a  tender,  indulgent, 
and  best  of  fathers,  (the  duke  of  Buckingham) 
and  the  other,  that  she  had  a  promising  young 
fion,  who,  she  hoped  in  God,  would  be  acom- 
Ibrt  and  support  to  her  in  her  old  days. 

[Cross-examined.] 

Bc\i\[r  nskcd  if  he  ever  saw  that  son  ;  says 
he  cannot  say  he  e^er  saw  him.  Says,  this 
^conversation  was  about  27  years  ago,  and 
passed  in  the  presence  of  deponent's  stepfather, 
and  mother.  Hays,  the  day  lady  Altham  left 
Duumaine  she  came  to  Ross,  and  it  was  on  a 
Sunday,  and  deponent  saw  her  ladyship  that 
^Mjr  couuog  up  to  Mr.  Batter's  houie^  tays, 


\ 


be  had  heard  before  that  time,  that  my  M 
had  a  child,  and  that  be  was  Barted  at  Don- 
mainc ;  says,  he  has  been  told  that  the  cbiU 
was  brouglit  to  Ross  to  see  his  mother,  mj 
lady  Altham,  and  deponent  compotes  the 
child  waa  then  aliout  two  or  three  yean  oM ; 
says,  he  does  not  know  Joan  Landy ;  ayi, 
ladv  Altham  came  to  Ross  in  a  chaise  or  chiir, 
and  to  the  best  of  deponent's  remembranoe,  it 
was  drawn  by  one  horse ;  and  fancici  ber 
waiting- maid,  Mrs.  Heath,  came  akmg  with 
her ;  says,  it  was  before  dinner  my  ladv  hsA 
the  beuire-mentioiied  conreraation  with  de- 
ponent, and  that  my  lady  dined  with  depoocsi^ 
ste^i-father  and  mother,  and  deponent^s  tbn 
wife;  says,  he  saw  lady  Altham  at  Hoes  at 
that  house  very  oflen  after  that  day;  siji, 
he  took  lady  Altham  to  be  the  duke  of  Bock* 
ingham's  daughter ;  for  deponent's  atep-ftdw 
having  a  suit  of  law  in  England,  mentiooedit 
one  day  to  my  lady,  and  desired  her  iaterert 
with  the  duke  of  Buckingham,  who,  he  waA, 
might  befriend  him  in  it. 

Mr.  James  Cavenagh  sworn. 

Says,  he  was  acquainted  with  the  late  kml 
Altham,  when  he  lived  at  a  place  called  Ctf- 
rickduff,  in  the  year  1721  or  1722,  or  then- 
abouts,  and  was  his  neighbour  there,  abooti 
year  and  a  half,  or  two  years.  liJays,  lord  Al- 
tham had  with  him  a  child  who  was  deemed  Ui 
only  sou  ;  that  the  child  lived  in  the  house  wilk 
his  father,  and  deponent  often  saw  him  thefv,be 
generall}'  visiiin;;  my  lord  once  or  twice  s 
week ;  says,  he  always  observed  him  very 
fond  and  respectful  of  the  child,  as  a  pamC 
should  be ;  sai«l,  he  never  heard  my  lord  nj 
who  w:iM  the  child's  mother ;  but  never  hu 
any  doubt  of  his  being  legitimat«>,  or  ever  n 
much  as  heard  that  be  was  illegitimate  tiB 
lately.  Deponent  particularly  rememliers,  tbtt 
one  day  my  lonj,  the  child,  and  this  dcpe- 
nent  were  walking  in  my  lonl's  garden  at 
(^irrickiluff,  and  fleponent  taking  notice  of  ibe 
youn:;  gpntleman.  said.  My  lf»rd,  master  ii 
grown  a  fine  sprightly  boy  ;  I  hope  your  lord- 
bhip  takes  good  care  of  his  education  ;  to  mhkk 
my  lord  said,  that  he  had  a  tutor  in  the  boofe 
to  instruct  him,  and  declared  to  deponent,  that 
if  that  l)oy  lived,  he  would  one  day  or  other  be 
earl  of  Aiiglesea.  Deponent  says,  he  ibsi 
took  the  child  to  be  eight  or  nine  years  old; 
says,  my  lord  usually  carried  his  son  abroid 
wiih  him,  to  visit  the  neighbours,  and  brou|[lil 
him  to  deponent's  house  particularly,  and  the 
child  was  by  every  body  that  lived  in  the  neigh- 
bourhood treated  and  dcemeil  as  lord  Altham^ 
lawful  son.  De|KMient  never  saw  the  child 
aller  he  leA  CarrickdufT,  to  the  best  of  his  re- 
membrance. 

[Cross-examined.3 

Sa^'s,  he  does  not  know  when  lord  AlthM 
parted  from  his  lady,  and  never  heard  bim  left 
about  the  child's  mother  at  all ;  says,  be  k^ 
came  acquainted  with  my  lord  at  CarrickdiC 
but  cannot  tell  whether  tbia  wu  befbraor  ate 


W) 


and  Richard  Earl  ofAngUsea. 


A.  D.  17«. 


[H7* 


Snnth  Sea  ynr  ;  laya.  be  viiiteil  tny  lord 
I  fMllftiiaii  1  Bsj  «,  uiv  lord  likewiiie  vUiled 
.  Cliarlm.  Bjrne  anil  Mr.  Bridgcrs,  tvlio 
id  in  llie  nfiglihuurhond,  and  one  Mr.  Ue- 
xy.     OepancDt  uya,  he  olleu  anw  my  lord 

I  Ifaa  boy  git  Kbaut  puliliclj'  logeilier,  «Dd  bas 

II  tbA  child  wiib  liitu  ■!  puliliu  niettingi. 

Jamti  Denipst/  sworn. 
kyi,  he  knew  lord  Ahhani  at  CarrickduS',  in 
jtnr  ITUI,  and  Ihal  my  lurd  bud  a  edii  ; 
t,  theocCHiou  or  lii4 kniiwini;  it  wasaafal- 
s:  one  Mr,  TliouaiOxenscBme  lo  dcpn- 
it,  nad pni posed  loliim  lite  takin|{ care  ol'hli 
bbip'ssnD,  ill  qualiiy  of  a  lutor,  Ibr  which 
MieDt  MU8  to  liBte  eigbt  pounds  ■  year ; 
I  ilepont'nl  agre«d  to  the  pronosal,  and  au. 
liUEly  wetit  and  Inslruclrd  tLe  trliild  at  my 
I'k  bau!<e  Bl  Carrickduff  for  about  hall'  a 
r  J  bat  deponent  fioding  by  the  neighbours, 
til  would  be  more ail'antagieous  for  depo- 
tUleach  Ihe child  abniad,  on  account  or 
Ma^  ihe  nei|{hliours' children ;  depuoeot 
lied  to  his  lordsbip  (nt  I  ear  e  in  leach  his  con 
Md,  to  which  hit  lordihip  agreed,  an<l  tbe 

III  wt«  allentled  to  Ibe  public  acliuol,  liv  one 
lb  lordihip's  seriiuts;  says,  the  child  coii- 
wdnnderueponent'acere  fornearlwoyeara; 
■,  tbe  people  called  the  child  tbe  young 
I,  ami  that  my  loril  acknowledgnl  him  to  lie 
•M  ;  «aya,  the  ynuug  tfentlemaD  wa«  kept 
lecent  apparpl ;  that  he  had  a  fjitian  caul 
n  at  *cbaol,  and  a  coal  of  scarlet  cloih  on 
|r  days  and  stale  days  ;  says,  that  deponent 
firi  him  (o  read  English,  and  that  the  child 
I  tlieu  about  aeven  years  old ;  says,  that 
Hi  a  year  ago,  as  Mr.  Annesley  (Ihe  lessor 
be  pltintilT)  was  returning  team  the  county 
IVexfard  to  Dublin,  in  company  with  Mr. 
Crirober,  one  Mr.  Mnrk  Owtns,  and  other 
Ikmeo,  Ihcy  called  at  Hacket's  Town  in 

county  of  Cniberlougb,  near  vrhtch  place 
roenl  lives,  and  deponent  happened  to  be  in 

a«l  room  to  iheni  in  the  inn,  where  they 

up  i  and  deponent  was  sent  Ibr  into  their 
IfiiDTi  and  when  deponent  came  iuto  the 
B,  be  was  desired  10  look  about  the  cnm- 
y,  to  ice  il'  he  knew  any  orthem  ;  aayti,  he 
Rnlly  hnen-  Mr.  James  Anneiley,  and 
IWd  U  biu>;  and  said.  This  is  James  Aifv 
lay  (lord  Alihim's  son)  il'  be  be  living,  who 
I  imder  my  care  for  some  time ;  whereupon 
I  AnDcaley  kissed  deponenl,  nni)  asked  btm 
rtlier  be  had  heard  o)  his  lieiug  in  Ihe  king- 
)|  10  which  ilepoueni replied,  that  he  had 
;  *ajB>  Mr.  Anaealey  ineotiooed  to  him 
It  grrnt  hardships  be  bad  unilergone  cince 
raa  under  deponent's  care,  but  deponeot  cnn- 

remember  what  particular  harilsbips  he 
ilioned  ;  aaya,  be  never  saw  hiin  siaoe  Ihe 
t  h«i  teiR  at  CarHckdtilT  before  lh:ii  day,  nor 

■leponenl  informed  before  that  time  of  his 
^itt  lito  kingdom;  suys,  lord  Aliham  re- 
iHMndcd  him  tu  deponent's  care  as  hia  aoii  ; 
Lb«  bas  beard  Mr.  Annesley  wa»  trans- 
BWtWrt  15  years  agn  nui  of  tlie  city  of 
■B^HMMnt  left  Carrickduff  br'ibr* 


lord  Altham  lell  it. — The  deponent  was  de- 
•ired  to  look  about  in  courl  and  Iry  whether  ha 
could  see  ihe  person  nhoni  he  said  to  be  lord 
Altham's  ton,  and  to  whom  he  was  tutor  ; 
whereupon  (niter  looking  about)  he  pointed  to 
Mr.  James  Annestey,  and  said,  be  nns  the 
very  person  1o  whom  he  i^as  tiiMr,  aud  the 
same  person  he  saw  in  Hnckel's  Tuwo  albre- 
spid,  m  company  with  Mr.  M'Kercber  and 

[Cross-examined.] 
Says,  he  saw  Rlr.  Annesley  at  Cnllen's, 
iuDkeejier  at  Hacket's  Town,  and  that  no  ^  _ 
aon  ilesired  him  lo  ^u  lo  the  house,  but  depooa 
ireat  lo  eat  a  sleak  of  beef  for  breakliisl,  and 
buew  not  of  Mr.  Annesley  or  his  company  be- 
ing there ;  nays,  be  lires  at  Ballymacooly  uear 
Hacket's  Town;  says,  he  belieiesSlark  Owens 
(one  oflhe  company)  enquired  from  the  woman 
of  tbe  house  if  deponent  was  in  low^,  and  that 
it  vaa  upon  that  occaaion  depooent  was  sent 
for  into  the  room  to  their  company.  That  de- 
poneut  was  told,  Ibcre  was  u  peraon  who  wouM 
be  glad  to  see  him  ;  says,  be  belieit^  Mr, 
Owens  might  lell   Mr.   M'Ken'hcr  alioui  de- 

Knent,  for  that  he  never  knew  Mr.  M'Kercher 
fnre  that  day ;  suyi,  he  knew  Mark  Owena 
about  SS  or  96  years  ago ;  that  Hark  Owen* 
oflen  mw  deponent  at  Carrickdoff',  and  was 
willi  my  lord  when  deponent  was  Inter  to  the 
child;  ssys,  Ihal  Mark  Owens  was  in  the  room 
with  Mr.  M'Rercher  and  the  rest  of  tbe  com- 
pany when  deponent  went  in  ;  says,  that  he 
did  nol  see  him  for  two  years  before  that  time, 
nor  ever  hod  any  discourse  u  ith  him  aboul  Mr. 
Annesley.  Says,  he  never  beard  bttiire  he 
saw  lar<l  Althaiu'sson,  that  he  wosinihe  king- 
dom; says,  it  was  the  woman  of  the  house 
that  brought  deponent  into  ibe  company,  and 
that  it  was  Mr.  M'Kercher  asked  him  if  be 
knew  any  one  in  company ;  hsya,  Ibal  be 
did  not  know  who  was  in  the  room  be- 
fore he  went  in.  Says,  he  is  ahuni  37  years 
old ;  that  he  never  was  acquainteil  i^iih  lurd 
Allhaiu  before  he  was  einplnyed  «a  a  tutor  lo 
his  son  i  and  ihst  it  was  Mr.  Tli'iman  Oweoa 
(who  was  deponent's  father's  liindliird)  that  re- 
comtoeaded  ileponent  as  a  careful,  iuher  young 
man,  and  fit  lu  be  tulor  to  ibe  chllil.  Being 
aiiked.  if  he  went  to  idum  or  iu  i-hiirvb  ;  ssys, 
that  he  goes  to  mass ;  hut  that  he  ilid  not  knoiv 
much  of  religion  when  he  tutored  Mr.  Annea- 
ley,  lor  during  Ibe  six  monlhs  thai  he  sUid  in 
Ihe  house  he  neither  went  lo  church  or  mass  ( 
but  Mtys,  he  has  a  belter  notion  of  religion  now 
(thank  God.)— Hays,  that  lord  Altham  never 
examined  deponent  whether  he  was  a  Roman 
or  I'coteitani.  and  believes  my  lurd  did  not 
kuow  of  what  religion  he  xtas,  Beiug  asked. 
If  bd  is  in  holy  unlers  now^  the  counsel  for 
the  lessor  of  the  plaintiff  objected  to  that  ques- 
tion, and  the  wilneta  refuied  to  answer  il. 
lleiag  aikrd,  if  he  knows  Thompson  Gregory  ; 
said,  bit  (Iocs-,  and  ihal  helited  at  CaTrickduff 
when  dvpouent  was  (here.  Say!),  he  waa  tichkn 
tba  cbild  bad  oii«  'V^wk^  \aMit  \b  NsukSmva^B 


1 179]  17  GEORGE  IL    Trial  in  Ejectment  bettoeen  J.  Annesliy^  esf.  [1180 

time.  Says,  that  af\er  depoaeiit  saw  Mr. 
n*Kercher  at  Hacket's  Town  lie  had  some 
conversation  with  Mr.  Francis  Thornell  ahout 
Mr.  Annesley.  Says,  be  did  not  see  Mr. 
M*Kercher  since  he  saw  him  at  Hacket's 
Town  until  the  Saturday  before  his  examina- 
tion, and  did  hot  see  Mark  Owens  since  till  the 
Saturday  before  his  examination.  He  was 
asked,  if  Mr«  Annesley  had  his  own  hair  or  a 
w'lZ  when  be  was  tutor  to  him  ;  says,  he  bad 
hair  of  his  own  of  a  flaxen  colour,  and  not  a 
Vii^.  He  was  asked,  whether  lie  had  his  own 
bair  or  a  wig  when  he  saw  him  at  Hacket's 
Town ;  says,  that  one's  bair  is  now  tossed  up 
in  such  a  manuer  that  its  hard  to  distinguish 
between  a  person's  own  hair  and  a  wig,  there- 
fore deponent  could  not  take  upon  him  to  be 
certain  whether  it  was  his  own  hair  or  a  wig  he 
bad  at  Hacket's  Town.  Savs,  that  deponent 
went  to  school  himself  for  aoout  two  or  three 
years  after  he  was  tutor  to  Mr.  Annesley.  Be- 
ing asked,  what  be  learned  at  school ;  says, 
one  Mr.  Hughes  taught  him  the  Odes  of  Ho- 
race. 


Charles  Bjfrn  aworn. 

Says,  be  knew  the  late  lord  Altham  at  Car- 
rickduff,  in  the  year  1721  or  1723,  and  depo- 
nent lived  within  three  or  four  miles  of  the  said 
place.  Says,  my  lord  had  a  chikl  whom  he 
called  his  son,  and  who  by  others  waa  called 
Master  Annesley ;  and  that  he  wav  reputed 
lord  Altbam's  lawful  son  ;  and  deponent  was 
very  frequently  in  company  with  lord  Altham, 
and  says,  his  lordship  was  very  kind  and  fond 
of  the  child,  and  behaved  to  him  as  his  own 
child.  Says,  he  knew  lord  Altham  better  than 
a  year,  and  that  be  visited  deponent  and  other 
neighbours  with  the  child.  Says,  he  had  a 
white  feather  in  his  hat.  Being  asked,  if  he 
believed  the  child  to  be  my  lord's  lawful  son  ; 
deponent  protests,  that  if  the  best  duke  in  Eng- 
land had  brought  a  bastard  to  visit  in  bis  fa- 
lYiily  he  would  have  resented  it,  and  cut  his 
nose;  and  that  be  always  looked  upon  the 
child  as  lord  Altham's  lawful  son.  Says,  that 
being,  invited  to  the  house  of  one  Mr.  Red- 
monds, he  met  my  lord  Altham  there;  and 
that  they  toasted,  *  That  the  child  might  live  to 
be  earl  of  Anglesea.'  Says,  that  my  lord 
thanked  the  company,  and  took  the  health  as 
a  compliment.  Believes  the  child  was  then 
seven  years  old,  or  thereabouts,  and  that  my 
lord  used  to  take  him  on  his  knee.  Says,  that 
my  lord  used  to  take  the  child  with  him  to 
hurlings  ;*  and  bought  a  little  horse  for  him 
to  ride  upon  ;  and  that  the  child  was  dressed 
▼ery  gay.  Being  asked,  if  he  knew  him  now ; 
■ays,  he  cannot  swear  to  him  at  this  distance 
of  time.  Being  asked,  if  he  knew  to  what  place 
my  bird  went  from  CarrickdufT;  says,  he  does 
not  know.  Says,  that  something  struck  depo- 
nent as  to  Mr.  Annesley's  features  when  depo- 
nent was  lately  introduced  to  him :  but  being 

*  Hurlings  is  a  diversion  uatd  in  Irdiad 
ANMib  iUM  tSegaoM  of  crigkft. 


\ 


asked,  whether,  if  he  bad  met  him  without 
being  introduced  to  him,  be  should  have  kwwa 
him  ;  says,  be  should  no  more  have  knowi 
bim  than  the  king  of  Morocco. 

Charles  Cavenagh  sworn. 

Says,  be  knew  lord  Altham  about  SO  or  91 
years  ago  at  Carrickduff',  and  knew  him  tbos 
about  two  years;  says,  he  saw  a  child  there 
about  6  or  7  years  old,  whom  lord  Altham  nid 
to  be  his  son,  and  treated  as  such.  That  his 
lonlship  seemed  very  fond  of  him ;  and  die 
child  was  reputed  to  be  his  soni  and  treated  u 
such  by  the  servants,  that  is,  with  good  man- 
ners andrespect  ;  and  (to  the  best  of  depooeot'i 
memory)  they  called  him  master  James. 

Nicholas  Duff  twon. 

Says,  be  knew  lord  Altham  when  he  fodged 
in  Cross-lane,  Dublin,  about  20  or  21  yean 
ago;  and  he  had  a  young  gentleman  with  bim 
who  was  called  James  Annesley,  and  my  kml 
treated  him  as  became  a  lord's  son  ;  and  de- 
ponent is  sure  be  was  his  own  son  by  my  lord's 
own  declarations.  That  deponent  kept  a  pub- 
lic house  in  Loftus's  lane  near  Cross-lane,  sad 
heard  lord  Altham  say.  Iff  live  to  be  earl  ef 
Anglesea,  Jemmy  will  be  lord  Altham.  For 
that  lord  Altham  was  very  free  and  familiar 
with  deponent,  and  used  to  drink  with  biiu. 
Says,  Jemmy  Annesley  went  to  school  io 
Proper  lane,  to  one  Daniel  Carty,  and  two  sf 
deponent's  sons  went  likewise  to  the  same 
school ;  and  that  deponent  saw  a  servant,  who 
(deponent  was  told)  was  my  lord's  servant,  at- 
tend the  child  in  going  to  school,  and  comia; 
from  it ;  and  that  the  servant  wore  my  lord's 
livery.  Says,  the  child  was  sometimes  called 
master  James,  and  sometimes  master  AnnesleVi 
and  sometimes  the  young  lord  Altham ;  andba 
was  then  about  8  years  old,  as  near  as  depo- 
nent can  guess.  Says,  my  lord  lived  about  a 
year  in  Cross- lane.  Being  asked,  if  he  heard 
of  one  miss  Gregory ;  says,  that  one  miss 
Gregory  was  in  my  lord's  family ;  and  that 
she,  along  with  one  Betty  I^ester,  (a  butcher's 
daughterj  used  to  vibit  deponents  bouse,  aod 
call  for  liquors :  and  deponent  says,  that  no- 
body gainsaid  the  child  to  be  my  lord's  lawful 
san.  Says,  my  lord  at  another  time  told  de- 
ponent, xou  may  live  to  see  this  child  earl  of 
Anglesea.  Says,  Carty  kept  a  liatin  school, 
and  that  children  of  responsible  people  wvrt 
put  there. 

[Cross-examined.] 

Being  asked  if  be  ever  carried  a  chair; 
says.  What  of  that?  I  am  a  gentleman  now. 
Being  asked  if  he  is  porter  to  Jur.  M^Kcrcber ; 
says,  No,  I  don't  go  of  errands.  Being  asked 
if  he  opens  Mr.  M^Kcrcher's  door  to  people; 
says,  **  Sometimes  1  open  it.  But  I  have  do 
waiifes,  I  tend  to  oblige  Mr.  Annesley  and  Sir. 
M*Kercher.  I  came  from  London  to  obli^ 
Mr.  M^Kercher,  I  was  acquainted  with  bin 
there.  I  heard  in  London  that  Mr.  Annesley 
waa  rctnmcd  from  tnnsportatinni  and  tbai  bt 


1181] 


atid  Riehard  Earl  qfAngktea. 


A.  D.  174S. 


[list 


lod^'cd  at  one  Ilendenon's ;  and  it  was  Mr. 
M-Kercher  told  me  where  Mr.  Annesley 
lodged."  He  was  asked  if  he  ever  sweptbe- 
fore  Mr.  M*Rercher*8  door ;  he  replied  in  an 
angry  and  loud  tone,  No.  Being  asked  how 
Ioiig*he  had  the  coat  now  on  his  hack ;  says, 
£rer  since  I  bought  it  last  spring.  And  depo- 
nent added,  M'^hv  don't  you  ask  me  where  I 
bought  this  wig  r  Says,  he  was  formerly  a 
fiirmer  before  he  came  to  Dublin. 

Catharine  O^Neilc  sworn. 

Says,  she  knew  lord  Altham  when  he  lired 
•t  Carrickduff,  and  that  deponent  was  em- 
ployed there  about  22  or  33  years  ago,  to  take 
care  of  my  lord's  son,  who  was  called  James 
Annesley,  and  deponent  also  attended  the  child 
to  Cnitis'-tanc,  Dublin  ;  and  says,  she  attended 
him  in  all  about  a  year,  and  that  he  was  re- 
puted and  treated  as  my  lord's  son.  Being 
asked  if  she  knew  miss  Gregory  ;  says,  that 
Mrs.  Eleanor  Gregory  li^ed  at  Carrickduff 
(wbeo  deponent  came  tuere)  as  my  lord's  rela- 
tion ;  and  when  my  lord  came  to  Dublin,  de- 
ponent heard  she  was  my  lord's  bed  com- 
Emion.  Says,  she  remembers  the  child's 
rtb -night  kept  at  Carrickduff,  and  bonfires 
and  rejoicings  made  on  that  occasion;  and 
sereral  of  the  neighbours  invited.  Bays,  that 
after  she  left  the  young  gentleman  in  Cross - 
lane,  he  came  one  day  to  see  deponent  in 
Jaroea's -street,  in  a  very  poor  mean  condition ; 
and  begged  of  deponent  to  speak  to  bis 
father  in  his  behalf;  that  acccrdinHy  depo- 
nent did  apply  to  my  lord,  who  said,  the  boy 
had  got  some  vicious  tricks,  which  when  he 
had  broke  himself  of,  and  behaved  better,  he 
would  take  proper  care  of  him.  Upon  which 
deponent  answered :  Ah  !  my  lord,  these 
are  only  base  contrivances  of  miss  Gregory  ; 
that  my  lord  said  his  son  was  taken  care 
of«  and  that  he  paiil  for  his  board;  that 
It  was  true  enough  Miss  Gregory  did  not  like 
the  child,  and  that  if  lie  was  to  take  him  into 
the  boose,  she  would  not  let  him  be  at  peace, 
and  therefore  he  was  obliged  to  keep  him 
abroad.  Says,  that  the  child  was  sent  tt>  ledge 
and  board  at  Mrs.  Cooper's  in  Ship- street,  and 
that  it  was  from  Mrs.  Cooper's  he  came  to 
deponent  to  James's-street,  and  that  he  came 
a!one  without  any  servant  or  person  attending 
bun.      Mays,   that  Cross-lane  was   the  first 

{dace  where  my  lord  lodged  in  Dublin  after  he 
eft  Canickdufr,  and  that  he  afterwards  moved 
10  Proper-lane  before  he  went  to  Incliicore,* 
where  he  lived  ivhen  deponent  apoke  in  him  on 
behalf  of  his  son ;  says,  that  when  my  lord 
first  came  to  Dublin,  lady  Altham  lodged  in 
8table-Iane,  and  she  sent  for  deponent  to  come 
lo  ber;  that  deponent  went,  and  my  lady 
■sked  her  how  iny  lord  and  Miss  Gregory  be- 
bared  to  the  child  ;  to  which  depone* it  an- 
swered, that  while  he  was  under  hrr  care, 
tbey  behaved  very  well  to  him  ;  bnt  that  (by 
repute)  they  did  not  behave  so  well  to  him  since. 

f  Incbicone  lier  within  a  mile  of  Dublin. 


. 


Says,  my  lady  called  master  Annesley  ber 
child,'  and  8ai«l,  she  was  very  desirous  to  see 
him,  but  that  she  waa  afraid  her  doing  so, 
mi^ht  be  a  means  lo  turn  the  servants  out  of 
their  bread,  and  be  a  detriment  to  the  child. 
SfLVBf  that  deponent  asked  the  child  why  ba 
did  not  go  to  see  his  mamma,  my  lady  Al- 
tham ;  to  which  the  child  answered,  that  lia 
was  forbid  to  see  her,  and  that  he  durst  not  go, 
for  fear  his  father  should  come  to  hear  of^it» 
and  refuse  ever  to  see  him  again.  Says,  thia 
was  about  18  or  19  years  ago,  to  the  best  of 
deponent's  memory.  Says,  that  tlie  first  time 
she  saw  Mr.  Annesley  (since  he  came  from 
abroad)  was  about  a  year  ago,  at  his  lodgings 
ia  Linnen-hall-street,  and  that  she  knew  bim 
again  the  moment  she  saw  him ;  and  deponent 
(looking  about  the  Court)  pointed  at  Mr.  An« 
nesley,  and  said,  He  is  the  same  person  whooi 
1  attended  when  he  was  a  child. 

[Cross-examined.] 

Being  asked  what  condition  Mr.  Annesley 
was  in  when  he  applied  to  deponent  in  James's 
street ;  savs,  he  \vi>s  in  a  low  condition.  She 
was  asked  as  to  the  colour  of  lady  Altham 'a 
hair ;  sa^^s,  she  cannot  tell  if  it  was  black,  bnt 
if  not,  it  was  a  dark  brown.  Says,  lady  Al- 
tham lodged  in  Stable-laue,  at  one  Cavanagh'Sy 
but  does  out  know  his  Christian  name.  Being 
asked  if  the  child  ever  went  to  school  while 
he  was  at  Carrickduff;  says,  he  went  to  school 
to  one  Mr.  James  Dempsey  at  lord  Aliham's 
house,  and  went  also  to  school  to  bim  wheu  ha 
taught  abroad. 

Mr.  John  Byrne^  brewer,  sworn  to  the  Voire 
Dire,  and  then  in  chief. 

Says,  he  knew  lord  Altham  about  19  years 
ago,  when  he  lived  in  Proper- lane,  and  that  a 
boy  called  master  James  lived  then  in  lord  Al- 
tham's  house,  and  deponent  saw  him  at  the 
door  and  windows  of  my  lord's  house,  and  the 
child  used  to  play  in  de|ionent*s  yard,  and  wat 
generally  reputed  by  all  the  neighbours,  and 
by  deponent,  to  be  lord  Altham's  lawful  son. 
Says,  that  he  has  very  often  seen  him  playing, 
snd  took  particular  notice  of  htm,  and  from 
the  knowledge  of  his  physio^nomjr,  is  positive 
that  the  lessor  of  tne  plaintiff  is  the  same 
person  now  grown  up  to  manhood  whom  be 
saw  a  boy.  Says,  that  when  Mr.  Annesley 
lived  in  Proper-lane,  be  was  about  eigft 
yean  old. 

[Cross-examined.] 

Deponent  was  asked,  how  long  lord  Ahbaa 
live<l  in  Proper  Laac ;  says,  be  cannot  tell ; 
but  that  when  my  lord  lef\  bis  house  there,  be 
went  to  Inchicore,  and  left  the  boy  behind  bin  ; 
says,  he  never  saw  the  boy  since  the  year 
1724  till  lately.  He  was  asked,  where  the 
child  went  to  school ;  says,  he  heard  be  went 
to  school  in  Proper- lane  to  one  Carty.  .Say a. 
he  was  then  told,  that  miss  Gregory  disagreed 
with  the  boy,  and  that  this  wai  lVM,\«iiiw^  tit 
huquiltin;i;bMtt^>M^%>Dk!vawa«   %v|%^'^n^Vfi 


1 187]  17  GEOKGE  IT.    Trial  in  Ejectment  between  J.  Annedey^ «}.  [IBS 


fieponent  was  asked,  if  be  knew  doctor  Brown ; 
Bays  he  did,  and  that  he  is  dead,  but  deponent 
Aever spoke  to  him.  Deponent  then  pointed  to 
one  Mr.  Ea&^er  in  conrl,  and  said,  he  lived  with 
bis  father  for  seven  years.  He  was  asked 
what  he  cave  a  harreJ  for  tlie  oats  he  bought 
for  my  lord ;  says,  he  gave  48.  6c/.  a  barreli 
and  that  my  lord  paid  the  money  when  the 
oats  were  delivered.  Being  again  asked,  with 
whom  he  made  the  agreement  about  the 
nursing  of  the  child ;  says,  with  my  lord  and 
lady,  and  that  it  was  my  lady  \v4io  gave  him 


lived  in  Montratb  -street,  Dublin ;  nyi,  ^ 
she  came  to  an  agreement  with  them  to  Up 
and  diet  my  lady  and  her  woman,  andiiiM. 
servant,  for  6o7.  or  70/.  a  year:  tbal  iIkj 
having  objected  to  there  being  no  locbii  ik 
rooms,  deponent  said,  she  would  getlodi  fi 
on  immediately,  and  the  man  gave  die  In 
nent  a  pistole  earnest,  and  deponent  got  n 
locks  put  on  next  morning ;  says,  that  ioi  far 
days  the  same  man  came  again  to  depMo^ 
and  told  her,  that  the  doctors  bad  idiiicd  ^ 
lady  not  to  lodge  at  deponent's  house,  boai 
the  halfcrown;  says  captain  "^Tench  is   dead  ;    it  was  too  near  the  water,  and  the  air  m^ii 

.1  111^*1*  III  L  '  t.X  I  ^a.A*A         A*.^  «l    ^M     tX    „^_    I 


says,  the  child  cried  in  my  lady's  arms  when 
t,be  phicken  ran  away,  and  my  lord  said, 
jemm^v,  Jemmy,  don't  cry.  Being  asked,  if 
the  child  called  for  the  chicken  ;  says,  he  did 
not  speak,  but  stretched  out  his  hand,  aud  made 
signs,  as  if  he  wanted  it  again. 

The  Right  Honourable  Hufi,h  Afnntgomery 
earl  of  Mount  Alexatider ; 

Says,  be  knew  lord  Ahham,  and  that  a  creat 
many  years  ago  he  was  in  company  with  bis 
lordship,  captain  Groves,  and  others,  ai  a 
public  house  on  the  Glib,*  called  Serjeant  Kile's, 
where  they  eat  oysters ;  says,  he  heard  lord 
Altharo  say.  By  G — d,  Gruvcs,  my  wife  has 
got  a  son,  which  will  make  my  brotlier's  nose 
swell. 

The  counsel  for  the  defendant  begged  leave 
lo  ahk  lord  Mount  Alexander  a  few  questions. 

[Cross-examiuc  d.] 

Being  asked  how  long  is  it  since  lord  Ailham 
spoke  tliose  words  about  his  i^ife's  having  a 
son  ;  says,  upon  his  uurd  aud  honour  lie 
cannot  tell  how  long  ago  it  is,  nor  how  long  it 
was  l>efore  lord  Altliain  died.  Says,  he  never 
heard  of  my  lord's  having  a  bastard.  Being 
asked  if  he  was  intimately  acquainted  \s  iih  lord 
Altliam  ;  says,  he  was  acquainted  with  him  by 
their  sometimes  takini;  a  glu&s  to;rethi-r;  that 
he  did  not  visit  lord  Aliham  at  his  house  ;  but 
that  they  frequently  met  at  the  suid  luuise  to 
eat  oysters;  that  captain  Groves  i^iis  at  that 
time  proviJore  of  the  hospital,  i^tini^  askvfl 
ithat  time  of  the  year  it  was  that  the  said  con- 
versation happened;  sa\s,  most  likely  in  the 
winter,  because  oysters  are  thon  in  seasrui ; 
savs,  there  was  no  other  conservation  on  the 
suhjoct  at  that  time,  nor  did  he  ever  li^'ar  n\y 
lord  talk  on  that  subject  either  before  or  since. 

Margaret  llvd^trs  sworn. 

Says,  she  once  saw  lady  Altham  at  Mr. 
King"  the  a|)Othecary's  in  Charles-KtrL^t,  in 
ll'Z'i  or  172U.  Th:it  it  was  upon  the  foliovvin;; 
occasion :  the  dopunciit  havii:g  a  house  on 
Ormond-key,  and  lodgings  to  let,  my  lady\<) 
woman  and  a  man  came  to  deponent,  to  know 
whether  deponent  could  board  a  lady,  with  her 
woman  and  man-servant;  9ays,  she  does  nut 
know  the  woman's  name,  but  that  the  man 


tfMi 


*  Tlie  Glib  is  the  plac«  where  butchers' 
ihamblcs  v«  to  Dublio, 


agree  witli  her  constitution ;  that  tbereofa 
deponent  returned  the  pistole  she  gii  li 
earnest ;  and  about  a  fortnight  aftnr  vberi 
an  acquaintance,  (one  Mrs.  Lloyd),  in wfai 
&he  told  the  story  ;  that  Mrs.  Uovil  Mid^ 
nent  was  a  fool  for  giving  back' tlie  emot) 
and  advised  deponent  to  wait  on  niv  ladjk» 
self,  and  acquaint  her  bow  she  bad  beenioiil 
and  to  ask  if  it  was  with  her  ladyship'ilD» 
ledire. 

Says,  that  accordingly  deponent  west  ti  ■ 
lady,  in  order  to  expostulate  with  her;  tMv 
went  to  Mr.  King's  in  Charles -street;  tM 
went  up  stairs  into  my  lady's  room;  tbitis 
ladyship  was  sittiiig,  lieing  in  a  weakcosdilii 
in  fier  limbs ;  that  deponent  begged  beryjf- 
ship's  pardon  for  taking  the  liUfrty  tomiti 
her,  and  mentioned  the  occasion  of  it;  vkt 
the  same  time  told  her  ladyship,  tbatiLei 
her  countrywoman:  says,  that  her  liiNf 
asked  her  how  lung  she  had  been  intlicli^ 
doni,  aud  the  occasion  of  deponcnr*  coiii|| 
over;   to  which  deponent  ansx^rrcd,  tlitth 
canio  over  to  get  some  money  that  was  ^^'*^ 
to  her;  whereupun  my  lady  .said  Xi\  iletftjei^ 
I  wish  1  had  never  seen  Ireland,  nadln^ 
vou  better  luck  m  it  than  I  have  had;  ferif 
ioid  Ahham   h:<s  used   me  cruelly,  aod  m 
aspcrse«1  my  character.     Says,  tfiat  Id  tk 
course  ofthat  conversalion,  deponent  a*ikedkl 
ladyship  if  she  hftd  any  children  ;  to  wbicIiB| 
lady  answered,  ^  es,  I  have  a  son. 

[Cross-examined.] 

Says,  she  had  this  discourse  ia  the  to 
Rung  asked  by  Mr.  Daly,ODeolih 
dc(ii!dani's  counsel,  when  it  was  she  cioe* 
Ireland  ;  said,  About  the  year  1720,  or  li!li 
a. id  now  1  live  near  Howth,  where  Iha^J^ 
hi^r.oor  to  dine  wiih  you  (meaning  Mr.  D4 
at  lord  liowth's.  iJciiig  asked,  «r briber  ^ 
ladv's  woman  was  present  when  ber laJj^ 
said  she  had  a  child  ;  says,  nobody  wuf* 
st^iit,  hut  that  her  woman  was  in  andoutoTiSi 
loom  ;  says,  that  my  lady  gave  asighi"^ 
she  saiil  sde  hud  a  son. 

Being  asked  it' Mr.  King  is  living;  ny^* 
believes  he  is,  because  she  has  never 
his  bning  dead. 

lieing  asked  whatsiaeed  woman  nyMf  ^ 
and  oi'  what  complexion ;  says,  that  iht ' . 
of  a  swarthy  complexion,  and  dark  hisaifcj 
but,  as  slie  was  sittiog,  caii'k  ttU  nkitWP 
she  was  of. 


17  Co. 


and  Richard  Earl  ofAngleiea. 


[1190 


yi,  he  knew  lor  J  All  ham  when  he  lired  in 
pr-laoe,  nbout  19  or  SO  yrari  %go,  anil  re- 
lien  li«  l«li  Proper- line  iii  1734.  S>y«, 
H  had  a  rhild  with  him  lliera,  who  wu 
ed  lo  be  his  EOo  ;  Ihat  il«|wnent  waa  very 
icquaiutnl  with  the  cliiid,  for  thry  wer« 
■Ji  Uie  Moe  street,  and  ucedtojilay  toge- 
:*«ryilay;  aays,  hebeJicTeimy  lord  IJTeil 
a  year  io  lliat  street ;  and  ia  pnaiiive  my 
eft  il  '     ■  ■     ■   ■ 


because  d^poneiif.  latbw     l^'^i^J'^i'^l"  'i''„',h"'il!v^^'h..''',lt^'^'? 


d  Trom  Uie  country  tin 
e  of  hia  busineaa  (which 
!t)  into  depotient'tkandt.  Says,  ilepoiient 
M  achtwl  to  one  Clark'i  in  the  Cbivstera ; 
iy  lord's  aun  lo  one  Carly's  ia  j^roiier- 

and  deiHioent  tided  In  vail  U|M>n  him 
il  lime*  al  tlieachool ;  and  sayi,  niy  lurJ 
D  Pro|)er-taDe  al  the  time  his  son  went  to 
I  there. 

t,  lliat  ny  lord  seeing  liii  Mn  )inil  depo- 
nie  day  at  play  together  near  hia  duor, 
o  bii  lOD,  jtiininy,  came,  and  briog  io 
r  Byrne  aloni;  with  yon ;  and  thereupoD 
r  Jemmy  and  depooeiit  nunl  in,  and  lay 
muitht  them  into  the  jiarlaur;  and  when 
ird  liail  been  with  them  about  half  a  mi- 
ir  a  minute,  be  waa  called  out  by  toine- 
and  driiouent  aaw  nonereofhialurdahiti 

a,  ibatwiien  lord  Altham  left  Proper- 
ia  aou  remained  in  tlie  house  allrr  hini ; 
t  Ciime  til  deponent  to  ukf.  iiU  leave  of 
nil  told  deponent  iliat  one  Sir.  Cafeoagli 


X.  C.  B.  laball  confine  the  witness  (o  fjcti. 
Says,  thai  when  the  boy  reTiued  to  go  to  hi« 
filler's,  depanent  ioTited  him  lo  stay  witli  him, 
and  brouarhl  him  into  the  houte  unkDOwa  to 
hia  (the  denaneiU's]  Tather,  and  he  ftaid  nitit 
deponent  airaut  five  or  six  weeks ;  thai  a 

.■ L-i — :-,  ihe  game  bed  with  denoi 

the  hay- loft;  that  then 
sooofbia  patting  Mr.  Annealey  in  the  hay- 
loft, wai  (eat  deponent's  futlier  should  diicorer 
that  he  entertained  any  body  in  the  housf 
witbout  his  tmve  or  kDoftled^re,  and  be  anj^y 
with  deponent  for  so  doing,    tteys,  that  m  de- 

Conent's  father  had  no  family,  when  he  carat 
nme  early  he  utcd  tn  go  to  bed  before  depo- 
neni,  and  then  depouent  carried  the  boy  to  bic 
own  bei),  an  there  was  no  danger  then  of  Ida  fa- 
ther's knowing  that  Mr.  Annealey  was  jntlia 
boose ;  but  al  other  timea  deponent  bad  not 
the  same  opportuniiiea,  and  cuuld  not  brin^ 
him  to  bed  udkdowo  to  his  father,  and  ilierefora 
wss  obliged  to  conceal  biin  in  the  hay-h>fl^ 
where  il^ncnt  gars  bim  meat  and  driuk  nn- 
known  to  his  falher. 

Says,  that  the  intimacy  deponent  had  with 
the  boy  arose  from  his  liarjng  been  bis  pisj- 
fellow ;  and  that  it  was  out  of  fnendsbiu  to 
bim  tfaedeponent  supported  bim.  Being  asLed, 
if  lie  obaerreil  lord  Altliam  to  .ake  any  care  of 
thetbild,  says,  he  did  not  observe  m^  Ir    *  " 


log-n 


was'-oinglo  iiulhimoutto  '  'skeany  caret         ..,,..,,,        .   ,  • 
belnS  a^ked,    how  <dd  the     "«■"■  '^•^  beheres  his  lonlshiu  did   not  know 


Uepouent 
as  then,  says  about  tea  years  old,  and 
ihree  years  younger  than  dcpo- 


vof  him  white  he  was  wiih  depo- 
es  his  lonlahiu  di  ' 
Being  asked   b 


,  where  he  wss. 
came  to  leave  him,  andVhat  bccaineof  Iheboy 
Says,  that  M\:  Anni»ley."a  g'^  ma^y     o"*"  ^*  \*i^'^  deponent ;    says,  that  Ihe  boy 
I  slier  his  taking    lea*^  of    .loponenl,  ■  tT'^"  "red  of  staying  with  deponeul  un.ler  such 
roper-lane,  ond  made  Rrrat  | 


lints  of  Ihe  Irvslmeul  hi 
:reet,  where  he  lisd  been  |iut  to  diet  and 
andssiil,  thaihe  badbeeii  to  Sir.  Caie- 
'ho  hod  refused  lo  receive  him  in  his 
Kise,  and  tliat  if  de|ionent  wuuld  not  re- 
iro  into  his  care  he  did  not  know  what 
nor  where  lo  go;  whereupon  deponent 
him  to  go  lu  bis  father  lord  Allliam'a 
.1  Inchicore;  lo  which  the  boy 


IB  (in 


)  was  th'ere  with  hia  fallier,  lor  thai 
lid  nerer  agree  with  him,  and  thai  ahe 
m  ill  before,  and  that  il  would  be  tu  no 
■-  for  bim  tu  atlempi  going  there. 
Gen.  RIy  lord,  1  desite  to  base  the 
'  the  Court  upon  this  part  of  the  et i- 
the  witness  was  going  xa  ray  what  the 

toEd  him :  so  long  as  this  was  tor  con- 
1  nisde  no  objection  to  it;  but  he  is 
f  a  side-wind  to  reflect  utioii  the  credit 
•an,  who  may  be  produced  in  esidence 
Icfcojant;  this  Esskca  it  material  to  ob- 
lif  part  of  Ihe  STidence. 

Br  II  m/  be  tsalcrial  to  know  nhat 


grew  tired  of  Mtaying  with  ileponetil  u 

tniint,  and  sa'iil  he  would  go  tu  his  rather  to 
;hiGore  ;  but  dejionent  diies  not  know  what 
became  of  liim  bul  by  bvantoy. 

Says,  that  the  school  wlierc  the  boy  went, 
waa  next  iloor  to  where  deponent  liveil,  and 
that  when  he  first  came  to  Proper-lane  he 
wore  a  scarlet  cuat,  and  all  ibe  geulr**!  hoys  of 
the  street  were  his  play -fellows.  Deponent 
being  derirrd  lo  nanie  some  of  thine  boys, 
ineotioncil  Watty  Ames,  sun  to  captain  Ame* ; 
two  sons  of  one  Kohcrt  Hyrn,  a  brewer ;  a  aon 


return  from  the  Weal  Indies.  That  when  Mr. 
Annesley  came  Rrat  to  Ibis  kingdom.  Mr. 
Rirlianl  Malliews  met  de|)unenl  at  the  Globe 
CI •ffce. house,  inrited  hira  in  dinner  the  next 
dav,  andreqiiealed  deponent  tn  meet  him  atth« 
coflee-hnuse   afier  chaoce   lime.      That  de- 

Ennent  accordingly  wentthe  next  day  and  met 
Ir.  Uaihews  at  the  time  and  place  appointeil, 
Tliat  Mr.  Mathews  sent  for  a  cnach,  and  he 
and  deponent's  father,  and  deponent  waii  into 
it:  but inxtead  of thnr giiingtu  Mr.  Msihi-ws'( 
house,  on  Usher's  Quay,  as  dcponcot  expect- 
ed, Mr.  Huibewi  onl^«d  iha  cguh  ta  drin 


1191 J  17  GEORGE  11.    Trial  in 

to  Jer?is^tr€et,  to  Moore's  the  apothecary's, 
which  this  clepooent  at  first  thougfht  somewhat 
strange,  and  •when  the  coach  had  stopped  at 
Mr.  Aloore'e,  Mr.  Mathews,  his  father,  and 
deponent  went  into  the  house,  and  they  were 
shewn  into  a  dining^-rooDD  up  one  pair  of  stairs. 
That  Mr.  M'Kercher  came  into  the  room  and 
saluted  them;  but  that  he  was  astraog;erto 
deponent,  deponent  ha?in(^  never  seen  him  be- 
fore.  That  soon  after  three  other  gentlemen 
coming  into  the  PK)ro,  Mr.  Mathews  asked  de- 
ponent if  he  knew  any  of  their  faces ;  where- 
upon de|Minent  looking  very  earnestly  and 
separately  at  them  all,  knew  Mr.  Annesley,  and 
said,  That  is  Mr.  Annesley,  whom  I  knew  at 
lord  Altham's  in  Proper-lane,  and  was  formerly 
any  play  -fellow.  Says,  his  image  was  as  fresh 
in  cfeponent's  memory  as  when  he  last  saw 
him,  which  was,  wh«n  he  was  about  ten  years 
old.  Says,  this  was,  as  deponent  believes, 
about  two  or  three  days  after  Mr.  Annesley's 
first  landing  in  this  kingdom.  Says,  he  knew 
of  Mr.  Annesley 's  being  returned  to  Irelnnd, 
but  thai  this  was  the  first  time  he  saw  hiui 
after  his  return.  That  deponent  had  no  con- 
'versation  with  his  father  about  him,  and  did  not 
know  before  then,  that  he  lodged  in  Jervis- 
street ;  but  says,  that  after  deponent  was  in  Uie 
€x>ach,  and  the  coach  was  directed  to  drive  to 
Jervis- street,  he  had  some  notion  that  they 
were  a  going  to  see  Mr.  Annesley :  for  depo- 
nent had  been  told  by  the  boy  at  the  coflee- 
liouse  the  day  before,  that  Mr.  Mathews  and 
Mr.  Annesley  were  at  the  sign  of  the  Bear  the 
sight  before,  (which  was  two  days  before  the 
day  of  deponent's  seeing  him)  and  that  they 
had  sent  for  deponent,  but  deponent  happened 
not  to  be  at  the  coffee-house  when  the  message 
was  left  there.  Says  he  never  saw  the  other 
gentlemen  (who  came  into  the  room  ivith  Mr. 
Annesley)  before  that  time.  Says,  he  knew 
Mr.  Annesley 's  face  as  perfectly  as  any  face  in 
the  world.  Being  desired  to  look  about  him  in 
Court  to  see  if  he  knew  him,  then  deponent 
pointed  to  31  r.  Jaiues  Annesley  (the  lessor  of 
the  plaintiflr)  and  said,  by  virtue  of  my  oath  he 
is  the  person  I  knew  at  lord  Altham's  in  Jum- 
per-lane,  that  was  taken  in  by  me  at  my  fa- 
ther's house,  as  aforesaid,  and  that  I  spoke  to 
at  Mr.  Moore's,  in  Jervis -street,  in  company 
with  Mr.  Mathews. 

[Cross-examined.] 

Says,  that  he  is  S  ^  years  old  next  January. 
Being  askeil  who  lived  with  lord  Altham  in 
Proper  lane,  says,  miss  Gregory  and  her  mo- 
ther, and  some  servants,  and  the  boy  who  was 
reputed  lord  Altham's  son.  Says,  he  was  re- 
puted his  lawful  son  by  all  the  neighbours, and 
went  to  school  to  one  Carty  in  Proper- lane. 
That  Carty  taught  Latin  and  to  read  English  ; 
but  can't  tell  of  \»hat  religion  he  was.  l)e\to- 
sent  being  asked  what  religion  he  himself  pro- 
fessed ;  says,  he  is  a  Roman  Catholic.  Says, 
Biany  of  the  neighbour^'  children  went  to  school 
to  Mr,  Claik  io  the  ChiVsters :  and  admitx,  that 
h  wu  s  more  creditable  ichool  thau  Carty's. 


Sjectmeni  bHvoeen  «/•  Annedey^  esq.  [1192 

Being  asked,  how  often  be  was  in  my  krd's 
house ;  says,  never  but  oooe,  and  that  was  tbe 
time  my  lord  desired  the  child  to  call  depooeat 
in :  that  they  were  liotb  playing  at  marbles. 
Soys,  he  believes  the  child  remained  about  tws 
days  in  the  house  after  my  lord  left  it;  botii 
not  snre  as  to  the  namber  of  days.  Says,  tWre 
was  one  boy  and  maid-servant  left  in  tnebosie 
afWr  my  lord  left  it.  Being  asked,  bow  \iuf 
after  taking  bis  leave  of  deponent,  Mr.  Adbcs- 
ley  came  hack  to  him  rn  Propei^laoe;  ujt, 
about  five  or  six  mouths;  and  believes  it  sv 
the  latter  end  of  the  year  1724.  Tbatdepo- 
uent  was  then  13  or  14  years  old.  Says,  k 
heard  that  lady  Altham  was  his  SDOlber,  sad 
never  heard  he  was  a  bastard  till  his  last  ooaiif 

over  to  Ireland. 

. 

Michael  Waldron,  gent,  one  of  the  Attomid 
of  the  Court  of  Exchequer. 

Says,  he  thinks  he  has  seen  tbe  late  kird  il« 
tham.  Says,  that  a  yoimg  gentleman  (vfas 
went  under  the  title  of  lord  Altham's  son)  wu 
at  school  with  one  Bamahy  Dunn,  in  as  alky 
next  door  to  ^Varborough  church,  in  Waik* 
rough-street,  when  deponent  went  to  scheol 
there.  Is  not  certain  of  the  time,  but  believa 
the  young  gentleman  might  be  then  10  or  II, 
or  at  most  12  years  old.  8a>s,  that  depoacst 
went  to  Dunn's  for  about  two  years,  and  thil 
the  young  gentleman  continued  ihereabsut7 
months  at  school.  Believes  he  lodged  in  Ship* 
street,  but  does  not  know  who  visited  bin. 
Says,  he  was  called  by  the  srholars  young  lord 
Altham,  and  particularly  by  Mr.  I'uvenagli,  tlie 
dancing- master's  son.  That  he  remnnfa^rs  the 
school -master  one  day  niatle  use  of  tk«se 
words  :  That  if  he  was  a  dtikf'K  son,  let  alsse 
a  lord*s  son,  he  would  correct  him.  Says,  that 
deponent  used  to  go  witii  his  sister  lo  Mr. 
Cavenagh's  dancing-school,  and  there  itaw  Mr. 
Annesley ;  bnt  does  not  reroeinlter  to  have  seen 
him  any  where  else  after  he  left  Dunn's  scbovl. 

[Cross-examined.] 

Being  asked,  if  he  had  seen  Mr.  Aoneslfy 
since  his  return  to  this  kinjrdum,  and  how  be 
came  to  be  introduced  to  him  ;  says,  he  bai 
been  in  company  and  dined  witli  him.  Thit 
be  voluntarily  went  to  his  lodgings  in  Cullef^e 
Green,  and  introduced  hiniself,  in  onler  to  lio 
him  all  the  justice  in  his  power.  Says,  be 
really  believes  he  is  the  person  he  went  to 
school  with,  as  aforesaid  ;  but  will  not  swear 
|iositiv«ly  to  his  face  or  features  at  this  dbtaoct 
of  time. 

[Hereupon  the  Lord  Chief  Baron  said,  ibit 
the  last  time  he  was  in  London,  as  he  was 
walking  in  St.  James's  Park,  he  accidentally  mrt 
with  a  gentleman  whose  face  or  features  be 
could  not  remember,  until  he  was  remiods4 
thereof,  though  he  formerly  had  gone  to  school 
with  him.] 

Bamaby  Dunn  sworn. 

Says,  be  knew  lord  Altham.  Tint  dsMonl 
kept  a  school  in  Blae-bosr  alley  ui  Waibs* 


1195]  and  Fkliard  Earl  flJAnglesea.  A.  D.  1743.  [119 

BeingaikeJ  wWre  MrAiinenlsj'  lod?i?d  when 
he  went  In  scliool  la  druoneut ;  s»vi.  lie  IoiIitviI 
in  Sbiji-nrerl;    Tor   ibai   U|iod  ui 


rooKh-rirect,  bih)  at  tbat  lime  one  Dennis 
C«*euaj;li  (i  tlaucing-inntler)  intriMluccil  mas- 
ter J*uies  AtiJieiley  to  (te|ionenl  da  loril  AI- 
tbftin'i  son,  anil  put  liitn  to  ileponent's  school. 
Sajm.tliat  Cuvtiiogh  iwed  these  wonls  tn  de- 
ponent 1  As  yu  rtgani  me,  ukn  cure  of  this 
yooag  ^eolleinan  }  he  is  luril  Alilistn's  snn.  Is 
not  iKiBitire  how  long  he  vas  at  driMnenl's 
■choal,  but  believes  he  vas  there  sboiit  8  <ir  y 
•Wdths ;  but  does  not  remember  any  (reatle- 
nan's  coming  to  see  bio)  there.  fiiiiS,  that 
bnt  Ahhnm  some  time  aflern ants  snld  la  ilejiO' 
nenl ;  Mr.  Dimn,  jou  were recamineD Jed  lo me 
aa  a  aulMrr  careful  man  to  insirucl  yoiiib  ;  I 
bare  iherrliire  sent  lay  son  10  you  ;  Idlu:  care 
«f  bin),  BniJ  _\(iu  shall  be  rvwarJed. 

Bayi,  ihst'  he  receiied  a  letter  in  the  country 
fkom  Mr.  ftlicbael  Waldron,  expres^in^  ihat  he 
would  be  gtad  lu  see  deponent  at  liis  fsthrr's 
Id  Dubho,  about  some  particular  business,  but 
Ihc  letter  did  nol  menlion  what  the  business 
Wu;  thit  deponent  thereupon  catne  to  Dublin, 
«iid  went  to  Mr.  IValdron's  tkiber,  pursuant  lo 
dM  directions  of  the  lelter,  hut  Mr.  tValdroo 
•at  MiiiK  there,  deiionent  was  itirecti'd  la  go  lo 
•  ■r.  Wablnin's  own  lo>lgin|rs,  which  deponent 
Meordingly  did, and  there  mcl  Sir.  Waldron  in 
tin  inominic;  ihu  atitr  haviui;  laluled  each 
mhrr,  Mr.  n'atriron  expresieil  Ibaihe  wa«  (;'=>•' 
«  deimnenl,  and  aitked  de|>oDeot,  if  he  re- 
lured  lord  Allham's  son,  who  went  lo 
d  to  deponent  i  deponent  said  he  did  re- 
ber  him,  and  told  Sir.  Waldron.  Ihit  he 
weni  to  deponent's  scbwil  at  llie  sanie  lime ; 
Vel,  rephed  Sir.  Watiinm,  I  did  eii  ataug  wiib 
fcin  in  jour  sdiDul,  That  then  Mr.  Waldmii 
.ireased  himsfU'  and  brought  deponent  along 
with  him  to  College  Green,  where  they  went 
Imo  an  bouse,  and  were  shewed  a  room,  and 
JUktA  to  bieakrasi.  ti^yt,  Ihat  the  moment 
4tpi>iirnl  saw  Mr.  Annesley  come  into  the 
IBOOi,  he  knew  him,  and  ailtanced  to  bim,  and 
Uisod  him.  Sa_vB,  he  had  observed  a  bitle  cast 
in  bis  eyen  <*henbe  was  a  hoy,  and  the  remem- 
brance nf  lli.1t  raalchim  know  him,  and depo- 
imt  remembered  likewise  bb  features,  and 
lllMW  him  as  well  as  any  man  litin^ ;  and  says, 
'  bj  virtue  of  bis  oath,  if'be  was  a  dying  man, 
b««ould  safely  swear  he  knew  bim  to  be  ihe 
mue  person. 

(  C  ttMt  -ezami  ned .  ] 
fSajs,  that  depoaenl  inslructed  lord  Kings- 
lud  and  hi*  hrolber,  at  lady  Kingslaud's  house 
ht  Queen-sireet,  lor  about  S  or  0  years;  that 
Mr.  Annesley  came  lo  deponenl's  Bchiiol  some- 
time in  July  ITKl,  and  d«(ionenl  is  sure  of  the 
jwr  hrcBiJie  depuneul  got  a  iiole  from  Udy 
Kingilaad's  rrctivcr  dnied  SIsI  of  Scpiemlifr, 
3134,  which  deponent  has  kept  ever  since  (ite- 

EDueut  (licw  Ibc  siime  out  of  his  poekei  to  shew 
)  and  Mr.  .\iineklev  was  at  school  wiih  depo- 
Mcot  some  iiiik  before  the  date  of  ilial  wAe. 
Says,  Ibal  [tir.  Civensgh  atWrwardi  told  de|)n- 
_  .  .  .....  ..  ^  |^|,j  |jnj[  g^^  (nonev  (on  depo- 

C  for  Ihst  purnosv)  but  deponent 
"A  by  his  lordahip. 


sbseiiUnc; 
himself  from  the  ichool,  deponent  enqurred, 
and  lieing  infurrord  that  he  lodged  in  Sliip- 
Bireet,  went  lo  look  for  bim,  and  tound  him  at 
hit  luilgings  ihere  i  snd  deponent  told  him 
then,  tbjt  if  be  was  even  rhe  lord  Aiiglcsen, 
and  under  deponent's  care,  he  would  punish 
liim  furabsenllnif  from  his  icbool. 

Being askeil  what  he  toogbt  Mr.  Annesky; 
■ays,  he  oannol  al  ibis  distance  of  lime  tell, 
wbeiher  he  Istight  hire  Latin,  nor  what  bonk 
he  Tead,bal  believes  he  luught  him  lo  read  and 
write.  Says,  be  found  llial  the  child  had  been 
nt  sDOlher  school  beiore  tie  came  in  bim ;  can- 
not lell  how  old  he  woe  then,  but  says  lie  ap- 
lieared  to  he  9, 10  or  1 1  years  old.  Being  ask- 
e<l  if  llie  clilhl  was  attended  wllh  any  ■ervaol ; 
ESys,  that  sometimes  a  seivanl  clad  ti  iih  a  hlua 
cloth  came  along  with  him,  but  not  ilvrays. 

T/iomai   Byrne  being  ordered  by  (he  Court 
to  be  called  again. 

Says,  thai  he  believes  it  was  in  the  ))^innin:; 
nf  summer,  1734,  thai  my  lord  Altbani  left 
I'roper-lane.  Being  asked,  if  he  could  recol- 
leol  how  ihe  boy  employed  himself  whde  ho 
Blayed  with  depuuent  in  Proper-tanc,  or  if  be 
■  lien  wcnl  lo  school  ;  sayi,  that  he  did  not  go 
lo  school  then,  that  he  was  aboul  the  door,  and 
sometimes  lay  cuocealed  in  Ihe  house,  and  be- 
lieves he  lodged  with  deooneni  aboul  Christ- 
inas lime.  Says,  that  when  he  6rit  came  to 
lake  his  leave  of  denonent,  he  told  deponent  he 
was  going  to  board  in  Ship-slreel,  and  depo- 
reiil  reiiieinbers  he  meniioned  the  name  of 
Catcnagh. 

Patrick  Plunktl,  brewer,  sworn. 

Says,  that  deponent  knew  lord  Altham  In 
the  year  I7S3,lothe  hi'sl  of  deponent's  remem- 
brance, and  that  his  lunlsbip  lived  in  Proper- 
lane,  next  dour  lo  depnneul'a  fnther,  and  de- 
tnocnt  used  often  tn  go  a  hunting  niih  him, 
is  lonlibip  then  keeping  a  park  of  hounds, 
and  by  that  means  deponent  became  intimately 
ac<|uainied  wllh  him  ;  and  says,  Ihat  he  oflen 
drank  with  his  lurdshio.  Thai  he  saw  a  child 
nt  ray  lord's  house,  who  was  called  my  lord's 
■on,  and  whose  name  was  James  Annesley, 
and  depooeol  saw  my  lord  frequHnlly  speak  to 
him.  Says,  that  Miss  tircgorv  ollen  used  to 
cmmplain  lo  my  lard  of  the  child',  and  deponeut 
iwice  or  thrice  interceded  and  got  a  pardon  for 
bim.  That  llie  faults  the  boy  was  cliarged 
with,  was  ellher  telling  lies,  or  being  missing 
from  schoul — heard  Miss  Gregory  Call  him 
Jemmy,  and  Ibe  servants  call  him  my  lord's 
•on  ;  and  says,  he  was  Ireuled  by  evi>ry  body 
as  lord  Altliam's  cbiM.  Ueponcni  having  wul 
he  interceded  for  tite  child  wliei)  Hiss  Urcicury 
complained  of  him,  deponent  was  desired  to  tell 
in  what  words  tie  spoke  lo  my  lord;  sajs,  ihat 
tn  ihe  best  of  his  remembrance  il  was  m  wnnlf 
lu  this  eReol ;  I  hope,  my  lord,  you 
uitster  James,  and  he  will  nceer  do  il' 


I  pirdon       1 


1 195]  17  GEORGE  11.     Tiial  in  EJechKcnt  bctKccn  J.  Anneslfy,  esq.    [1 IM 


Sajrs,  that  deponent  (inderstcxxl  Miss  Gregory 
hatc'd  the  hoy  ;   that  she  was  mistress  oj'  the 
house,  and  that  whatever  she  comiuanded  was 
done.    Says,  that  one  ot'tlie  times  my  lord  and 
Miss  Grc'Tory  were  in  such  a  pasaioo  that  they 
were  goin^  to  beat  the  child.    Hays,  it  was  the 
fjreneral  reputation  of  the  country  that  be  was 
lord  Altham's  legitimate  son,  and  deponent 
never  heard  any  auspiciou  to  the  contrary  until 
admiral  Vernon  hau  sent  Mr.  Annesley  from 
the  fleet  to  London.      Being  asked  how  he 
knew  that  admiial  Vemou  bad  sent  him  to 
England;   says,  that  lady  Anglesea  sent  for 
deponent  about  May  last  was  twelvemoath,  and 
asked  deponent  if  he  knew  lord  Althara,  or  a 
bastard  son  of  bis ;  to  which  de[K>nent  answer- 
ed, that  he  knew  a  pretty  little  boy,  that  was 
in  the  bduse  with  lord  Altham,  who  was  re- 
puted to  be  his  sou,  but  nut  a  bastard :  lady 
Anglesea  replied,  He  is  a  bastard  son  of  my 
unfortunate  ford,  and  added,  that  it  was  admiral 
Vernon  sent  him  home  to  Englanil.    Depo- 
nent was  asked,  when  he  first  saw  Mr.  Annes- 
nesley  after  his  first  coming  to  this  kingdom  ; 
says,*  he  never  baw  him  since  April  17 23  or 
1724,  till  last  October  was  twelvemontb,  when 
deponent  saw  him  in  a  house  near  Mary  Church. 
That  shortly  after  Air.  Annesley  came  firvt  to 
the  kingdom,  deponent  met  one  Cook  a  linen- 
draper,  who  asked  deponent  how  long  he  lived 
in    Proper-lane ;    to    which   deponent    made 
answer,  that  he  lived  there  about  96  years; 
Mr.  Cook  thereupon  asked  deponent  if  he  knew 
lord  Altham  when  he  lived  there ;  deponent 
said,  he  did :   Then  said  Cook,  it  is  reported 
thai  a  son  of  his  is  come  over  here  to  claim  the 
Anglesea  estate.     I  believe,  said  deponent,  it 
is  James  Annesley  ;   yes,  that  is  his  natue,  re- 
plied Cook,  or  to  that  purpose :    1  know  him 
perfectly    well,  said    deponent,   he    went    to 
school   to    one   Carty's  in  Proper- lane,    and 
though  it  mi;;  hi  be  soinewhat  difficult  to  know 
him  at  this  distance  of  time,  yet  upon  recollec- 
tion, 1  have  a  perfect  idea  of  his  face  and  fea- 
tures, and  will  hold  a  dozen  of  wine  1  should 
know  him  from  a  hundred,  unless  he  is  greatly 
altered ;  says,  he  did  not  know  a  word  of  Mr. 
Annes!i'y's  being    in  the   kingdom,   till   Mr. 
Cook   had    told  him   of  it  ;    says,  Mr.  Cook 
mentioned  tint  he  was  going  to  his  lodgings  to 
sec  him,  and  deponent  having  a  desire  to  see 
iiim,  ofieied  to  <>o  alou;r  wilh  Mr.  Cof>k  ;  says, 
they   wont  to  Mi\  Anncsicy's   lodgings,  and 
that  candles  were  just    liohted  ;    says,  they 
Were  received  at  the  parlour  door,  and  intro- 
duced into  the  room;    Ihut  tli'Te  were  several 
gentlemen  there,  but  nobody  spoke  to   depo- 
nent ;  that  disponent  looking  round,  immedi- 
ately knew  Mr.  Annesley,  and  went  up  to  him, 
saluted  him,  took  him  by  the  hand^  and  said, 
Mr.  Annesley,  yon  are  welcome  to  the  king- 
«]om,  I  am  ^lad  to  see  yon.    Says,  that  depo- 
nent took  notice  of  his  looks  ;  and  that  the  me- 
lancholy manner  in  which  deponent  saw  him 
]yvhea  he  intercedal  for  him  with  lord  Altham 
in  Proper-lane,  as  aforesaid,  had  made  so  strong 
»n  imprauioD  on  depooeDt,  that  ht  opaM  not 


but  remember  him  ;  and  says,  that  hi«  rjei 
and  face  are  very  familiar  to  bim^and  ibat  de- 
ponent is  positively  sure  lie  knows  bim.  Being 
desired  in  Court  to  point  ont  the  persoo  he 
meant,  he  accordingly  pointed  to  Mr.  Annesley, 
and  said,  he  was  the  same  person  who  went  to 
school  to  Mr.  Carty*8  when  he  taoght  io  de- 
ponent's father's  yard,  and  who  lived  with  lord 
Altham  at  his  house  in  Proper- lane,  aad  was 
reputed  bis  son. 

[Cross-examined.] 

Defendant's  counsel  said  to  d^onent,  Tos 
say,  you  took  notice  of  his  eyes  from  the  me- 
lancholy manner  yon  saw  hiui  in,  and  that  tliis 
made  you  remember  htm  ;  was  he  In  the  same 
melancholy  manner  when  joa  first  saw  biia  at 
iiis  lodgings,  since  his  coming  over  ?   Says,  he 
was  not  in  a  melancholy  manner  then,  but  yd 
his  face  was  familiar  to  deponeut^  by  depooeot*! 
having  taken  particular  notice  of  it  on  account  of 
the  concern  he  expressed  when  deponent  iole:- 
ceded  for  him.    Says,  that  when  the  boy  weat 
to  school  in  Proper- lane,  deponent  was  about  22 
or  23  years  old  ;  says,  he  never  beard  my  lonl 
say  lie  was  his  son,  but  that  he  was  generaHj 
reputed  to  be  so ;  says,  lord  Altham  left  Proper- 
lane  about  the  beginning  of  Alay,  1734,  tad 
went  to  Inchicore ;    that  deponent  went  to 
France  about  the  27th  of  May,  just  after  lord 
Altham  left  Pn)per-lane,  and  returned  to  Dub- 
lin in  August ;  says,  he  never  enquired  for  tie 
child  after  his  return  from  France.    Beiag 
asked  if  he  knew  Thomas  Byrn  who  lived  io 
Proj»er-lanc  ;  says,  liedid:  Being  asked  n  here 
Thomas  Byrn  lived  when  his  father  was  io  tbe 
country  ;    says,  lie  lodged  at  one  Keily's  ia 
Proper-lane:    being  asked,  if  be  thoii^lit  be 
should  have  known   Mr.   Annesley  if  he  b»ii 
met  him  accidentally ;   says,   he  belitvei  be 
should. 

Amiv  Bush,  esq.  sworn. 

Says,  he  remembers  when  he  was  in  the  col- 
lege of  Dublin,  he  knew  a  little  Iniy  abuut  10 
or  11  years  old,  who  got  his  subsistence-  at  tbe 
college  by  running  of  errands  ;    that  he  Wdi 
called  James  Annesley,  and  deponent  \t a^  told 
he  gave  himself  out  to  he  lord  Attham's  sod; 
says,  that  he  took  him    into  his  service  aud 
r.iaiiilained  and  cluthed  him,  and  paid  for  bis 
lodging,  and  intended  to  take  him  to  the  cood- 
try  ;  but  that  upon  the  boy's  assuring  him  be 
was  lord  and  lady  Aliham's  son,  and  often  td* 
ling  him  so,  and  adhering  very  {larticularly  al- 
ways to  the  same  story,  deponent  wrote  to  the 
country  to  his  grandfather,  acquainting  bim, 
that  he  had  taken  a  little  boy  to  be  bis  servant, 
who  said  that  he  was  lord  and  lady  Altbaro'i 
son  ;  whereupon  his  grandfather,  in  answer  ti 
his  said  letter,  wrote,  that  no  such   person  was 
a  fit  servant  for  deponent,  and  directed  deiKmeot 
to  discharge  him  ;   whereupon  deponent  ac- 
cordingly discharged  him.     Being  asketl  if  bt 
should  have  known  that  same  person  if  be  had 
met  him   accidcntallv  ;   says,    he  thinks  be 
shouM  hare  known  turn,  bat ing  so  itroiig  ■» 


tri  nfAnglesra^ 


A.  D.  1713. 


[1198 


could  have 
;  says,  he 
ey*s  loilgf- 
}  troni  Mr. 
onrnt,  hut 
e  had  heen 
lay<t ;  that 
nt  believed 
at  the  cul- 
rht  to  Mr. 
imoncc  se- 
im  at  firftt 
illect  your 
icct  your*8, 
»neDt  says, 
:he  cyllejye 
•ed  to  view 
imc  person 
y  tleptmeni 
imc  pemon 
aforesaid 


icrally  hc- 
s  lord  AI- 
rht  hy  his 
s  not,  but 
:>v  said,  it 
athcrkrpt, 
mcnt  oFlen 

Altham's 
;  was ;  re- 
him  thus  : 
u  are  lord 
ire  you  so, 

answered, 
y  Allham's 
mie  story, 
ouhl  have 
lieved  him 
toidd  have 
;e  him  as  a 
ry,  ihoujrh 

uiv  lord's 
re  my  lord 
a  \\v.  lived, 
i  an  imprO' 
.  lord's  son 
?tood  cerc- 
i^crhaii.-:  he 
have  taken 
i^hc  knew 

\\t\\  depo- 

s!)0C8  nor 

I  that  used 

V  long  ago 

says,  he 

about  the 
lurlvrecol- 
there  <ir.1t. 
:ven  years. 


^  for  many 
him  ahniit 


that  he  knew  the  son  at  Dnnmahie,  and  fvai 
well  acquainted  with  him  when  he  was  in  dis* 
(Trace  with  his  father,  for  he  used  to  cooh*  to 
visit  deponent,  and  de)M>nent  often  relieved  and 
supported  him,  and  recommeuded  him  after- 
wards to  one  Parcel!  a  butcher,  because  depo- 
nent's wife  grudged  the  child's  being  in  the 
house,  and  kept  at  deponent's  expence,  who  was 
a  RufTerer  by  his  father  56/.  that  finding  the 
child  was  abandoned  and  neglected,  deponent 
went  to  my  lonl  to  Inchicore,  and  applied  ta 
him,  and  told  him  the  scandalous  and  cruel 
way  his  son  was  in,  and  begged  his  lordship  not 
to  let  the  poor  child  continue  as  a  Tagaoond 
about  the  streets ;  that  my  lord  said,  be  was  in 
low  circumstances,  and  could  not  pay  for  hia 
board,  nor  could  he  take  him  into  his  own 
house  because  of  miss  Gregory,  for  he  dhould 
have  no  peace  if  be  offer^  to  do  it ;  but  m^ 
lord  desired  deponent  to  support  him,  and  be 
would  not  only  pay  deponent  the-  money 
he  otved  liim,  but  thankfully  repay  what  de- 
ponent should  supply  his  son  with,  wheueTer 
it  was  in  his  power.  Says,  he  went  to  Du.n- 
maioe  when  the  child  was  about  two  yeare  old, 
and  deponent  had  him  in  his  arms ;  that  he 
took  him  out  of  my  lady's  arms,  who  was  hu{;- 
ging  and  kissing  him  ;  says,  he  la^'  there  one 
flight ;  says,  he  saw  the  child  afterwards  at 
Kinnay  in  the  county  of  Kildare,  which  is  near 
the  riFer  Liffey,  and  is  positive  that  it  was  the 
same  boy  whom  he  hail  before  seen  at  Dun- 
maine ;  deponent  saw  him  afterwards  at  lord 
Altham's  house  on  Stephen's  Green  in  this  city» 
and  deponent  knew  him  afterwards,  when  he 
\ient  to  school  to  one  Carty's  in  Proper-kne, 
where  my  lord  lived  at  that  time.  Being  ask- 
ed, what  became  of  tlic  child  after  the  discourse 
deponent  had  with  my  lord  at  Inchicore ;  says« 
deponent  kept  the  boy  for  about  a  month  or 
two,  but  deponent's  wife  not  being  well  pleased 
with  this,  deponent  grew  a  little  cool  to  the 
boy,  who  thereupon  went  away  from  depo- 
nent's house  ;  that  deponent  met  him,  and  gave 
him  a  little  money,  and  about  three  weeks  after 
that  deponent  saw  him  in  Smithfield  all  in  rage 
and  tatters  riding  a  horse ;  that  deponent  at  the 
s;ime  time  seeing  one  Mr.  t'urcell  a  butcher, 
with  whom  deponent  was  very  well  acquainted, 
nnd  whom  he  Knew  to  be  a  very  humane,  cba* 
riluble  man,  and  in  good  circumstances,  and  to 
have  but  one  child  of  his  own,  deponent  took 
that  opportunity  of  making  the  poor  boy  known 
to  him  ;  that  fiaving  directed  Mr.  Purcell  to 
look  upon  the  boy  as  he  was  riding  the  horse, 
deponent  said  to  Purrell,  Could  you  believe 
that  (hat  boy  is  the  only  son  and  heir  of  a  peer, 
who  one  day  or  other  will  probably  have  a  large 
estate?  To  which  PurccY  I  answered,  Sure  that's 
impossible.  And  thereupon  deponent  replied,  I 
alllriit  to  you  h'j  is;  and  if  you  will  taKe  him 
home,  Mr.  Pnrroll,  and  sucrour  him,  he  vill 
bf  no  improptr  companion  fur  your  sdo,  and 
miy  live,  by  God's,  providence,  to  be  a  support 
to  yon  and*your  family.  Then  de— *"-*•  -'•s- 
sired  Mr.  Purrell  to  ask  the  W^^ 
tioiii,  while  devoucvX  nc vo^V^  i0i 


ligSJ  17  GEORGE  IL    Trial  in  Ejectment  hetxneen  J.  Annedey,  esq.    [13C0 

he  mi^i^bt  be  satisfied  deponent  had  toM  him  no- 
thing but  what  was  true ;  that  Purcell  having 
asked  the  boy  several  questions,  and  being 
aatibfied  of  the  truth  of  what  deponent  had  told 
him,  beckoned  to  deponent  to  come  to  them, 
which  deponent  did,  and  observing  the  bov  to 
be  sometvhat  melanclioly,  deponent  said  to 
him.  Jemmy,  why  dun*t  you  sprak  to  me,  what 
have  1  done  to  you  ?  And  deponent  made  the 
hoy  give  away  the  horse  he  wus  riding  upon, 
and  then  Purcell  said  to  him,  that  if  he  would 
he  a  good  bov,  and  be  advised,  he  should  live 
iivitb  him  aiiuhis  wife,  and  be  treated  as  their 
own  child.  S.i)s,  that  Purcell  took  the  boy  and 
deponent  to  his  house,  and  PurcelPs  wife  being 
informed  by  them  who  the  boy  was,  got  some 
warm  water,  washed  and  comoed  him,  and  put 
him  on  a  clean  shirt  of  her  son's,  and  told  him, 
that  while  she  had  bread,  he  should  nut  want ; 
says,  the  boy  was  put  to  bed  to  Purcell's  son ; 
says,  be  has  heard  ihatPurcell*8  wife  is  lately 
dead ;  says,  lord  Altham  was  at  that  time  in 
low  circumslancest  and  owed  deponent's  bro- 
ther-in  law  250/. ;  that  my  lord's  not  paying  did 
not  arise  from  want  of  principle,  but  ability. 
Being  asked,  if  the  boy  was  at  Purcell's  during 
the  lifetime  of  lord  Altham  ;  says,  he  was,  and 
that  deponent  saw  him  there  very  often.  Be- 
ing asked  where  the  boy  went  from  Purcell's ; 
says,  he  heard  he  went  to  live  with  Air.  Tigh 
at  the  Hay -market.  Being  asked  when  he 
last  saw  the  boy  he  had  been  speaking  of;  says, 
Jast  Saturday,  at  liis  lodgmgs  in  Cullege- 
green  ;  and  that  deponent  did  not  see  him  be- 
fore that  day,  since  he  saw  him  at  Purcell's ; 
that  depoiK'nt  lives  in  Cork,  when  at  home; 
Ihat  u])on  hearing  of  Mr.  Annesley,  deponent 
hod  the  curiosity  to  see  him,  in  order  to  be 
sure  if  he  was  the  youth  he  had  formerly  seen, 
that  thereupon  deponent  went  to  his  lodgings, 
and  immediately  knew  him  to  be  the  same  per- 
son whom  he  Knew  when  a  child,  and  said, 
there  he  is  (pointing  to  Mr.  Annesley  iu  Court) 
1  am  positive  that  is  the  man. 


[Cross-  examined.] 

Being  asked  what  affair  it  was  occasioned 
his  going  to  Dunmaine ;  sa^s,  he  went  for 
money  ihat  was  owing  to  him  for  lace,  hcad- 
dresst'S,  handkerchiefs,  stockin^^s,  and  other 
things  he  formerly  dealt  iu,  which  my  lord  had 
bought  of  deponent.  Being  asked,  what  bu- 
siness deponent's  brother  in  law  followed ;  says, 
he  kept  an  inn  near  2S mill) field.  Being  asked, 
in  what  >ear,  and  what  time  of  the  year  de- 
ponent went  to  Dunmaine;  says,  that  about 
April  1717,  or  1718,  deponent  went  to  the 
races  at  the  Curragh*  of  Kihlare,  and  from 
thence  went  to  Dunmaine.  Bein^;:  asked,  if 
he  saw  the  lady  Altham  there  ;  ba>s  he  saw 
her  at  Dunmuine,  or  at  If ust  saw  a  lady  there 
who  passed  for  lady  Altham.  Being  asked, 
what  sort  of  woman  she  was  ;  says,  she  was 
prett}'  tall,  and  round  faced,  and  that  she  was 

*  It  is  the  place  where  the  king's  plate  is 
run  for  yearly. 

2 


dressed  like  a  woman  of  quahty ;  says,  be 
never  was  at  Dunmaine  aller  that  time,  wlea 
he  saw  the  child.      Being  asked,  if  he  e^er 
heard  the  name  of  the  nurse,  or  of  Joan  LaiTu, 
or  that  the  lord  and  lady  n^ere  sepantfd; 
says,  he  never  did  hear  the   name  of  the 
nurse,  or  of  Joan  Lafian,  but  beard  of  tbe 
separation,  and  that  my  lord  and  lady  parted 
soon  after  deponent  was  at  Dunmaine  ;  savi, 
he  went  often  to  see  my  lord  when  lie  lived 
at  Kinna,  and  after  deponent's  return  fmn 
England  where  he  had  been  for  sometime. 
Being  asked  if  he  went  to  England  in  sprie; 
1717  ;    says,  he  cannot  tell  whether  he  west 
to  England  tbe  same  year  he  was  at  Dm* 
roaine ;    says,  he  was  several  times  at  Ris- 
na,    his  business  otleo  calling  him  thither; 
says,  the  child  was  five  or  six^ears  ukl  wfatt 
deponent  was  at  Kinna.     Being  asked  bov 
long  it  was  between  deponent's  seeing  the  cbiU 
at  Dunmaine  and  at  Kinna ;   says,  he  d«f 
not  think  it  was  three  years ;   says,  tbe  cbiU 
was  then  in  a  coat  and  breeches,  and  had  a  totir, 
and  remembers  the  tutor  called  him  to  l^ 
hearse  bis  lesson  beibre  deponent ;    says,  Ifai 
when  deponent  was  in  Dunmaine  the  cbiU  m 
in  petticoats,  and  had  a  servant  to  lead  biis; 
says,  he  saw  the  child  atlerwards  in  Stepbfa'i 
Green  where  lord  Altham  lived  before  he  ircrt 
to  Proper- lane;    remembers  my  lord's  Urof 
in  Proper- lane,  but  can't  say  bow  km;  it 
lived  there;    says,  his  lordship  removed  fraa 
thence  to  lacbicore;  says,  the  child  waiiWM 
11  years  old  when  he  was  at  Purcell's, ami  bW 
the  small- pox  whilst  he  continued  in  lhlt^^ 
mily.    Being  asked  where  deponent  rentoiH 
to  when  helef\  Dublin ;  says,  he  went  toCoHt> 
Being  asked  what  time  the  debt  which  m 
owing  to  deponent  was  contracted ;  sayi,  it 
was  af\er  the  year  1715,  but  that  his  |i|Wi 
bo<iks  being  left  in  the  hands  of  anotber,  u' 
and  not  in  deponent's  power,  he  cannot  ben 
particular  as  to  the  time  as  otherwise  be  migk 
nave  been. 

John  Purcell  sworn. 

Says,  he  is   by  trade   a  butcher.     Beiflf 
asked  if  he  ever  knew  a  boy  called  Jamei  Ao* 
nesley  ;  says,  he  did.     Being  desired  lo  g^ 
an  account  to  the  Court  and  the  jury  liowk 
became  acquainted  with  him  ;  says,  dcpunert 
ha|)peued  to  go  to  Smith  field  on  a  WednesiUj 
night   about  seven  o'clock    in    the  eicoioii 
where  he  met  Mr.  Dominick  Farrell,  an  K- 
quaintaiice  of  his,  who  shewed   him  a  linle 
boy  riding  on  a  horse,  in  a  poor  and  loett 
condition  ;  and  said  to  deponent,  Purcfll,  ii 
not  this  a  melancholy  sijjflit  to  sec  a  noblcmiB'i 
child  in  that  condition ':*  That  thereupon  dep^ 
neut  asked  Mr.  Farrell  who  the  chihrs  taiur 
was ;  and  Mr.  Farrell  told  deponent,  it  ail 
my  lord  Altham.     That  deponent  being  ffll^ 
prise^l  at  this  account,  aske<l  Mr.  Farrell  vM 
the  meaning  was  of  his  father's  suffering  Im 
to  1^0  in   that  condition  ?  That  the   b(*y  nfll 
certainly  have  bi'cn  guilty  of  some  Vrr?  M 
tricks  to  induce  his  father  to  neglect  hA  ■ 


and  Richard  Earl  ofAr^lesea, 


A.D.  174S. 


[1S08 


iner.  That  Mr.  Farrell  told  depo- 
ras  not  owing  to  any  fault  of  the  boy's, 
i*  inlluence  of  a  mistress  whom  my 
doatingly  fond  of,  and  who  had  taken 
ithy  to  the  lioy,  and  Mr.  Farrell  re- 
led  Lira  to  deponent  as  an  object  of 
hat  thereupon  deponent  called  the 
told  him  that  if  he  would  promise  to 
d  boy,  deponent  would  take  him  under 
and  that  he  should  nerer  want  while 

had  it.  That  on  hearing  this,  the  boy 
down  and  thanked  deponent  in  the 
'iicst  manner.     That  tiien  deponent 

home  to  his  own  house,  and  intro- 
im  to  his  wife,  telling  her,  he  had 
her  a  present,  and  desirmg  her  to  take 
le  child,  who  might  one  day  or  other 
make  her  amends  for  relieving  him. 
[)onent's  wife  asked  deponent  who  he 
d  deponent  told   her.    Tliat  immedi- 

fetched  a  pot  of  water,  and  some  soap 
I  and  washed  the  child  ;  and  put  him 
n  shirt  of  deponent's  son's,  and  grew 
i  of  him.  Says,  most  people  used  to 
toy  my  lord.  That  in  some  time  after 
took  the  small- pox,  and  all  proper 
I  taken  of  him  in  deponent's  liouse. 
tcr  the  child  was  recovered  of  the 
c,  a  gentleman,  (who  was  then  called 
Annesley,  and  is  the  now  defendant, 

of  Anc^lesea)  came  to  deptnent's 
id  asked  if  one  Purcell  did  not  live 
nd  said,  he  supposed  they  sold  li- 
hat  the  gentleman  had  a  gun  in  his 
id  sat  down,  and  having  called  for  a 
er,  asked  deponent,  if  he  had  a  boy 
ouse,  called  James  Annesley?  Tx» 
iponent  answered,  that  there  was  such 
the  house,  and  called  his  wifej  and 
ft  gentleman  wanted  to  see  the  'boy. 
e  child  was  sitting  at  the  fireside,  and 
tely  saw  Mr.  Richard  Annesley,  though 

not  see  the  child  by  reason  of  the 

wherein  he  sat.  bays,  tlic  child 
and  cried,  and  was  greatly  aflfrighted, 
that  is  my  uncle  Dick.  Says,  that 
e  child  was  shewn  to  the  defendant, 
80,  Jemmy,  how  do  ye  do  ?  That  the 
lie  his  bow,  and  replied.  Thank  God, 
(11.  That  the  defendant  then  said, 
u  know  me  ?  Yes,  said  the  child,  you 
mcle  Anunslcy.  That  thereupon  the 
t  told  deponent  that  the  child  was  the 
rd  Altham  who  lived  at  Ynchicore.  To 
nonent replied,  I  wish,  Sir,  you  would 
his  father,  to  do  something  for  him. 
iked,  if  he  is  sure  Mr.  Richard  An- 
»ld  deponent  that  the  child  was  lord 
(  son ;  savs,  he  is  sure  he  did,  and 
nentioned  that  the  child's  father  was 
e.  Being  asked  if  deponent  under- 
t  he  meant  that  the  child  was  lord 
I  bastard ;  says,  he  did  not.  That  the 
led  him  uncle,  and  begged  of  liim  to 
bis  ftther  to  send  deponent  something 
I  htndiome  for  bis  kindness  to  him. 
mvpon  depoBvnt  told  Mr.  Kicbard 


Annesley,  be  desired  no  gratuity,  but  wished 
the  child's  father  would  take  him  into  his  own 
care.  Bein^r  desired  to  repeat  what  Richard 
Annesley  said  to  the  child  when  he  came  in  ; 
says,  he  called  him  Jemmy,  and  asked  him 
bow  he  did ;  and  told  him  he  was  glad  to  see 
him.  Says,  that  the  child,  to  the  best  of  de- 
ponent's memory,  told  his  uncle  he  had  fallen 
mto  the  bauds  of  good  people.  Says,  that 
sometime  afterwards  the  child  was  told  of  the 
death  of  his  father,  and  that  he  was  to  be 
buried  at  Christ's  church  ;  and  the  child  weut 
there  and  saw  the  funeral,  and  afterwards 
came  home  all  in  tears.  Being  asked  when 
lord  Altham  died;  says,  in  November,  1727. 
That  in  about  three  weeks  after  my  lord's 
death,  Mr.  Richard  Annesley,  (who  was  then 
called  lord  Altham)  came  into  the  market  a 
second  time,  and  sent  a  man  (who  belonged 
to  one  Jones  a  butcher)  to  deponent's  house, 
to  desire  that  the  child  might  come  to  the  said 
Jones's  house  in  the  market ;  that  thereu]H)n 
the  child  came,  and  told  deponent,  that  his 
mistress  (meaning  deponent's  wife)  wanted  to 
speak  with  deponent ;  that  deponent  accord- 
ingly went  home,  and  was  told  by  his  wife, 
that  the  child  bad  been  sent  for  to  Jones's 
bouse,  but  that  she  was  afraid  it  was  some 
trick  of  his  uncle's  to  use  him  ill,  and  that 
she  did  not  care  to  let  the  child  go  to  Jones's 
without  deponent;  says,  deponent  thereupon 
bid  the  man  return,  and  tell  them  the  child  was 
coming  ;  and  then  deponent  took  a  cudgel  in 
one  hand,  and  the  child  in  the  other,  and  weut 
to  the  said  Jones's  house,  where  deponent  saw 
the  present  earl  of  Anglesea  (who  was  then  in 
mourning)  with  a  constable,  and  two  or  three 
other  odd-looking  fellows  attending  about  the 
door;  that  deponent  took  off  his  hat  and  sa« 
luted  my  lord,  which  he  did  not  think  proper 
to  return  ;  but  as  soon  as  be  saw  the  child  in 
deponent's  hands,  he  called  to  a  fellow  that 
stood  behind  deponent's  back,  and  said  to  him, 
Take  up  that  thieving  son  of  a  whore  (mean- 
ing the  child)  and  carry  him  to  the  place  I  bid 
you ;  that  deponent  asked  hiui  whom  he 
meant  by  a  thieving  sou  of  a  whore ;  Damn 
you,  (replied  my  lord)  I  don't  speak  to  you, 
out  to  that  thieving  son  of  a  bitcli,  I'll  send 

him  to  the  d 1 :  upon  which  deponent  said, 

My  lord,  he  is  no  thief,  you  shall|not  take  him 
from  me,  and  whoever  offers  to  take  him  from 
me,  I'll  knock  out  his  brains  ;  that  then  depo- 
nent took  the  child,  (who  was  trembling  with 
fear)  and  put  him  close  between  his  legs. 
Being  asked  how  long  it  was  after  Mr.  Richard 
Annesley  came  to  deponent's  house  that  be 
sent  for  the  child  to  Jones's;  says,  it  was 
about  six  or  seven  weeks,  and,  to  the  best  of 
deponent's  remembrance,  in  the  month  of  De- 
cember. Says,  he  asketl  the  uncle,  by  what 
authority  he  would  do  what  he  threatened  ? 
To  which  the  said  Mr.  Richard  Annesley 
made  answer,  that  he  could  not  make  his  ap- 
pearance at  the  Castle,  or  any  where,  hut  that 
he  was  insulted  on  that  thieving  son  of  a 
whore's  account.  That  thereupon  de|K)nent 
4H 


1203] 


17  GEORGE  II.    Trial  in  Ejectment  belvoeen  J.  jinnesky,  e§q.    [1204 


sail],  he  was  surpriznl  that  a  gfpntlcinan,  who 
made  the  appearance  that  detemiant  did,  should 
shew  so  mticli  malice  to  destroy  a  poor  crea- 
ture that  Kas  110  cxpcncc  to  him,  cither  for 
clothes  or  maintenance,  thoug^ii  it  would  better 
become  him,  who  was  the  child's  uncle,  to 
provide  for  him,  than  to  snffrr  de|>oncnt,  who 
was  a  strano^cr  to  him,  to  do  it ;  that  the  de- 
fendant expressed  a  {^rcat  deal  of  an^er  at  his 
not  hcinir  aide  to  compass  his  ends ;  and  ailer 
9omc  high  words  had  passed  between  them, 
deponent  seeing  the  constable  go  off,  went 
away  with  the  child  in  his  hand,  and  carried 
him  home  safe  to  his  mammy,  (deponent's 
vifc)  as  he  called  her.  Some  time  after,  de- 
ponent saw  a  constable  Inrkinz  about  his 
house  to  carry  aw«iy  the  child  it  lie  could,  as 
deponent  heiicvei-. ;  sa^'s,  the  child  continued 
trith  deponent  till  Fehn.ary,  and  then  went 
away  without  rlcjioncnt's  unowledge ;  sa3*s,  he 
tvent  to  one  Mv.  Ti^h's  at  the  Hay  market,  as 
he  told  deponent  !:t»ine  time  after ;  and  Ihe 
reason  lie  j;^ave  dcpc:nent  for  pfoifiar  away  was. 
That  ha  saw  so  many  people  coming  about 
the  house  ai\er  him,  that  he  was  afi  aid  of  being 
taken  away  by  some  of  them.  Eeiiig  askecl, 
ifi'hether  he  should  know  the  same  person  now 
if  lie  saw  him  ;  says,  that  he  pitched  upon 
Mr.  Annesley  amoii«^  serera!,  the  fiist  lime  he 
rame  to  this*  kingdom,  without  the  least  hint 
being  given  liiin  ;  and  deponent  pointf  d  to  him 
in  open  court,  and  swore,  that  Mr.  .Annesley 
"was  the  same  person,  whom  he  kept  in  his 
house,  as  aforesaid. 

[Cross-examined.] 

I5cin2f  asked  what  time  it  was  that  Farrell 
shewed  him  the  boy  in  Smilhlieli! ;  sny^.  in  tiie 
year  1726.  or  17uV,  and  that  d«j!'M!c:'i  heard 
loril  /lltiiam  lived  then  at  IiichiLurc.  lie.'ng 
asked  what  time  it  was  lord  Altham  died  ; 
says,  he  died  in  November  17'2C),  or  17 V7  ; 
that  the  boy  continued  wUh  deponent  abnut 
eleven  months ;  remembers  his  to',.'ii:af  hur..^ 
to  deponent's  house  from  lord  Altham's  hurial ; 
says,  he  ran  from  deponent's  houye  to  Chriit's 
Cfiurch  to  see  it.  Beinn;  a«Kfd  whether  dei:o- 
neut  did  believe  him  to  be  lord  Althatn's  son 
when  he  took  him  into  his  houjc ;  says,  he 
did  l)elicve  him  to  be  lord  Altliam's  real  na- 
tural son,  from  what  Fan  ill  told  deponent, 
who  likewise  mentioned  to  deponent,  that  the 
child  had  been  in  his  care,  but  that  his  wife 
thought  much  of  it,  and  that  he  wasobli^^ed  to 
put  him  away  to  keep  his  wife  in  temper  ;  that 
deponent  had  a  school -master  to  teach  the 
child  to  write.  Being  asked  if  deponent  ever 
went  to  Inchicore  to  s])eak  to  my  lord  about 
the  boy;  says,  he  never  did,  but  that  he  once 
determined  to  have  gone  therr,  only  tha:  he 
fvas  advise<l,  that  my  lord  was  a  passionate 
man,  and  uuuKl  not  value  the  shooting  him 
through  the  brad,  and  that  it  woubl  be  of  i.o 
service  to  thu  child,  because  of  the  woman  my 
lord  kept  in  the  house  ;  says,  that  the  defen- 
dant was  called  captain  Annesley  when  he 
came  tu  depouent's  house,  and  told  deponent 
he  was  brother  to  ibe  child's  father,  and  fays, 


that  the  child  called  him  uode.  Being  asked 
whether  he  did  not  kno^T  that  a  sod  is  to  in- 
iierit  the  title  of  his  father  ;  says  be  does ;  but 
tliat  not  being  skilled  in  law  aifairs,  be  coald 
not  tell  why  the  boy  did  not  succeed  my  lord 
Altham  his  father  ;*but  says,  the  boy  went  to 
;  Mr.  Ti<^li's,  a  gentlemau  more  capable  of  soch 
sort  of  business  than  deponent.  Being  asked, 
if  he  enquired  whether  lord  Altham  bad  toy 
estate ;  says,  be  did  not.  Being  asked  if  be 
told  Mr.  Tip;h,  that  the  boy  was  lord  Altham^ 
son  ;  says,  be  did  not ;  that  he  was  indiffereit 
about  the  boy,  because  he  went  awaj'  frta 
deponent  without  his  knowledge ;  does  not  re- 
member that  he  apprized  any  other  person  of 
the  family  that  a  son  of  noy  lord  Altbam*s  wu 
in  his  care.  Being  asked  if  be  heard  thM 
captain  Annesley  (the  present  defendant)  b^ 
came  lord  Altham  upon  the  death  uf  the  late 
lord  ;  says,  he  did,  but  that  deponent  did  rM 
care  to  interfere  in  that  matter,  as  lon^  as  niigbt 
had  overcome  right;  and  as  the  boy  weutavij 
from  deponent  without  his  knoulf'fge,  defM>- 
nent  did  not  think  it  inrui.ibent  ui.on  bim  lo 
meddle  in  it.  Being  a^ked  if  the  bov  im 
sharp ;  savs,  he  was.  Being  aski-d  nhethcr 
he  heard  the  boy  say  any  thin'.;  uf  h:s  right  ti 
any  title  oreitate;  says,  he  heard  him  say,  he 
ho];ed  to  he  eaxX  of  Augiesea.  Being  ai&ei 
how  he  knows  the  boy  uent  to  Mr.  Tigh^f^ 


Ti>;l!.     Bding  aslvcd  irw  he  kno^^s  it  wasi 
cunsu'ilc  that  cafiivj  al  iit  his  house,  an  J  that 
he  IniUcd  iorthe  l.o^  ;  says,  he  loo.QeJ  liLea 
tuiistiiljje ;  that  ore  day  li;^  li-lcd  up  the  latch 
I  of  df^pr-uen'.'s  door,  and  v- hen  he  Yvnnd  Ire  was 
I  pcrei'ivf'd,  hr  ran  ar»:ij. .     Bcini;  nskcd  ifLebe* 
j  linviJ  t!..ii  the  {.■iv>v:it  ('..Mi iHianl  iuteiit'eil tie 
[  boy    any   mibciiiLi*,  v.bon    dei:(  nei.t   went  U 
'  Jii:.es's  ;  J-ay^j,  he  di«l  suspect  that  the  defen- 
,  dai.r  i.;t(;riiicd  iiiui  I. arm.     Being  asked  «by 
j  he  (lid  lict  then  aj  ply  lo  iome  justice  of  peace 
.  or  ^tlicT  u>np;i*li\itL'  i  .:•  redress ;  says,  h:  (U 
'  r.ut  erjo  to  j;j  to  la;v  a!iOut  it,  biu  ll.atbe  itx-k 
I  care  to  krcp,  the  boy  v.U^c  within  doors,  al'ief 
the  dcfi  n ';i.it  had  Liadc  this  attempt.    Bciog 
,  asked  in  >^  iiat  part  of  the  house  defendant  «ai 
I  when  deponent  found  him  at  Jones's ;  n\h 
\  he  wr.s  in  the  kitchen,  and  that  t!ie  constable 
'  stood  in  the  entry  behind  deponent's  back,  and 
two  or  three  without  side  of  the  door  ;  that  tbe 
I  boy  said  to  deponent,  Dear  Sir.  don't  Itrt  tl<ea 
take  me  away,  that's  unele   Dick,  th'^y  ^ull 
'  destroy  me :  upon  which  deponent  tnli  bin, 
'  he  would  lose   his   life  bel'ure  be  should  l4 
taken  from  him  ;  says,  that  some  peofde  hear- 
ing the   noise  came   and  asked  depeoeut  if 
he  wanted   any  assistance.     Dep?:ieDt  beiflf 
desired   lo   name   some  of   the   people  wbi 
came  to  his  assistance,  be  named  Mr.  Bif« 
'  ncll,  who   he  suid  was  dead;  says,  tbeOQB- 
.  stable  went  away  ;  cau't  tell  who  tbtt  consteUl 
or  the  other  rufhans  were,  never  ha%ingiBn 
them  before ;  says,  the  boy  remained  with  di- 
-  ponent  about  two  mouths  ailer  that ;  and  ai 
I  daponeut  thought  all  things  oror,  he  made  Ub- 


I 


and  Richard  Earl  ofAngfeseMi 


A.  D.  1748. 


[1805 


jiy  without  going  to  a  magbtrate,  think- 
imseir  able  to  protect  the  child.  Being 
if  the  child  said  he  was  lord  Altham's 
lays,  he  did ;  says,  Dominick  Farrcll  told 
ent  that  he  had  seen  the  child  at  Dun- 
in  my  lord's  house,  and  that  hi5i  mother 
relation  of  the  duke  of  Buckingham, 
nsked  what  sort  of  a  sou  Farrell  told  him 
ild  was ;  says,  that  he  told  deponent  the 
Tas  lord  Altham's  real  natural  son.  Being 
if  he  was  positive  Farrell  told  him  he  was 
Itharo'i  real  natural  son ;  says,  he  is  posi- 
I  did.  [Hereupon  Mr.  naniillon,  one  of 
'y,  asked  deponent,  what  deponent  meant 
'eal  natural  son  ?]  Deponent  answered,  I 
a  son  ^ot  by  lord  Altham's  wife.  Being 
by  the  (defendant's  counsel,  whether  the 
t  defendant,  when  he  came  to  deponent's 
did  not  say  the  child  was  lord  Altham's 
1  son,  as  tarrell  said  he  was;  says,  he 
lot  remember  that  his  uncle  called  him 
I  son,  but  said  that  he  was  his  brother's 
ind  that  lord  Altham  was  his  father, 
asked,  if  he  knows  Mr.  Churlton  the  at- 
■j  or  Mr.  Stone;  says,  he  does  know 
Being  asked  if  erer  he  told  them,  or 
kly  else,  that  he  saw  the  boy  a  ship- 
;  says,  he  did  not,  to  the  best  oihis  know- 
but  that  his  son  might  tell  them  so, 
asked  what  the  boy  called  deponent's 
says,  sometimes  he  called  her  Mammy, 
mes  mistress ;  says,  he  kept  the  boy,  m 
that  when  he  came  of  age,  he  might 
biniself  to  be  lord  Altham's  son,  and  re- 
his  birthright;  that  the  boy  never  did 
ibg  for  deponent,  but  sometimes  ran  of 
s ;  says,  he  has  heard  the  boy  went  on 
oard.  Being  asked  if  Jones  was  an 
:  roan  ;  says,  he  was ;  but  heard  he  went 
about  the  streets,  telling;  every  body  he 
lined  by  lord  Altham,  the  present  dcfen- 
says,  ne  gave  the  boy  no  ill  usage  that 
induce  him  to  go  away,  but  that  he 
If  during  the  time  he  was  with  deponent, 
lut  all  night  Twhich  was  but  about  three  or 
mes  in  all)  ueponent  corrected  him  for  it 
if  the  times. 

IS  ended  the  third  da^'s  examination  of 
ff's  witnesses,  about  eight  o'clock  on 
ly  night  the  14th  of  November :  and  the 
,  by  nke  consent,  as  before,  which  was 
1  by  the  parties  and  their  attomies,  and 
I  open  court,  adjourned  to  the  next  morn- 
nine  of  the  cioclc. 


Tuesday,  November  15. 

'■  Court  met  according  to  adjournment,  and 
y  being  called  over  as  before,  answered  to 
aaines,  and  then  the  plaintiff's  counsel 
did  to  examine  their  witnesses,  as  fol- 

^Icrmf  Askf  gwt*  one  of  the  Attorneys  of 
ba  GmiI  of  CommoD*  Pleas,  sworn. 

Ih  Jm  wif  Mqoainted  with  the  late  lord 

4 


Altham,  and  that  shortly  after  bis  death  de-* 
ponent  happened  to  he  in  comuany  with  hie 
brother,  the  present  earl  of  An^lesea  (the  now 
defendant)  when  a  gentleman  m  the  company* 
having  mentioned  that  there  was  a  boy  at  lord 
Altham's  burial  who  made  a  great  noise,  and 
cried,  and  called  himself  lord  Altham's  son ; 
the  defendant  made  answer,  and  swore  he  was 
an  impostor  and  a  vagabond,  or  words  to  that 
effect,  and  ought  to  be  transported.  Being  de* 
sired  to  tell  the  Court  how  he  came  to  be  in  de- 
fendant's company,  and  what  was  the  occasioa 
of  this  conversation ;  says,  that  soon  aAer  the 
late  lord  Altham's  death,  deponent  was  in  com- 
pany  with  the  present  earl  of  Anglesea,  then 
lord  Altham,  (deponent  being  concerned  in  bis 
affairs)  and  that  either  one  Cavenagh  (a  dancing- 
master)  or  oue  Wilkinson,  (persons  who  used 
to  attend  his  lordship)  having  been  sent  by  him 
to  Mr.  Hawkins  king  at  amis,  to  desire  him  to 
enroll  my  lord  as  baron  of  Altham  in  the  place 
of  his  brother  the  late  lord  Altham,  came  back, 
and  gave  his  lordship  an  account  in  presence  of 
this  deponent,  that  Mr.  Hawkins  said  he  could 
not  enroll  him,  for  that  there  was  some  reasoa 
to  think,  that  the  late  lord  Altham  had  left  a 
son,  for  that  a  boy  has  made  a  great  noise  at 
his  funeral  in  Christ-church,  crying  and  telling 
every  body  aloud,  that  he  was  the  son  of  the 
late  lord  Altham.  My  lord  was  angry  at  hear- 
ing what  Mr.  Hawkins  said  ;  and  declared, 
that  the  boy  was  a  vagabond  and  impostor,  f 
said,  that  if  he  was  a  vagabond,  there  was  a 
method  to  get  rid  of  him,  which  was  to 
get  him  indentured  at  the  Tholsel  and 
transported :  deponent  believes  mv  lord  said, 
the  boy  was  a  bastard,  though  he  gave  no 
other  reason  to  induce  deponent  or  the  rest  of 
the  company  to  believe  him  such,  than  his 
lordship's  speaking  in  an  angry  manner.  That 
depouput  thereupon  said  to  my  lord,  that  Mr. 
Hawkins's  refusing  to  enroll  his  lordship  might 
not  perhaps  be  on  the  boy's  account,  but  be- 
cause he  wanted  his  honorary  fecK;  whereupon 
my  lord  said,  that  if  that  was  aH,  he  would  sa- 
tisfy him  :  And  deponent  says  his  lordship  soon 
after  took  his  seat.  Being  asked,  if  he  did  not 
afterwards  hear  the  defendant  say,  the  boy  was 
transported  ;  says,  he  never  heard  my  lord  say 
the  boy  was  transported;  but  that  some- 
time after  the  boy  was  gone,  upon  some  of  the 
company's  talking  of  him,  the  defendant  said, 
he;  was  'gone ;  and  that  he  said  it  in  an  easy 
manner,  without  any  heat. 

[Cross-examined.] 

Being  asked,  when  he  first  heard  of  the  boy; 
says,  he  never  heard  of  him  till  after  the  death 
of  the  late  lord  Althum.  And  deponent  has 
dined  with  the  late  lord  Altham,  and  never 
heard  him  say  he  had  a  sun.  Nor  did  de- 
ponent ever  hear  him  say  who  waM  to  inherit 
nis  estate. — Says,  he  never  heani  any  person  re- 
puted to  be  his  heir  but  the  defendant.  Says, 
the  late  lord  Altham  died  intestate ;  and  that 
the  defendant  took  out  administration  to  him« 
Being  asked,  where  it  wm  my  lord  said  that 


IV  GEORGE  11.     Trial 


1207]- 

»aa  GTone;  savs.  ..      — --j  ... 

usual  acquaintanre. 
■  Being askatl,  irii^i:aiisiilu^  tlcpcinGm  uboutllie 
bO}'iBti'au>>|M>rUti(iQ:  says,  be  di J  nut. 
Alark  Bi/rn  sworn. 
Snyt,  lie  liaa  knowo  the  <tpfeoi)ant  a  long 
timn,  but  citn't  tell  ilireclly  botv  long-.  Beiug 
dfsired  lu  give  aa  accuaal  to  ilie  Court  nocI jury 
if  lie  was  ul  any  lirae  employed  by  any,  and 
wlial  uerwHi  to  transpiirl  any,  auil  wbal  boy  ; 
Sbys,  itial  about  sixteen  years  ogn,  one  Donuetly, 
*  cotMlsMe,  Diet  dcpunent  (hIio  wu  at  that 
time  tikewiite  &  coDstable)  and  Inld  ilepunetit  lie 
llBd  a  t^od  jab  fyt  bim,  which  lie  was  lo  get  a 
guinta  far ;  and  deponem  stionid  bare  a  sbare 
of  it :  And  DoDuelly  desired  (Jeponeot  lo  bo 
aiaiig  ivitli  him.  I'Lat  ilepuiient  accurdiogly 
Vent  aluDi;  with  him  to  one  Jones's  Iiouimi  in 
Ormond- market,  and  the  jiroscDt  earl  of  Anjtlc- 
Bea  wax  there  (trbo  was  then  called  lord  Altham) 
and  there  »as  a  small  hoy  there,  which  uiy  lord 
said  (vas  hiij  btulher'a  sun.  My  lord  charged 
the  boy  iviih  stealing  a  silver  spoon,  and  ili-jt 
lie  was  a  thief,  and  desired  deponent,  and  ibc 
■aid  nonnelly  and  others,  who  were  there  wiib 
iny  lord,  to  take  hioi  away  to  George's  Quay. 
Tbat  accordingly  they  took  the  boy  awav.  and 
carried  him  towards  Essex-bridge;  and  tliere  a 
coach  Waa  got,  into  wbioh  the  said  Donnelly, 
the  hoy,  and  depooenl  went;  and  the  coaih 
waa  ordered  to  drire  down  to  George's  Quay, 
■ays,  my  lord  was  there  aa  aoun  as  the  coacti ; 
but  deponent  does  not  know,  whether  my  lord 
walked  or  went  in  a  coacb  or  chair.  tSayi, 
there  was  a  boat  wailing  at  tbeSlip  at  Genrge's 
Quay,  and  ihc  buy  was  jiul  into  itby  Dunnellyi 
and  ford  Anglesea  ivciit  into  the  liont  down  tbe 
Tiver,  anil  deponent  returned  home.  That  next 
day  Dun  net  I  y  came  todeponentaodgavehini  a 
■hilling;  whereii|ion  deponent  ilemandcd  halt' 
a  guinea,  as  the  part  which  Donnelly  bad  pm- 
iDiaed  hira  ;  but  never  got  it.  There  was  a 
'  nob  followed  them  when  they  carried  the  chihl 
sway.  That  the  boy  cried  very  much,  which 
be  belieres  occasioned  the  mob.  Saya,  tbe  boy 
told  Ihem,  he  was  afraid  his  uncle  was  gmug  to 
kill  or  transport  hini.  Biing  B»ked,  whether 
Ihere  waa  any  thing  done  to  prereul  ihe  tranii- 
portalion  ;  says,  he  saw  nothing  done  to  pre- 
vent it  Being  asked,  il  Llie  boy  mpolloned  Ihe 
lord  Altham  (the  now  delbadani]  aa  his  uocte; 
•ays,  be  did.  Being  asked,  when  it  was  he 
first  saw  the  boy  since  this  tirr.e;  says,  he 
never  saw  him  siiicethat  day  till  Utely.  Being 
■tked,  it' he  and  Donnelly  had  any  staves  as 
constables;  says,  they  hat!  not;  but  that  ihey 
were  publicly  Known  to  be  constables.  Being 
asked,  it'  they  bad  any  warrant ;    says,  they 


[c™ 


KB  mined.] 


Being  asked,  if  my  lord  was  at  Jones's  house 
before  deponent  ciine  ;  aays,  he  was.  Being 
asked  what  time  of  tbe  day  it  was ;  says,  he 
does  Dot  kquw  whether  it  wad  morning  or  alW- 
aooo,  hrt  iJwr  h  iru  dajligbl.    Being'  uked 


And  when  the  h'i< 

soinclbing  out  ul 
that  they  were  t 
Being  a»krd,  »l<> ' 
warrant  forwh^i  l.< 
Being  Bskiil,  il'  III'  'I' 
to  transport  ihe  I'm  ■ 
without  trial ;  siu'., 
he  did  not  acipmin:  ji 
helhoughlso.  Ill  >'j 
hoy  had  on;  snyi.  Jii  • 
ifOonDellyisliiing.  <ii  d. 
BeiQ^isked  huw  lung  he  li 
th»t  tiiue',«ByB,  he  bclwvss  ■ 
Iwo  years.  Being  o«keit,  M 
ur  aberilTs  that  year;  layf. 
was  BWom  in  coosinhte  hrd  _^^ 
Being  abked,  il'  Dunnellj  "^~ 
job  was  when  he  first  aiiiA,  ""^ 
Bajs,hedid  iml;  but  Iwlif^  ~^ 
instructions  whutlo  do  befiii  ^^ 

Being  askeil,  if  he  ever  aa»  -4 

(tbe  present  ilefendunl)  belbrt  i  -4 
he  bad  seen  him  several  timr  ^ 
what  my  lord  said  at  that  ii  ^ 
lord  bid  deponent  takeaway  IL.  - 
deponent  took  him  accordin);!  .  ^ 
walked  till  they  came  to  Eiw  ^ 
they  met  a  coach.  Says,  be  »  ' 
inlu  it.  That  the  mob  tollowi:''  '^ 
way  to  George's  Quay.  That  r.  -^ 
who  directed  the  coach  to  driti  u^ 
deponent  assisted  in  pulling  lli"  M 
boat,  and  went  alont;  with  him  i\---  I 
Says,  Donnelly  and  one  James  • 
(he  thinks)  wore  a  livery,  held  tin  ^ 
asked,if  Iteilly  was  hihlack  ;  sat, 
Tbat  deponem  did  not  see  him  idl  i ' 
George's  Quay.  Tbat  deponenl  ' 
went  olT,  and  saw  them  row  the  I 
Ihe  Walls.  Being  asked,  il' John  I' 
at  Jones's  tbat  day  ;  says,  he  did  t . 
there.  Says,  be  did  not  see  mylont 
time  he  was  at  Jones's  lill  he  saw  1 
Quay.  Being  asked,  what  clolha 
had  on;  aays,  he  can't  tell.  Biriut 
Iteilly  went  Into  Ibe  boat ;  says,  he  ■' 
asbeil,  lor  what  reason  llicy  look  coa 
to  keep  Ibe  boy  from  tbe  crgwd.    Bl 


Earl  nfAngUtea. 


A.  D.  n\5. 


Ilie  Quay  befoic  i  Doonplly,  J0I111  nnnnclly,  the  hoy,  aiii]  ilr|K>«   I 
on' ;   sn^s,  about  a  quarleT  ol'   nent  went  inin  ibe  bnat,  nticl  lliey  ruwril  tn  •    I 
(liin  Ihnt  lay  rfuwii  ihc  rirer  as  far  as  Itine'g-   ] 
enJ,*  That  when  lliev  came  lu  UiiiK's.cuJ  iha  I 
Iwjr  ttas  |jut  on  board  ihc  »hm,  which  « 
"III  tn  one  of  his  majesty'*  pfanioiions, 
u  been  intbrmeil.     [On  (le[»inrin  muilianinf   | 
IS  infarmitinn  the  couiivl  fur  the  ilH'eudaiit  | 
ilil   liim,  he  man  talk  from  his  own  kuow- 
ieige  anti  not  from  infannDlinri,  which  ivai  t«ii- 
firmed  hy  the  Conn.]     Tliai  my  lord  went  oo 
board  tlie  ship  wiili  the  buy,  and  nobuily  eiss, 
-nd  tlie  boy  cried  bitterly  ;  "iid  my  lord  staid 
I  board  B  I'evr  minutes,  and  then  returned  to 
the  boat,  and  they  rowed  bnuk   to  Geor;;e'» 
Quay.     Says,  he  does  not  know  Ici  whom  that 
ship  Won eed.     Being  asked,  when  it  was  ba 
first  san  the  boy  at  George's  Quay  ;  says,  he    I 
did  not  see  him  till  deponent  relumed  lo  mj 
lord  with  llie  guinea.     Uting  asked,  if  be  waa    ' 
acquainted  wiib   the  boy;  savs,  be  was,  eier 
-■ —  "-e  was  about  six  yearsold  ;  that  hekoeir 
lord  Altham'a  bouse  in  Stephen's  Green, 
Proper-lane;   and  belieres  him  to  b* 
my  lord   and  lady's  child.    Soys,  be    heard 
my  lord  Althani  (llie  present  defendant)   say. 


atoll  ;   snvf. 

ting  aakfi],  bow  he  came  to  give 
Ms  cauiw  i  says,  be  was  sent  fi>r 
uley,  the  lessor  of  the  plaintifl', 
le  to  Dublin,  to  whom  he  gave  the 
il.  Says,  tlie  boy  went  crying  all 
lal  there  was  a  great  many  people 
,  bui  nobody  endeavoured  to  take 
X  them.  Kayi,  that  Donnelly  and 
down  the  steps ;  and  that  the  buy 
with  crying  that  be  was  hardly 
E.  Mays,  tli»l  Bceeral  people  eu- 
was  tlie  matter  at  the  Quay,  hut 
uld  not  tell  them. 


Jamct  Reitly  sworn, 
tires  now  in  London,  ami  has  a 
«wn.  Tliut  be knonslhe defendant, 
Anglpsca,  and  lifeil  nilh  him  as  a 
about  1 1  months,  about  15  or  IG 
Tliat  he  knew  the  late  lord  Al- 
i  been  deait  about  three  moniiis 
nt  came  into  llie  defendant's  ser- 
!  befure  deponent  came  intu  his  ser- 
ll  witli  surgeon  (Ireen  on  Arrdn's 
I  nmeiubcts  he  leH  his  service  on 
■4sy,  and  after  that  went  to  1i«e 
ftham  (for  he  was  then  called  m, 
'url  of  Anglesca.)  Iteing  desired 
Seoount  if  he  was  at  any  lime,  and 
ikyed  hy  any  person,  and  whoin, 
[mriiug  nny,  and  what  boy ;  sa;^") 
ml  I  inonth  slier  be  came  to  lite  with 
I,  he  was  (with  some  ccinslables,  whose 
were  Bryan  Donnelly,  John  Donnelly, 
!«»,  and  Patrick  Reilly)  employed  by 
Bokfornnc  James  Anaesley.  That 
'red  deponent  if  he  met  the  boy,  to 
<  Ml  alchuu^  and  send  lor  his  lord' 
•apOBsible.  ThatdeponenI  andtbi 
rreml  limes  in  search  of  ilie  boy 
lark  Bym  was  but  once  with 
t  they  learcheil  about  SmithReld, 
t,  aiitldown  Urmund  Quuy.  Says, 
I  ai  deponent  came  to  town  from 
W  received  a  message  to  wait 
ird  at  uue  Darrenzy's  in  Castle- 
was  iDarrird  to  one  Kennelly's 
Thai  deponent  accordingly  wcnl 
land  that  my  lord  was  gone  away  ; 
f  ■  nailer  came  there  to  dsjionenl 
!*»  Quay,  tu  inform  faim  iha' 
\  bini  there,  and  deponent 
he  porter  to  Oenrge'sUuay,  where 
U.  That  when  deponent  1 
Vd  whiapered  him  to  go  and  borrow 
htni.  That  deponent  accordingly 
1.  Kellv's  at  the  Butcher's  Arms. 
irr,andgollhe guinea  and  returned 
at  Cieorge's  Uusy,  and  gate  him 

Sand  Jepncenl  saw  mv  lord  give 
Dto  Jobu  Donnelly's  hands,  and 
hmnelly  went  M^ay.  ISays,  theiv 
tttw Slip, and  Itryan  Donnellyand 
bronsht  the  boy,  who  was  imwe- 
mto  uc  boat,  uud  my  lord,  Uiyun 


:  da.y  when  he  w»s  affronted  for  taking 
ay  llie  child's  iHrlh-right,  that  he  would 
take  a  coarse  with  him.  Says,  deponent  used 
to  hear  peojdt:  curse  my  lord  screral  limes  on 
tlie  lioy  'a  account,  both  before  and  after  ibe  boy 
was  gone. 


[Cro 


:■  examined.] 


Being  asked,  how  lone  it  is  since  deponent 
came  over  here ;  says,  last  Snuday  was  tlir«« 
weeks.  Being  nike<l  if  he  is  a  servant  now 
to  any  body;  says,  he  has  not  been  a  seivaot 
these  four  years,  aud  he  lives  in  Kin g'a- street, 
Ht.  James's,  ^Vestmiuster,  and  sells  cambric* 
and  hollands.  Deponent  was  asked,  if  he  knew 
a  certain  lord  ^wbo  was  iiameil)  and  whelhur 
be  was  not  hia  servant;  sb^s,  he  kuowa  hts 
lordship,  but  is  not  at  (his  time  his  servant,' 
though  he  is  in  hopes  to  be  his  lorilsbip'a 
house-steward  at  his  return  to  Loudon,  being 
very  well  recommended  lo  him,  and  that  upon 
deponent's  coming  here  to  g^rc  evidence,  hia 
lordship  had  given  him  e  protection.  Beinf 
asked  what  time  of  the  day  it  was  when  lieKot 
lo  George's  Quay  ;  says,  in  the  allernonn  ;  vnA,  ' 
it  was  in  the  sprmg  nf  the  yenr,  and  that  it  wafl 
duskish  at  ibeir  return ;  says,  the  ship  taj 
down  below  the  waits  in  Ring's.end.  Bejiiff 
asked  liow  long  il  was  before  ihey  rrturnM ' 
from  the  ship  to  George's  Quay ;  says,  he  be- 
lieves it  was  an  hour  and  a  iitiarler  going  to  1 
the  ship  and  coming  from  it.  Being  asked 
again  who  went  inln  the  bout ;  savs.  my  lord 
went  first  into  the  boat,  and  Ibat  Jack  Donnelly, 
and  Bryan  Donnelly,  and  llic  boy,  and  two 
others,  whose  Dumes  he  does  not  know,  went  in 
attenvards,  and  that  deponent  waa  Ihc  lust  (hnt 
went  ill.     Being  aiked  if  he  knew  Mark  Byrn 


*  Uing'svnd  about  a  mile    fi'om  Dublin, 
«'here  ihips  ate  atutioncd  Uul  siul  outwaidi, 


laiS] 


17  GEORGE  II.     Trial  in  Ejectment  bdtceen  J.  AnntsJey^  esq. 


dearly  prores  that  tlie  name  Hennesley  in  the 
Tholsel  book,  is  the  fmine  with  Aunsley  in  Ste- 
plienson's  is,  that  there  is  no  such  name  as 
Hennesley  in  Nr.  Stephenson's  book,  or  any 
like  it,  except  that  of  Annsley."  To  this  the 
plaintiff's  counsel  rejilied,  That  because  the 
name  of  Heonesley  diil  not  appear  in  Stephen- 
son's book,  it  (lid  not  follow  tnat  it  must  be  An- 
nesley  mispelleil ;  for  there  are  SO  persons 
named  in  the  Tholsel  books  more  than  in  Ste- 
phenson's; so  that  Hennesley  may  be  one  of 
the  20  names  omittp-d  in  Stephenson's  book, 
but  was  iilainly  a  different  name  from  Annes- 
ley  ;  and  therefore,  as  the  plaintiff's  counsel 
had  proved  that  Mr.  Annesley  was  actually  put 
on  board  a  ship,  and  sent  to  Pennsylvania  by  the 
defendant,  it  was  incumbent  upon  him  to  shew 
by  what  authority  he  did  It. 

Richard  Ttgh^  esq.  swom. 

Says,  this  gentleman  (James  Annesley) 
lived  with  deponent  for  some  months,  when  he 
was  a  boy  ;  that  he  came  to  deponent  in  a  very 
poor  condition,  from  one  Purcell  (a  butcher) 
who  lived  at  the  back  of  deponent's  house,  in 
Phcnix  street ;  that  sometime  atler  Christmas 
1727,  deponent's  son  brought  him  into  the 
house  unknown  to  deponent,  out  of  charity,  he 
being  turned  out  of  doors  by  lord  Altham,  who 
was  reputed  tol)e  his  father;  and  the  boy  was 
in  deponent's  house  sometime  before  lie  knew 
of  it ;  says,  the  boy  ap|)eared  to  be  about  13  or 
14  years  old  ;  continued  with  deponent  till  he 
was  transported  ;  says,  there  was  a  3'ellow 
livery  waistcoat  in  the  house,  w  liich  was  for- 
merly worn  by  deponent's  son's  servant,  and 
finding  it  fitted  the  boy,  dcponeurs  »>n  put  it 
upon  him  ;  says,  it  was  not  long  AtXer  depo- 
nent missed  him  from  his  house,  and  heard 
he  was  u^one  on  ship-boaril,  and  that  one  Peter 
Murphy  told  deponent  the  boy  was  transported. 
[Here  the  witness  was  intcrruj)ted  by  lord  An- 
giesea's counsel,  who  observed  to  him,thatas  he 
was  bred  to  the  law«  he  must  know  he  ought  to 
cive  nothing  in  evidence  from  liearsay-]  Says, 
he  does  not  know  by  \ihat  means  the  boy  with- 
drew from  deponent's  family,  the  boy  having 
no  occasion  given  him  to  lie  uneasy  in  it;  says, 
lie  was  rejiuted  to  be  lord  Altiiam's  lawful  son, 
and  says  it  was  after  lord  Altham's  death,  the 
boy  came  into  deponent's  family,  lieing  asked, 
why,  since  he  thought  that  the  boy  was  lord 
Altham's  son,  he  did  not  take  some  steps  to 
assert  his  right  to  his  father's  estate ;  says, 
the  boy  was  with  deponent  so  short  a  time,  that 
lie  took  but  little  nolicc  of  him  or  his  affairs, 
but  that  if  he  had  stayed  with  deponent  some 
time,  deponent  does  not  know  but  he  would 
have  taken  some  steps  to  assert  his  right ;  says, 
he  has  seen  Mr.  Annesley  since  his  return  to 
this  kingdom,  and  is  fully  persuaded  he  is  the 
same  person  that  lived  w  ith  deponent ;  says, 
he  heard  nothing  of  him  since  his  leaving 
Dublin  about  15  years  ago,  till  dei>onent  re- 
ceived a  letter  about  him  from  a  person  In 
Jamaica,  who  was  on  board  admiral  Vernon's 
0Mt|  gif iDf  u  Moofpnt  of  Uw  (uunhhipt  the 


boy  had  undergone,  and  that  admin 
haLO  ordere<l  him  to  be  sent  home ;  t 
Mr.  Reilly,  an  agent  for  the  pre 
Anglesea,  came  to  deponent's  boi 
asked  if  deponent  had  a  letter  relatii 
Annesley  ;  that  he  came  from  my  Ini 
sea  to  desire  leave  to  read  it ;  says^  he 
Reilly  the  letter,  and  flesire<l  bira  to 
and  copy  it,  but  he  said  it  was  very 
that  my  lord  would  take  it  as  a  favou 
nent  would  let  him  have  the  letter 
would  return  it  the  same  day  or  tbe  d.' 
ing,  with  thanks.  That  thereupon 
gave  Mr.  Reilly  the  letter,  but  it  has  n 
returned  ;  says,  that  a  clerk  of  Mr.  d 
who  was  attorney  for  the  earl  of  Angle 
informed  deponent,  came  to  deponent, 
dnced  an  afGdavit  ready  drawn  for 
to  swear  that  James  Annesley,  w  ho  1 
dei)onent,  was  reputtxl  a  bastard  son  oj 
lord  Altham,  which  deponent  refused  t 
Deponent  further  said,  it  was  in  A{ 
James  Annesley  was  taken  from  liim. 

[Cross-  examinetl.  ] 

Being  asked  whether  if  he  ha( 
upon  the  Imy  to  bo  lord  Altham's  sc 
he  was  in  deponent's  house,  dei»otiei 
have  clothed  him  in  an  old  raggei 
coat ;  says,  he  did  believe  him  to  lie 
tliam's  son,  yet  did  clothe  bim  w 
old  waistcoat,  and  would  have  d'»ur  il 
he  had  been  sure  that  the  l)oy  ^ 
lord's  son ;  for  that  he  came  to  dejion 
very  poor  mean  way  from  Purceli's,  ju 
the  small  pox,  having  the  rod  marks  oi 
face  ;  says,  deponent's  ow  n  son  is  ilL'ad 
asked,  \t  hat  he  conjectured  to  hui'.*  i 
occasion  of  the  hov^s  leaving  his  housk: 
he  conjectures  llie  boy  was  s])irited  aw 
still  believes  he  was  kidnapped  ;  s3; 
Peter  >liirpliy,tlieboy  who  liv«*d  \*iili  il' 
aflcr  Jeinniy  went  uway,  told  depnnen! 
I>een  on  board  of  a  ship,  and  had  seen 
Annesley  lamenting  and  citing,  that  Ij 
had  stole  him  away,  and  was  go:nu  i 
port  him.  [The  counsel  for  the  di-ti'ii* 
served,  that  this  was  hearsay  onl}  ;  t 
the  counsel  for  the  plaintiff  answered. 
de|>onent  was  asked  as  to  his  belit-i',  hec 
tell  the  ground  and  reason  of  it.]  U 
being  asked,  if  he  afterwards  made 
quiry  about  the  boy,  or  took  'Jtny  step: 
favour,  upon  hearing  that  he  was  take 
by  force  ;  says,  he  did  not,  the  ship  beii 
immediati'l  V  atbM-Mui  phv  had  told  liinK 
as  to  the  lioy's  rii^ht,  says,  the  |>r09reut 
\^ould  ha\c  been  iittonded  with  tmuMe 
pence,  and  there  was  so  little  likelilion 
|)onent's  ever  seein«:  the  lioy  again,  tb 
nent  thought  it  most  prudent  not  to 
himself  any  farther  alnint  it.  fieioj 
why  he  did  not  inform  Arthur,  late 
Anglesea  of  this  matter,  since  depone 
not  but  know  that  the  earl  had  such  1 
for  the  present  one,  that  he  would  fai 
gUd  to  oave  nspoused  the  right  of  thi 


and  Richard  Earl  o/Anglata. 


A.  D.  n+3. 


of  bb  uncle ;  mjs,  be  had  no 
b  e«rt  Arthur,  nor  diJ  hekpow 
pod  betireeu  (he  sud  lute  and 

Bradtn  gnorn. 

r  Mr.  Aiiaesley,  and  savr  him 

14  or  15  ^carH  B((o  ;  that  de- 

nitier  hatine  Wn  ridio^  nut 

nortiiiig;,  tfiey  culled  iu  nt  a 

Bpen,  ia  order  to  narra  ilieni. 

they  Mit  at  the  lire  a  lioy 

n  and  a  dead  mairrel ;  that 

,  in  discourse  nith  the  htiv, 

countryman  lie  was  ',  lliat  the 

•n  (rishmau.  and  came  from 

'e^anl ;  thai  he  iru  bom  at 

Lintine  wn(Jaroe«ADnesley; 

ioni  Altham's  son.      Says,  he 

luihi-  tnasler  or  ihe 

i  by  his  uncle  ; 

AntiGsley'!!  lace, 

lal  he  told  <Ie|)Onenl  ol'tlie  con- 

"■  '"   America,  he  helieveB  lilm 

W  and  talked  to  ^here. 

Mr  Giprd  sworn. 

ihe  plaintitr  Illr.  James 


....    it  waH  thai  lie  ar- 
from  llie  Wt-st-lndies '! 
iir. 

Bworany  prosecution  carrird 
laintiff  by  the  defendant  Tar 

is  olijccted  to  1>y  llie  counsel 

ofcouiMel  tor  the  pUinlilT. 
.  a  ii  hruuglil  to  sheiv  that 
la,  .knowine  that  llie  pluntifir 
'•  of  the  family,  >■  ion  and 
hrd  Altharo,  expended  v*st 
I  ■  proBCCution,  which  he  let 
n  lor  the  murder  of  an  unli>r- 
lainei,  in  Middlesex,  th<>iii,'h 
■tood  in  no  degree  of  relnlinn 
•et,  that  could  ha>e  engaged 
I  up  this  matter ;  and  that  the 
Seoeued  being  cnnvinceil  that 
only  accidental,  had  intended 
tecution;  but  that  the  de E'en- 
nay  related  to,  orncquainied 
killed,  empluyeil  u  sollcilur, 
proKcukion  against  Mr. 
_  greuexpence,  and  declared 
10,000'.  to  get  hiin  hanged. 
r,  that  while  he  labnureil  to 
r  tm  mtirikr,  he  kuew  the 
I  gave  ocoasion  for  the  pro- 
by  accident.  And  this  we 
HTCumslBnce  proper  to  lie 
b>  aheir  that  my  turd  An- 
«jr  Ibe  pltintiirn  title,  took 


Mr.  Kecorier,  (Eat«n  Stannanl,  esq.)  of 
counsel  for  the  defendant.  Aty  lonl,  I  appre- 
hend that  the  evidpiice  nnw  ofternl  ia  not  legal 
evidence  in  this  cause,  becaiu>«  it  appertain* 
not  directly  to  it ;  it  is  a  collalerHl  thing.  It 
was  proper  to  sheir  the  plaiotilf  in  he  the  iegi- 
tiiiiale  son  of  lord  Altliam,  and  thai  he  was  in- 
tilloil  to  the  lands  rjecird ;  but  to  produce  eri- 
deuoeof  a  trial  in  Knchuid,  ia  rerv  improper; 
in  my  apprehension,  this  is  no  evidence  in  thia 
trial  of  ejectment.  The  taking  away  a  perwin, 
and  secreting  him  aRer  the  title  accrues  to  him, 
ia  a  maleriMl  evidence  to  shew  that  he  could 
notaascrthis  right tooiier;  but  bow  is  the  in- 
dictment of  a  man  for  this  murder,  be  it  acd- 
dental  or  not,  relative  to  this  cause  ?  For  pend- 
ing the  indictraeot,  it  was  no  hindrance  lo  him 
to  put  in  his  claitu  h  hen  he  picaseil,  and  to  as- 
sert his  liile. 

This  ciu«e  was  tried  in  Englnnd.  Can  you 
have  all  the  witnesses  there  brought  hc'lbre 
you  r  Could  any  person  concerned  lor  lord  An- 
glcsea  fui-esee  that  this  indictment  would  be 
inlmluced  ?  Anil  therefore  my  lord  Anglesea 
could  not  b«  prepared  to  have  the  wilncsaen  of 
that  trial  here.  I  say,  it  is  not  proper  to  in- 
troduce it,  for  what  man  hving  cnold  gnatil 
against  it  P 

This  evidence  is  offered,  ns  I  appithend,  to 
raise  a  preaumplion  that  the  plainlifTis  the  le- 
gitimate son  of  the  lord  Altbam,  tiecamie  the 
ilelenilani  endeavoured  to  destroy  him  ;  anil 
then  the  question  will  be,  VVIiether  such  evi- 
dence is  proper  to  be  admitted  P  It  would  be  a 
question  whether  any  impropFr  measure  taken 
luilTcct  the  life  of  Ihe  plainliir  would  be  evi- 
ileiK'e  i  bill  where,  from  their  own  opening  tha 
case,  il  does  appear  to  your  lordship  oolhing 
m'ire  than  a  procceiiing  at'cording  lo  Ihe  re- 
gular and  open  course  of  the  law,  with  humbU 
suluuission,  that  in  this  case  or  any  case  what* 
Koever,  iit  not  lo  be  imputed  to  a  man  as  a 
crime.  As  they  stale  il,  there  was  a  prosecu- 
tion for  murder,  wbereoa  the  billing  was  acci- 
deiiial,  every  homicide  in  the  indictment  i*  laid 
murder;  and  if  there  was  a  prosecution  on  this 
indictment,  is  it  not  a  material  circumstance, 
that  this  indictment  must  hate  had  ihe  sanction 
of  a  grand  Jury  ?  Here  baa  been  an  indictment. 
is  all  that  they  hate  said,  and  a  proseoiilion 
upon  that  indictraeot.  1  desire  your  lordship 
Iu  consider,  whether  my  lord  Annesley,  or  any 
other  person,  might  not  have  carried  on  tli* 
pruxeculion '!  Nothing  is  more  frequent,  In 
murder  especially,  llian  ihat  the  pnwecuiion  i* 
carried  on,  not  at  the  ex|>cnce  of  the  emwn. 
though  the  prosecuiion  is  in  the  name  uf  the 
oruwn.  IVIII  it  not  then  be  a  matter  of  very 
great  conEequenre,  to  say,  that  Ibia  ahall  w 
in)putcd  to  a  tnan  as  a  crime,  aad  affL-ot  hint 
not  only  as  to  hii  chnracter,  but  hi<  fortune? 
Voar  lunlship  caonol  judge  nnw  whether  or 
uoi  this  proBeculinn  wait  wlitt  they  would  niab* 
il  appear  t<>l>c,  without  entering  into  the  merit* 
of  the  cause.  Il'iw  can  it  appear  lo  your  lord- 
ship whether  this  wa^i  a  real  munlvr,  or  th« 
'wdy  by  s  btourable  verdictr 


MI9]  17  GEORGE  II.    Trial  in. 

And  therefore  we  hope,  for  the  sake  of  evi- 
deDce,  that  it  may  not  be  made  a  precedent  of 
in  other  casea. 

Serj.  Marshal,  for  the  plaintiff.  Milord, 
we  hare  endeavoured  to  lay  before  the  jury  a 
apiriting  away  of  the  now  lessor  of  the  plain- 
tiff, at  a  time  when  he  was  extremely  young, 
not  capable  of  asserting  his  right,  and  with 
a  riew  of  putting  him  out  of  the  way  of  ever 
Mserting  that  right.  We  now  come  to  offer 
evidence,  to  shew  that  the  malice  of  tlie  de- 
fendant did  not  rest  there ;  that  after  he  had 
actually  cansed  him  to  be  transported,  the  lessor 
of  the  plaintiff^  at  his  return,  unfortunately 
killed  a  man ;  what  we  now  propose  to  lay 
before  your  lordkhip  and  t^ie  jury,  is  the  very 
extraordinary  j»art  that  the  earl  of  Anglesea 
took  in  that  trial ;  a  trial  wherein  he  was  not 
any  way  concerned.  When  the  witness  shall 
be  permitted  to  tell  you  what  expence  the  earl 
was  at  in  .this  prosecution,  it  will  strengthen 
that  evidence,  of  the  defendant's  spiriting  away 
the  lessor  of  the  plaintiff,  and  shew  the  de- 
fendant's conlinu^  design  of  removing  this 
gentleman  from  any  possibility  of  asserting  his 
irthright.  And  therefore  we  humbly  hope 
your  lordship  will  permit  us  to  go  into  this 
evidence;  and  Aubmit  it  to  the  jury,  whether 
there  couM  be  any  reason  but  one  tor  such  an 
uncommon  proceeding. 

Mr.  Harwardf  for  tne  plaintiff.  My  lord,  I 
apprehend,  that  every  matter  which  in  any  de- 
gree tends  to  shew  whether  the  plaintiff  was 
the  lawful  son  of  the  late  lord  Altbam,  or  no,  is 
proper  evidence  to  be  laid  before  the  jury. 
This  evidence  now  offered,  is  to  shew  that  the 
present  lord  Anglesea,  conscious  of  the  plain- 
tiff's legitimacy,  undertook  the  prosecution  to 
take  away  his  life,  and  spent  great  sums  of 
money  in  it.  If  it  is  an  act  of  the  defendant's, 
it  is  proper  for  the  jury  to  consider,  quo  anitno 
he  undertook  it,  whether  from  a  public  spirit  of 
justice,  or  a  private  view  to  take  awuy  the  life 
of  this  rival  tu  his  estate ;  for  every  act  of  the 
defendant  that  can  give  light  to  the  jury  of  the 
opinion  that  tny  lord  himself  had  of  the  plain- 
tiff's ri^ht,  is  pnipe r  evidence  to  be  offered  to 
them.  We  have  already  laid  evidence  before  the 
jury  that  we  apprehend  clearly  shews  that  the 
lord  Anglesea  had,  several  years  a^^o,  spirited 
away  this  plaintiff,  to  prevent  his  asserting  his 
right  to  the  estate.  This  now  offered  is  a  fur- 
ther proof  of  my  lord  Ant^lesea's  opinion  con- 
cerning his  right;  and  to  corroborate  that  evi- 
dence that  has  been  already  laid  before  tlie 
Court,  we  have  a  right  to  produce  if,  as  a  fur- 
ther instance  of  this  lord's  own  opinion,  that  it 
was  necessary  for  him  to  come  at  his  life  at 
any  rate.  The  question  is  not  now,  whether 
the  prosecution  was  just  or  not  ?  Whothc^Ir. 
Anncsley  was  guilty  or  not  of  the  murder 
charged  on  him  ?  He  has  been  ar;- lilted.  I 
must  beg  leave  to  say,  if  be  had  been  found 
^iity,  and  got  a  pardon,  anil  came  to  seek  his 
right  in  this  Court,  my  lord's  carrying  on  the 
prosecution  might  have  been  imputed  to  a  zeal 
ibr  juttice  ;  but  betog  acquitted,  there  is  room 


Ejectment  hdtoeen  J.  Amwslejff  etq 

for  the  jury  to  consider,  whether  his 
was  not  owing  to  some  other  motive 
other  end  than  that  of  pnblic  justice, 
gle  question  is.  Whether  my  lord 
being  a  stranger  to  the  deceased, 
voluntary  prosecutor,  for  the  deati 
who  stood  in  no  degree  of  relation 
mily,  from  a  principle  of  justice,  or 
some  private  end  of  his  own  ?  It  i 
been  very  proper  for  lord  Anglesea  I 
pended  such  large  sums  of  money 
tion  of  justice,  had  he  been  any  wai 
the  deceased ;  but  as  be  was  not,  i 
ing  such  unusual  sums  in  a  pros 
ways  relating  to  him,  more  than  to 
stranger,  argues,  that  it  was  to  ansvi 
vate  ends,  by  securing  his  own  t 
estate,  if  he  could  prevail  to  have  tl 
found  guilty  of  murder.  If  we  wei 
charge  him  with  any  thing  that  mi^ 
him  in  any  sort  of  guilt,  the  object 
have  been  proper,  but  as  we  are  not, 
carry  no  weight. 

L.  C.  Baron.  This  witness  was  p 
shew  that  the  prosecution  against  tb 
for  killing  a  man  at  Staines,  was  pro 
carried  on  by  the  defendant,  and  i 
pence ;  w  hicli,  as  it  was  an  attem] 
away  the  plaiiiti(!''s  life,  his  coao8< 
sisted  is  proper  to  be  laid  before  tbi 
further  proof  of  the  present  defendan 
of  his  own  title,  and  his  opinion  o 
plaintiff^s  right :  and  this  has  been  ofl 
out  any  previous  evidence,  that  the 
had  l>een  convicted  or  prosecuted  fo 
licious  prosecution  of  the  plaiutiff,  c 
Court,  bcffire  whom  the  plaintiff  wa 
that  supposed  niurdiT,  had,  by  i 
theirs,  declared  their  opinion  that  t 
cution  was  malicious,  as  is  frequent 
ordering  the  prisoner  a  copy  of  : 
ment. 

This  is  a  new  attempt,  apd  were  it 
for  me  now  to  give  my  opinion,  1  6li 
it  ought  not  to  be  admitted. 

The  prosecution  initstlfwas  not 
on  the  contrary  1  it  is  the  duty  of  c 
especially  in  the  ease  of  Mood,  to 
that  the  '«ifi>ridor  be  put  upon  liis  t 
thcrafore,  without  entcrin^jf  into  the 
that  case,  the  motives  o*"  the  prosec 
not  appear;  and  those  alone  can,  in 
hension,  introduce  this  evidence  as  f 
the  matter  in  iijsue  in  this  cause :  i 
out  gointr  fnrther,  can  say,  this  p 
thoutrh  lawful,'  was  carried  on  wi 
lawful  intention  P  I  appriliend  the  ( 
judge  \i  hcthrr  the  prosecution  was  I 
inaiirious,  unless  the  intltctnient  wai 
ap^in  here  ;  but  as  it  is  a  matter  wo 
liberate  consideration,  and  this  trii 
another  day,  i  he  counsel  ft)r  the  ph 
proceed  to  some  other  evitlenoe,  ani 
be  insisted  on,  will  give  you  our  opio 


morning. 


Mr.  Baron  Mounteney,    It  will  a 
me  coDcem,  to  find  my&elf  undfir  i 


and  Rkhard  Earl  ofAngletea* 


A.  D.  1748. 


[lfi« 


I  sudden  and  immediate  opinion 
•tion,  the  contrary  sides  of  which 
1  zeal  contended  for,  by  ^entle- 
i^ure  and  character  in  their  pro- 
le  concerned  in  the  present  catue: 

must  be  extremely  increased, 
lave  the  misforttme  to  differ  in 
T  from  my  Lord  Chief  Baron,  or 
avrson,  for  both  of  whose  opinions 
^hest  re(^rd  ;  and  still  infinitely 
.he  present  cause ;  the  immense 
3f  which  will  incline  me  to  hesi- 
1  such  points,  as  I  should  other- 
>x(remely  clear  in.  I  shall  there- 
lly  avail  myself  of  that  opportu* 
as  my  Lord  Chief  Baron  haUi 
to  mention,  the  adjournment  of 
I  afford  us,  of  giving  this  matter 
ideration. 

isent  opinion  is,  that  the  evidence 
>ught  to  be  admitted ;  and  the 

my  opinion  is  this:  Every  act 
efendant,  which  hath  a  tendency 
isciousness  in  him  of  title  in  the 
aintiff,  must,  I  think,  be  admitted, 
sntroversy,  to  be  pertinent  and 
sin  the  present  cause :  1  think 
»ice  now  offered  hath  that  ten- 
>nsequently  is  proper  to  be  ad* 

ice  of  the  prosecution,  in  my  ap- 
ands  exactly  on  the  same  footing 
•nee  of  the  Kidnapping ;  (against 
least  objection  was  attempted  by 
s  counsel)  for  I  can  by  no  means 
distinction  of  lawful  and  unlawfnl 
seems  to  have  so  much  weight 
chief- baron. 

ful  act  was  not  therefore,  in  my 
to  be  admitted  in  evidence,  be* 
I,  but,  because,  it  had  a  tendency 
I  consciousness,  as  I  have  men- 
defendant  :  and  if  the  carrying 
ution  (which  must  be  admittfS 
extraordinary,  though  lawful, 
endant)  hath  the  same  tendency, 
I  the  same  principle,  to  be  ad- 

ices,  1  believe,  might  be  put  of 
>ne  by  one  party,  which  yet,  it 
ontrovcrted,  would  be  legal  and 
nee  for  the  other.  One.  instance 
at  present,  which  I  think  cannot 

dispute.  Suppose  it  could  be 
he  defendant  had  offered  to  the 
»laintiff  a  considerable  part  of  his 
gesum  of  money,  to  compromise 
-will  any  of  his  counsel  say,  or 
liring  imagine,  that  this  would 
svid^ce  in  the  present  cause? 
NDprorabing  of  a  law-suit  is  not 
Uy,  a  lawful,  but  is,  generally 
mroendaUe  act. 
Ji  e? er  been  esteemed  one  of  the 

moat  onanswerable  arguments 
Uid  Ihefefore,  the  fact  which  1 
if  waaU  be  not  only  kgal,  hot. 


in  my  apprehension,  most  exceedingly  material 
efidenoe  to  be  left  to  the  jury ;  who  wonid  be 
the  proper  judges  quo  ammo  such  an  offer  wat 
made. 

As  to  the  fact  now  offered  to  be  proved,  it  it 
possible  indeed,  that  the  noble  lord  might  take 
up  a  prosecution,  deserted  (so  far  as  appears) 
by  the  near  relations  of  the  deceased  (the  per* 
sons  most  likely  to  have  carried  it  on,  if  they 
had  thought  Mr.  Annesley  guilty  of  murder) 
merely  out  of  a  public-spinted  regard  to  jus- 
tice; it  is  likewise  possible,  that  his  motive  for 
engaging  in  it  might  be  an  interested  one-— a 
consciousness  of  r^ht  in  that  person,  and  con- 
sequently that,  unless  that  person  could  be  put 
out  of  the  way,  the  titles  and  estates  which  be 
was  injpossession  of  would  be  insecure. 

I  tlfink  the  jury  will  be  the  proper  judges 
upon  the  whole  evidence  in  this  case,  unoa 
which  of  these  two  motives,  it  is  most  probable^ 
the  defendant  acted :  and  that  .therefore  the 
evidence  of  that  fact  ought  to  be  admitted,  and 
left  to  their  consideration. 

This,  I  say,  is  clearly  my  present  opinion: 
but,  as  I  mentioned  before,  I  shall  make  use  of 
the  opportunity  of  considering  it  further ;  and, 
if  I  find  reason  to  think  that  I  am  at  present 
mistaken,  I  will  mention  it  to-morrow,  and 
sliall  be  exceedingly  glad  to  change  the  opi- 
nion which  I  have  now  given  fur  a  better. 

Mr.  Baron  Dawson,  1  am  very  glad  that 
there  is  no  necessity  for  our  giving  our  opinioas 
immediately  on  this  point,  I  shall  therefore  de- 
cline giving  any  positive  opinion,  as  we  have 
this  night  to  consider  of  it,  and  in  the  meao 
time  the  gentlemen  on  both  sides  might  look 
into  the  cases  to  clear  it  up  to  the  Court  The 
prosecution  here  is  agreed  to  be  a  lawful  act, 
and  is  not  inunediately  relative  to  the  matter  ia 
issiii^.  The  difficulty  with  me  is,  that  if  this 
be  given  in  evidence,  a^  jury  may,  from  a  law- 
ful act  not  immediately  relative  to  the  issnet 
draw  an  unwarrantable  consequence. 

If  the  act  were  unlawful,  it  would  un- 
doubtedly be  good  evidence,  there  could  be  no 
other  way  of  accounting  for  the  party's  sub- 
jecting hinoself  to  le^  punishment :  but 
where  it  is  not  unlawful,  it  may  be  dangerous 
to  leave  the  intent  to  the  jury.  We  will  con- 
sider of  this  matter,  and  give  our  opinions  in  it 
to-morrow. 

The  Rev.  Mr.  Ah§U  Butler  sworn. 

Snys,  he  is  minister  of  the  parish  of  Tyn- 
tem  and  Owenduff.  That  he  has  known  Dun- 
maine  these  several  years;  says,  it  has  no 
church  in  it,  but  is  united  to  the  parish  of 
Owenduff;  and  there  is  no  book  kept  therein 
for  registering  of  marriages  or  christenings. 

Joshua  Barton  sworn. 

Says,  be  knows  the  present  earl  of  Anglesea, 
and  knew  the  late  lord  Aliham  very  well,  and 
has  been  often  in  his  company  and  eat  and 
drank  with  him.  One  particular  night  depo- 
nent was  in  his  company  at  Jnchicore,  and  did 
not  part  from  him  tiU  about  four  o'dook  io  the 


12S3J 


17  GEORGE  II.     Trial  in  Ejectment  between  J.  Annedey^  esq.  [l93/k 


fDorninfjf ;  and  deponent  remembers  he  asked 
my  lord  to  this  purpose :  My  lord,  would  you 
be  ang^r^  with  me  if  1  tshonid  ask  your  lordship 
a  question;  and  his  lordship  said,  he  would 
not  take  it  amiss.  Whereupon  deponent  asked 
bis  lon!ship,  Pray,  my  lord,  is  the  Utile  boy, 
that  runs  abont  the  streets  of  Dublin  in  such  a 
floor  condition,  your  lawful  son,  or  a  bastard  ? 
My  lord  answered,  That  James  Annesley,  that 
poor  boy,  is  my  lawful  son  by  my  wife.  And 
addedj  that  he  could  not  keep  the  boy  at  home, 
because  of  the  woman  he  kept.  Says,  my 
lord  at  thai  time  had  a  pension  from  the  crown, 
and  was  needy  enouciph.  'Tis  true,  he  kept  a 
pack  of  hounds,  but  one  hound  was  ready  to 
eat  the  other.  That  deponent  kept  a  farm  and 
lived  at  Islnnd-bridtfe ;  thai  the  boy  used  to  be 
an  and  down,  and  lie  in  the  ditches  near  In- 
cnioore,  waiting;  to  get  a  bit  from  the  servants ; 
and  dei>onent  saw  the  boy  about  two  years  be- 
fore my  lord's  death,  and  often  supplied  him 
with  meat  and  drink. 

[Cross-examined.] 

Bein^  asked  if  ever  deponent  put  my  lord  in 
mind  of  the  boy  afterwards  ;  says,  he  did  not 
think  it  so  ri^fht,  as  it  was  more  properly  his 
lordship's  own  business.  Bein^  asked,  how  he 
came  to  ask  his  lordship  if  the  boy  was  his 
lawful  son  ;  says,  because  he  doubted  it,  from 
his  lordship's  taking^  so  little  care  of  him; 
says,  it  was  4  o'clock  in  the  morning^  when 
they  parted,  the  time  deponent  spoke  to  him 
about  his  son,  for  deponent  looked  at  the  hoor 
when  he  came  home  ;  says,  that,  if  my  lord 
could,  he  would  never  let  company  go  away 
from  him  till  the  morning.  I^ing  asked  if 
they  were  drunk    that  morninf^  when  thoy 

{larted  ;  says,  deponent  was  not  drunk,  tor  that 
le  remembers  his  coming  home  well  enough, 
and  pifrticularly  through  what  field  he  came ; 
and  says,  my  lord  was  so  sober,  as  to  wait  npon 
deponent  to  the  door  when  he  came  away. 

Thus  ended  the  fourth  day's  examination  of 
the  plaintiff's  witnesses,  about  7  o'clock  on 
'L'uesday  night  the  i6th  of  November,  and  the 
Court,  by  the  like  consent  as  of  the  night  be- 
fore (which  was  likewise  signed  by  the  par- 
ties, and  their  respective  aitornies,  and  read  in 
open  court)  adjourned  to  the  next  morning  at 
10  o'clock. 


Wednesday y  Novendter  16. 

The  counsel  for  the  plaintiflf  proposed  to  ex- 
amine Mr.  John  (lifiard  to  what  he  had  heard 
the  defendant  say  concerning  the  lessor  of  the 
plaintiff,  and  his  title ;  and  being  called  upon 
to  open  the  nature  of  that  evidence  ; 

Mr.  Uar?rardj  of  counsel  for  the  plaintiff, 
spoke  as  follows:  My  loril,  the  conversation 
Mr.  Giffurd  had  with  ford  Anglesea  was  to  this 
purpose :  Mr.  Giflard  is  au  attorney  of  reputa« 
tioD  in  England,  and  as  such  has  been  twenty 
yean  or  {hereabouts  employed  by  this  noble 
earl  in  bis  busincw,  aa  ha  oad  oocaiioo  for  him. 


When  nay  unfortunate  dicDt  was  to  be  tried  at 
the  Old  liailey,  that  was  the  tinoe  lord  Angktet 
had  greatest  occasion  for  this  Mr.  Gtffard ;  tsi 
it  will  appear  to  yoor  lordship  thai  lord  Aagl^ 
sea  disclosed  his  intentions  to  him  in  this  mn- 
ner :  '*  I  am  advised  that  it  is  not  prudent  fbr  m 
to  appear  publicly  in  the  prosecation,  but  I 
would  give  10,000/.  to  have  him  liaoged.  Nr. 
Jans  my  agent  shall  always  attend  yoo.  1  m 
in  great  distress ;  I  am  worried  by  my  wife  ii 
Ireland  ;  Mr.  Charles  Aonesley  is  at  law  wiA 
me  for  part  of  my  estate,  and,"  says  be,  **  If  I 
cannot  hang  James  Annesley,  it  is  better  fir 
me  to  quit  this  kingdom  and  go  to  France,  mi 
let  Jemmy  have  his  right,  if  ne  will  remit  m 
into  France  3,000/.  a-year ;  I  will  learn  Froeh 
before  I  go." 

Mr.  Da/y,  of  connsel  for  the  defendant,  ib- 
jects  to  Mr.  Giffurd's  being  examined,  sineiH 
an  attorney  he  was  to  keep  the  secrets  sf  Ui 
client,  and  if  he  is  a  gentleman  of  character,  hi 
will  not,  anil  as  an  attorney  he  on^ht  not  H 
disclose  them ;  and  cited  the  case  of^ColtiHi 
Pickering,  1  Vent.  197. 

Serj.  Marshall,  for  the  defendant.  Bat  if  ■ 
attorney  will  volontarily  come  and  disdoieaif 
secret,  he  ought  to  be  heard. 

Mr.  Blake,  of  counsel  for  tlie  defendant*  ii 
attorney  or  solicitor  might  not,  nor  is  be  M- 
pellable  to  disclose  the  secrets  of  his  dim; 
this  is  a  privilege  inherent  in  theoffieeflfa 
attorney  or  solicitor :    but  as  this  privikgska 
its  source  in  a  public  consideration,  I  M 
with  submission  to  better  judgment,  iniit  M 
this  exempiivc    privilege  is   not  merely  ■! 
solely  the  privilege  of  the  solicitor  or  attonifi 
but  is,  in  law  and  reason,  the  right  and  pririlf^ 
of  the  client.     Formerly,  persons  iorcATctf  s 
contests  and  litifj^ations  appeared  in  coott  jv^ 
sonally.  and  pleaded  and  enforced  their  sercnl 
demands  and  respective  defences,  and  bewii 
all  doubt  retained  some  secrets    unrereflMi 
but  when,  from  an  inevitable  variation  of  thiig^ 
an  increase  of  trade,  and  an  exuberance  of  cpfr 
Icnce,  legal  altercations  became  innnmeraUi, 
then  it  became  necessary  to  employ  otben  fe 
represent  the  parties  engaged  ;   these  perfl* 
are  denominated    aitornies  or  soliciton,  vd 
the}',  in  the  nature  of  things,  must  unaTOuhklf 
be  trusted  with  the   most  retired  and  Mdtf 
thoughts  and  actions  of  their  employen,irt 
only  with  respect  to  suits  actually  imtitiitci 
but  also  with  regard  to  suits  threatened  or  ii* 
tended  to  be  commenced  ;    for  a  persoa  vit 
naced,   if  directed  by  prudence,  will  be  e» 
ducted  by  vigilance  and  caution,  equally  ti if 
attacked  ;    therefore  it  is  absolutely  ncccMvy 
to  extend  this  privilege  to  the  client,  and  id 
restrict  it  entirely  to  the  solicitor,  especitlhr  tf 
there  may  be  some  of  that  profession,  whocM* 
not  be  supposed  to  lie  actuated  by  snch  priM- 
pies  of  honour  and  virtue,  as  an  offict  of* 
great  confidence  requires  ;    I  mean  the  pifiii 
now  produced  to  be  a  witness  for  the  pu"'''^ 
The  case  of  lord  Say  and  Seal,  inMauilisfalft 
Reports,  I  think,  is  an  authority  in  point 

Mr.  Recorthr^  for  the  defendant.    II J  M 


am!  Rieharri  Earl  ofAnglcutt. 
:  apiienreil  in  court  thpniieUes ; 
3  TQulliplied   anil   became  mire 
i  titUt  more  peqilfxeil,  bolh  llie 


el  of  people  who  thnuld  aunil  in 
f  Ibe  Bdilur*,  and  thesf  prrsouii  are 
ttornies.  Since  ibis  baa  been  thuuglit 
y,  lU  people  and  all  courts  bare  Inokeil 
U  cunlideoc<9  betweeu  *'..e  party  and 
1  Kreat,  ihnt  il  would  be  de- 
I^aII  bu«iiiera,  i)'  ationites  were  to 
fi«nv8i  of  their  client*.  In  many 
i  their  eaiktes  without  titles ;  in 
bcb  lillei,  that  if  their  deeds  could 
If  their  hanclt,  they  must  lose  Ibeir 
11' ben  persons  Wcome  purchasers 
tonsideratiuns,  and  get  a  deed  that 
M  ibeiD,  they  are  not  obliged  to 
%ether  Ihey  have  that  deed.  Now, 
wney  was  In  be  exaraiard  in  every 
el  mau  would  tmsl  sn  attorney  willi 
It  of  his  estate,  if  he  should  be  per- 
lofler  himself  09  n  wilness  ?  If  an  at- 
lad  il  in  hi*  option  to  be  examined, 
mid  be  an  eulire  stop  to  bcisinesa ;  no- 
uld  trust  au  attorney  with  the  state  of 


why  altorntes  are  not  (o  be  eta- 
thing  relating  to  ibeir  clients  or 
,  because  ihey  would  destroy  the 
It  IS  necessarv  to  be  preserved 
.  This  con6ilfnce  between  ibe 
llbeperMin  employedjis  so  sacred 
iftbey  were  at  bberly,  when  the 
*!  was  over  that  they  were  eni- 
gire  testimony  in  favour  of  any 
itwuuld  DOt  answer  the  end  tor 
tulitiHed.  The  end  is,  that  per- 
My  nay  fflibstitute  others  in  their 
therefore  if  you  cannot  ask  me, 
nan  ;  for  every  thing  said 
I  sail)  it  to  myself,  and  he 
Now,  the  question  will  be, 
B  bslituted  7  Be  sure,  for 
(be  person  employing  him.  Who 
Sptien  that  lie  should  be  emmined  ? 
mployer ;  brcause  utberwise  it 
ivn  10  fix  a  confidence  in  persons, 
iwuai  iibertv  on  any  account  to 
Ft  and  say.  While  I  was  emoloyed 
••  not  in  my  option  to  diiclose  it, 
I  am  not,  rwill  unravel  all.  As 
I  sake  of  the  employer  ibat  altor- 
lUtuteil,  they  cannot  in  civil   suit.i 

ilbout  the  consent  of  the 

!,  1  submit  it,  whether  the 
W  attorney  or  in  the  person  who 
Wj  and  if  in  the  employer,  as  1 
be  both  for  his  safety  •nd  advan- 
mcy  nntber  can  nor  ought  to  re- 
mtruited  to  him.  In  pleading,  it 
attomatiim,'  the  allorney 
coutrary  to  the  rules 
quity,  that  any  man 
I  apprehend  it  is  iiul 
a  tvrpit  couMOmut; 


A.  D.  ITW.  [1526 

as  this  man  was  employed  by  ray  lord  Aagle< 
sea,  he  can  be  asked  no  other  questions  than  my 
lord  An  glesea  himself. 

niy  lurd,  I  must  submit  it,  whether  an  aUar> 
ney's  testimony  should  he  received,  allliough 
he  olfers  to  give  il  ?  And  in  the  next  place,  I 
submit  it,  whether  this  kind  of  Irstimuoy 
in  this  criminal  case  ought  to  be  receiveil  f  u 
would  be  very  little  satiafaeliun  In  a  client  to  be 
put  to  apply  to  ibe  Court  for  an  attachiDent 
agaiust  thig  person  wbo  oHersto  lay  his  evidence 
betlirelbe  jury,  if  hi*  tesliroony  could  lie  re- 
ceived. I  apprehend  that  person  is  in  Iha 
place  of  the  client,  and  as  he  entrusts  him  witfi 
secrets,  he  is  not  to  disclose  ibetn  without  his 
leave  ;  Bud  if  he  should  diMlose  them  out  of 
court,  an  action  of  deceit  lies  against  him.  And 
though  an  attorney  should  not  insist  upon  his 
privilege,  yet  it  is  in  the  power  of  the  employer 
to  msial  upon  that  privilege,  and  to  say  he  ia 
the  person  entrusted  ivitb  his  secrets.  Now, 
in  this  case  it  is  much  stronger,  for  here  il  is 
said,  that  he  is  employed  by  my  lord  Anglesea. 
Now,  if  that  party  cannot  disclose  those  se- 
crets in  a  civil  esse,  be  ought  not,  for  a  stranger 
reason,  in  a  criminnl  case  ;  because  that  is 
sulijectiDg  his  client  perhaps  to  a  criminal  pro* 
secutioa . 

Mr,  Lte,  of  counsel  for  Ihe  defendant.  My 
lord,  if  ibe  altoroey  confess  judgment  tipoa 
record,  il  shall  bind  the  conutor,  though  done 
without  warrant ;  and  the  reason  is,  that  the 
attotney  appearing  fur  the  party  is,  since  the 
statute  of  Merlon,  considered  as  the  party 
himself.  If  llieu  tbe  attorney  and  parly  are 
considered  as  one  person,  why  shall  the  oneb« 
effered  to  be  examined  iu  this  cause,  when  llie 
uther  ctinnot  ? 

Serj.  MariliaU.  1  do  adtnltiu  some  cases  the 
attorney  ought  not  to  be  permitted  to  disclniii: 
tbe  secrets  of  his  clieuts ;  but  that  must  be 
where  the  con Rdence  was  necessary  and  law- 
ful; but  here  the  trust  was  unlawlul,  and  the 
altorney  could  not  conceal  it  without  breach  of 
bis  oath,  as  on  attorney,  which  was  to  du  right 
to  all  men.  This  was  a  criminal  secret,  thai 
was  not  only  to  aflecl  the  plaiotilTs  iiroperty 
and  life,  but  also  to  acquire  a  title  in  wtiici]  tiie 
public  were  interested  ;  so  that  it  became  the 
duty  of  the  atlorney  to  disclose  il 


called  up  accordingly. 

Mr./o/mCi/orrfswo 
Q.  Are  you  an  attorney  of  at 


what 


an  allorney  of  the  Coi 
Pleas  in  England,  and  a  selicitor  of  the  High 
Court  of  Chancery,  and  sworn  and  adntitled  at 
such  by  virtue  of  the  act  of  parliament 

({.  bid  you  know  the  defendant  ibe  earl  «f 
Angleaea  ?— jl.  Ves. 

Q.  Wereyun  ever  agenlorsolicilorforhiaiin 
any,  and  what  cause  ? — A.  In  the  year  1719, 
lunl  Anglesea  employed  me  to  assist  liiin  on  a 
particular  occasion  to  make  hia  defence- 

Q.  Naute  tbe  parties.— -J,  Uu  i 


I 


1S27J  17  GEORGE  II.    Tria^  in  Ejectment  beftoeen  J.  Amedey,  esq.   [r  J 


cated,  the  king  against  biin,  asRicliard  A  ones- 
ley,  esq. 

Q.  Were  you  em  ploy  eel  in  any  other  cause  ? — 
A.  In  the  year  1729,  the  same  year  when  an  ac- 
tion was  brought  S'^ainst  him  at  the  suit  of  oue 
George  Risden.  But  from  the  year  1782, 
until  he  became  earl  of  Aoglesea,  1  uever  heard 
of  him.  In  the  year  1737  I  met  him  in  Lou- 
don, and  he  desired  me  to  solicit  an  aiTair  be- 
tween bim  and  his  countess  that  lived  at  Bid- 
ditbrd. 

Q,  Name  the  next  cause.— ^.  Between  the 
right  honourable  Maurice  Thompson  lord 
HaTertham,  and  the  earl  of  Anglesea. 

Q.  The  next.— ^.  1  was  concerned  in  ano- 
thm',  the  same  year,  and  attended  it,  (it  is  very 
wdl  known  through  the  Houses  of  Lords  and 
Commons  in  England)  in  order  to  throw  a  Bill 
•at  of  the  House  of  Commons,  for  the  ezem- 
plifving  the  late  earl  of  Aoglesea's  will. 

Q,  Go  on.— ^.  1  was  likewise  concerned  in 
a  particular  cause,  between  mv  lord  Anglesea, 
in  the  year  1741,  and  one  Mrs.  Simpson  of 
this  place;  and  have  also  sued  out  several 
writs  out  of  the  Ck>urt  of  Common- Pleas,  at 
the  suit  of  my  lord  Anglesea,  against  one  Hen* 
dersoD  a  Quaker. 

Q,  Good. — A,  I  likewise  was  employed  by 
lord  An^esea  in  a  cause,  wherein  his  lordship 
was  plaintiff,  and  one  Rachael  Cooper  was 
defendant 

Q,  Go  on.<— ^.  1  issued  out  writs  against 
Henderson,  at  the  suit  of  one  Banks,  by  lord 
Anglesea's  directions. 

Q.  Go  on. — A.  I  was  sent  for,  and  com- 
manded by  him  to  solicit  and  carry  on  a  pro- 
secution against  the  plaintiff  Mr.  Annesley. 

Q.  nave  you  been  retained  as  agent  or 
solicitor  for  the  earl  of  Aoglesea,  in  any  other 
causes  within  these  three  years  ? — A,  1  do  not 
know;  some  frivolous  thing  might  have 
slipped  my  memory,  but  I  was  not  concerned 
in  any  otiier  cause,  since  the  prosecution  of 
Mr.  Annesley. 

Q,  Name  the  time  when  you  were  retained 
by  the  earl  to  prosecute  that  murder. — A,  The 
second  day  of  May,  1743. 

Q.  The  conversation  that  passe<l  between 
you  and  my  lord,  to  which  you  are  now  pro- 
duced as  an  evidence,  was  it  before,  or  atter, 
that  time  ? — A,  There  were  several  declarations, 
some  before,  and  some  after.  The  conversa- 
tions were  from  the  7th  of  December  1741,  to 
the  time  of  Mr.  Annesley 's  being  discharged  at 
the  Old. Bailey. 

(}.  When  was  the  bill  of  indictment  found 
against  Mr.  Annesiley  I* — A.  The  bill  was 
found  in  June,  and  he  was  admitted  to  bail  in 
July  sessions,  1742. 

Q,  On  what  day  is  the  murder  laid  in  the 
indictment  ?—yl.  On  the  first  of  May,  1742, 
the  15th  year  of  the  present  ki»>r, 

Q,  Were    you    agent  or  solicitor  for    lord 

Anglesea  at  the  time  that  the    conversation 

passed,  before  the  8d  of  May? — A,  Not  for 

the  cause  of  Mr.  Annesley. 

Q.  Wage  aat  the  othar  <a»w»  labiMnyi^- 


A,   The  causes  were  oa  writs  which 
never  executed. 

Q.  1  desire  you  may  answer  directlv, 
ther  the  conversation  before  the  3d  of  fis)^^ 
not  on  some  affair  iu  which  my  lord  ko\ 
consulted  and  advised  with  you  as  his 
or  solicitor,  designiog  to  eniploy  you  ii 
affair?— ii.    No,  my  lord,  it  was  not; 
did  not  ex[>ect  to  be  eoiuloyed  by  bin  % 
he  having  employed  Mr.  Geoige  Gard^^ 
Mr.  Adam  Gordon. 

Q.  Name  the  people.*^.    Mr.  Gard»^^ 
Mr.  Gordon.     They  are  attoroies,  th^,^. 
partners,  and  1  received  my  iBstructioo:^"^ 
great  part,  from  them ;  iny  lord  ordereil^  _ 
take  directions  from  them,  and  I  bavei  ^^^ 
tions  under  Gordon's  own  haod-writiug,,^,,^ 
Q.  Had  my  lord  Anglesea  those  '"^m^ 
tions  with  you  relative  to  the  plaintiff,  k.»^ 
the  7th  of  December  and  the  Sd  of  Cl|^^ 
intending  to  employ  you,  or  not  ?— J.  Jg^ 
was  employed,  nor  intended  to  be  eiofdb^ 
in  any  suit  for  or  against  him,  ^magiki 
time. 

Q.  When  did  you  first  receive  instrodiM 
from  Garden  and  Gordon  ?— J.  In  i  ni 
after  the  first  of  May. 

Q.  Had  you  any  instructions  fron  Aei^ 
ezeept  what  were  relative  to  the  proMCSMi 
in  relation  to  the  plaintiff? — A.  No ;  as  ii- 
structions  but  what  were  relative  to  thepn» 
cation. 

Q.  Did  you  charge  lord  Anglesea  with  of 
term  fees  in  the  year  1741,  reUtive  to  psrliok 
suits  ? — A.  I  believed  I  charged  10s.  U  fa 
lord  Haversham*s  suit. 

Q,  In  what  term  did  you  charge  it?— i-  I 
find  that  cause  was  in  the  vacation  betwcei 
Hilary  and  Easter  term,  and  was  coadadfi 
before  Easter  term  came.  It  was  depesditf 
in  Hilary  term  1741,  and  was  coocIum 
before  tlie  next  term. 

Q.  Was  it  de}»cndhig  for  any  time  beffft 
Hilary  term  ? — The  beginning  of  it  wu  tbc 
201  h  of  January,  the  essoign  day  before  Hi* 
lary  terra. 

Q,  Were  you  concerned  for  lord  Angieiei 
from  the  latter  end  of  November  to  the  beps* 
ning  of  January  1741  ^ — A.  1  was  coocerod 
in  issuing  out  some  writs. 

Q.  And  do  not  you  think,  if  any  suit  bd 
de|iended  \i\\oTk  them,  you  would  have  bns 
concerned  P — A,  I  do  not  know  hut  I  niigbt. 
The  Witness  goes  off  the  table. 
Mr.  Frirne  Serjeant y  (Anthony  M alone,  eq.) 
for  the  defendant.  An  attorney  shall  not  disckat 
any  thing  whatsoever  in  a  collateral  queiliflSy 
that  shall  affect  the  pro|)erty  of  the  ciieoL* 


*  In  the  <•  Trial  at  Bar/*  dec.  the  folk>«ii< 
speeches  arc  inserted  after  this  of  Mr.  Priai 
Serjeant:- 

X.  C  B,  One  Mr.  Trevor,  an  AttoiiM^ 
was  attached  in  this  court,  in  the  caoie  ■ 
Magill  against  Savage,  though  be  pkiM 
that,  as  an  attorney,  he  ought  not  to  "  '*^ 
bis  dicnt'a  aecrets. 


Old  Richard  Earl  ofAnglcsea, 


A.  D.  1743. 


[1S30 


rUdall,  for  the  plaintiff.  Mv  lord, 
se  to  exaroiue  to  no  fact  which  came 
lowledge  a%  to  attorney,  in  any  auit 

he  was  employcxl  for  lord  Anfpieeea : 
Bclares  he  never  was  employed  in  any 
in^  to  the  lessor  of  the  plaintiff,  nor 

intended  to  be  employed  in  any  suit 

0  this  trial.  We  hope,  therefore,  we 
tr  to  gire  in  evidence  several  declara- 
conversations  lord  An^ksca  had  with 
-ss  concemin<3f  the  lessor,  his  title  to 
e,  and  the  necessity  be  apprehended 
nder  of  putting  him  ont  o(  the  way  at 
s.  We  do  not  propose  to  examine 
» any  fiicts  relating  to  the  prosecation 
Jit  m  which  he  was  then  employed ; 
•  only  to  examine  him  as  to  the  con* 

1  with  lord  Anglcsea  concerningr  this 
lid  I  apprehend  we  have  nudoubtedly 
)  examine  him  as  to  these  points. 

ot  say,  but  the  gentlemen  on  the  other 
I  (ifood  reason  to  oppose  this  evidence, 
'  it  appears  in  the  manner  we  are  in- 
it  will,  must  be  an  evidence  of  great 

I  shall  first  beg  leave  to  consider, 
an  attorney  may  be  examined  to  any 
'iiich  came  to  his  knowledge  as  an 
If  he  is  employed  as  an  attorney  in 
wful  or  wicked  act,  bis  duty  to  the 
iliges  him  to  disclose  it;  no  private 
is  can  dispense  with  that  universal 
licli  lies  on  every  member  of  the 
to  discover  every  design  which  may 
(1,  contrary  to  the  laws  of  the  society, 
y  the  public  welfare.  For  this  reason 
end,  that  if  a  secret,  which  is  contrary 
blic  good,  such  as  a  design  to  commit 

murder,  or  perjury,  comes  to  the 
re  of  an  attomev,  even  in  a  cause 
h(>  is  concerned,  tbe  obligation  to  the 
U9t  dispense  with  the  private  obliga- 
ae  client :  but  in  this  case  the  witness 

to  be  examined  was  not  attorney  to 
idant  in  any  case  relative  to  his  testt- 
And  the  secrecy  of  the  attorney  is 
y  to  the  client  in  that  cause  only,  for 
ring  on  of  uhich  he  is  under  a  noces- 
itrust  him.  For  this  reason  I  agree, 
itever  is  communicated  to  him  from 
essity  ought  not  to  be  discloBi>d,  even 
re  cause,  wherein  he  is  not  comrcrned ; 
le  client  is  not  obli«re<l  to  entrust  his 

fi  Jor  the  Jhfendant,    That  case  was 
nrent  from  the  prest^nt  one. 
revor  was  required  to  a:iswer  (upon  a 
against  him)  what  the  su Instance  of  a 
which  it  appeared  he  hud  fonnerly 

•mded,  it  is  true,  that  l>eii)g  attorney 
Savage,  he  ought  not  to  disclose  tbe 
f  bis  client.  But  it  appearing  to  the 
lat  he  was  bat  about  fourteen  years  of 
n  be  copied  the  will,  and  was  not 
itloroey,  an  attachment  was  granted 
bim,  to  comiiel  him  to  disclose  what 
fared  of  him. 


attorney  with  any  of  his  secrets,  but  such  only 
as  are  relative  to,  or  may  be  useful  for  carrying 
on  the  cause  in  which  be  is  employed ;  if  he 
trusts  him  with  any  matter  foreign  to  that, 
even  daring  the  time  that  he  is  employed,  with 
any  matter  which  was  not  necesnry,  or  any 
way  material  to  the  cause  dependmg,  he  is 
not  obliged  to  conceal  it. 

I  beg  leave  to  say,  as  there  was  no  nectstity 
upon  the  client  to  entrust  him  with  it,  eo 
mutually  there  can  be  no  obligation  upon  tbe 
attorney  to  conceal  it;  for  as  tiie  only  obliga- 
tion which  lies  on  the  attorney  to  secrecy, 
arises  from  the  necessity  of  confidence  between 
him  and  his  employer,  from  the  necessity  tbe 
client  must  be  under  to  entrust  him,  it  cannot 
extend  to  any  case  where  that  confidence  was 
not  necessary,  where  the  client  was  not  under 
such  a  necessity.  If  this  be  admitted,  tbe 
matters  we  propoee  to  examine  to  are  quite 
foreign  to  those  suits  iu  which  the  witness  waa 
employed  for  the  defendant.  My  lord  Anglesee 
was  indeed  under  a  necessity  of^ent rusting  him 
with  all  the  evidence  that  bethought  necessaiy 
for  the  prosecution  carried  on  ag^ainst  tbe 
plaintiff  in  England,  and  the  attorney  is  under 
au  obligation  of  concealing  that  evidence :  but 
was  iie  under  a  necessity  of  telling  the  attorney 
be  wanted  to  put  this  man  out  of  the  way,  or 
that  he  was  entitled  to  his  honours  and  estate  f 
This  was  a  secret  he  ought  in  prudence  to  have 
kept  withiu  his  own  breast,  and  not  to  have 
discovered.  This  was  a  secret  not  necessary 
to  be  communicated,  and  therefore  not  to  be 
concealed. 

Upoi^  these  principles,  thererore,  1  should 
submit  It  to  your  lordship,  that  we  must  be  at 
liberty  to  examine  Mr.  Giffard  as  to  those  con- 
versaiions  which  were  no  way  relative  to  the 
matter  in  which  he  was  then  employed  by  the 
defendant,  and  which,  if  trne,  as  they  are  re- 
presented to  us,  import  a  design  contrary  to  all 
laws  of  nature  and  society. 

Mr.  IVahh^  for  the  plaintiff.  1  do  admit 
that  an  attorney  shall  not  he  examined  to  auj 
fact  disclosed  to  him  by  his  client  as  an  attorney, 
relative  to  a  cause  wherein  he  was  employed; 
lx?cause  a  client  must  of  necessity  rntrust  the 
secrets  of  his  titir  to  his  attorney,  to  enable 
him  to  conduct  hi«i  ^iiit ;  and  thereCore  tbe  at- 
torney stands  in  the  place  nf  his  client,  who 
cannot  be  examined  as  a  witness  against  him- 
self. But  this  role  can  never  he  extended 
either  to  a  case  where  the  matter  uas  not  com- 
niunionted  to  him  as  a  secret,  in  the  cause 
wherein  he  was  employed,  or  before  be  was 
employe<l  as  attorney  in  that  cause ;  because 
there  the  client  was  not  unMer  any  necessity  of 
disclosing  the  fact  to  him;  and  if  it  were  other- 
wise,  this  inconvenience  must  happen,  that  no 
attorney  could  ever  be  a  witness  against  a 
person,  if  he  ever  hapiienetl,  upon  any  occa- 
sion whatsoever,  to  be  his  attorney.  The 
question  then  is,  whelhrr  the  fact  to  which  we 
want  to  examine  Mr.  Giffard  was  communi- 
cated to  him  b>  lord  AnijliKpa,  as  hii  lordship's 
atiornry,  or  not!'  or  whether  he  was  actually 


1231]  17  GEOUGE  II.     Trial  in  Ejectment  between  J.  AmmUy,  esq.    [  183 


employed  by  bim  in  the  prosecotion  of  Mr. 
ADDesiey,  at  the  time  the  discourse  we  would 
examine  him  to  happened  ?  It  is  true,  Mr. 
Giffard  had  been  attorney  to  lord  Anglesea  in 
tereral  suits  before  this  conversation  happened  ; 
but  he  could  not  be  at  that  time  employed  in 
the  prosecution  of  Mr.  Annesley ;  because  it 
appears,  that  this  discourse  happened  before 
the  Goroner*s  inquest  sat,  or  any  prosecution 
bwm  on  that  account;  so  that  I  apprehend 
this  case  does  not  come  within  the  rule  I  men- 
tioned, and  that  Mr.  Oiffard  oufi^ht  to  be  ex- 
amined. But  besides,  what  we  would  examine 
bim  to  is,  not  as  to  any  secret  in  the  prosecu- 
tion itself,  but  only  as  to  lord  Anglesea's  inten- 
tion and  design  in  engaging  himself  in  the  pro- 
secution. But  I  must  mention  another  reason, 
which  puts  this  matter  out  of  doubt,  aud  that  is, 
that  this  prosecution  was  at  the  suit  of  the 
crown  ;  if  any  secrets  were  in  that  suit,  they 
were  the  king's  secrets,  the  revealing  of  which 
could  be  no  inconvenience  to  lord  Anglcsea,  or 
affect  his  property ;  If  an  attorney  is  a  sub- 
scribing witness  to  the  execution  of  a  deed  by 
his  client,  he  does  not  attest  it  as  attorney,  and 
therefore  he  may,  reveal  his  client's  having 
executed  such  deed. 

If  a  conversation  happened  between  an  at- 
torney and  his  client,  even  relating  to  a  cause 
he  is  concerned  in,  but  before  he  was  concerned, 
he  may  disclose  it ;  and  therefore,  my  lord,  I 
apprehend,  for  these  reasons,  that  Mr.  Giffard 
ought  to  be  examined  as  to  the  point  wo  bare 
opened. 

Mr.  Harjcard.*  I  apprehend,  that  what  is 
contended  for  by  the  gentlemen  on  the  other 
side,  is  not  supported  by  the  authorities  they 
have  relied  on :  oecause,  in  all  the  cases  quoteij 
by  them  it  does  appear,  that  the  attorney  pro- 
posed to  he  examined,  was  the  attorney  or 
agont  in  that  very  cause  that  was  then  to  re- 
4.*eive  a  determination,  and  it  appears  that  the 
vecrcts  to  which  he  was  to  be  examined,  were 


^  In  tiie  ^'  Trial  at  Bar,"  6cc.  this  speech  of 
3Ir.  Harward  begins  thus : 

*<  If  even  an  act  of  parliament  was  made, 
that  no  attorney  should  disclose  the  secrets  of 
his  client,  yet  that  act,  in  numberless  cases, 
would  have  no  weight,  because  no  act  whatso- 
ever can  be  consistent  with  reason  which  would 
subvert  the  laws  of  God.  And  to  conceal  a 
crime,  is  in  some  measure  to  l)ecome  a  party 
to  it.  Surely  there  never  was  a  stranger  in- 
stance of  iniquity  than  the  present ;  a  design  of 
the  blackest  dye  aii^ainst  the  life  of  an  innocent 
i)erson.  And  shall  a  man  ;  because  he  has  once 
been  concerncil  as  attorney  for  the  assassin, 
have  his  month  shut  for  ever?  Such  a  doc- 
trine would  be  to  protect  villainy  a^rainbt  all 
virtue  and  innocence.  Shall  an  attorney  stand 
by  and  see  a  man  kept  out  of  his  estate  and 
honour,  and  all  that  is  dear  to  him,  and  not 
speak,  because  the  criminal  has  once  bevn  his 
client?  no  sure,  unless  he  has  a  mind  to  be- 
come a  party  to  the  crime  by  the  concealment 
of  it." 

1 


secrets  that  came  to  his  knowledge  fftmi  | 
client  concemuig  that  very  cause.    So  that  H 
cases  quote<1  do  not  umiotain  the  objeel^ 
made ;  for  this  witness  was  never  in  this  ca> 
employed  as  agent,  or  in  any  other,  io  wk^ 
the  title  to  the  Anglesea  estate  was  oootrove^ 
as  it  is  here ;  so  can't  be  said  to  viobte 
confidence  reposed  in  him,  as  to  any  h^, 
concerning  the  title  to  the  estate;   for 
could  not  come  in  question  on  the  prase^^ 
for  murder,  or  be  in  any  sort  necessary  ^ 
client  to  reveal  to  him  to  carry  on  the 
tjon;  and  therefore  not  within  the  ra" 
down,  That  the  client  has  a  privilege  to        . 
his  attorney  from  disclosing  any  of  the 
communicate«l  to  him  necessary  to  ft::^2ffi 
the  cause  be  is  employed  in :  And  in  "%  ^ 
of  Cutts  and  Pickering  in  Ventris,  it  warn,  ^^y^ 
that  if  the  secret  came  to  him  from  hasl^ 
before  he  was  retained,  he  might  bo  cjcani^. 
and  a  retainer  in  a  capital  prosecution  nnx! 
in  Uie  nature  of  the  thing,  imply  aav  trtgm 
the  attorney  to  keep  the  secrets  of  the  tides 
an  estate,  no  way  to  be  in  question  in  tbitpt- 
secution :  and  the  case  of  lord  Say  and  Sol 
mentioned,  makes  rather  for  us  tbao  tpm 
lis ;  for  there  the  attorney  employed  to  sAr 
a  recovery  was  examined  against  his  dial  ■ 
to  antedating  a  deed  to  make  a  teoiotts  Ae 
Proccipe ;  for  that  the  time  of  executing  t  M 
could  not  be  called  the  secret  of  his  clieut;  wi 
the  rule  laid  down  on  the  other  siile,ioiiA 
general  terms  as  it  is  urged,  instead  of  p^ 
moting  public  justice,  would  fsnbrert  it,  mJ 
screen  all  villainies  that  could  beruotrifeib 
carry  a  cause.     I  take  the  distinrtiou  to  be,  tU 
where  an  attorney  comes  to  the  knowlfdutrf* 
thing  that  is  *  malum  in  se,'  against  the «!&• 
nion   rules  of  morality  and  honesty,  thou{k 
from  his  client,  and  necessary  to  procure  fac* 
cess  in  the  cause,  yet  it  is  no  hreach  oftruta 
him  to  disclose  it,  as  it  can't  be  presu^  * 
honest  man  would  engage  in  a  trust  dut^ 
law  prevented  him  from  discharging  that  oo™ 
duty  all  are  bound  to,  nor  can  private  obluiQ" 
cancel  the  justice  owing  by  us  to  the  ^^'^ 
But  the  trast  repose<l  in  this  attorney*  as,  ti 
cairy  on  a  prosecution  of  murder.    Themtf* 
disclosed  by  this  lord  to  him  was  foreign  ccn- 
cerning  the  title  to  an  estate;  then,  buw  cat 
the  revealing  of  that  be  a  breach  of  trust,  vbd  ; 
not  within  the   trust  he  was  employed  lO-  | 
The  prosecution  was   properly  at  the  kiu;;! 
suit,  and  not  at  the  lord  Anglesea 's ;  this  tyfi' 
ment  was  not  then  even  in  coiiteraplati^.  * 
could  be  foreseen  that  the  title  to  the  estili 
would  ever  come  in  question;  so,  what  M 
Anglesea  dechiretl  to  him  conriTning  the  lidci 
is  no  more  within  the  bounds  of  the  trust  re 
posed,  than  if  any  other  person  had  decbroit 
to  him,  for  whom  he  never  uas  employed. 

Rut  to  go  a  little  farther,  suppose*  1*  cmpltf 
an  aUorney  to  recover  Hlack:icre  forme,tw' 
bring  an  ejectment  for  it ;  while  he  is  thai  c** 
ployed,  I  come  and  discover  to  him  that  1  hi* 
forifcd  a  deed  which  relates  to  WhiteacreisBf 
possession,  and  which  is  the  riglit  of  anolbtf 


^ 


and  Richard  Earl  qfAnglaea, 


A.  D.  1745. 


[1234 


might  not  the  attorney  hereafter  dia- 
tliat  forp^ry,  to  enable  the  other  to  re- 
^Vbiteacre  trum  me?  For  he  never  was 
>yed  or  entruited  as  an  attorney  by  me 
kt  case.    80,  in  the  present  oase,  the  at- 
f  «was  never  employed  in  any  cause  where 
tie  of  the  estate  was  or  could  come  in 
lOD  ;    so  not  at  all  within  the  reason  of 
leccssary  privilege  given  by  law  to  the 
y    CO  hinder  bis  attorney  from  disclosing 
f  the  secrets  communicated  to  him,  ne- 
*y   for,  and  relative  to  the  carrying  on  of 
A  use  be  has  engaged  hioMelf  in  to  prose- 
The  thing  therefore  that  varies  this  case 
the  rule  of  privilege  laid  down  on  the 
side  is,   that  this  attorney  was  ni^ver 
irned  in  any  suit  of  my  lord's  relative  to 
itle  of  the  estate,  and  to  which  we'  now 
Mce  him ;  and  there  can  be  no  such  privi- 
but  where  there  is  such  suit  and  retainer 
liat  individual  purpose,  and  cannot  extend 
inoealraent  of  secrets  disclosed  under  the 
dcnce  of  ordinary  friendships  or  discourses. 
id  lastly,  as  it  is  a  discovery  to  the  agent  to 
ive  the  death  of  an  innocent  man,  that 
I  u  no  protection  whatsoever  can  be  given 
iapeose  with  that  moral  engagement  he 
nnder  to  the  discovery  of  it ;   if  this  un- 
nate  gentleman  had  come  to  the  discovery, 
the  lord  Anglesea  and  his  attorney  had 
«d  into  a  conspiracy  to  brilie  witnesses, 
I  the  Court  stand  by  and  say.  That  this 
ess  should  not  be  examined?  How  can  he 
then,  in  a  civil  case,  wherein  he  never  was 
erned,  have  that  protection  ?    Will  any 
leman  deny,  that  this  attorney  could  have 
>  and  given  in  an  examination  concerning 
prosecntion  •*    He  certainly  could ;  for  no 
can  have  a  protection  against  thekin^. 
if  lord  Anglesea  was  so  idle,  or  if  Provi- 
«  has  so  ordered  it,  that  he  should  be  so 
•ry,  or  so  wanton,  as  to  make  a  discovery 
liis,  and  of  the  plaintiff's  title  to  the  estate, 
•I  no  privilege  against  the  discovery  of  it.* 

In  the  •«  Trial  at  Bar,"  &c.  the  following 
eh  of  Mr.  Prime  (Serjeant  Malone  is  in- 
nI  m  this  place : 

r.  Prime  Serjeant  Malone,  Mr.  Giffard 
owledged  that  be  was  concerned  as  at- 
ey  for  my  lord  Anglesea  from  1723,  to 
;  what  I  therefore  humbly  contend  for 
liat  he  cannot  legally  reveal  any  secret 
nnnicated  to  him  by  the  defendant  during 
period  of  time  that  be  wai  his  lordship's 
ley. 

m  mutual  confidence  between  client  and 
ley  require  the  preservation  of  secrecy. 
d  as  the  client  cannot  be  supposed  to  be 
lad  to  distinguish  what  is,  or  is  not  neces- 
to  his  cause,  if  he  should  be  mistaken, 
■IriMt  his  attorney  with  what  the  attorney 
d  be  of  opinion  was  unnecessary,  yet 
f  Us  attorney  ought  not  to  reveal  it. 
dints  are  not  versed  in  law  affairs,  they 
ba  inlbnBad  by  their  attorney,  for  which 
■0  thay  nait  lell  them  their  whole  case, 
fL.  XVII. 


SoikUor  General^  (Warden  Flood,  esq.)  for 
the  defendantf  1  humbly  hope  your  lordship 
will  not  admit  this  person  to  be  examined  in 
thia  cause.    If  the  question  were  only  to  his 


•f^m 


and  this  necessity  creates  a  confidence  betweft^ 
them. 

In  the  lord  Hay  and  Seal's  case,  it  is  express  • 
1^  laid  down  for  law,  that  if  a  person  entruais 
his  attorney  with  a  secret,  whetuer  it  reUtes  to 
tile  cause  be  is  actually  employed  in,  or  ano- 
ther, the  attorney  shall  not  reveal  it,  because 
it  is  the  same  thing  whether  he  is  attorney  in 
one  suit  or  several,  there  is  the  same  trust  aini 
confidence  reposed  in  him,  and  there  seems  to 
be  no  difference  whether  the  conversation  re- 
lates to  the  principal  cause  in  which  tHe  at- 
tornej^  is  concerned,  or  to  a  collateral  action, 
in  which  he  is  not ;  it  is  in  either  case  ground- 
ed on  the  confidence  that  arises  from  the  at- 
torney's being  employed,  and  therefore  ought 
not  to  be  disclosed. 

Suppose  a  man  indicted  for  mnnler  consults 
his  attorney  or  counsel,  can  any  one  say  (though 
that  crime  concerns  the  public  justice  as  much 
as  any)  that  the  attorney  or  couujiel,  so  consulf- 
ed,  ought  to  reveal  the  secrets  of  his  employer  ? 

Giffard  owns  he  was  attorney  in  several  suits 
for  the  defendant ;  what  though  the  colloquium 
he  is  called  to  disclose,  was  not  relative  to 
the  specific  suit  he  was  attorney  in,  yet  1  hope 
be  shall  not  reveal  it ;  because,  my  lord's  re- 
taining him  to  be  his  attorney  imported  in  its 
own  nature  a  trust  and  confidence,  it  was  a 
reliance  on  this  maxim  of  the  law  that  drew 
lord  Anglesea  in  to  trust  his  attorney  with  his 
secrets. 

One  of  the  causes  mentioned  by  Giffard  was 
between  lord  Haversham  and  lord  Anglesea. 
With  ^^reat  submission  the  Court  cannot,  with- 
out gomg  into  the  nature  and  circumstances  of 
that  cause,  know  how  far  the  secret,  now  to  be 
disclosed,  was,  or  was  not  necessary  to  mj 
lord's  defence  in  that  suit;  and  therefore  I 
humbly  submit  whether  it  ought  to  be  disclosed. 

flop.  ^6,  of  *«  The  Trial  at  Bar,"  See.  this 
Speech  is  given  thus : 

Mr.  Soiicitor  General  of  counsel  .for  the  de- 
fendant. The  constitution  of  law  that  mide  it 
necessary  to  emiiloy  attornies,  enjoin^  them  to 
be  faithful  to  their  clients,  and  armed  them 
with  several  privileges,  not  for  their  own  sakes 
but  their  clients;  so  that  they  ate  the  pri- 
vileges of  the  client,  and  not  of  tho  attorney ; 
the  attorney  therefore  cannot  give  up  his 
client's  privilege,  and  reveal  his  secrets.  And, 
as  there  scarce  ever  was  an  instance  of  an  at- 
torney's being  so  wicked,  1  cannot  cite  many 
authorities  to  this  point ;  but  I  bunibly  con- 
ceive, and  there  is  the  less  need  of  it,  because 
the  nature  of  the  thing  does  not  require  it,  an 
attorney  by  his  pro^iessiou  being  obliged  to  ob- 
serve secrecy. 

The  case  of  lord  Say  and  Seal  mentions  the 
privilege  of  refusing  to  be  examined,  as  the 
privilege  of  the  client,  and  not  of  the  attorney. 

And  if  au  attorney  at  any  time,  bting  out  of 

4K 


1235] 


17  GEORGE  11.    Trial  in  Ejectment  bettoeen  J.  AfmeJey^  esq.   [1296 


credit,  surely  he  can  deterre  none ;  for  he  ap- 
peare  under  the  circumstances  of  a  person  who 
was  employed  from  the  year  1728,  by  this  no- 
ble person  as  his  attorney  :  a  man  willin^y  be- 
traying those  secrets,  which,  in  point  of  duty 
and  common  honesty,  he  oup:ht  to  keep.  Be- 
sides, the  secrets  he  pretends  to  disclose  are 
such  as  it  was  not  necessary  for  my  lord  to 
communicate  to  him,  and  such  as  no  man  in 
bis  wits  could  disclose  to  any  person,  under 
what  obligation  soever  of  secrecy,  without  an 
unavoidable  necessity,  which  does  in  no  sort  ap- 

Eear  to  be  the  case  here  ;  and  this  makes  what 
e  says  the  less  credible,  and  him  the  less  Gt  to 
be  believed  asto  his  competency.  The  case 
of  the  lord  Say  and  S^,  which  has  been  cited, 
is  a  full  authority  that  the  secrecy  indulged  to 


to  this  evidence,  that  u  Mr.  Gifiard  appwcd, 
from  what  he  said  oo  the  table,  to  have  btea 
employed  by  my  lord  as  bis  attorney,  he  oogbt 
not,  by  law,  to  be  permitted  to  ihsclosa  soy 
thing  that  was  uttered  to  faim  by  my  lord  oodcr 
the  trust  and  conGdence  reposed  in  him  ss  u 
attorney.  There  have  beeo  two  answers  giyca 
to  this  objection  :  First,  That  the  not  disclniBf 
the  secrets  of  the  client  is  a  privilege  given  1^ 
law  to  the  attorney,  and  in  his  favour  only,  bm 
therefore  he  is  at  liberty,  if  he  thinks  fit,  it 
wave  it.  In  the  next  place,  the  ^ntlemcn  say, 
that  the  declarations  touchioff  Mr.  Anncsle^'f 
right,  were  made  at  a  time  when  my  lord  w 
no  cause  depending,  and  that  whatever  is  dii- 
cUsed  by  the  client  to  his  attorney,  when  tbot 
is  no  cause  depending  in  which  the  attoraej  ii 


sakes,  but  that  of  their  clients.  That  it  is  the 
privilege,  not  of  the  attorney,  but  of  the  client  $  < 
and  of  consequence  cannot  be  waved  without 
bis  consent.  It  is  true,  this  privilege  will  not 
hold  in  a  criminal  case,  but  is  superseded, 
when  it  is  incompatible  with  the  peace  and 
welfare  of  the  public  ;  but  ours  is  a  pnvate  case, 
and  falls  not  within  this  rule. 

Mr.  Harward  mentions  the  case  of  Staples 
and  Suiples,  wherein  a  settlement  that  was  con- 
cealed, but  not  suppressed,  was  wanted  to 
be  known  by  Mr.  Matthews ;  when  the  lord 
chancellor  directed  it  so,  that  there  was  a 
meeting,  by  consent  of  all  parties,  between  the 
attornies  on  both  sides,  and  a  copy  taken  and 
signed. 

Mr.  Da/y,  of  counsel  for  the  defendant,  sup- 
poses, that  if  he  was  concerned  for  a  man 
guilty  of  high-treason,  the  Court  could  not 
oblige  him  to  disclose  the  secrets  committed  to 
hinwby  that  man. 

Mr.  Smith,  for  the  defendant.  If  I  rightly 
apprehend  the  nature  of  Mr.  Giflfanl's  evidence 
offered  by  the  gentlemen  on  the  other  side,  it 
relates  to  twodiHereiit  kinds  of  declarations  al- 
ledged  to  have  been  made  to  him  by  my  lord 
An^lesea  in  conversation  durincr  two  different 
fieriods  of  time  ;  first,  the  declarations  of  my 
lord  concerning  the  riirhtof  Mr.  AuncsleVt  (the 
lessor  of  the  plaintiff)  and  these  are  alleged 
to  have  been  made  at  several  times  in  the  year 
1741,  antecedent  to  the  prosecution  of  Mr.  An- 
nesley ;  and  in  the  next  place,  my  lord's  de- 
clarations that  he  would  give  ten  thousand 
pounds  to  have  Mr.  Annesley  haneed  ;  and 
these  are  said  to  have  been  made  during  the 
runtinuance  of  the  prosecution.     We  objected 

humour  with  his  client,  might  give  up  his 
client's  privilege,  and  discover  his  secrets,  it 
would  be  attended  with  very  dangerous  conse- 
quences. 1  know,  that  in  the  cause,  Stephens 
a<^ainst  Stephens,  one  Mr.  Matthews  an  at- 
torney was  admitted  to  give  evidence,  but  it 
was  by  the  consent  of  all  parties. 

If,   after  all  we  have  said,  Mr.  Giffard  is  to 
give  his  evidence,   I  am  persuaded  he  must 
appear  in  such  a  light,  as  to  rtcfire  but  little 
•  •r  «•  carwlit. 


this  sort  of  people  by  the  law,  is  not  for  their    employed,  is  not  within  the  reason  of  thegawrtl 
"      ''    '    **  '  r«.    .  ..  .    ..       nile;    because  in  such  case  be  may  be  said  to 

be  intrusted  as  a  companiou  or  acquaintanoe, 
but  cannot  be  said  to  be  trusted  as  an  attonc}- ; 
and  therefore,  they  say,  Mr.  GiflTard  ought  to 
be  examined,  at  least  to  theae  declaratiosi. 
Before  I  speak  to  these  poinU,  1  shall  beg  lesre 
to  observe  in  general,  tliat  breach  of  trust  and 
confidence  is  a  thing  no  ways  to  be  favuurfld 
in  any  man  whatsoever,  whether  be  is  or  is  ait 
an  attorney ;  for  mutual  trust  and  confidcooe 
is  one  of  the  strongest  cements  of  hunsaa  w- 
ciety,  and  without  which  it  could  not  subsist; 
and  therefore  1  apprehend,  that  the  Court  will 
always  go  as  far  in  every  case,  as  by  law  tbfj 
can,  to  prevent  a  person  Tom  being  guilty  of  « 
base  an  action  as  violation  of  trust  and  coafi- 
dence,  although  he  should  be  ever  so  willing  to 
do  it. 

As  to  the  first  point,  whether  Mr.  Giffard 
ought  to  be  at  liberty  to  wave  his  pri%  ilej^e ;  1 
think  the  case  of  my  lonl  Say  and  Seal,  in  the 
liook  calletl  Macclesfield's  Cases,  fol.  41,  men- 
tioned by  Mr.  Prime  Serjeant,  seems  to  be  aii 
express  authority  that  he  ought  not.  In  thii 
case,  the  Court  in  giving  their  opinion,  liv  it 
down  as  a  general  rule,  *'  That  an  attorney 'f 
privilege  is  the  privilege  of  his  client ;  and  tliai 
an  attorney,  though  he  would,  yet  shall  not  bt 
allowed  to  discover  the  secrets  uf  his  client" 
The  different  interests  which  the  attorney  sad 
the  client  have  in  this  privilege,  shew  tbisrule 
to  be  highly  agreeable  to  reason.  As  to  the 
attorney,  this  privilege  is  an  exemption  from  the 
general  rule,  which  obliffcs  every  one  to  testifv 
his  knowledge  in  any  affair  where  he  is  callel 
upon  as  a  witness,  hy  this  exemption  be  ii 
freed  from  the  <lisagreeable  necessity  of  reveal- 
ing what  was  disclosed  to  him  by  his  client 
under  the  seal  of  confidence ;  this  is  a  privi- 
lege which  every  honest  attorney  will  set  the 
highest  value  upon,  and  will  endeavour  to  pre- 
serve ;  and  whenever  any  attorney  desires  to 
be  discharged  from  that  exemption,  ami  to  be  at 
liberty  to  wave  his  privilege,  lie  does,  in  cfTtct, 
desire  to  be  at  liberty  to  be  iruilty  uf  one  of  tbe 
basest  of  actions,  breach  of  trust  and  cooi* 
dence ;  which  as  it  is  a  thing  highly  to  be  dt«- 
oountenanced  in  any  case,  more  especially  ia 
tb«t«f  auattorae^;  lie  ought  not  to  be  p«^ 


and  Richard  Earl  of  Anglesea. 


A.  D,  17*3. 


ntilted  to  Jo  it,  lei  him  hare  ever  so  sttaag  an 
(adinUioD  to  it.  As  to  the  ctieni,  Ihe  inKretl 
which  he  baa  In  this  prlTJIvge,  ia  very  obiiouB. 
Nd  man  can  conduct  any  of  hii  aflaira  which 
relate  In  mnlters  of  law,  without  employing  and 
caoaulliiii;  wilh  an  atloroey;  ci^u  il'lie  is  CS' 
p«ble  of  iloing  it  in  jioint  of  akill,  Ihe  taw  will 
IMl  let  liim ;  anJ  if  he  does  oot  fully  and  can- 
diiity  disclose  every  thing  that  is  in  his  iniod, 
which  he  aiipreheDds  may  be  in  ibe  least  rela- 
tive to  the  *trBir  he  eonsullB  bin  attorney  npon, 
it  will  be  impoMible  for  Ibe  atlcirney  properly 
In  serve  him :  therefore,  to  permit  an  allorney, 
whenever  lie  Ihiuka  (il,  to  betray  that  eooh- 
dance  which  Iheehent  is  under  tucli  an  al>to- 
hltc  necessity  of  reposini;  ia  him,  would  be  of 
the  moat  dangerous  consequence,  not  only  to 
•be  |iarticular  client  concerned,  but  la  every 
Other  Mxn  »ho  is  or  may  \te  a  client.  Ttie 
gwitletnea  on  the  other  side  have  atiempled  In 
eoofioe  and  circnrngcribe  this  prlrilege,  and  to 
make  it  extend  only  lo  mailers  disclosed  by  the 
client  relaliie  to  some  suit,  then  depending,  in 
wbicb  the  ntlorney  is  conceriii^.  Out  I  apgire- 
Imid  thin  would  be  makintr  ihe  rule  a  great  deal 
|aa  narrow  ;  for,  if  the  principles  an  which  the 
nle  ia  fbuoded,  are  considered,  the  (rue  meati- 
isg  of  it  must  be,  that  the  altome  v  shall  nol  be 
ptnnitled  to  reveal  any  Ibing  that  his  client 
dinloae*  Lo  him  under  a  general  confidence  as 
lib  atlorney  ;  so  that  il  cannot  be  malerial 
whMber  a  suit  was  (hen  actually  depending  or 
not;  hut  the  malerial  point  to  beconsidered  is, 
wbelber  the  client  did  not  consider  him  aa  hii 
Mtornev,  when  be  so  disclosed  his  mind  to 
kim  f  In  the  present  cnse,  thai  my  lord  Angle- 
Ma,  at  the  lime  these  declarations  Inucbiou 
Mr>  Annesley's  right  are  said  to  liave  been 
made,  did  consider  Mr.  CiiiTard  as  bis  adorney, 
cannot  lie  doubted.  Mr.tliirsrdEnys,  That  my 
lord,  at  neveral  limes  bcl'ure,  and  particularly 
in  the  year  ITll,  had  employed  him  in  several 
iolts;  (hat  he,  after  tlio«e  discourse!,  eiu- 
ploynl  him  again,  and  in  the  month  of  May 
1749  discbargeil  him.  So  ihal  the  general 
eoofideiice  tny  lord  reposed  in  him  as  hit  at- 
lorney, must  be  presumed  actually  to  subsist 
firoDD  Ihe  time  he  Rrst  retained  Mr.  Giffard,  till 
the  lime  he  discharged  him  ;  and  whatever  my 
lord  ssid  to  bim  during  that  space  of  time, 
tDUcbing  his  aflairs,  was  plainly  said  to  bim 
mder  confidence  as  his  attorney  ;  my  turd  had 
Miployed  him  as  an  altorney  belure,  and 
fhlnly  intended  again  to  employ  liim  as  hi*  at- 
lorney allFnvards ;  and  because  there  was  an 
Interval,  during  ihat  space  of  time,  in  which 
ny  Ion)  wcs  Bi  peace,  ami  happened  to  have 
BO  anils  on  his  bands,  to  say  Ibal  his  al- 
torney shall  therefore  lie  at  liberty  lo  disclose 
wbat  was  in  Ihat  interval  revealed  to  bim, 
wnulil  he  euually  productive  of  all  the  ill  con- 

-      Ihf    -      ■' 

iicli 

relative  In  a  suit  actually  depending ;  the  con- 
fidenoe  reposed  in  thi-  attorney,  is  the  same  in 
IfaeoDCCSM  asiu  the  other,  and  his  violatinn 
t  c<iD&d«OCe  c<iually  prgudicitl  berth  t« 


r«i^ 


the  client  and  the  public.  Il  has  been  ob. 
jecied,  Ibat  what  has  l>een  cited  out  of  the  case 
of  lord  Say  and  Sent,  is  not  the  point  adjudged 
in  the  case:  but  alihouifh  Ibe  Court  do  there 
Jecide  the  queslion  before  tliem  upon  another 
point,  yet  the  general  rule  which  lliey  lay 
down  (as  I  hare  mentioned  it)  stands  udmitled. 
The  case  of  Mr.  JtUilhews,  Ibe  attorney,  was 
mentioned  on  the  other  aide:  if  I  am  rightly 
infurmed  ol'  thai  caae,  Mr.  Malihews  had,  in 
Ibe  presence,  and  at  the  desire  of  his  elieut,  at- 
tested and  subscribed  a  deed  as  a  witness.  Tb< 
(question  asked  of  bim,  was  touching  the  eveuu- 
tioo  of  that  deed,  and  he  was  orderol  to  answer 
but  that  case  is  entirely  dilTerent  from  tha 
present ;  whenever  a  man  attests  Iheexecutiun 
of  a  deetl  as  a  witness,  he  does  thereby  enga^a 
to  prove  the  execution  of  it,  whenever  be  la 
J  udicially  called  upon  so  to  do :  and  his  client's 
desiring  him  lo  atlest  the  deed,  is  a  couaeut 
that  ihe  atlorney  shull  enter  into  that  en|[age- 
ment ;  therefore  tlint  case  is  no  way  relstiva 
to  the  present  qnesiion.  This  ia  ell  I  shall 
trouble  llie  Court  with  as  lo  the  supposed  de< 
claralions  of  my  lord,  antecedent  lo  the  pro* 
secution  of  Air.  Annesley.  As  to  the  dectara- 
lions  supposed  in  have  Men  made  by  my  lord 
during  the  prosecution ;  besides  Ihe  other 
reasons  I  have  helbre  meulioned,  as  to  the  con- 
fidence my  lord  repoaed  in  bim  as  an  attor* 
ney,  I  have  another  objection  against  the  exs- 
Diiniog  Mr.  Giflsrd  in  this  point.  The  gentle- 
men last  ni«hl  produced  Mr.  GltTard,  and  pro- 
posed to  examine  hi[n,  to  shew  that  my  lord 
Angleiea  was  concerned  in,-  and  assisted  to 
tarry  on  Ihis  prosecution ;  which  evidence  waa 
objected  lo  on  our  side,  and  upon  debate  ih* 
Court  seemed  lo  be  of  opinion,  tliat  they  ought 
not  to  be  let  in  lo  give  Ihal  evidence  ;  and  I 
apprthend  the  point  was  this  morning  given  up 
by  Ihe  gemlemrn  on  (he  other  side:  bul  Iha 
examination  now  proposed,  is  an  alteuipl  to  do 
Ihe  same  thing  in  another  sliajie  ;  Iliey  wera 
nut  admilled  lo  give  evidence  directly  that  my 
lord  was  concerned  In,  or  carried  on  the  prnae- 
culion;  bul  if  they  are  admilleil  lo  prove  bia 
declarations  touching  his  intention  in  carrylnff 
il  on,  it  is  plainly  doing  the  same  thing  in  other 
words,  and  ivould  be  lo  admit  ihem  to  do  that 
IhiN  morning  which  was  refused  Inst  night. 
The  gentlemen  have,  iu  proposing  their  evi- 
deuce  un  this  occasion,  used  many  harsh  ex- 
pressions concerning  (lie  defendant ;  but  1  ap- 
prelicnd  lliry  are  a  liiite  too  early  ;  harsh  re- 
flections should  not  be  used  unlil  the  facts  no 
which  they  are  founded  are  proved  and  given 
in  evidence ;  whether  ihat  evidence  shall  be 
given  or  not,  is  nnw  the  point  under  the  con- 
sideration of  the  Cuurt;  and  unlil  that  tnatter 
is  decided,  I  make  i/o  duuhl  bul  ihal  the  gen- 
tlemen of  the  jury  will  not  permit  the  i^uppo- 
silion  offsets  lo  have  any  influence  upon  them, 
before  the  liicts  thetnielves  shall  be  proved. 
Upon  the  whole,  ss  wbslever  the  Court  ahull 
do  in  this  ease  will  be  a  precedent,  ami,  li>r  the 
reasons  1  bave  mentioned,  a  precedent  of  verr 


I239J 


17  GEORGE  11.     Trid  In  Ejechhent  between  J.  AntO^Uyt  esq.   [1810 


^very  othrr  client  and  his  attoraey,  1  hope  the 
Court  will  he  of  opinion,  that  Mr.  Giffard 
clught  not  to  be  examined  to  any  of  the  points 
proposed.* 

X.  C.  Baron.  The  ohjections  to  Mr.  Gif- 
fard's  being  admiltod  to  give  the  evidence  pro- 
J^osed  by  the  plaiutiflf's  counsel,  have  been 
argued  with  great  strens^th  ;  and  undoubtedly 
the  public  is  interested  in  the  event  of  this 
question,  so  far  as  it  may  affect  the  necessary 
confidence  between  the  client  and  his  attorney 
or  agent,  which  will  make  me  cautious  of 
fixing  boundaries  to  that  trust.  The  proper 
way  will  be  to  determine  this  and  every  like 
case  upon  their  own  circumstances.  W  hat  has 
been  urged  to  take  the  present  case  out  of  the 
general  rule,  was,  that  the  conversation  to 
which  they  would  examine  Mr.  Giffard,  was 
neither  iu  any  cause  wherein  he  was  con- 
<:emcd  for  the  defendant,  or  relative  to  any  iu 
Tvhich  he  was  consulted,  or  intended  to  be  em- 
ployed by  the  defendant,.  If  so,  the  question 
will  be,  whether  an  attorney  shall  be  permitteil 
to  disclose  the  cTcnei-al  converoation  he  had 
with  his  client,  without  relation  to  him  as  his 
attorney  ?  Now,  admitting  the  policy  of  the 
law  in  protecting  secrets  disclosed  by  the  client 
to  his  attorney,  to  be,  as  has  been  said,  in 
favour  of  the  client,  and  principally  for  his 
service,  and  that  the  attorney  is  ui  loco  of  the 
client,  and  therefore  his  tru<:tee,  does  it  follow 
from  thence,  that  every  thing  said  by  a  client 
to  his  attorney,  falls  under  the*  same  reason  ?  I 
own,  I  think  not ;  because  there  is  not  the 
same  necessity  upon  the  client  to  trust  him  in 
one  ca*<e  as  in  tlie  other  ;  and  of  this  the  Court 
may  jud^e,  from  the  particulars  of  tlie  conver- 
6ation.  Nor  do  I  see  any  Impropriety  ii»  sup- 
positig  the  same  person  to  be  trusted  in  one 
case  as  an  attorney  or  agent,  and  in  another  as 
a  common  acquaintance.  In  thi>  first  instance, 
the  Court  will  not  permit  him,  though  willing, 
to  discover  what  came  to  his  knowledge  as  an 
attoiui.v.  because  it  would  be  in  breach  of  that 
trust  which  the  law  supposes  to  be  necessary 
Lotwccn  him  and  his  employer:  hut  where  the 
client  talks  to  him  at  large  as  a  friend,  and  not 
in  the  way  of  his  profession,  I  think  the  Court 
18  not  unrfer  the  same  obligatiuiis  to  guard  such 
secrets,  though  u\  the  breast  of  analtoinev- 
If  I  employ  an  attornry,  and  entrust  to  him 
secrets  relative  to  the  suit,  that  trust  is  not  to 
he  violated  ;  but  when  I  depart  from  tl^at  siib- 

*  In  the  "  Trial  at  Bar,"  &c.  aiior  this 
Speech  of  3Ir.  Smith  is  i;ivcn  the  follouiuc^  of 
Mr.  lA'hunte: 

Mr.  Lehuufe,'  of  counsel  for  the  d^fondant. 
If  a  bill  was  filed  against  lord  Anglesea,  to  en- 
quire into  the  manner  of  tho  prosecution  at;fainst 
Sir.  Anneslcy,  charging  it  to  he  ni:iiiei'>us, 
would  his  lordship  be  obliged  to  answer  s»ieh 
a  charge?  No;  and  therefore  I  hope  that  Gif- 
fard, without  his  lordship*s  consent,  shall  not 
disclose  any  matter  relative  to  that  prosecution, 
which  his  employer  could  uot  be  obliged  to 
diBclose  biau^if. 


\ 


ject  wherein  f  employed  him,  be  b  no  more 
than  another  man,  es|M!ciaHy  when  tbectne  I 
did  employ  him  in  is  over ;  because  he limt 
to  be  supposed,  as  an  attorney,  to  be  a  gmenl 
confident.  When  the  C9iise  is  ended,  he  ii 
then  only  to  be  considereil  with  revpect  to  hit 
former  employer,  as  one  man  to  another ;  ini 
then  the  breach  of  trust  does  not  fall  withii 
the  jurisdiction  of  this  court ;  for  the  Coat 
can't  determine  what  is  honoor  but  wM 
is  law,  and  all  the  cases  fall  under  this  ^ 
tinction.  The  case  cited  of  Cutts  and  Pickv* 
ing,  1  Vent.  197,  restrains  it  to  whit  cum 
to  his  knowledge  as  attorney ;  and  so  I  fbiak 
is  the  case  of  lord  Say  and  oeal  ;  the  evidnee 
to  which  he  was  produced  being  to  thedeftc- 
tive  execution  of  a  deed,  to  nnake  a  tenant  to 
the  Prtecipe  for  suffering  a  recovery,  in  which 
the  witness  had  been  emptoyed  as  attonNj, 
which  was  the  secret  of  his  client's  caose. 

The  Lord  Chief  Baron  was  iroing  to  nwa* 
tion  the  case  of  one  Hamilton,  where  he  appic* 
bended  the  attorney  had  been  examined  ii 
Chancery  ;  but  being  informed  he  was  noi,  ha 
lordship  proceeded : 

What  I  found  myself  upon  is,  the  nature  of 
the  testimony  proposed,  which  appears  to  aw 
to  have  been  casual  conversation  between  ikc 
witness  and  the  earl  of  Anglesea,  which  wa 
not  necessary  to  have  been  communicated  to 
Giffard  by  his  lordship.  And  as  to  the  privito 
trusts  between  man  and  man,  we  cannot  inter- 
pose. Besides,  as  this  was  in  part  a  witied 
secret,  it  ougtit  not  to  have  been  concealed; 
though,  if  earlier  disclosed,  it  might  havebeca 
more  for  the  credit  of  th'S  witness.  I  there- 
fore think  Mr.  Giffard  may  l»c  examined  to  the 
defendant's  declarations  concerning  the  plaia- 
tiff's  person  and  title. 

Mr.  Baron  il/<»w/i^cnej|.  The  prod igions  coa- 
sequenre  of  the  cause  now  depen(hng  before 
us,  haih,  very  properly,  inilucefl  the  geaile- 
men  who  are  of  counsel  on  l>oih  sides,  to  inMl 
upon,  and  argue  at  large,  every  fioint  arising 
in  the  cause,  which  could  possibly  bear  the 
least  debate.  The  same  reason  hath  iodoced 
the  Court  to  hear  gladly,  with  the  utmost  pa- 
tience and  attention,  every  thing  which  coaM 
possildy  be  ofl'ered  on  either  bide ;  aod,  I 
think,  nothing  hath  been  omitted,  which  coaU 
have  been  materially  ofiered  upou  the  preseot 
quc^tiun. 

For  my  own  part,  notwithstanding  all  tW 
ohjrciions  which  have  been  raised  against  die 
evidence  now  under  consideration  by  the  de- 
fendant's counsel,  I  still  continue  of  the  saoi 
opinion,  uhich  I  entertained  when  tbeevideMt 
u  ns  first  offered  and  objecteil  to ;    which  i^ 
ihat  the  question  now  before  us  will  receive  a 
vf  ry  easy,  clear,  and  short  determination,  ui 
thni  in  favour  of  the  evidence  proposed.    I  !*• 
rsiihnr  say  so,  because  I  think,  that  upon  the 
very  principles  laid  down,  and  upon  tbeairth^ 
riiy  of  the  very  cases  cite<J  by  ine  defmdaart 
counsel,  it  is  to  demonstration  dear  cfaat  IN 
evvsieuce  tiow  ofiered  ought  to  be 


rs4i] 


and  Richard  Earl  ofAngksea. 


A.  D.  1743. 


[I£4« 


Mr.  Recorder  bath  very  properly  mentioned 
Ihe  tminUation  upon  which  it  hath  been  held, 
■nd  is  certainly  undoubted  law,  that  attnmies 
MijErht  to  keep  in? iolably  the  secrets  of  their 
alientu,  viz.  That  an  increase  of  le^al  business, 
lad  the  inability  of  parties  to  transact  that  busi- 
■CS8  themselves,  made  it  necessary  for  them  to 
employ  (and  as  the  law  properly  expresses  it, 
Hmere  in  locoiuo)  other  persons  who  mi^ht 
Irsosact  that  business  for  them.  That  this 
secessity  intro«luced  with  it  the  necessity  of 
what  the  law  hath  very  justly  established,  an 
ittTiolable  secrecy  to  be  observed  by  attorn ies, 
k  order  to  render  it  safe  for  clients  to  com- 
nunicate  to  their  attornies  all  proper  instruc- 
lion  for  the  carryinji^  on  those  causes  which 
ihey  found  themselves  under  a  neccRsity  of  in- 
viistinff  to  their  care.  And  if  this  original 
|irinci|)ie  be  kept  constantly  in  view,  I  think 
t  caottot  be  difficolt  to  determine  either  the 
present  question,  or  any  other  which  may 
irise  upon  tliis  head  :  for  upon  this  principle, 
wbatever  cither  is,  or  by  the  party  concerned 
Baa  naturally  be  supposed,  necessary  to  be 
communicated  to  the  attoniey,  in  order  to  the 
^nyiofT  on  any  suit  or  prosecution,  in 
vbich  he  is  retained,  that  the  attorney  shall 
bviolably  keep  secret. 

On  the  other  hand,  whatever  is  not,  nor  can 
possibly  by  anv  man  living  he  supposed  to  be, 
■eeessary  for  that  purpose,  that  the  attorney  is 
It  libert}',  and  in  many  cases,  as  particularly, 
t  Uiiok,  in  the  present  case,  the  attorney  ought 
to  disclose. 

The  declarations  of  the  defendant  to  his 
ittarney,  which  are  now  oflored  to  be  proved,  I 
iball  not  mention  at  lart^e,  hut  slinll  only  take 
lotice  of  one,  which  was,  that  (speakings  of  Mr. 
(knnesley,  the  now  lessor  of  the  pluiniilf )  he 
ileclare<l,  he  did  not  care  if  it  cost  him  10,000/. 
if  he  could  sfct  him  hanged.  Dors  any  man 
liviofsf,  who  hears  these  words  pronounciMl, 
iKsitate  one  moment  as  to  the  meaniiii^  and  im- 
port of  them  ?  They  speak  too  phi  inly  to  he 
misunderstood,  or  doubte<l  of.  For  God's 
nke  then  let  us  consider,  what  will  be  the 
BODsequence  of  the  doctrine  now  laid  down, 
lod  oo  earnestly  contended  for,  that  such  a  de- 
claration made  by  any  person  to  hip  attorney, 
Milirbt  not  by  that  attorney  to  be  proved  P  A 
■mn  (without  any  natural  call  to  it)  promotes  a 
prooecotion  ai^ainst  another  for  a  capital 
stlence— he  is  desirous  and  determined,  at  all 
events,  to  get  him  h:mged — ^he  retains  an  at- 
torney to  carry  on  the  prosecution,  and  makes 
nch  a  declaration  to  him  as  1  have  before  men- 
tiooed,  (the  meaning  and  intention  of  wlrich,  it' 
Iho  attorney  hath  common  understandins^ 
ibout  him,  it  is  impossible  he  should  mistake) 
—he  happens  to  be  too  honest  a  man  to 
iDgaipe  in  snch  an  affair — he  declines  the  pro- 
iBcntHm-x-but  he  must  never  discover  this  de- 
sinration,  beoause  he  was  retained  as  attorney. 
rbb  prosecofor  applies  in  the  same  manner  to 
I  oeoond,  a  third,  and  so  on,  who  still  refuse, 
mt  ore  still  to  keep  this  inviohibly  secret :  at 
aft,  be  fiodi  an  aitomey  wicked  enough  to 


carry  this  iniqnitoas  scheme  into  execution— 
and  after  all,  none  of  these  persons  are  to  be 
admitted  to  prove  this,  in  order  either  to  bring 
the  guilty  party  to  ctmdign  punishment,  or  to 
prevent  the  evil  conse«|uence8  of  his  crime  with 
regard  to  civil  property.  Is  this  law  ?  Is  this 
reason  ?  I  think  it  is  absolutely  contrary  to 
both. 

As  the  principles  upon  which  the  defendant's 
counsel  have  arguetl,  so  1  think  likewise  the 
cases  which  they  have  cited  make  directly 
against  them,and  are  express  authorities  in 
favour  of  the  evidence  now  offered.  In  the 
cose  of  Cutts  and  Pickering,  in  1  Vent,  the 
Court  were  of  opinion,  that  the  solicitor  might 
lie  sworn  to  the  discoveries  made  to  him  by  his 
client  before  his  retainer.  I'lie  |fieaniog  of 
which  1  take  to  be,  that  such  discovery  not 
beinsT  made  in  consequence  of  the  necessary 
cooUdence  between  client  and  attorney,  was 
therefore  not  within  the  rule  of  secrecy  :  and 
if  the  same  reason  will  hold  in  the  present,  or 
any  other  given  case,  even  after  a  retainer,  the 
objection  must  equally  fail.  Now  I  think  the 
same  reason  does  hold  in  the  present  case,  be  • 
cause  the  declaration  now  offered  to  be  proved 
does  not  appear,  nor  couM  possibly  by  the  de- 
fendant l>e  supposeil,  to  be  a  necessary  instruc- 
tron,  or  communigitiou  between  him  and  his 
attorney,  in  order  to  the  better  carrying  on 
either  that  prosecution,  or  any  other  legal  busi- 
ness in  which  he  had  retained  that  attorney. 
8o  that  this  dec'araticin,  after  the  retainer, 
stands  entirely,  in  my  np|)rchension,  on  the 
same  footing  as  if  it  had  licen  made  before. 
For  to  say  that  the  conlidence^bet ween  client 
and  attorney  (to  which  iiiviolabje  secrecy  is  to 
be  annexed)  is  to  he  taken  in  the  latitude  laid 
down  hy  the  deiendant's  counsel,  is,  in  my  ap- 
)ireliensit»n,  (o  say  that  nhich  hath  no  founda- 
tion in  law,  nor  the  least  colour  in  point  of  rea- 
son. 

The  other  ra«e  which  was  cited  by  the  de- 
fendint's  counsel,  that  of  lord  8ay  and  Seal,  is, 
1  think,  still  infinitely  stronger  against  them  ; 
and  every  reason  which  the  Court  in  that  case 
proceeded  upon  concludes  directly  in  favour  of 
the  evidence  which  is  the  subject  of  the  present 
debate. 

In  that  case  the  Court  were  of  opinion  (and  I 
think  most  rightly),  that  the  privilege  oi'  an 
attorney  is  the  privilege  of  hi&  client ;  (and  so 
I  havealways  understood  the  law  to  be)  but, 
notwithstanding  that,  the  Court  admitted  the 
very  attorney,  who  had  been  intrusted  in  suffer- 
ing the  common  recovery,  to  prove  that  tlie 
deed  to  lead  the  uses  of  that  very  recovery  was 
antedated.  And  what  were  the  reasons  upon 
which  the  Court  proceeded  ?  The  first  men- 
tioned in  the  book  is,  that  **  the  time  of  exe- 
cuting the  dtied  could  not  be  called  the  secret  of 
his  client."  Now,  1  think  in  this  case,  the  de- 
claration offered  to  be  proved,  can  still  iniinitqW 
less  be  considered  as  the  secret  of  the  cliefSt. 
The  next  thing  mentioned  in  the  report  of  that 
case  now  produced,  is,  that  **  it  was  a  tliiu^;  he 
might  come  \o  \V^  WsvVu^^  ^\  ^^i^^^^  >^ 


I 


1243]  17  GEORGE  IL     Trialin  Ejecimeni  between  J.  Annedey^esq.   [1211 


c1i«*nt'8  arqaainting  bim ;"  and  that,  I  think, 
vill  hoUl  equally  strong  in  the  pregent  case. 
rj'jl.iti!  mt^ht  nave  heard  trum  others,  that 
Itiiil  Aiiult-sea  ha<)  made  such  a  declaration ;  or 
lord  AituI*  M*'«  mi(;ht  binnKelf  equally  hate  made 
it  Ut  GiiTanl,  alilioutjrh  he  had  not  retained  him 
as  an  atntrncy,  it  uot  l»ein|(,  as  I  hare  before 
mentioned,  a  necessary  inKtruttion,  nor  what 
could  iNiSHbly  by  the  defendant  be  thou|rht  so, 
for  the  belter  carrying  on  the  business  in'which 
be  f^ati  retained  ;  and  consequently,  not  pro- 
ceeding from  that  coniidence  which  is  necessary 
beli^eeu  c!ieot  and  attorney,  and  to  which, 
only  because,  and  so  far  as  it  is  necessary,  the 

Inivileife  of  secrecy  hath  been  anni'zed.  The 
ast  thing  mentioned  in  the  book  is  that  the  fact 
offered  to  l)e  proved,  '*  was  of  that  nature," 
that  an  attorney  concerned,  or  any  body  else, 
night  inform  tfie  Court  of  it.  Now  I  cannot 
help  thinking  from  these  words,  that  one  in- 
gredient in  the  determination  of  the  Court,  was, 
that  the  proof  offered  in  that  case  was  the  proof 
of  a  criminal  fact :  if  it  were,  that  reason  will 
hold  infinitely  stronger  in  the  present  case. 
The  declaration  now  offered  to  be  proved,  is  of 
that  nature,  and  so  highly  criminal,  that,  in  my 
opinion,  mankind  is  interested  in  the  discovery ; 
ail'!  whoever  it  was  made  lo,  attorney  or  not 
B(t(»rnev,  lies  under  an  obligation  to  society  in 
general,  prior  and  superior  to  any  obligation 
he  can  lie  under  to  a  particular  indiridual,  to 
make  it  known. 

1  speak  this  without  prejudice :  €rod  knows 
whether  such  declarations,  as  have  been  men- 
tioned, were,  or  were  not,  made  by  the  now 
defendant;  but,  when  we  are  debating  the  pro- 

Eritrty  of  the  evidence,  we  are,  during  the  de- 
ate  (and  for  argument's  sake  only)  to  suppose 
it  true :  if  they  shall  afterwards  appear  in  proof, 
1  think  they  will  be  exceedingly  material  for 
the  consideration  of  the  jury  ;  and  do  therefore 
most  heartily  concur  in  the  opinion  given  by 
my  lord  chief  baron,  that  the  evidence  now  of- 
fered ought  to  be  admitted. 

Mr.  Baron  Dauton,  If  there  had  been  no 
objection  made  on  the  part  of  the  defendant  that 
the  attorney  had  been  employed  by  him,  the 
plaintiff  would  have  had  a  right  primd  facie  for 
liis  being  admitted  a  witness ;  therefore  to  de- 
prive the  plaintiff  of  this  right,  it  must  be 
shewn,  that  the  particulars  offered  here  to  be 
given  in  evidence  came  to  the  knowledge  of 
Giffard  merely  as  attorney  for  the  defendant. 
Nothing  that  came  properly  to  the  knowledge 
of  the  attorney  in  defence  of  his  client's  cause 
ought  to  be  revealed.  1  will  suppose  an  un- 
knowing man  to  have  twenty  deeds  by  him, 
and  he  delivers  them  all  to  his  attorney  to  see 
which  were  relative  to  the  suit ;  he  looks  them 
over,  and  finds  not  half  of  them  to  be  relative 
thereto ;  I  apprehend  the  attorney  is  not  com- 
pellable to  disclose  the  contents  of  any  one  of 
Ijiose  deeds ;  neither  do  I  think  it  necessary 
that  there  should  be  a  suit  actually  depending. 
If  I  have  an  apprehension  that  a  man  intends  a 
«uit  against  roe,  and  I  empk>y  an  attorney  to 
^nw  M  itole  of  my  caia  fifon  ny  paiftni 


though  there  is  no  came  depending,  that  I 
apprehend  it  would  be  a  breaco  of  frost  to  ^ 
dose  the  contents  of  those  papers,  and  that  the 
attorney  ought  not  to  be  admitted  to  ditdoK 
what  haa  been  so  intrusted  to  him :  and  I  tbiak, 
the  Court  most,  in  this  case,  he  satis6ed,  fint, 
that  what  came  to  this  man's  knowledge  mi 
not  necessary  to  his  client^s  affairs  ;  and  in  Ik 
next  place,  that  the  client  coald  aoi  tbiak  it 
necessary.  The  cause  to  be  cmrried  on,  wm  i 
prosecution  for  the  killing  of  a  man ;  what  mi 
necessary  for  the  carrying  oo  that  proscculii^ 
I  think  the  attorney  ought  not  to  disdoK.  I 
think  farther,  that  any  tbiofg  that  the  dim 
thought  necessary,  ought  likewise  not  to  kt 
disclosed.  The  motive  for  carrying  as  Ihi 
prosecution  against  the  plaintiff  is  sm  to  be, 
because  be  has  a  right  to  tlie  estate  the  ddb- 
daot  was  in  possession  of.  Can  any  man  tkisk 
that  this  was  necessary  to  tell  the  attorney,  m 
that  the  defendant  could  haye  thought  it  wf 
What  was  necessary,  or  what  a  man  nM 
have  thought  necessary,  ooght  not  to  be  «• 
dosed.  But  if  the  defendant  in  this  case,  hH 
goue  any  thing  further,  he  has  trusted  bin,  sil 
as  an  attorney,  but  as  an  acqnaintanee.  Hi 
attorney  is  to  keep  secret  what  cornea  to  bia  ■ 
an  attorney ;  but  this  conversation  1  don't  Ibiik 
was  necessary  for  carying  on  the  cause.  B^ 
sides,  the  prosecution  was  at  the  sait  of  the  kiB|^ 
so  that  he  could  not  be  looked  upon  as  attsrscj 
for  lord  Anglesea.  J  agree  therefore  with  wj 
lord  chief  baron  and  my  brother  Monnlnrj, 
that  the  evidence  is  proper  to  be  given. 

I  think  it  proper  at  this  time  to  mention,  thtt 
I  have  considered  the  point  of  evidence  iba 
was  proposed  yesterday,  and  if  it  was  now  a 
be  determined,  I  should  be  of  opinion  to  tllof 
the  evidence ;  and  if  the  counsel  for  (be  if- 
fendant  should  so  please,  they  may  take  a  \A 
of  exceptions.* 

Mr.  John  Giffard  sworn. 

Q.  Do  you  know  the  present  earl  of  Aii;fe> 
sea  ? — Giffard,    Yes,  Sir. 

Pray,  Sir,  do  you  know  the  present  phintit 
Mr.  Annesley  ?— Yes,  Sir. 

Pray  had  yon  at  any  time  any  convenatioB, 
and  when,  with  the  present  lortf  AngleseaciS' 
corning  the  plaintiff,  or  his  title  to  the  landiii 
this  ejectment,  or  any  other  lands?— 'It  ffv 
sometime  between  the  7lh  of  December  ]74li 
and  May  1742,  my  lord  Anglesea  had  an  «■ 
peal  from  this  kingdom  to  the  House  of  Loitk 

*  As  to  the  operation  of  professional  or  nbv 
coniidence  in  permitting  or  requiring  a  witsi* 
to  withhold  his  testimony,  see  Pme's  U^ 
of  Evidence,  chap.  3,  §  4,  and  the  cases  ibfH 
cited.  See,  also,  m  this  Collection,  the  S(^1^ 
vol.  0,  p.  611 ;  and  what  passed  upon  tbeci*' 
minationsof  BIr.  Hawkins  and  lord  BarriB|l4 
in  the  Trial  of  the  Duchess  of  Kingston,  i.» 
1776.  This  topic  was  noticed  in  tbe  W 
Case  of  sir  David  Dairy mple  of  HaikiJ^ 
Grant,  M'Laurin's  DedsiooSi  34.  ta^  1^' 
I  Bladurt,  Comment.  370. 


i^tn  135  pvtKuar  am*  *'ixn 

cu:  )luvb  i:«I.  ■bra  be  \nii 

■e  or  i;:«r   u^c   dewnaiiuilva 
? — I   tifii**f  11  »a>  h>Hh   W 
the  appeal  w»s  il(irrn>iii«J  ihr  ' 
•ihI  bie  cDoiuiuni  iu  itiai  ren>'  , 
17*:.  ( 

'•tatWRdhrarnoluiioniliett.' 
ot'3la_r.Mr.  AaattWy  haildwl 
• ;  il  vmi  on  Suurday,  k»  «|i 
(CUnent  wid  cortmrr*  inqunt . 
r  S(l  of  BIuv,  nij[  lonl  n>nl  Kir 
me  to  go  IP  Maine*,  and  In 
f  affair,  ami  to  colJect  tlie  avl- 
■y  ou  the  proieculiuD,  aiM  W 
iniiB  of  BIr.  Garden  ami  " 
,ne  Mr.  Ji 


■-  \a  I  JV'"» 


anil  in  lorne  imnll  limv  aflei 
■layi)  lold  me,  Thai  1I117  liail 
ler,  and  ailviged  liim  noi  la  bn 
wiih  me,  for  tbat  il  wm  iinl 
I  appear  in  Itie  proiecutioii,  fur 
tSt  liim  in  iha  caiiie  that 
«n  him  and  the  plainliir; 
are  il'il  coil  him  10,001)/.  il'  Im 
laintifT  hanf^ed  ;  fur  Iben  Im 
1  bii  title  and  nUU. 


^'ikt«v<vaai<rM>u  MAt  '■'  h^"i  Vinrf  IWi/it^liQn 

ha>.tit).  W«  MMM  aiWc  Um  tMftlwf  U41VI1 

t.>i>i>^mc4l«%<M'4l,ir.  rtwMkiMMi  tw  Wfta  iml, 
I  Mmr  Im  «m«m  l«*akt  HMriVMHMi  i  |wihhi'» 
mn  uf  Ni.v  titnlVi. 


Had  Hiy  l>iTi>   ' 
liiiii;     11*  )>«< 
|Hi«r,  II  f  Ilia  ru  til 


|dviMK*Air  •»_ 

all 
'III 
I. 


yUinfmrn^- 


■alrPHin  mhI  til- M.   II  f 4mmM  < 

l)i)}wkM*«riH'*f»<*«'«MM-  t^;^ 

lutl'«nllM«MMMMMlwf'-4lMtNr,Mt  •» 


wiih  iMwiM*  mmmmpAmm 
ThwiM  _ 


1251] 


17  GEORGE  11.     Trial  m  Ejeclment  beltvfen  J.  AamsUy,  c 


I 


What  sum  was  girea  for  their  stiendauce? 
.^libuul  liult'-a-crukvn  a.  day  Tur  llieir  atlecid- 
aoce.  Iflliero  was  any  dirty  work,  I  knew 
oolhiag  of  it. 

Are  you  paid  your  bill  or  coats  P — Not  all 
or  it. 

How  much  itoes  it  came  to  ? — The  prosecii- 
liun  (lost  800'. :  but  the  total  remaining  due  to 
me  is  .130/. 

Was  there  any  body  present,  wlien  you  hnd 
Ihii  conTcrsatiou  wit>i  my  lord  f— No,  1  be- 
lieve not ;  fur  we  used  to  converse  lugellier 
■lone  frequenlly. 

IV as  Mr.  Jauaever  present?— No,  never. 

Was  TliompBon  Gregory  present  wlieu  he 
vent  and  brought  you  to  my  lord  ? — He  came 
Willi  me. 

Did  he  remain  in  the  room? — I  beliere  be 
diJ.alllhatniglil. 

Was  this  the  9d  of  May  ?— Yes. 

Had  you  thai  day  any  discourse  about  the 
•um  ot  money  that  my  lunl  would  spend  ? — 
Mu,  not  thai  day. 

Was  it  by  your  advice  and  direclious  that 
tliut  letter  was  sent  lo  yuu  by  Ibe  church- 
warden ot'StainesF — No,  it  waE  by  Gardeu's 
tnd  Goriion's  advice. 

Were  you  privy  lo  il? — Yes,  I  was.  And 
this  Ictler  was  advised  in  order  that  ihe  dc- 
feudant  might  not  appear  in  the  prosecution. 

Did  not  you  know  this  was  to  give  a  colour? 
—I  did. 

Did  you  think  this  was  for  a  good  porpose? 
— ^Mr.  Garden,  Gordon,  Jans,  and  lord  Anglo- 
sea  had  a  consultation,  and  il  wa£  thought 
|iro|)«r  that  I  Bkould  have  anoilier  person  to  my 
assislauce,  because  ihey  would  not  appear,  and 
■ny  insii'dciions  were,  to  send  this  onkr  to  tlie 
church-warden  and  get  it  signed,  that  tiiy  lord 
■hould  not  appear  in  it;  aud  ibe  reason  was, 
that  il' my  lord  should  appear  in  it,  they  thought 
it  would  lie  illeDded  willi  111  conaequences. 

Did  you  know  at  the  lime  of  the  trial  IhaL 
Mr.  Aouesley  intended  to  sue  Ibr  the  title  and 
eslatcot' lortlAnglesca.' — It  wat  rejioried  he 
would,  that  he  mleaded  it;  aud  this  waa  in 
order  lo  prevent  it. 

Do  you  know  one  Mr,  Thomas  Smith  P — 
Ve,,  Sir. 

1  desire  10  know,  if  Mr.  Annesley  gels  this 
■nit,  whether  yuu  will  be  jmid  your  bill  of 
oobIs? — No,  Sir,  it'  he  gels  it,  1  tbell  lo^e  every 
■hilliDg  ol'it. 

Where  do  you  lodge? — Atone  I*arsons's  in 
King- street. 

Are  you  acquaioted  with  Thomas  Snilth  the 
cabinet- maker  f — 1  am  very  well  uoiuaialed 
with  h,m. 

Hod  you  any  di«coune  wiib  hiui  about  this 
evideuce  that  yuu  have  given  lu-day  ? — 1  have 
bB<l  some  discourse  with  him  about  it. 

Did  not  vou  tell  him  that  you  had  been  ill 
naed,  and  llial  that  provoked  you  lo  give  in  this 
evidence  .'—No,  I  nevei-  did ;  I'ur  he  knew  that 
I  had  been  ill  used.  I  will  tell  you  what  I 
liave  Mid  lo  him :  That  il  was  a  wrung  step  in 
■)>'  lordi  tot  ihi*  bill  ot'  vale  of  miac  nould 


1   DDMlU 

^aJiiegMI 


never  have  come  lo  light,  had  not  I  bcMtlfinI 
lo  sue  lor  my  rJKht.  That  my  lunl&M«M| 
in  Ihe  Exchequer  against  me  in  Enslaai,  If 
disclose  what  business  1  had  done  for  him,  wt 
that  [  wasnbUged  in  my  justificiiioo  ta  imJ 
in  a  Rcheilule  tHis  my  bill  of  cosM.  I 

Did  not  you  look  upon  my  lord  AngWi 
your  real  client  in  the  proseculiun  of  tb« 
liff?— He  promised  lo  pay  me,  but  I  iU« 
look  upon  him  as  my   immediate  etnplm; 
tor  my  lord  told  me  he  had  directed  Hf.M 
tu  employ  roe. 

Did  you  look  upon  Mr.  Jans  at  this  lir 
j'our  clicDtf — I   did   look   upon  him  h 

Uu  not  you  believe  that  my  lord  had 
discourses  wilh  you  ashisaltcniey.' — N>,S^ 
tor  I  knew  1  was  never  to  be  concerned  ~ 

In  what  lisht  then  did  yon  look 
discourse  i' — T  looked  U|ion  '  -    ' 

Was  not  Ibe  discourse  wilh  you 
and  Sth  of  May,  as  his  attorney  or  wUcteM 
1  looked  upon  him  to  he  my  client. 

And  iherelore  did  not  he  look  uponyMri 
his  solicilor?— I  cannot  lell  what  be  did. 

Did  he  meet  you  as  his  I'rieui),  or*ali 
— Sir,  there  was  another  man  wilh  dm. 

Were  not  you  employed  by  him  ta  Mt  l| 
inqucslheldP— I  was.  'l  wish  you  wmiUm 
duce  any  peiwn  to  attempt  to  prove  Uiu  IH 

How  long  have  you  been  a  pncti^aHtt> 

1  have  hod  a  great  many  clieatx  "  "' 

of  twenty  and  odd  years. 

Do  not  you  luiik  opon  il  as  a  niie  ttft 
dcncc  and  honour,  lor  allornies  loketald 
giously  the  secrets  of  their  Ghents?-~l%l 
deed. 

Do  not  you  think,  thai  ifa  eolicitorana.H 
torney  discloses  these  secrets,  he  i*  a 
man?— I  think  he  is. 
,  And  hnwcamcyou  to  discloMlhisfl 
I  wvuld  nut  have  disclosed  tbit,  if  I  -— ^^ 
l>een  obliged  to  do  it;  and  the  itmaM  4 
obliged  me  lo  do  il,  was,  my  lard's  filiaf  il 
iu  ihe  Etcbequer  to  disclose  what  boiuM 
had  dune  for  him;  when  1  waa  obliged  %Hf 
iwer  the  inlerroga lories  I  am  now  asked,      j 

Yuu  said  my  lord  Auglesta  was  t  in 
flashy  man  io  his  discourse ;  did  not  JMI^I 

Is  not  he  a  man  subject  lo  passion  aolMj 
and  hasly    aud    rash   in  bis   vipttadtui^ 

At  the  timo  that  he  talked  lo  yoa  IJ 
giving  up  these  tilings  lo  Jemmy,  wu  " 
chagrioed,  and  in  a  passion? — He  « 
from  being  in  a  passion,  and  askeJ  IBJXf 
whether  il  was  proper  for  him  lo  do  il 

Whs  uol  the  reason  he  ffave  this,  tJ 
iiul  value  his  titles,  and  should  live  • 
Frunce  ? — It  was. 

Was  it  n  conscientinui  scruple,  nr  Ut  Jl 
of  ease  ?— I  believe  it  was  both.  Tha  ~" 
of  it  vias,  he  wax  eitreoicly  angry  ig 


*nSf)Mf^ 


E««1 
bin 


mnd  Itichard  Ear!  ofAngleua. 
lUM  they  pull«d  away  money 


A.  D.  17«. 


[IS5* 


IM  this  uid  out  or  tlie  effect  of  liis. 

•I  thJKtitne,  aroutof>|>Ieen  to  Charles 

f  ? — No,   1  bdiere  he  Rdiil  Jt  for  his 

e,    for    his  oiru  aJ*iiotn);e  ;  lor  the 

lien    coming    on    wiili    the    preaeat 

niaJe  bim  degirou*  to  be  cosy. 

here  ioy  iutcrcaurte  or  treaiy  set  on 

iwu  biro  and  Mr.  Annesley  F — I  van- 

^Iwre  answeral  tlist  alrewly. 

He  thia  diicnurse  hRpptned,  about 

f  March   1741,   and  teferal   ulher 

Rou  recnllecl  wlielber  any  one  was 

™'-|ie  at   all,  Sir;    we  wtre  con- 

.    but  I  heard  Mr.  Jans  leTeral 

pkira  lo  ieatelhe  three  kiogdoma. 

wer  tn  the  hill  iu  the  Exchequer, 

t  that  declerallDQ  that  my  lord 

lyoii  ? — Sir,  I  wonder  you  would  oak 
ilion  ;  it  has  no  relution  lo  th«  bill. 
Ml  eier  tell  any  (icnnn  that  my  lord 
Lt  dednraUon  7 — Yea,  I  bare  awora  it 
London. 

:  wbom? — Berorethe  Exaniiaer. 
DU  mention  it  at  any  other  tiiue  before 
Ecsamined  7 — Yes. 
Itom  f — Upon  hating  the  copy  of  this 
managers  of  Mr,  Annetley  came  lo 
inw  if  I  know  any  tlito);  of  thii  mailer. 
Butiagers  ? — Mr.  Kercher,  Mr.  Pater- 

V  aerved  with  a  aubpccna  ?— I  bare 


I 


and  said,  ^Vill 
ending  } m 


-Here,  Sir. 
Ola  Ireland,  and  said 
^Vill  you  (tire  at  the 
a  subptcna  ?  and  1  told 
foald  not  give  them  tlie  tronhle. 
n  you  any  tbal  yuu  would  not  Iiafe 
ideoce  here,  except  you  had  been 
lit?— Why.Sir,  ia  not  that  a  force? 
appliea  lu  me,  anil  aays,  lie  will  sub- 
^  inuxt  not  I  obey  that  subjiiEna  T 
""UBter  hear  my  lord  Angleaea  aay  any 
'le  stealing  of  a  sdier  spoon  f — f 
ly  lord  Anglesea  aay,  that  tbii 
!•  be  called  him,  was  transported 
■  ail*  er  apoon. 

<a  hear  that  ? — At  the  lime  of 

il  mote  than  once  ? — Yet, 

lime  of  those 

I  between    the    Tlh    of 

I,  ttnd  Ihe  14tb  of  July  174S, 

-'•i,  did  you  ever,  in  any  con* 

ly  lord  Anglewa  and  you, 

.   that  the  plaiiitilT  waa  a 

I  bare  heard  him  Gay,  he 

rd.     I  bare  heard  him  aay, 

I   brolber'a  bastard.     I   have 

,  that  he  got  the  wencb  with 

lit  btr  lay  it  ajmn  his  brother, 

■  bttkr  mIc  to  maiauiB  it  than 


Did  you  bear  him  say  that  at  oHeit  as  you 
heard  him  speak  of  the  ailver  spoon? — That  ia 
not  poaiiible  for  me  lo  charge  my  memory 
with.  I  have  beard  him  say  boih  ferj  oflen. 
When  be  said  he  gut  him  transported,  he  said 
he  stole  the  silter  spoon. 

^Vas  any  one  present  when  ho  said  this  t — 
Yea,  I  wiil  tell  you  one,  who  said  be  was  in 
the  bed  with  her  along  with  my  lord,  one 
Kolph. 

Waa  Kolph  presenl  f—Rolpb  was  present. 

At  what  placed — I  believe  in  my  lord 
Anglesea's  lodgings. 

Where.' — In  London  ;  either  there,  or  at  ■ 

Whom  did  you  hear  this  from?— I  heard 
Rolph  aav  this. 

\Vas  Rolph  one  of  Ihe  coinpatty  al  tha 
la>em  ? — He  was. 

Did  be  sit  down  at  table  with  you?— I  be- 
liere  il  was  ia  Ihe  morning,  at  my  lord's  lodg- 
ings in  Bury-streel,  at  the  lime  uf  breakfast 
now  I  recollect  m«  of  it. 

What  was  it  ray  lord  said  tlieo?— What  da 
vou  say  lo  this,  says  he  ?  Here  is  Rolph  says, 
lie  was  in  the  bed  at  the  same  time,  and  knows 
Ibe  pretender  is  a  ba^lard. 

>Vas  this  when  be  mentioned  the  stealing* 
the  silver  spoon? — I   bolieve  it  waa  at  Ihe 

Tlie  Evidence  cloudfor  thi Plaintiff. 

Mr,  Attorney  General,  (St.  Geoi^e  Caul- 
field,  esq.)  opens  the  defendant'a  evidence : 

May  it  please  your  lordship,  and  you  gentle> 
men  of  the  jury  ;  I  am  ciiunsd  for  the  de- 
fendant, the  tail  nf  Aiifflesea.  Yon  hare 
heard  a  great  deal  of  evidence  carried  on  for 
several  days,  entirely  taken  up  in  the  etcamina* 
tiin  of  witnesses  on  the  part  of  the  plaiolifF. 


I 


•  In  the  "  Trial  at  Bar,"  4ic.  (p.  59.)  it  ap- 
pears tbal  after  the  examiaaliou  of  Gilford, 

Mr.  Rii^kard  Buily  being  produced  on  the 
table  in  order  to  ha  examined,  said. 

My  lord,  I  humbly  beg  leave  lo  inform  your 
lordsfaip,  before  I  am  sworn,  that  I  baie  a 
lease  here  in  my  hand,  which  I  held  from  tlie 
defendant,  and  which  if  the  plaintilT  &ucceed«, 
I  may  lo»  the  benefit  of;  therefore  I  submit 
lo  your  lordships,  whether  I  ought  to  give  my 
evidence  in  this  canse. 

The  counsel  for  the  defendant  objected  to 
Mr.  Baily'a being examineil,  because  ioteresled 
in  the  ecent ;  and  Ibe  Court  being  of  opinion 
thai  be  ought  not  In  lie  examined,  where  hia 
evidence  nny  prejudice  or  better  his  own 
interest,  he  was  set  aside. 

[Here  the  counsel  for  the  lenor  of  the  plain- 
lilf  closed  their  evidence  ;  but  said,  that  if  the 
counsel  for  ihc  defendaol  should  make  il  any 
part  of  their  defence,  that  the  leaaor  of  tha 
plaintiiris  the  son  of  Joau  Lindy,  they  lor 
the  [ilaintiff  hoped  they  ahould  be  aJmitied  to 
shew  what  became  of  ihsl son;  which  falter 
some  debate  of  Ibe  counsel)  the  Court  da«lar«4 
tboy  ahoulil  (n  ax  \il>«t\-j  \q  1q^ 


I 


child,  and  bad  one  or  two  misGarriages  before 
Ibe  ureteoded  birtb  of  the  plaintitfl  ^ 

Tbey  atlerwards  came  more  directly  to  the 
question,  and  called  witness  to  prove  the  actaal 
birth  of  the  plaintiff ;  that  it  was  at  Duomaine, 
ID  the  county  of  Wexibrd,  in  April  or  May 
1715,  (thoogfh  one  of  their  witnesses  of  the 
best  appearance  swore  it  to  be  in  (September 
1715,  and  |^ve  very  particolar  reasons  for  it) 
that  there  were  great  rejoicings,  a  public 
christening,  who  the  sponsors  were,  the  nura- 
ing,  and  bringing  home  again  of  the  child, 
when  nursed,  to  the  house  of  Dunmaine,  and 
his  stay  there  with  my  lord  his  father,  till 
about  tliree  ycaraold ;  this  seems  to  me  a  ma- 
terial, and  indeed  the  most  material  part  of  the 
case ;  the  jury  will  therefore  recollect  the  in- 
consistencies and  contradictions  of  the  i^^it- 
nesses  to  these  (acts,  and  judge  of  the  truth 
and  probability  of  the  evidence,  by  comparing 
the  nature  of  the  facts  testified,  with  the  wit- 
nesses produced  to  prove  them,  how  likely, 
how  posable,  that  such  persons  as  these,  and 
these  alone,  should  be  able  to  prove  a  fact  of 
this  nature. 

They  proceeded  afterwards  to  give  an  ao  • 
connt  of  this  child  in  the  several  places  where 
my  lord  Altham  had  resided  atler  his  separation 
from  my  lady,  at  Kinna,  at  CarrickdufTe,  and  in 
Dublin,  in  the  several  places,  where  he  lodged 
there,  and  I  think  one  of  the  witnesses  pro- 
duced, late  last  night,  gave  some  account  of 
faim  during  my  lord's  residence  at  lochicore : 
Whether  this  evidence  has  substance  and 
strength  in  it,  or  does  not  rather  consist  of  loose 
expressions^  and  the  private  apprehensions  of 
people,  who  knew  but  very  little  of  ibe  family, 
IS  a  matter  that  will  be  ohisprvArl  iiKon  bv  thoM 


judge,  whether  it  does  not  very 
trndict  and  refute  itself,  and  abc 
person  did  of  himself  desire,  and 
regular  way  procure  an  opportot 
abroad,  without  the  least  interpo 
part  of  the  earl.  They  then  callec 
ncss  to  shew  my  lord  was  soseosibl 
tiff's  right,  for  tins  is  the  turn  the; 
taking  advantage  of  a  misfortune 
ed  to  befall  him,  his  killing  a  oian 
cident,  the  carl  had  him  indicted  ai 
fof  that  fact,  in  order  to  have  li 
convicted,  and  so  to  put  him  out 
and  to  conclude  all  with  a  tjnishin 
same  witness  tells  you,  that  the  < 
the  estate,  and  honours,  and  all  w 
tiff's  right,  and  that  he  had  a  fu 
strike  up  a  bargain  with  him.  If 
at  all  interpose  in  this  prose€uti< 
shewn  to  you  in  proper  time,  that 
drawn  from  such  a  piece  of  uiisc 
no  means  just ;  and  we  shall  in 
witness  being  entirely  unsupport 
fact,  had,  of  his  own  shewicg, 
share  in  the  transaction,  to  be  c: 
serving  of  credit,  as  to  this,  or  any 
of  fact. 

This  then,  in  a  few  words,  is  t1 
general  tendency  of  their  evidcm 
these  circumstances  and  facts  have 
by  whom,  with  what  circumstanc 
bility,  and  how  just  their  conclusii 
ters  that  might  well  deserve  the  < 
of  the  jury,  though  no  evidence 
fered  on  our  part,  by  comparing 
mi^ht  be  expected,  and  must  1 
their  power,  if  the  faci  really  v 
wotilrl  now  havp.  it  thomrht  to  he. 


und  Richard  Earl  ofAnglesea. 


A.  D.  1743. 


[1258 


B  kiDGftlom  at  the  time  of  the  Re«tt>* 
i  great  adtlitioDS  to  it ;    his  credit  at 

the  condition  of  the  times,  gave 
id  to  many  others,  an  opportunity  so 
I  estate,  taken  together,  does,  as  1  I 
ed,  far  exceed  any  other  now  in  tlie 

this  earl,  Arthur,  had  issue  Afe 
8,  Altham,  afterwards  created  lord 
ichard,  Artliur,  and  Charles, 
larriago  of  his  eldest  son  James,  with 
the  Rutland  family,  he  settled  the 
rt  of  his  estate  in  the  usual  manner, 
ions  over  to  his  other  sous,  and  their 
issively,  in  tail  male,  and  soon  aAer 

is  eldest  son,  also  died,  leaving  issue 
riage,  three  sons,  James,  John  and 

the  second  son  of  Arthur  the  first 
If  ithout  inue,  and  his  honour  de- 

lichard  the  third  son ;  and  this 
rd  Altham  had  issue,  Arthur,  late 
1,  and  Richard,  the  present  earl  of 

the  fourth  son,  of  the  first  earl 
d  without  issue  ;  and 

the  fifth  6on,  died,  leaving  issue 
s  Anneslcy,  whom  we  all  know.  • 
James,  the  eldest  son  of  earl  James, 
son  to  earl  Arthur,  being  in  poa- 
he  honoinrs  and  estate  of  the  family, 
ines,  and  suffered  recoveries  of  a 
>f  this  estate,  in  order  to  dock  the 
and  heii)^  thereby  become  tenant  in 
lie  year  1701  made  several  wills  and 
posing  <if  it.    By  the  first  of  these 

May  14,  1701,  after  the  limitations 
ihers,  on  default  of  issue- male  in 
•vised  his  estate  to  his  uncle  Richard, 
D,  the  defendant's  father,  and  the 
of  his  body,  and  in  default  of  such 
is  uncle  Charles  Annesley,  and  the 
of  his  body.  On  the  9th  of  De- 
owing,  he  made  another  will,  and 

estate  in  the  same  mnnner;  after 
'  that  his  uncle  Richard,  lord  Altham, 

little  time  before,  he  apprehended 
le  wrong  to  let  his  name  stand 
I,   and    therefore,    in  the   will    of 

drew  a  line  across  his  name, 
I  of  Richard  wrote  over  it  Arthur, 
he  limitation  stood  to  Arthur,  lord 
id  the  heirs  male  of  his  body ;  by 
ation  Richard,  the  younger  brother, 
efendant,  stood  excluded  from  the 
After  this  he  made  several  codi- 
I  have  not  read,  but  by  some  of  thcin, 
he  14th  of  May  is  recite<l  and  esta- 

others  the  altered  will  that  was  in 

but  by  the  last  of  these  codicils, 
May  14, 1701,  is,  as  we  apprehend, 
up  and  established.  This  we  shall 
t  admitted,  from  the  tvills  and  codi- 
I  DOW  on  the  table. 
!r  this,  earl  Jamca  died  without  isiae- 
mtlMr  John  alio  died  whlioiit  Ltotie- 


male^  and  Arthur  the  youngest  brother  suc- 
ceeded to  the  hotM)urs  and  estate.  From  this 
confusion  in  these  wills  and  codicils  it  remained 
a  matter  of  great  doubt,  if  the  late  earl  Arthur, 
and  the  late  lord  Altham,  shoulil  both  die  with- 
out issue- male,  of  which  there  was  no  prosi>ect, 
who  should  succeed  to  the  esttate,  whether  the 
present  earl,  under  the  first  will  of  May  1701, 
or  Mr.  Charles  Annesley ,  under  the  altered  will 
in  December  1701 ;  but  the  general  opinion 
was,  and  it  was  the  apprehension  of  the  late 
earl  himself,  that  the  present  earl  stood  ex- 
cluded. A  son  of  the  lute  lord  Altham  would 
have  made  this  question  unnecessary,  for  clearly 
be  must  have  succeeded  to  these  great  honours, 
and  to  this  vast  estate.  Such  a  son,  and  such  a 
birth,  must  therefore  be  an  event,  as  of  great 
consequence,  so  of  great  notoriety  ;  bow  conld 
it  be  onknown,  or  known  only  to  stich  as  yon 
have  seen,  in  a  country  so  |tcopled,  and,  as  I 
may  s^j,  in  the  midst  of  their  own  estates? 

But  it  will  appear  further,  that  the  late  lord 
Altham  was  possessed  himself  of  an  estate  of 
about  1,<200/.  a  year  ;  the  town  of  New  Ross, 
in  the  ncighbournoud  of  Dunmaine,  was  part  of 
it ;  this  estate,  on  the  failure  of  issue- male  in 
him,  was  to  go,  not  to  his  brother  the  defendant^ 
but  to  the  late  lord  Anglesea.  Jt  will  appear, 
that  this  estate,  on  the  death  of  lord  Altham, 
was  entered  upon  and  enjoyed  by  the  late  eari  of 
Anglesea,  until  his  death. 

Is  it  possible  then  there  could  be  such  a  son 
of  lord  Altham,  and  the  late  earl  know  nothing 
of  it?  Could  he  be  such  a  stranger  to  his  own 
fieimily  'f  Nay,  though  a  stranger  in  other  re- 
spects, the  turd  Altham  and  his  family,  and  his 
family-affair:^,  made  too  nmrh  noise  in  the 
world  to  supiMHse  it  possible.  There  is  no  pre- 
tence, that  the  late  earl  was  concerned  in  any 
iniquitous  scheme.  If  he  knew  of  this  child, 
can  it  be  supposed  he  would  do  him  such  an 
injury  ?  In  policy,  if  from  no  better  principle, 
sure  he  would  have  more  regard  to  his  own 
character. 

My  lord  we  shall  shew  it  further  in  proof, 
that  the  late  lord  Altham,  for  particular  rea- 
sons, was  desirous  to  have  a  son,  and  would 
very  greatly  have  found  his  account  in  it, 
being  in  remainder  to  the  Anglesea  estate ;  as 
I  said,  often  in  distress  for  money,  one  method 
of  raising  it  was  by  the  sales  of  reversions 
of  (larts  of  this  estate ;  the  validity ;  of  these 
sales  depended  on  his  surviving  the  lato  earl 
Arthur.  Now  upon  his  advising  with  counsel, 
touching  these  intended  sales,  we  shall  prov6 
he  was  advised  and  informed,  that  these  sales, 
as  matters  stood,  could  produce  but  little 
money,  because  the  title  depeaded  on  the  con- 
tingency of  his  surviving  the  carl,  who  was 
judged  the  better  life  of  the  two,  as  it  really 
fell  out.  But  if  he  had  a  sou,  that  something 
worth  while  might  be  expected,  because  then, 
by  levying  a  fine,  the  estate  would  have  stood 
assured  to  the  purchaser  so  long  4s  there  was 
issue  male  of  his  body.  This  we  shall  prove 
by  a  gentleman  of  unidoabted  t«xa»l^  ^aoi&iAr 
putaUon. 


1S55]  17GE0BGEIL    Trial  m  Efeetmat  i, 

Ii  M  Monury  before  I  meclion  the  mtare  i  blwh  tlii*  het ;  Ar  d 
af  aur  prooti,  i^  lake  notice  of  Uie  meUiod  so  touch  or  it,  wbit  i 
obMireil  ia  protlucing  tlie  evidence  that  bM  «Dler  into  cridearey ' 
been  already  :;iv<;ii,  in  order  to  airend  l)ie  g«n-  bolft  preMtBptiM? 
tiemea  of  tbc  other  tiite  in  the  »ame  netliiMl.    Kenu,  witbftl  nr  ' 

I'l <rh  Ibey  were  rery  lennblc,  tbat  ibit    Iberrfm  it  wu#^  ; 

fact,  if  true,  inuK  admit  of  tbecleare»t  proof    Ifast  tbe  4tfc^^  f.'i 
in  ttie  affirmative,  yet,  they  were  pleued  to  be-    ' 
fiin,  ai  1  thought,  at  a  eoDsiderable  distanee    dMlh)  eVpM  (  '  e_i 
trom  (he  point,  and  took  up  oiuuli  t'-~  ■ '  ■' "*  '  '  '    ■  • 


Thomas  Rolpb, 

_,    uri  lived  with  him 

ided  birth ;  my  lord's 

some  other  aervants 

ere  in  tbe  fatnily  and 

nd  Ihey  all  agrte  in  this, 

with  child  ;  liiat  there 

ir  birtli  Ibat  they  ever 

(his,   ne   apprehend, 

than  that  of  llurphy, 

e  ih<«e  people  tcatify 

lin  their  sphere,  and 

such  a  fact. 

lace  persons  or  the  best  eondi- 

^  jbhoiirkood  of  Duomaine,  be- 

wid  my  lard  AUIiam  there  passed 

jf  visiii,  and  with  sonie 

(he  inlimacyiTB*  very 
'  "rs.  Lambert  as 


',  and  lier  bjiband 

't  Uunraaine  to  my 
I  himself  al  Ross ;  bis  dealing,  as 
Abourhood  hdU  acquaiD(aDee,  ge*e 
m  lady  great  opportunities  of  linow- 
jThii  family  than  tnaoj  others. 
wall  colonel  PaUiser,  niwl  alio  hU 


conduct  can  only  be 
believing^,  theirnot  L 
tiiey  bad  beard ;  an 
this,  1  can't  bat  tbi 
might  safely  rest  m 
Bat  we  shall  go 
~-  an  accoout  of  I 
of  hi*  birtfi.  ' 
Ireland,  my  lord  wi 
to  town,  they  wen 
time,  and  then  they 
One  Joan  I^ndy  w: 
of  my  lady's  tximip 
maid  there ;  and  in : 
■ohiff  with  child,  t 
luowledga  ;  upon 
and  went  to  her  f) 
land  of  Dunmaine, 
from  tbe  house.  A» 


bad. 


,    KIT* 


resolred  to  make  hi 
We  shall  shew  the  I 
raanner  of  keeping 
tion  of  my  lady :  W 
separation,  the  cbi 
house,  and  (he  schoi 
lived  at  Dunmaine 
Landy's  child  died  i 
this  child  ;  that  my 
that  it  was  brought 
rickduffe,udDiiUii 


ard  Earl  t^Anghtea.  A.  D.  174S.  [1S69 

■ecordinr  to  our  pten,  that  the  defemluit  is  oot 
-     of  tt     ■ 


no  other.    Tbia 

a1  placea,  not  by 

e  who  knew  my 

'■■II  prove  to  you 

-*hen  at  tho*e 

^liooeil:  we 

N  neglect 


,  him  naomt ; 
fd  characier,  and 
ieied  here,  it  will 
er  complaint*  of 
■vtt  was  the  least 
to  a  son  or  cbilJ 
ceupon  tJiishead, 
ircumBtancet,  we 
ence ;  but  much 
b,  wlien  she  saw 
another  the  ho- 

sdit  that  mast  be 
iffht  he  appeared 
I  uie  coDsi  aeration 
;  be  doei  notpre- 
entattbeconfer- 
nnt  of,  H>  tbat  we 
trailict  faim. 
uLlf'i  wilnrsBC*, 
etr   efidence,  we 

^ucejnanl^ndy, 
ritnessM,  and  in 
la  be  the  molher, 
;  can  there  be  a 
t  which  must  of 
keejiing  back  tbia 

hare  now  stated, 
fhich  haa  escaped 
is  is  done,  as  we 
'ill  be  tried  unio- 
ns that  hare  ool 
ter  in  issue,  and 
d  creditors  of  the 
a  rigbt  to  incceed 
ill  receive  no  pr«- 
at  do  not  properly 
!>\y  bare  no  rela- 
oubt  but  jon  will 
irinett,  by  finding 


We  shall  now,  m  j  lord,  begin  to  call  our  wit- 
newet. 

Nicholas  lo/hif,  «•).  ■worn. 
Says,  he  has  lired  at  Loftas-hall,  in  the 
coanly  of  Wexford  (where  he  nnw  IItcs)  up> 
wards of30 years;  that  Dunmaiiie  is  diilant 
from  it  about  eisfht  miles,  and  deponent  knew 
lord  and  lady  AUhaoi,  bul  deponeut  or  bis  wife 
''erer  Ttsited  lliem  ;  says,  lie  never  heard  that 
lady  Altham  bad  a  child,  or  that  there  wer« 
-ejcncings  at  DnoiDaine  for  my   lady's 
^ebikl.     Beio|;asked,  if  heknowiIUr. 
taraes,  and  wheiber  he  is  ool  im- 
jm  memory  and  understanding- ;  says, 
jWS  bim  very  well,  that  he  was  at  depo- 
.it's  house  last  summer,  and  t*  much  im- 
paired of  late  in  hia  health. 

[Here  the  cooDsel  for  the  plaintiff  iiwitcd, 
that  it  was  improper  to  ask  a  witneta  hia  o^- 
nion  of  another's  underBtandintr,  who  had  be«i 
examined,  and  croM  examined  in  tbe  Coun, 
for  that  the  gentlemen  of  the  jury  were  tha 
proper  judge*  of  it] 

[Cross-examined.] 

Beiiigaaked,  ifhe  remembera  where  he  wa* 
in  Ibe  year  1714,  or  ITIS  ;  aaya,  be  remem- 
bers be  returned  from  Englaudabout  (be  be- 
ginning of  tbe  year  1713,  and  that  about  the 
beginmngof  the  year  1714,  lord  Beaborougfa's 
lai^  dying,  his  lordship  was  fond  tbat  deponent 
shonld  stay  with  him  for  some  time  after  mj 
lady's  death ;  so  that  deponent  spent  most 
part  of  the  year  1714  with  his  lordahip,  but  in 
the  summer  1715,  deponent  to  the  best  of  bis 
remembrance,  Ured  at  Lothu-ball. 


Ssyi,  he  wai  Tery  well  acquainted 'with  my 
lord  and   lady  Altham,  and  frequently  i'  ''    ' 


.   «y». 

he  ntrer  heard  tbat  my  lady  Allbam  bad  a 
child,  end  is  positire  in  his  conscience  sh» 
never  had  during  bar  continuance  in  tlie  county 
of  Wexford.  Deponent  indeed  heard  my  lord 
'    '      child  by  one  Juan  Landy,  but  never 


heard  he  had  one  by  his  lady ;  says, 
Buch  an  intimicy  between  my  lori 
and  dniooenl's,  that  generally  once  a  fortnight 


they  Tiaited  each  other ;  m  that  be  ' 
my  lady  had  been  ill  be  must  have  known  it  i 
and  deponent  never  dhectly  or  indirectly  heard 
that  she  had  a  child,  or  that  she  was  conBned 
to  her  chamber  on  account  of  any  indiapoaitiOD, 
or  ever  had  any  miscarriage,  and  if  she  had, 
deponent  belieiea  he  thoiud  bare  heard  of  it 
sooner  than  any  person  in  the  neighbourhood ; 
says,  be  irc4V<KMl j  ww  m^  \m&i  w>atwi^l«'»^' 


(wbo  was  deDODcnCs  old  f'ricDd)  bui  did  ua 
know  bis  laJv,  nor  erer  saw  them  at  Dos- 


12GS]  17  GEORGE  II.     Trial  in  Ejecinuni  between  J.  AnMsln/,  esq.  f  1264 

the  cliiirch  of  Kilmacky.aDc]  she  never  appear* 
ed  to  be  witb  child  ;  says,  be  knows  that  lord 
and  lady  Altbam  separated,  but  cannot  recollect 
the  time  ;  believes  my  lady  lired  two  years  and 
a  half  at  Ross  ofter  the  separation;  says,  he 
never  had  any  discourse  with  my  lord  abont 
my  lady's  having^  a  child,  and  never  heard 
from  man  or  woman  that  she  ever  had  ;  says, 
Ross  is  about  three  miles  from  Dunraoine,  and 
«loes  not  believe  it  was  possible  my  la<iy  could 
have  a  child  without  deponent's  knowing  it, 
ibr,  to  the  best  of  his  recollection,  he  was  not  a 
month  or  six  weeks  together  without  seeing 
her ;  at  least  he  is  sure  he  never  was  above  two 
months  without  visiting  her ;  says,  he  never 
saw  any  child  at  Dnnmaine :  that  lie  knew 
Joan  Laffsn  very  well,  she  having  lived  with 
deponent  as  a  servant,  and  says,  tiiat  she  was 
turned  away  from  deponeut's  service  for  whor- 
ing, that  she  is  an  infamous  ^oman,  and  depo- 
nent would  not  trust  her  for  the  value  of  a  pota- 
toe.  Being  asked  if  she  is  a  woman  to  be  be- 
lieved upon  her  oath ;  savs,  by  the  virtue  of  bis 
oath  she  is  not  to  be  believed  upon  her  oath, 
and  that  the  whole  parish  has  a  bad  opinion  of 
ker. 


[Cross -esamined.] 

Being  asked  if  he  can  recollect  where  he 
lived  in  the  year  1713,  or  17 14  ;  says,  he  lived 
in  the  year  1713  at  the  Great  Island,  that  he 
was  building  in  the  barony  of  Forth  in  the  year 
1713  and  1714,  and  lived  backwards  and  for^ 
vrardf*,  between  the  Great  Island  auu  barony  of 
Forth  in  those  years,  and  can't  recollect  that 
he  was  two  months  together  at  the  barony  of 
Forth  whilst  he  was  building  there.  Being 
asked  if  he  knows  where  lady  AUham  was  in 
the  year  171i;  says,  he  cannot  be  positive 
where  she  was  at  that  lime.  Being  asked  if  he 
saw  lady  Altbam  from  September  to  December 
1711 ;  says,  he  cannot  say  be  did.  Being  ask- 
ed how  far  the  barony  of  Forth  is  from  Dun- 
maine:  says,  about  14  miles,  that  he  kept  60 
acres  of  the  barony  of  Forth  in  liLs  own  hands. 
Being  asked,  if  he  would  take  upon  him  to 
swear  he  was  not  six  wiH^ks  together  in  the 
barony  of  Forth ;  says,  ho  will  not  take  upon 
bim  to  swear  that,  Lnt  believes,  ank'ss  he  had 
the  gout,  he  never  staid  there  six  weeks  toge- 
ther. Being  asked  if  he  had  not  often  the 
flfout;  says,  he  was  oAen  laid  up  in  the  gout 
Being  asked  what  time  he  bcgau  lo  bnild  in  the 
barony  of  Forth ;  says,  he  began  to  build  about 
the  year  171'2.  Being  asked  if  he  ever  was 
two  months  together  in  the  barony  of  Forth  in 
the  year  1714:  says,  he  was  not  there  two 
months  togetlier  in  that  year  as  he  knows  of. 
Being  asked  if  he  knows  of  any  particular  cir- 
cumstance that  happened  at  the  time  of  the  se- 
paration of  my  lord  and  lady  Aliham  at  Dim- 
maine ;  says,  lie  knows  his  sou  was  very  ill  at 
that  time,  that  he  cannot  be  positive  whether 
he  aaw  lady  Altbam  in  May,  June,  or  July 
1715.  Bein|r  asked  if  he  knew  one  captain 
Brisco  and  bis  lady,  and  if  be  ever  saw  them  at 
l}iwmm§;  fayg,  be  knew  caiitain  Briscu, 


maine.    Being  asked  whether  if  they  bad  coooc 
there  as  visitors,  deponent  would  not  you  have 
known  it ;  says,  he  believes  he  sbouM.    Bday 
asked  what  tune  deponent  weot  lo  lire  at  tfaa 
Great  Island ;  says,  be  went  to  live  there  nbea 
the  dukeof  Onnond  6rst  sold  |iart  uf  bis  estiie 
in  Ireland  ;  says,  he  does  not  know  who  ime 
lords  justices  at  that  time,  but  rememben  M 
Gallway  very  soon  after  iu  thegovenunesi; 
that  he  was  twice  m  the  government;   oocea 
lord  justice  along  with  the  lord  Wincbdsea; 
remembers  he  lost  his  hand  iu  qneeo  AoBe*! 
wars,  and  be  made  deponent  a  aheriff  of  tW 
county.     Being  asked  how  long'  ago  it  ii 
since  deponent  was  sheriff;   says,  about  tf 
years  ago.    Being  asked  how  many  yean  k* 
ponent  was  building  in  the  barooy  of  Fcntfa; 
says,  he  can't  tell  if  he  was  three  years  build- 
ing'there.    Being  asked  if  my  lord  cane  u 
Dunmaine  before  my  lady ;    says,    be  dli 
Being  asked  if  be  knew  lady  Ahham  before  da 
deatli  of  queen  Aojie;  says,  he  can't  tell  1tk^ 
ther  his  acquaintance  with  her  began  before  « 
after  the  death  of  queen  Anne,  but  is  pontifB 
he  knew  her  from  tlie  time  she  came  lo  lire  il 
Dunmaine,  until  she  left  it,  though  ha  oil 
tell  the  year  she  came ;  says,  lie  did  not  koM 
her  before  he  began  to  build  his  house  is  lb 
barony  of  Forth ;  knows  he  visited  my  lad^  ii 
a  week  aAer  she  caoM  to  Dunmaine.*  fitff  { 
asked  if  he  saw  his  friend  c:aptaia  Brisco  vha  j 
he  i^aid  the  first  visit  there ;  says,  be  did  M  ! 
Being  asked  what  time  of  the  year  it  was  vWt  ' 
he  paid  his  first  visit;  says,  that,  to  tbebeac^  i 
his  memory,  it  was  in  summer  time.    ha\'Z  J 
asked  if  my  lady  came  to  town  in  parliaoNtit 
time;  says,  he  is  apt  to  believe  she  did;  I^ 
members  he  \isiled  licr  at  her  lodging  atiW 
coraer  of  Dirty -lane  in  Fleet-street,  and  rciDC» 
bcrs  the  street,  liecause  horsc-s  are  wati>red  te^ 
ni;;:h  it  iu  the  river.     Being  ashed  whcUwrlie 
was  not  two  montlis  at  a  time  together  in 
Dublin,  when  my  lord  and   lady    resiiled  a 
Dunmaine ;  says,  he  does  not  know  that  k 
was.     Being  a^Led  if  ever  he  heard  that  oj 
lady  was  sick  for  a  week  together  whilst  ik 
was  at  Dunmaine  ;  says,  she  uii;:ht  be  Mck  • 
week,  but  not  to  deitoueut's  knowledge.    Beiof 
asked  what  reason  he  has  to  believe  that  Jon 
LafTan  is  not  a  person  to  be  believed  upoakff 
oath  ;    says,  she  is  a  woman  of  ill  fanit  tW 
keeps  a  Shebeen- house,*  and  led  an  ill  ^' 
Being  pvesse<l  to  declare  upon  bis  oath  if  k 
was  ever  present,  and  did  know  her  to  tbnwetf 
herself,  or  did  ever  hear  tliat  she  did  so  ia  aa/ 
canse  whatsoever ;  says,  be  never  kaewi  tf 
heard  that  she  was  ever  forsworn,  bul  yrt  ^ 
ponent  would  not  believe  her  upon  her  oatk, ' 
otherwise.    Says,  he  knew  counsellor  Pi^ 
and  his  lady;   that    they   lived  at  Tt"IA 
and  deponent  believes  they  used  i«»  risii' 
Dunmaine,  for  deponent  once  saw  Mr.  ^^ 
there,  but  cannot  recoUea  if  ever  be  uv  cinf 


\ 


*  A  little  ale-boiitei 


and  Raluird  Earl  i^AngleMta. 


[1S6G 


n  th^e  more  thtn  Ihnt  <me  time.   Briofr    Allb^  had  k  cbiM  by  fan  lady,  nd  doei  not 
if  lieKineniben  the  IleitellioD  in  IScot-  I  believe  be  ever   hail,  becauM  ilepooent   waa 
aajis,  he  does ;  that  deponrol  wai  then    employed  by  my  ~     '  ' 
liaiiieot,  aiid  IodIc  particular  notice  of  my  I  oo  nil  lordsliip'i  t 


1  irsj, 


title,  undertiie  witli  and  codi* 
cils  of  James  earl  of  Aog;le5ea,  nhicb  deponent 
carried  to  counsel,  and  savs,  they  gave  tlidr 
npinioD,  tbal  if  my  lord  had  a  ion,  and  of  age, 
and  lucb  bod  would  join  ivilh  my  lord  io  levy- 
iajf  a  fine  and  tufTering  a  recovery,  then  hia 
lordship  might  dock  (be  entail,  and  sell  the  re- 
TeraioDs  of  auch  part  of  the  Ang'Ieaea  eatate  aa 
he  KhauM  think  fit;  that  thereupon  my  lord 
told  depooent,  he  had  ou  legitimate  aon,  but 
had  one  that  waa  illegilimate ;  and  deponent 
haa  heard  my  lord  wish  that  he  had  a  lawful 
aon,  because  then  he  could  raiae  mtfney  by  Iha 
sale  of  hi»  estate,  his  Iqniibip  being  coiDOionly 
in  a  very  needy  conditioti:  remembera  to  hare 
seen  a  bay  in  tha  street  at  New  Rosa,  oppoait* 
en  inn  kept  there  by  one  Brehsn,  in  a  poor 
mean  habit,  (like  some  of  the  common  boys) 
who  as  somebody  told  deponent,  was  a  bastard 
son  of  lord  Atiliam's  by  one  Joan  Landy  ;  and, 
in  anme  time  afterwards  when  deponent  lav 
my  lord,  he  asked  his  lordship,  bow  be  muld 
■offer  hit  bastard  son  to  go  about  the  ilreels  in 
that  poor  way  like  a  brirgar ;  and  the  answer 
my  lurd  made  was,  that  if  be  was  sure  the  boy 
iva-<  bis  own  son,  be  would  take  care  of  him, 
but  that,  as  several  had  to  do  with  the  boy'i 
mother.  Join  Londy,  he  very  much  doubted 
whether  he  was  llie  father  of  it ;  bat  can't  say 
my  lord  was  at  Ron  when  deponent  aaw  tba 
cliiid  there.  Beioic  asked  whether  be  kueir 
the  late  Arthur  earl  of  Angleaea,  or  that  there 
was  any  difference  between  hiru  and  lard  Al- 
tham  ;  isys,  he  knew  the  earl  very  well,  aud 
tbal  there  nere  some  disputea  between  him  and 
lord  Allham ;  and  that  in  a  suit  in  Chaocay 
between  them,  lord  Altham  iniifteil  on  bia  pn- 
vil^fc,  and  lord  Aiif;le>ea  could  not  get  a  lawyec 
to  speak  for  him,  whereupon  bis  lordship  stood 
u^  in  court  and  spoke  himself  Bein^  asked 
wlieiher  he  knows  that  the  lord  Altham  and  tba 
iletenilant  were  on  good  terms  ;  saya,  tbej 
were  loinetimea  on  good  terms,  and  soutetimea 
that  lord  Allham  wanted  the  defendaut  to 
of  the  Ao' 
tbe  deteuUant 
would  join,  and  ii<>metiiiies  be  refused  joining, 
aud  on  defendaul's  refusal  to  join,  (bey  dia- 
i>irrced.  Being  aakad  if  he  ever  aaw  my  lady 
ai  Uunm  'iue ;  rayt,  he  di<l ;  for  he  was  ihera 
twice  to  vikit  my  lord,  but  does  nut  remember 
the  (larticular  time,  only  that  it  was  helbre  (ba 
tieparattun,  and  alter  they  I<hI^  at  iVlr.  Vice'a ) 
snys,  he  never  aaw  any  child  in  the  liouse  of 
Uuumaioe  ;  that  depuneiil  dined,  but  did  doL 
ijrsd  by  bis  lorU»liip  in  bis  professiua  of  !  lie  there ;  did  nut  i)l)tei'>a  any  HJifns  of  my 
lAn^iit  III  several  causes,  and  i>n  many  lady's  being  with  child,  nor  evtr  heard  she  bsd 
'  '  cbibl  by  uiy  lord  ;  has  heard  she  had  a  child 
i^ollsnd  before  she  came  tu  Ireland,  and  has 
eaiil  that  tbe  child  is  dead.  Being  ukedif  lie 
ver  heard  what  wurelliK  motives  of  mj'  lord'a 
BinK  recimGiled  to  hi*  lady,  and  living  nitli 

, _    ..er  «k;aiu  ;  aays,  he  never  did;  wys,  that  tba 

unaiiie.    Siyi,  he  naver  beard  that  loid  '  reputation  uf  ibt  ceUDtr}  Hai,tlial  ui<|  lncd.U& 


Itliam  at  thai  lime  in  Dublin,  because  hi 
lely  lust  one  of  his  eyes.  Being  asked  if 
r  aaw  his  lordship  at  Dunroaine  after  the 
uf  his  eye;  says,  he  never  did.  Being 
if  he  knew  one  Dennis  Keilmonda;  says, 
a ;  that  he  was  once  serVsot  to  my  lord, 
lewise  deponent's  servaut.  Being  aakral 
oneot  baJ  any,  and  what,  discourse  with 
itely  ;  says,  he  bad  ;  that  one  day  when 
mus  was  brealung  burses  for  lieutenant 
ur,  dcpooeal  said  to  him,  1  Gnd  you  are 
to  be  a  witness  betweea  turd  Anglesea 
r-  Anneslt^y,  pray,  what  do  you  kunw  of 
laltrr  ?  To  which  he  made  a'nswer,  All  1 
is,  that  I  was  sent  for  a  midwite  from 
BJue  tu  RoBs^aud  that  I  brought  tbe  mid- 
nua  tbe  gale  of  Dunmaine  home,  and 
I  left  bet.  1  dun't  know  what  became  of 
erwards,  nor  for  what  purpose  the  came, 
r  whom  she  waa  Mut.  Upon  which  I 
I  biin,  Iftbat  be  all  yiiu  have  tossy,  your 
will  be  of  DO  use:  tu  which  Redtnondt 
riten  he  would  not  go. 
IS  ended  the  Examination  on  Wednesday 
the  10th  of  November,  almut  10  of  the 
when  by  the  like  conwnt  in  writing,  as 
,  read  in  open  court,  and  signed  by  the 
I,  tbe  Court  adjourned  to  tbe  next  luorn. 
>r  the  cktck. 

Tkurtda),  Nmembtr  ir,  1743. 
t  Court  being  met  about  9  o'clock  in  the 
BJ  accordiu^  to  ailjoiirnment,  the  Jury 
wiled  over,  and  anawerid  In  their  names, 
:ta  the  counsel  tor  the  defenilant  proceed- 
iXamine  their  wituesiej,  as  futluws  : 

William  Wall  sworn  lo  the  Voire  Dire^ 
a,  he  purchased  a  lease  of  some  lands  in 
unty  of  Dublin  of  the  laie  lord  Allham  in 

of  which  he  never  got  pi>iise»iiun,  they  ^  

[  been  sold  before  by  hit  Inrdithip  to  Kir  i jnin  with  hi 
r  Langfbrd,  on  which  account  ha  got  "       ■ 
'rom  lord  Altham  fur  SOf.that  is  yet  ui 


•re  the  counsel  for  (he  plaintiff  objected 
I  competency,  aa  beini;  a  iwrson  under 
but  the  objection  was  over -ruled.] 

Being  sworn  in  chief. 
It,  be  knew  tbe  late  lord  Allham  from  the 
I7lfi,  to  (he  time  uf  his  death,  and  was 


;  that  he  knew  Inlh 
idy  Allham,  who  then  loilged  at  Mr.'Vice'a 
•H-street,  toon  afti-r  my  lu<ly  came  over 
I  kingdom,  and  that  atlerwardi  iny  lurd 
idy  went  to  Deamaioe  in  the  cnunly  of 
ml,  ud  demtnent  visited  llwin  ~ 


tL.  XTII. 


1     4U 


1367 J  17  GEORGE  II.    Trial  in  Ejectment  between  J.  Annedey^  etq.    [1SG8 


no  legitimate  issue  at  bis  death.  Being  ask^d 
how  uld  he  believes  the  child  was  which  he  saw 
at  Ross  ;  says,  he  believes,  by  bis  size,  be  was 
about  5  or  6  years  old. 

[Cross-examined.] 

Being  asked  when  it  was  he  had  that  dis- 
course with  lord  Allham  about  the  child  ;  says, 
he  can't  recollect  the  particular  time,  but  to 
the  I>e8t  of  his  remembrance,  it  was  either  in 
the  year  17S5-6,  or  1727 ;  believes  it  was  after 
depiment  took  the  opinions  of  counsel  on  my 
lonl'K  case.  Being  asked  who  was  the  person 
that  told  deponent  of  the  child  which  he  saw  at 
Ross  l»eing  a  bastard  of  my  lord's :  says,  he 
believes  it  was  Edward  Brehan  that  tuul  him 
so,  and  be  said,  that  he  was  ashamed  that  my 
lonl  did  not  take  care  to  clothe  the  child,  or 
send  it  to  school :  deponent  says,  it  was  at 
Ross  he  spoke  to  my  lord,  and  not  at  Dun- 
maine  ;  that  my  lord  said,  bis  reason  for  neg- 
lecting the  boy  was,  that  he  did  not  believe 
him  to  be  bis  own,  the  boy's  mother  having  had 
dealings  with  other  people.  Being  asked  whe- 
ther it  was  before  bis  present  maiosty*s  coming 
to  the  crown  that  de|>onent  had  the  discourse 
with  my  lord,  or  if  deponent  was  then  in 
mourning  for  the  late  king ;  says,  he  cannot 
tell.  Bemg  asked  if  my  lord  and  lady  lived  at 
Dunmaine  when  deponent  saw  the  child  at 
Ross;  says,  my  lord  was  at  Dunmaine,  but 
can't  tell  at  this  distance  of  time  whether  my 
lady  was  there  or  not.  Being  asked  if  he  was 
often  at  Ross  ;  says,  to  the  best  of  his  know- 
ledge he  was  every  year  at  Ross  from  1707  to 
1720,  for  deponent  went  the  circuit  to  Uoss  at 
least  once  a  year  during  that  time.  Being 
jfiked  when  he  first  became  concerned  for  lord 
Altham ;  says,  he  cannot  recttllcct  the  time, 
but  believes  it  was  before  17v20.  Being  asked 
if  he  cau  say  it  was  before  the  year  1729; 
says,  he  is  not  sure,  but  believes  it  was  some 
time  before  17'20  ;  is  sure  he  was  concerned  for 
his  lordship  before  and  after  deponent  was  at 
Dunuiaine.  Being  asked  if  he  remembers 
what  year  it  uus  he  saw  my  lady  at  Dun- 
inalne ;  says,  he  does  not  remember,  but  be- 
lieves it  was  before  he  was  concerned  for  my 
lord  ;  says,  that  lord  Altham  was  very  poor  at 
that  time,  and  helievrs  he  might  have  sold  on 
better  terms  if  he  hail  had  a  son,  because  he 
could  then  have  cut  olf  the  entail. 

Aaroti  Lambert y  esq.  sworn. 

Sa3's,  he  knew  the  late  lord  and  lady  Altham, 
deponent  having  let  Dunmaine  to  his  lordship, 
about  the  year  1711;  says,  my  lady  came 
there  in  about  two  yeai-s  after,  aud  continued 
there  for  about  two  years  and  a  half;  that 
deponent  hvcd  at  Ross  while  my  lord  and 
lady  lived  at  Dunmaine,  and  deponent  lont 
his  lordship  the  sum  of  500/.  and  some  plate, 
and  was  frequently  at  Dunmaine  to  dunn  my 
lord  for  the  money,  and  deponent  had  some 
land  in  the  neighBourhood  ;  says,  he  never 
heard  that  my  lady  had  a  child  during  her  stay 
«l  DuDOioiae,  uor  ncrer  obf  er?ed  her  to  be  with 


child,  nor  never  saw  a  child  ahont  the  hoise ; 
that  deponent  happened  to  be  taken  very  ill, 
and  for  conveniency  of  having  one  Satton,  who 
was  a  famous  surgeon,  and  fi»r  tho  benefit  of 
the  air,  went  to  Dunmaine,  and  cootinaed  there 
for  two  months ;  that  it  was  in  the  spring,  nni 
lord  Altham  was  then  gone  to  Dublin  to  se!l 
some  reversions,  in  onler  to  ratine  roocey,  ami 
never  returned  back,  whereupon  deponent  set 
Dunmaine  to  one  Mr.  Uniack,  who  came  to  lire 
there  about  the  Blay  following  ;   says,  tbit 
when  my  lord  wentawav  frnm  Dunmaine,  Mr. 
Sutton  the  surgeon,  Jiir.   Tavlor,  and  Jou 
Laflfan  lived  there  ;  says,  that  Sutton  and  Tav- 
lor hved  with  my  lord  at  Ross,  bof'ore  ray  laiij 
came  over,  and  deponent   beard  that  Sutloa 
came  over  from  England  with  ruj  lord,  bit 
was  turned  out  of  the  ftimily  for  excessive  drink- 
ing in  two  or  three  months'  after  my  lady  nine 
to  Dunmaine ;  says,  that  Sutton  went  to  lire  it 
Ross,  and  in  some  time  afterwards  my  hit 
sent  for  him  to  attend  her,  and  deponent  diaci 
with  Sutton  the  day  he  was  sent  for,  and  wu 
in  his  company  when  'the  messenger  caor, 
and  he  sent  word  to  my  lady,  that  he  conM  ail 
go  on  account  of  his  patients ;    that  the  oai 
day  he  was  sent  for  again,  and  made  the  sue 
excuse,  and  the  third  day  my  lord's  chant  i 
came  to  fetch  him,  and  then  he  went  to  Dia- 
maine,  and  attended  my  lady  there  for  abooli 
fortnight.     Being  asked,  if  de|K)nent  coald  r^ 
collect  what  time  it  was  after  Sutton  left  ihi 
house  at  Dunmaine,  that  he  was  sent  for ;  tap, 
about  two  months  after  he  was  turned  oat  of 
the  house ;  and  the  reason  that  Sutton  gw 
for  his  not  going  on  the  two  first  messt^'M, 
was,  that  he  was  piqued  at  mv  lady's  usage  of 
him,  and  he  seemed  pleased  to  lind  that  nj 
lady  was   uneasy  for  want  of  him.    Bfisf 
asked,  if  he  ever  heard  of  one  Thomas  Brooki^ 
a  surgeon,  that  lived  at  a  place  called  Farecs ; 
says,  he  never  knew  of  any  such  a  man  » 
Thomas  Brooks,  to  practise  surgery  in  tbil 
country,  nor  does  deponent  know    a  plan 
called  Fareen,  though  he  was  born  at  urn- 
maine,  and  knows  all  the  country  about  it; 
says,  there  is  a  family  of  the  name  of  Brookffr 
that  lives  at  a  place  called  Fookes-mill,  under 
one  Mr.  Lee,  but  deponent  does  not  know  bio. 
Being  asked,  if  he  believes  that  Joan  Laiba 
ought  to  l>e  credited  upon  her  oath  ;  say?,  he 
does  not  believe  she  ought  to  be  credited *on  hs 
oath  ;  that  she  is  a  woman  of  an  infamous  cba- 
ractcr,  and  was  only  an  obscure  servant  in  ibi 
family  when  my  lurd  and  lady  lived  at  Dun- 
maine.    Being  a^ked,  if  he  ever  saw  hertabi 
care  of  any  child  in  the  house  of  Dunmiior; 
says,  he  never  did,  nor  dnes  deponent  believi 
tliatshetookcareof  any  child  ;  that  depooetf 
was  at  Ross  at  the  time  of  the  separation  be* 
tween  my  lord  and  lady,  but  cannot  recolM 
the  year.     That  he  saw  my  lady  coming  n 
Ross    that   day    in   a  four-wheel    cama^ 
but    cannot  tell  whether  it  was  a  chariot  orft 

I  chair ;   that  it  was  duskish  when  she 
but   believes  candles  were  not  yet   \ii 

'  that  a  great  many  of  the  people  eaae 


126<)3 


and  Richard  Earl  0/  Angfrii 


A.  D.  1743, 


[1270 


■be  nul 
lliB   liny 


ttf  their  lionac*  la  tee  Iter  |>ats  bv,  ami  Mri. 
H«klb  tier  tntant  uiDid  was  with  her,  doiI 
1  Mrt.  Buller'f  ;  lielieTcs 
ion  si  Llial  lime ;  tayi, 
be  beard  of  the  sepxriiliiiu  before  my  la<ly 
CtUM  lu  Rum.  Beiii)[  a^keii.  u  la  Joan  Laii- 
ij  i  laya,  lie  kuew  her  add  her  talber.  ihat  be 
fune  ID  Dunmaine  a  collier,  a  year  or  1«  0  be- 
nt* my  lunl  came  tlieie,  atiJ  had  two  daugfa- 
te«,  ks  well  u  depouent  cnn  remember,  one 
«f  nbtcli  was  called  Joan,  but  vlwlber  he 
bid  aoy  olher  chilitreii  d>'|iunent  dnn'l  know ; 
M}r>,  be  saw  JonaBboulllie  house orUuDinaiDe, 
\m  my  lord's  lime,  bul  ilun'l  know  whellier  she 
VM  ■  aerTsnt  there  ;  that  the  other  dsngbler 
Vml  to  the  raunly  of  Kildare,  and  now  goes 
ijr  tbe  name  u I'  Dun;  says,  he  nerer  beard 
■ur  lord  speak  about  Joun  Laiidy.  Being 
«ff«d,  if  be  erer  beard  my  lord  or  lady  tay 
yiey  liad  a  aoa,  or  erer  heard  it  reputed  m  (he 
««UBIry,  tbnl  ibey  bad  ;  says,  be  never  beard 
■By  Ion]  or  tady  cay  they  bad  a  son,  and  It  was 
Q*  RVneral  reputabou  of  Ibe  country,  that  my 
i^cd  likd  no  issue.  Being  asked,  nlietber  lord 
^Jtham  and  hit  brother  the  defendant  lived  in 
^{iiaodahi|i  logelber  as  brothers  1  tayi,  tlial 
Mnetimes  ibey  were  friends,  aad  sumelloiee 
■at,  kod  my  lord  would  inmetimes  turn  deTea- 
put  out  ol  doors  ;  tliU  deponent  was  once  in 
^kt  house,  when  lliev  disagreed  about  a  dng 
fm  bound.  8ayi,  lliat  my  lord  enjoyed  the 
during  bis  life,  and  ihnt  after  bis 
t,Arlburearl  of  Anglesea  enjoyed  it,  and 
~  mt  bas  seen  lord  Anglesea's  receiver  cul- 

[CrOBs-exn  rained,] 
g  uked  bow  uAen  be  was  at  Uunmaine 
■y  lord  lived  there  ;  eays,  be  might  be 
^  Ugelber  wilbmit  being  ul  Dunmaine, 
lever  Ino  months  awuyj 
e  army,  and  married  the 
•  *wr  l>dy  Allbam  uanie  over.  Iking  askeil  if 
'  f0  eter  lived  at  Walerford;  aays,  he  did, at 
9p*Ur.  Joue«'>  tor  three  months,  but  deponent 
'  MM  every  futlnight  or  ihree  weeks  to  Dun- 
^■ioe.  Being  asked  bow  long  be  was  in  tb« 
■any;  says,  lill  about  1€  yean  ago;  that  be 
tMKbthii  cummitaiun  Ibe  year  my  lord  A]- 
ibkm  cnine  to  Dunmaine;  that  the  fint  year 
liewax  ijiiarlired  at  Ross,  and  tbe  iiejit  year  at 
HuUlui .  VI1 1,1,  Ibatwiicn  he  had  done  bisdnty, 
tia  Uat1 1)11  liberty  of  fioiug  wbeiv  be  plaaieJ ; 
(■yt,  lilt' uiAi'LTS  usedioduduty  lorafortoiglit, 
■DM  then  i;o  where  they  hked  for  a  monlb  to- 
Betlwr ;  that  h«  »*■  ahcrwards  qunrtered  at 
flBinagar,  where  be  staid  IhiI  lor  a,  fortnight, 
■ad  went  to  Dunmaine.  Being  asked  where 
#•  wu  fu altered  in  17  IS  ;  says,  be  cannot  be 
WMitiTe,  but  believes  he  migbl  be  on  Dublin 
I  «aly  In  that  year  ;  but  says,  be  went  lo  tbe 
.anDtfy  seversl  times,  and  never  was  three 
to^ctber  al  any  tiuarters  wilbont  seeing 
.  .  .ine  :  says,  be  lias  been  paid  ibc  greatest 
.  offais  SOO/.  which  he  lent  my  lordAllham, 
nine  IriBe  atill  remaina  due.  Being  asked 
',/iliBCBt  loily  AlthuBi  bad  when  Sultvu 


Hrt  of  bis  S< 
^Bt  nine  Iri 
■b^/ilsiM 


went  to  visit  her ;  says,  be  would  lell  what  ail> 
ineni  slie  bad,  ifleave  was  given  him.  Being 
asked  if  8nlton  was  an  inlirm  man:  lays,  he 
believes  he  initfbl  be  I'onlioeil  uilb  ibc  aoul 
■bout  a  monlb  at  a  time.  Being  asked  if  he 
i-emcmbers  the  death  of  ^uecn  Anne :  says,  he 
does  ;  nnd  that,  at  the  time  of  her  death,  ho 
was  in  Laugslon's  horse,  and  renienibera  tbe 
regiment'sgoiui^iniomoiirniug.  Beinj^aaked 
where  they  were  quartered  then  ;  Hy!j,hebe- 
Jufveslhey  were  quartered  iu  Dublin;  says, 
thai  sickness  baa  impaired  bis  memory  a*  lu 
time,  but  not  as  to  facts  :  says,  tbe  deteiidanl 
lord  Anglesea  oerer  sent  deponent  any  venisOQ 
as  he  d^  to  other  people,  but  yet,  where  an  af- 
Tair  of  Ibis  sort  required  his  slleadance,  depo- 
nent would  lor  the  take  of  justice,  come  lo  surve 
him,  though  he  should  be  forced  to  come  in  ■ 
liorse- litter.  Being  asked  bo»  luany  places  be 
luny  bare  been  quartered  in  since  tbe  year 
1T30;  sayft,  he  belieres  became  from  Dublin 
to  Mulliugar  (in  tbe  county  of  Westmealh,) 
and  from  Alutliiigar  10  Csrrigoashure.  Being 
naked  ifbe  ever  saw  Paul  Keating,  and  bad  any, 
■nd  what  dttcourse  wilb  bim  ;  says  be  saw 
bim  tviibiii  this  half  year,  but  thai  being  told 
lie  was  a  creature  of  aomeliody's  that  waa 
setting  up  for  Ibe  earl  of  Anglesea's  estate,  de- 
|)oneul  bad  a  bad  opinion  of  him,  and  iherefore 
was  aware  of  bim ;  ihni  denonent  met  bim 
one  day  at  a  billiard  table,  when  Keating  eu- 
Jcavoureil  lo  insinuate  liimself  intn  de|Ki- 
netit's  acquaintance.  Being  asked  if  be 
ihoiiubt  it  wusjiotalbleforlady  Allbam  lo  have 
a  child  (vitbout  his  beariu^  ol  it ;  says,  it  was 
tmpusaihie  almost  fur  lady  Allbam  to  bare  ■ 
child  without  his  kilowing  it,  or  at  least  being 
iiild  of  it  by  Ibe  tenants  about  Dunmaine, 
whnro  lie  oflcn  saw.  Being  asked  if  my  tord 
and  lady  A  III  I  am  were  in  Dublin  during  any 
nne  sestion  of  parliament  ;  says,  he  believes 
lord  and  lady  Allbam  were  one  sesaion  of  psr- 
lisment  in  Dublin.  Beinv  asked  if  be  knows 
colonel  Dixon,  and  wheloer  he  was  not  uftea 
al  hia  house  in  the  country  i  says,  he  knew 
colonel  Dixon,  thai  he  lived  at  Colverstnwn  io 
the  county  of  Kitdare,  and  deponent  was  there 
nOen  tor  livo  months  logelber,  but  that  waa 
before  deponent  was  in  the  army  ;  says,  that 
colonel  Oixon  was  bis  slepfatlier,  "being  married 
to  bis  iiiuther.  Being  asked  if  Ue  never  ivta 
quartered  at  any  other  place  than  those  before- 
mentioned  ;  says,  he  was  once  quartered  at 
Alhy,  iu  the  citnnl^  of  Kildare.  Being  asked 
■f  be  was  always  in  terms  of  fiieodsbip  with 
lord  Allham ;  says,  that  lord  Allbam  was  in- 
consistcut  with  himself,  fur  one  day  he  WW 
food  of  deponent,  and  another  be  was  not, 
and  that  be  bad  frequent  quarrels  with  hint 
about  his  money;  says,  he  never  bidaprolec- 
lioii,  and  never  niade  an  affidavit  about  this  af- 
Tatr :  a»ya,  bis  memory  is  as  good  as  e»er, 
(except  when  distnrlwd  wilb  too  many  quts- 
■ions.  or  when  facti  are  perplexed  wilb  a  grmt 
number  of  circuiiistances)  nod  Ibeu  de|K)nent 
cannot  be  positives  says,  that  lord  Ahham 
ivould  be  out  witU  ilepouenl  sue  inomeutyi 


12711 


17  GEORGE  II.     Trial  ia  Ejectment  betu^een  J.  Anneiley,  esq.  [1278 


in  with  him  the  next ;  and  deponeut  remera- 
bera  that  one  morning  bis  lordship  applied  to 
the  government  to  have  deponent  broke,  and 
that  very  day  invited  deponent  to  dine  with 
him.  Being  asked  if  he  ever  saw  Mrs.  Via- 
got  or  Mrs.  GifTard  at  Dunmaine ;  says,  he 
never  saw  either  of  them  there,  hut  be  believes 
Mrs.  Piggot  was  there  several  times,  and  has 
heard  tliat  Mrs.  Giffard  was  there  after  lady 
Altham  came  down  to  the  country.  Being 
msked  if  be  knew  Mr.  Brisco ;  says,  lie  does  not 
know  him,  but  has  heard  that  be  was  collector 
of  Wexford,  and  was  broke  tliere,  and  went  to 
£ngland  to  the  duke  of  Buckiugham,  and  on 
his  return  to  Ireland  my  lady  Altham  came 
over  with  him. 

William  Elmetf  sworn  to  tlie  Voire  Dire,  and 

then  in  chief. 

Says^  he  lived  at  a  place  called  Miltown 
in  the  county  of  Wexford,  about  a  mile,  or  a 
mile  ancf  a  quarter  from  Dunmaine,  about  the 
^rears  1714,  or  1715,  and  remembers  my  lord 
and  ladv  Althuu)  living  at  Dunmaine,  and  re- 
sorted tnere  to  my  lord  sometimes  as  a  neigh- 
hour,  and  sometimes  on  business ;  that  depo- 
nent lived  at  Miliovru  before  my  lord  and  lady 
came  to  Dunmaine:  says,  he  knew  my  ludy 
Ter^  well,  but  was  uever  intnxluced  to  her. 
Bemg  asked  if  he  knew  any,  and  which  of  ihe 
servants  who  lived  there ;  says,  he  knew  An- 
thony Dyer,  (my  lord's  gentleman)  Martin 
Neife,  (the  smith)  Rolph,  the  butler,  and  one 
Cavanagh,  and  reiuembem  Mrs.  Heath,  my 
lady's  gi;ntlewoman  ;  remembers  also  Joan 
IjaHTan,  and  Joan  Lundy,  who  was  the  kitchen 
maid,  and  was  with  child  at  the  time  my  lady 
came  first  to  Dunmaine,  and  at  that  time  in 
my  lord^s  service  there :  says,  Joan  Laiidy  left 
the  house  soon  after  my  lady  cami*,  and  be- 
lieves she  went  away  because  she  was  with 
child;  that  she  had  a* brother  (who  lived  as  a 
cottier  with  deponent)  and  as  she  used  to  come 
to  her  brother's  house  sometimes  deponeut 
happened  to  see  her  :  says,  that  w  hen  she  left 
my  lord's  house,  she  went  to  her  father's, 
James  Landy,  whu  had  a  house  on  the  lands 
of  Dunmaine,  where  she  was  brought  to  bed 
of  a  bo3' ;  that  her  brother  told  <leponent  of 
her  being  brought  to  bed,  and  deponent  went 
to  see  her  at  her  father's  in  about  a  week  or 
ten  days  after  slic  wns  delivered :  says,  that 
having  a  curiosity  to  know  who  the  father  of 
the  child  was,  deponent  asked  her  the  question, 
to  %vhich  she  answtred,  it  waR  my  lord's  child  ; 
nnd  dejMXient  saw  the  child  from  time  to  time  af- 
terwards u  hen  if  was  about  half  a  year  old,  aud 
ayearold,atJoanLandy'sfather'siiouse:  says, 
that  ai\er  the  separation  of  lord  and  lady  Al- 
tham, when  lady  Altham  had  quitted  the  house, 
tlie  ehild  was  brought  there,  being  then,  as  near 
as  deponent  could  judge,  not  less  than  three 
years  old  :  suys,  he  saw  the  child  at  the  house 
of  James  Li;mdy  (his  grandfather)  when  lie 
Mas  alM)Ut  two  ye'ars  old,  and  that  the  said 
house  was  about  a  quarter  of  a  mile  from  Dun- 
jBoaiae,    Beiug  asked  if  there  was  any  cuadi- 


road    made  from  my  lord's  house  to  Joan 
Landy 's;  says,  that  there  was^uoroad  made, 
but  only  a  short  way  my  lord  made  to  gu  i 
hunting,  that  there  being  a  slough  there,  the 
same  was  thrown  up  on  each  siw  to  make  it 
passable.    Being  asked  if  the  child  be  saw  it 
Dunmaine  bou-^e  was  the  same   he  saw  it 
James  Landy ^s  the  grandfather  ;  says,  ttwu 
the  same  child,  and  that  one  day  as  depODeit 
came  to  Dunmaine,  be  met  my  lord  at  the 
door,  and  the  child  was  there  at  that  tiac^ 
aud  while  deponent  stood  there,  Joan  Laodj 
looked  in  at  the  gate,  and  my  lord  espy'J  bcr, 
and  called  out  to  his  servants  with  an  oatb  M 
bring  out  the  hounds,  and  set  them  at  Un 
whore,  for  that  he  would  not  for  500/.  let  lb 
boy  know  that  that  whore  was  bis  inotbcr. 
Says,  he  never  saw  the  child  but  once  after 
that  transaction,  which  he  believes  was  ooc 
above  a  month ;  that  old  James  toady's  hooe 
was  soon  al\er  ordered  to  be  thrown  dows. 
Says,  the  child  was  kept  at  James  Laody's  ifl 
along  in  a  poor  way  till  he  came  to  DuomvsB 
house.  Says,  he  never  heard  that  my  lady  Al- 
tham had  a  child,  and  that  the  child  lie  saw  mi 
always  reputed  a  bastard,  and  never  wis  it 
Dunmaine   house   during    my   lady's  iM 
there,  but  was  kept  all  that  time  at  old  LumIt'i 
house.     Being   desired    to    describe  hunAjH 
house,  and  whether  there  was  any  allentiN 
made  in  it  when  Joan  I^andy  came  to  li«i 
there ;  says,  it  was  a  shepherd's  house,  bat  i 
very  poor  one,  and  had  only  one  cbimsevii 
it ;  that  it  consisted  but  of  one  room,  wiili  I 
partition  of  sodd  and  stone  ;  that  there  wmm 
glass  window  in  it:  says,  it  was  notwlut^ 
washed  or  plaisteretl,  nor  any  alteration  mufc 
in  it  when  Joan   Landy  came  to  live  tlierr; 
that  there  was  no  furniture  in  it  but  a  lir;^ 
straw  bed,  and  all  the  bed-clothes  not  wonb  i 
shilling.    Suys,  he  never  saw  any  other  bwf 
at  Dunmaine  house  hut  Laody's  child  ;im 
that  when  the  child  was  at  ohl  Land v's  hoMe, 
he  was    clad   in   rags,   with  flannel  blaukcti 
about  him,  but  when  he  came  to  DuDinuBC 
house,  lord /iltham  sent  for  a  taylor,  sudor* 
dered  him  some  ch»the^.     Says,  that  ilepoDWl 
constantly  went  to  Dunmaine  house  by  Lao- 
dy's.    Says,  Jt>an  Landy  herself  nursed  tin 
child ;  is  sure  there  was  no  new  road  mt^t 
but  that  a  coatrh  might  drive  that  way,  it  bein^ 
a  field.     Being  asked  if  he  knew  Joan  Laflu; 
says,  he  did,  and  that  she  %vas  in  mv  lord'* 
service  as  a  laundry- maid,  and  was  there  a 
my  lady's  time,  aud  for  some  time  allerwarJi. 
Being  asked  if  he  ever  saw  a  child  in  the  eift 
of  Joan  Latfan ;  says,  he  never  did.    BeioC 
asked  if  bethought  she  ought  to  Itebdierei 
upon  her  oath ;  savs,  he  does  not  think  ^ 
ought  to  be  believed. 

[Deponent's  evidence  being  a  manifest  cos* 
tradiction  to  Joan  LafTan,  she  was  ordered  * 
come  upon  the  table  iu  order  to  coufroot  li* 
witucbs.] 

Joan  Ijaffan  sworn. 

Being  uked  if  she  knew  Mr.  Williaia  £M 


\ 


273  j  and  Richard  Earl  of  AngUiea.  A.  D.  I74S.  [  1 274 

ad  whether  lie  is  an  honest  man  ;  says,  she  i  year  the  chihl  wa<i  horn  ;  says,  he  was  born  in 
DCS  know  him,  and  belieres  he  is  an  honest  j  the  flprinfir,  abuut  a  year  hcforc  (Icpniient  was 
lan.  I  hi{(h- constable;  and  that  flic  rhiM's  limr  \vui 

William  Eimes  beinj?  asked  the  sameques-  i  of  a  bright  colour.     Heiui^  asked  if  Hu  ffer 
911   as  to  Joan  Laflfan  ;  says,  he  knew  her  •  heard  that  lAndy's  rhiiii  difd  of  the  small- 


ivy  well,  that  she  was  charged  with  stealing; 
!veral  goods  out  of  my  lord's  house,  after  he 


|iox;  says,  he  never  did.     Ileini^  a-.ki'd  if  Jiv 
ever  made  anv  affidavit  in  this  catiKe  ;  says,  he 


fed  letl  Dunmaine ;  says,  he  was  at  that  time  never  did.  J>ciiiqr  asketl  how  somi  hcftau  the; 
^h •constable,  and  that  there  being  a  search  ■  child  at  Dunmaine  hou^e  after  my  laily  went 
lade  tor  the  said  stolen  gofids,  deponent  saw  \  awav  ;  says,  in  a  quarter  of  a  ;|inir  or'lf>»,  it 

feather-bed,  a  coop,  and  an  old  barrel  at '  mignt  he  in  a  month  or  sonif?thmg  more  ;  and 
Mn  Laffan's  brother's  house,  and  a  pair  of  that  he  aaw  him  onre  on  his  grauduiotlii'i  'a 
ickles  in  her  brother's  shoes,  but  cannot  say  '  back  as  she  was  driving  some  s\\vv\\ ;  says,  faa 
ley  were  lord  Altham's;  says,  Joan  Laft'an  ne^er  saw  lady  Altham  afWhu  was  hii^h-foii* 
;  that  time  was  at  her  brother's  house,  and  stable;  sa\*i,  that  the  child  %^lien  at  Dun- 
lat  all  the  goods  were  brought  back  to  Dun-  ,  maine  house  was  dressed  in  a  yellow  silk. 
laioe  house  as  the  property  of  bis  lordship,  i  ...    m     . /-  a-   j 

hat  he  oAeD  saw  jUaolaffao  at  DDnmaine  j  *'"•  ^""^  ^'^"^^  ""•™- 

ouae,  and  spoke  to  her,  and  is  positive  she  I  Says,  she  was  vrry  well  aci]uainted  with  tha 
'aa  laundry-maid.  Kemembers  particularly'  late  lord  and  lady  Altiiarn,  and  rcmcmlM'rs  my 
lat  as  dep«)nent  one  day  in  passing  by  was  lady^s  first  coniine  to  Dunmaine ;  that  depo- 
peaking  \o  her,  my  lord  mis^  deponent,  and  nent  at  that  time  lived  within  a  mile  and  an 
ladinii:  hira  in  conversation  with  her,  his  half  of  Dunmaine ;  that  it  was  a  littler  l>«:('jre 
Mdahip  said,  Will,  you  are  going  to  kiss  my  Chris!mas,  and  deponent  visited  her  in  the 
said.  *  ;  Chrislni.'is  hoiy-da\!»,    ami    hf-r  ladyship  re« 

Joan  Laflfan  denied  that  she  ever  spoke  to    tnrrud  the  vihit,  and   tliry  v-sitcd  each  other 

SliDca  at  Don  maine,  or  ever  saw  him  at  Dun-     frequLOily,   lOiilc  hr.-r  ladvbhip  eonlinucd   at 

mine  house  above  once,  and  say»,  that  the    Dunmaine.    8a) &,  that  fsfif;  Mievf-iJ  niv  lady 

cathers  (which  were  in  the  bed  so  foimd  in  her    came  first  to  Dunmaine  in  1713,  find  c(;h' iiiu*  d 

Mather's  house)  were  feathers  which  were  in     there  about  ihrre  years  or  hMic-r ;  «^vs,  bhe 

IB  oM  stand  at  the  house  at  Dunmaine,  and    never  obsene*]  my* lady  to  be  uith  MiV'I,  iior 

lad  been  given  her  by  my  lord,  with  several  .  n»-ver  heard,  nor 'does' dcjron»ir.'.t  bi'iii'Tc   ^he 

iiitben  plates, and  other  little  tbing<«  not  worth     was,  and  believes  it   was  in.po^sihle  fur  her 

^cianvinir;  bot  that  the  tickinor  in  «!iich  the    Udyship  t'l  Ite  with  rhiid  wiiliout  «!•  ]<'iii(  nt's 

Swhera  were  put,  vi&s  bon^rht  by  (leponeot  at    M«ing  or  hearini;  M  it.     Tlmt  *\*y:vt  t.t  ua^ 

EVaierford.    Says,  thai  she  never  was  iauudry-    otten  in  niy  I'jdv's  dress; n^-rovm.  '''.L'!  s^.'a  her 

Vtkl,    but  dry'-nur«e,    and    at'.ended    ma&ier    dress  herfc«i(',  and  was  i.f'ter  a  m':.lh  'i^iilifj'Jt 

fames  Acnpsley.  my  lord  and  lady  Alibam'it    seeing  her  Is.hfch>r«.  while  she  was  ;:i   D:ir.- 

Mn;  described  Lanov's   house,  and  the  road     m^inc  ;  savs.  s>ieii?ier  h'arl  rnv  ladv  sa%  ki«e 

Mdetoit,  as  she  did  betore.     WiJiam  Elmes     was  with  child;  on  ihu  ('intniry,  rero'Oibei^ 

isotradicled  her  as  to  the  bouse,  bot  airrced    that  deponent  be! r.:;  \tf-T^\i  w:ti'i  rhiM,  w!.«ii 

here  was  such  a  road  made,  and  thai  a!  ih(ius;h    nny  laly  came  to  D-'Jiima:-.«-,    wa»  orje   b«y 

hey  miicbt  go  that  way  to  captain  GitTard's,    Vimewhat    m*.-!ar.ch';)\,    a;  i    co-n^.l^siuc-d     a 

wC  the  road  was  made  no  farther  than  to  the    httle  to  rny  lady  of  the  tro-i/i':  it  ^«t«-  h'.r, 

abio.  uf'On  which  her 'l-idv«;iip  Kki'.  \VK%i,  <l«j^ou 

„..,,.       rri  -      •  ^j  •  ^^'f^p'ain  ?    I    wiih  I  wa*  I'j  tJ-^.  t-in.e  c'*n- 

Ilit/ian  x.inf/,  cross-examiced.  »Lr., ,. .    -k..  ii^    -•  :i    ,•  .^.     •    -.      .i 

*  U|iiob;    tbat  the    ciiirl    Q' i^t'.j-MX    wa*    iii*rn 

Being  asked   as  to  the  tiTe  be  visited  my  hi:?  of,  was  afifrrtvar'ls  born,  arrj  is  since  dead. 

ani  at  Dunmaine:  savs.  he  V-\*'^*^.\   wm  add  if  he  wu  now  al,^^•,  w '.;«.•;  L<;  U'tu^^-'i  21' 

ibtve  a  year  after  mj  #<:H  cam*:  iJitre  ;  that  *'^'d  Z-j  yean  *•{  ai'*^;    **>*t   *-'^'  x.ts^x  •«..   a 

It  was  high-ooDSiaUe  in  I'lr.  an«J  co:i«<rri:d  <^hilii:nDurjfnai;i«- house  s.a':e  mj.  la  \  -•  '.xe, 

1m pnUic  mone V.     Beinsr  a^k*^  Low  iic:  farne  ao'J  \s  ^jre  he  ws%  r:<fVfr:   »f-r--^ri  h*:'    t'/«rre. 

•  besoparticuiar  as  to  hikseeif'^  J'^«u  L^ri-'\  Being  a^k*rd  if  s'.e  eifr   ^^vi  Jo^r.    ijk^Ay  ; 

toe  at  tbat  time  ;  says,  be  t'-'A  ^mrjiar  ^>f,  she  Le^i^r  dX  ^jjt  on^'*.  t v  t'je  \  •  •(  '.t  :j«7 

Nlioeof  her,  because  »f<e  was  w/.o  rin. i  »kt*-n  Lnowl^J^'fr ;    br.li^tf't  sL-:  mi    %  k.;^  >^i  r;.k«d 

ay  lady  came  to  the  Cju-.I'v.     l>;rf^  a«>icH  at  D'jniirj.rjir  h'.'j»»' :   s*;  ■.  '.-•    -  y   \."  cin 

'Bctber  when  he  went  to  Dui.'.aine  iioase  tie  a:>d  dt-(Vi'.<:r.t  Mtr.*  .-•  ,«   v  \      ...?<.  vr".  t« 

■edto  dine  there,  a o<J  wf*«-i;**^r  i.e  Cifjed  wiijj  i>,*  a-.si%(-s  of    •?•".■  .■ :  t  /  -  -  ■   "-t  at*-,  v.*^ 

■7  lord  ;  says,  he  d.r.-*r«j  twir*  or  iriree  t.nrj*-*  there  f'^r  \it.  -.'^  rr  =^i  :■  •  :■  -    i'-e*.^  '*-■  ;    liit 

»t  Ibe  tible'wiili    h.v    '.ni.  ijt'ore  :r,\  la/iv  ontilr.V*  *',!,*..:. I   -i..  .r»     •.-.••-.>!:  Ml*- 

>n>e,  hut  afierw-ar  :s  '."  ^•r'J  ••:'•»  '':*:  ':''>tr-  ur^.rj  h.v  'i'-;i'*».»».  '•  J  v-.r  :J   •   -  *.  r  ^^,iz,iM 

"rrants;  aavs.  he  sr».'».e  iv  J  .i'.    I-a&'iv  »:  •*':•:  t'.j  :*?•.  -ii-.'-i;  :   i-    .     -i.ci   ai.;  o*. 

*r  father's  house,  as^  :/ »i  *i»e    .•:  r<'t  •.•i*  ;*'.;<,*•.•.  ■■«••.:   ■  *.v  '    .-*.    ■              *  .•t#»r  iu'.  *-•  ; 

•Wg  at  Dnoonaice  afwrr  lai}   A '>»»ft  c-t.*  hj.  «.  "i  ••»-     ■•■        ■••   .     -_.-.*«.   .••.•si    ? 

We,  and  i*  sure  thai  *t*r  ■»  ts  ^'O  a  u^  '*'^-  if.-*-  ••.!  i*j  :•     ■■  •.                  -- .   *  *-•    *•    *  *  " - 

'ered,      Beia^   asked    i:*-   ♦.-'.•.-. -r  '.?    ,'•.-•.  i'.n-.-ir 


*ad|j*a  diild'i  hair,  aad  wl^^t  i.xt  &;  li.-^    aa^^t-  *:.:  «  /'.i-.:.;  l^:  i:*t  ..•:^-:1^  v^-l  klz. 


newer  obtaiwdniyUijr  to  be  withcUd.Btt  ; 


Witt  ^  My  M  Wc^rd  tat  • 
IbmByW^Bid 


4hiU;  HnthaMWlieatdaMtajMrhid 
■<yB,»J«h«llnrl>dybiplwl«»miMrHfii 
«rbriwwilh«liUd,«ttkitiiM.  Btifmkii 
■r  Aa  Mar  Ihm<  «f  *lMn  Mnr  uj  rqoteiit* 
•tDdMiiaiM  npmtlM  birth  or  chiuteninf  af 
SBjckiMt'iajiiilwMMi  beard  of  uy. 


Bm«  ariwi  hnr  «Am  lady  AUhan  and  aha 
««Bl  ia  ta  tha  eaatt-kenaa  (  my,  hat  once ; 
ml  Ind  AUmm  and  Coar  CoMaafb.  cm. 
wl  bta  eaart  •ilk  them.  Being  aibd  iT 
tha  abatnad  aay  geatltnaB  of  the  cauBtiT 
Am  Ihal  Aa  knaw;  aaya,  aha  rewten 
MM  bMC<aarCakkMgb,«aq.aiidbaMb]r 


MyUbaHBaddefOMMiB  (ha  eaart.hava. 
Biw  aikad  if  aba  «aaM  icedlaet  irba  wttm 
«baiadnarthaaariaei  «n,aba«aaMtttlL 
Briaff^tad  Mbaa  bdy  IUhb  MAnnd  ta 
Mfat  »Ti,lhalaltat«>dofihai— laeiaa 
aha  kmmi.  BdMC  aakad  if  aha  ««  Hn. 
BriaeN  ii  Itamaiiie  bonw,  «r  •  daugbiv  of 
baPa  ;  aq>a,  aba  nw  tbcm  tbae,  ud  thattbay 
Caae  to  DuamaiM  after  lady  Altbam  wai 
there ;  that  tbey  ati^  tlwre  a  gimd  while,  bui 
befiem  the  daagUtar  itaid  the  Uiiwnt,  which 
wa*  in  all  about  ihne  monthi,  aa  ahe  belierta. 
BeioQ  aaked  if  aba  bcani  ihit  my  Udy  wbb 
cooflnad  to  her  chamber,  at  that  time,  or  ibat 
aba  BMOUiied ;  nya,  the  liaquently  minted 
her  ladyditp  at  tlial  time,  hut  oater  knew  ber 
to  ba  eaafiaod  to  ber  roosa,  nor  ever  beard  aba 
ndaoaniad.  Being  adtad  if  my  lady  wm  ia 
iMiiiiiiiH  al  the  aMixaa ;  aaye,  abe  ma,  bat 
cannot  uU  wlvm  it  wei  for.  Being  ^ad 
whethar  Mr.  Caldon^  or  tbe  other  gwtle- 
■uiriieiawatthaaa(ixea,werein  OMMnioir; 
aayt,  A»  cannot  (dl.  Beiog  aikml  bow  ihe 
cnnetogo  tolhe  aanMa;  Mja,  ny  lady  Mnt 
Ibr  bar  to  go  with  ber  %  mya,  alto  knew  my 
Indy  waa  in  Dublin  twioa,  and  that  my  lord 
went  with  her  both  timet.  Soys,  that  the  ae- 
iwiartnn  of  ay  lord  and  lady  bappenad  aboot 
three  ycara  afiar  my  lady  canM  to  Dunmaine. 
Beiaff  aakad  if  aba  bncw  Mr.  and  Mra.  P^ 
gett;  nya  aha  did,  and  that thoy  bred  at  a 
placa  eaded  lyatem ;  aaya,  my  tord' 
•AaacuMtodepooent'a  boyae.  ball 


Mra.  Cattarina  laarfart  awon. 
am,  ^  kna*  thn  Ua  h(d  AhbaM  Md  Ua 


had  a  child  *biic  tba  ' 
lenbeK,  aod  il«v«0M 
was  rory  iulimate  wiib,  and  I'requcMlj  <iiiu4 
bar;  tbal  depODcnt  was  at  WatettbtJ  si  Us 

"TTiflhi  innra'iilna.h.  an'  iinlir"liini ' 

iri4,  n«d  dapanart  aaad  oitea  i«  no  tad-  j 
■ratdBMd  Ibrwaida  belwMa  Itoa  and  Vtm-  i 
firi,  dtpa«Mnfa  ftibar  BriM  at  Waurfewl.  ^  j 
depeoMt  hnriif  Inlginp  wore.  BatagMb 
ifaba,rimirimifaoaaparaiiioDofB^tad«f  I 
ah*«d,  bntnciarlMil 


(   aya,al 


bdy  

itfadiild.  _  

bousr,  and  m  avr*  that  no<dii1d  waeotwi 
ber  in  my  lady'a  tine  {  «nd  di 
was  there  after  the  separtUua;  ai 
viHled  my  lady  at  Rosa. 

[Cnni-  nunined.  ] 
Being  atkeil  if  she  know  wbere  bart»1 
bind  Mr.  Lambert  was  io  (he  year  irit;^  I 
he  was  on  DaUia  daly ,  remembcra  liut  tany  J 
wdofadvp  inall  baatotc  •'-••-■ 

Bringaabad  if  ahe  hMwa 
a^a,ab»  banhMwhwi 
Ibat  ba  ia  aa  ^ntdbr  tba  MMai 
aakad  wban aha  aawUan  laati  mm,4 
kim  arary  dnr,  Md  hw  m^m  tarn  At 
Being  asked  where  tUMMiaMlwMiM 
ahe  baa  lodged  and  tfataiwU.  Mcll^gl 
ait  yeare  past,  and  pnya  Ut  r  — ™ 
her  board  and  likdipstfa.  Belngai... 
■Ii>es  not  life  with  her^naband  %  mja,  d 
lived  sFpataie  Tram  bim  tbeae  IS  y  — 


ihetSiProer  husband  it  a  fit 

ipon  liis  oaili,  sod  if  ibo  answer  wbicbbilHl 

11  to  a  Ull  exhibited  by  her  was  a  uue—aatf 


mail's  reputsiionai 
BLid  tliBI  a  wife  in  BOCt      . 
(reason,    or   for  some  atbec    wicked  d 
Bg~4iDst    llie    wire    herseir,    can  be  • 
&}{BiTist  her   busbintl  ;*    that   it  was 
snaring  quEslion,  because  as  Mrs.  L  . 

her  husbauil  were  it  law  together,  bwtlrtB 
if  il  tbould  prore  in  the  affirmatif  e.  MoUf*  K 
juUice  ber  Tigiil,  whereas  if  she  kawsN'I^K 
^ire  a  bad  account  of  faia  lealineoj.  •**lw| 
injure  ba  ku^Mod,  which  tbotaar-iwdA 
Buffer,  mneb  leea  cawpal,  bar  M  4k  J 
some  debate,  iheCoMtwaaafafiMl*' 
wife  might  ba  sTaminnd  na  to  the  cMM 
her  husband,  b«l  not  an  to  UsEbtrtyia 


eh.9,a^4. ,  _, 

1»1.  ofiaMa  GhiiMia  tn  Mri^  lb 
tf  jMiaian  n—inil  bin  •*»■•■ 
Iha  Mwal  IbMad  hatan  ihsMt  jf  iMH 
»b«| 1 11     faMlMiHHMt 


and  Richard  Earl  of  Angltiea. 


A.  D.  1743. 


[IS78 


f ;  but  the  coDDtel  for  tb«  jiluiitiff  vMcd 
liioliun.  And  it  beinc  atwiil  dgbt  o'cfork 
ight,  the  Court  irilfa  tbe  uinil  coiiMBt,  ia 
■IK  lign*"!  by  Ihv  iwrtiei  (Mid  which  %rti 

in  0]iei)  court)  adjouracd  to  nine  o'clock 

moniJDg.] 


Tridat/,  Nuvembtr  la,  1T43. 
he  Court  h^*ing  roi-t  at  nine  o'cloek  ae- 
iu^  to  ailjourninent,  the  Jury  w«re  called 
,  nnd  anBiTpml  lo  ilieir  DBcnea,  and  then 
mmidmI  ItM-  ihe  delendaot  procecikil  in  tlieir 
ninaiiun  ulblluirs; 


I  Kerr  iraj  sworn  to  the  Tain  Dire,  and 
then  ID  chief. 

be  GAuniel  far  the  ileteiidant  said,  ThiA  *• 

.  Gitfard  liad  in  her  exuiui  nation  mcDtioQed 
Iwly  Allham  wii*  at  Hie  asiiiei  of  Wex- 
wben  Mr.  Walsh aoil  Mr.  Uaalenon  were 

t,  Ibey  caikil   Sir.   Kerr  to  ascerlaiu  the 

>  iheaaiJ  aMizen  were  behl. 

Ir.  Kerr  raid,  Tlial  lurd  chief  jiiatice  Fonter 

judge  of  that  aisiio  ;  that   de|raneiit  wi 


wa«  frequentl;  there  after  her  tadyahip  eame, 
and  apent  more  of  hia  lime  in  Dunmaine  wbila 
my  lord  and  lady  lired  (here  than  at  Rou ;  and 
aayi,  that  during  all  ihat  time  d«ponent  neither 
heard  <>t  bdiefed  that  my  lady  waa  with  child, 
and  is  eoniiaced  in  hia  conacience  ahe  never 
had  a  .child;  and  if  any  anch  thing  had  been, 


hia  great  intimacy  and  continuance 
iDily.  Saya,  that  four  or  (ire  daya  befbre  th« 
Kparalion,  as  m;  lord,  Ur.  Sultoo  (the  aor- 
geon,)  Mr.  Taylor  {my  lord'i  receiTer,)  and 
deponent  were  cummg  home  trom  Burtown, 
my  lord  told  depooent  be  waa  determined  lo 
part  with  his  laily  ;  and  upon  deponeot'a  a*k- 
ing  him  hia  reaaons,  my  lord  replied,  I  Sod 
lord  An&leMa  will  not  Lie  in  friendship  with  ma 
while  1  lire  with  this  woman ;  and  since  1  hara 
no  child  by  her,  I  wilt  part  with  her.  To  which 
deponent  made  answer,  Hy  lard,  you  may  do 
what  you  please ;  but  I  wonld  not  part  with 
my  wife  to  please  any  body.  Belierea,  that 
Taylor  and  SuUon  bad  laid  a  scheme  againat 
de portent,  and  brouirbt  my  lord  inlc  it ;  fiirde- 
N«led    h.s  clerk  alter  the  deal  1.  of  m  een  ,  ^     ,^,,     ,^f,  ^j,  »  „^   ,„  j^„^  ^, 

..  and  went  every  c.rcmlw>th  him   hatha     .i  e.  ,|,i„  h-rd  of^ -■     '- 


Ir.  Walah  and  Mr.  Mi 

■«i,  fur  enlisting  men  for  foreign  lerTica; 

lilwaalbespriag  circuit  in  1715, 

[Cross-  e:(amin  ed .  ] 
Icing  asked,  if  be  remembera  toy  woman 
lethal  he  knew  ;  says,  he  does  not.  Being 
ed,  if  he  remembers  any  ladies  of  disiioc lion 
re ;  saya,  lie  does  nut. — Says,  he  has  looked 
la  news|ia[ier  publiabed  by  Mr.  Pue,  calluj 
!*■  Occurrences,  wherein  tbe  urcuita  are 
ied,  to  know  what  liiue  those  Bsaize*  were 
1,  and  he  found  tlie^  were  held  the  JGtIt  of 
il,  1715  ;  Ihat  the  JUiIges  went  tu  Wexlbr ' 
>be  Saturday  ;  and  aajn,  my  lord  chief  jui 

Porater  aitended  on  the  crown  side ;  that 
first  town  they  went  to,  ihat  circuit,  was 
a,  where  Mr.  Justice  Coot  satnn  the  croivn 
•  Being  asked,  ifberamcmberg  a  cleri^y- 
I  lobe  tried  at  those  aisisei;  taya,  beikiea 
Nmcmber  any  sncb. 

Hr.  rAoniMP«f/iirr,juD. sworn, 
ajs,  be  wB*  acquainted  with  my  lord  and 
!  Allham  when  thry  lived  at  Dunmaine ; 

deponent  was  then  very  young,  but  cannot 
What  age  be  waa  of,  Duly  that  he  went  then 
dwol  in  Ross ;  that  depunent's  father  and 
ber  then  lived  at  the  Great  Island,  three 
M  from  Dunmaine. — Says,  be  was  fre- 
nQf  bHween  his  father  and  lord  Allham's 
■•;  believes  he  was  acquainted  with  my 

when  be  first  came  lo  Dunmaine,  and  be- 
m^  lady  Altham  came,  and  used  to 
I  With  my  lord,  and  he  fnrnisbed  depo- 
t  with  hones ;  and  rays,  bis  lordsliip 
W  fraqaently. — Says,  he  does  not  b«- 
B  it  waa  repotted  that  lady  Allham  was 
a  cfaild  ;  retneroben  my  lady  ctme 
^  won  timo  in    1713 ;  and  oepotKot 


line,  they  beard  ot  it,  and  were  determined  lo 
ne  revenged  on  deponent ;  aaya,  that  on  the 
Sunday  morning  rav  lord  came  lo  deponeot'a 
bedside,  and  waked  him,  and  deponent  remem' 
bera  he  had  dreamed,  a  litlte time  befbre,  Ibat 
my  lord  had  put  out  bis  eye ;  and  my  lo^  de- 
aired  deponent  to  rise,  for  that  he  was  gdsg  to 
church;  apnn  which  deponent  offvredto  go 
along  with  his  Innlship,  but  he  raid,  deponent 
muHt  stay  at  home  to  keep  my  lady  company  ; 
to  which  ilepoaent  replied,  tliat  Taylor  and  Sut- 
ton Here  at  home  ;  lint  my  lord  said  tliey  were 
not  fit  cumpaii}',  and  insisted  on  deponent's 
.u..  .w...  ~.  ataying ;  and  told  deponent,  that  as  he  was  to 
tu  Wexford  i  huut  the  next  morning,  if  deponent  rid  bis 
horse  that  day,  he  would  not  be  able  to  carry 
him,  and  therefhre  deared  deponent  to  stay  and 
breakfast  with  my  lady,  end  then  his  lordship 


went  down  at 


That  deponent  accordingly 
my  lady's  room,  where  he  had 
nfleo  breakfasted  before.  That  deponent,  hav- 
ing been  some  time  with  mv  lady,  heard  a 
noise,  and  presently  my  lord  came  into  iha 
room  with  some  of  the  servants,  and  having  a 
drawn  sword  in  his  band  maileatfarustat  de< 
ponent,  and  one  Anthony  Dyer,  his  servaBt, 
took  the  sword  outof  hishand;  deponentbdng 
then  hurried  into  another  room,  one  of  theser- 
vanttcuta  piece  off  of  deponent's  ear.  (And  de- 
ponent took  off  bis  wig,  to  sbew  in  what  man- 
Per  hia  ear  was  cut.)  That  (upon  the  oath  h« 
bad  taken)  he  never  attempted  the  virtoe  of  lady 
Altham  in  any  respect,  and  tliatshe  waa  in - 
lirely  innocent  with  rrapecl  to  him  i  and  nys, 
that  at  the  time  he  received  (hat  usage  there 
was  DO  child  in  Ihe  room,  dot  did  depot 


usually 


leponeot 
I  any  child  in  the  house ;  aaya,  my  lady 
brokfasted  in  bed. 


[There  being  such  conlrvdidbn  between  Uiis 
witaai*i  tmimoDy  and  Jean  LaAo's,  who 


1279] 


17  GEOUGE  II.     Trial  in  Ejectment  belmeen  J.  AMttl^y,  tsq.   [ItSB 


le  paintLil  lo  tba  blood  uf  Mr. 

tad  it  beiu),'  Biiprelitmiled  Ihat 
JnsD  LiiSuii  Uul  uiil  thai  llie  ear  wu  cut  olf ; 
whereai  it  appeareU  it  was  unt,  and  that  unly  a 
kjtece  of  it  was  cat  off:  the  Court  unlered  Joau 
LaffaD  to  be  called,  ai^  tbal  ilie  re«|)eciive  al- 
tuTDies  ibuulJ  ^  10  liur  iinmeJialcly,  tnr  fear 
t>f  lier  being  tutored  preCiuus  tu  bet  wmiag  oa 
Uw  table.] 

Hr.  Palliaer  was  continued  to  be  examined 
till  she  appeared,  ii  folloH'S.  Beini;  asked, 
wbat  serraots  were  in  the  bouse  at  tliii  lime ; 
•aya,  he  remembers  Aiilliony  Dyer,  aadt^liartes 


IjalTan  ibtre.  Beiofr  aiked,  it'  lie  saw  nay 
child  in  ber  arms,  ur  in  the  arms  at'  any  other 
person  lu  ihe  huuse ;  sayi,  be  ntver  saw  a 
cliilil  in  Joaa  Laflon'R  urm.i,  or  ia  my  liicly's 
arms,  or  in  tlie  flrui'ol'aDy  servant  ut' the 
house.  That  Ueur;^  Sutton,  a  surgeon,  at- 
tended Ihe  hmily  while  he  was  there ;  that  he 
was  a  !(nuiy  roan,  but  does  nut  know  iHie  was 
reported  to  bleed  well.  Bnn-;  asked,  in  what 
■latioa  LnOiin  was  employed,  and  what  hisopi- 
nioD  of  her  ia;  caysiiiie  iiseil  to  wash  llie  par- 
lour, and  tHkes  her  lo  be  a  vile  woman ;  and  is 
kure  thai  nut  a  man  in  the  couutry  heurd  that 
luily  i\llham  had  ■  cbilil.  Ikin^;  asked,  what 
cltarairlcr  Mr.  Elms  heurs;  suys,  he  would 
venture  to  alBrm  that  Ihete  ii  not  one  ({rutle- 
niau  in  ibe  country  tliat  would  t;ive  Mr.  Eldts 
a  bail  cliaractcr.  ihtitif;  asked,  if  he  ever  heard 
thut  Mr.  Elmaranawaj  niththe|iubllc  money, 
•if  ivliich  be  was  appointed  collector ;  s:>ys,  he 
iiurer  heard  any  auoh  tiling. 

[Cross-  examined .] 

Being  asked,  wbeUier,  when  my  lord  Al- 
thaiii  (laried  fioiu  my  Indy,  then-  was  any 
frieudshij)  between  him  niid  the  late  lonl  Aii- 
Iflesca  i  says,  he  knew  i,:'  no  enmity  between 
llieui.  tiays,  lie  beljuTcs  lord  Althiim  called 
deponent  out  of  bed  iu  order  to  execiiiL-  l.'js 
trirkiil  ]iiir|M>(ie  a^^ainit  my  lady,  his  lordship 
taking:  i I  tor  i;rautnl,  ihainbcn  he  was  ^ne 
from  the  huuie  dcpunciii  would  f[o  into  uiy 
lady'aniumas  he  usually  did,  fur  the  )>ahe  uf 
conipnny,  and  then  u|ii>u'hian-iurii  liiHlioi;  him 
ibere,  aft  Iw  expiivird,  made  Ihul  a  giri-teuce  tiir 
parting  »ith  her.  Snys,  it  was  only  a  piulencc, 
lor  Ihat  liir  tlie  miisl  pnrt  dcpuucut  used  tii 
breakfast  with  her  lailysUiii  by  my  lord's  oun 
direction  H. 

[Joan  LufTuii  bein^come  iii)on  the  table,  a 
GOiiiphint  was  made  by  tl>e  dL'icHdjiiit'a  a<^ctil, 
tlial  {\lr.  Annitslcy's  servant  was  louod  sjicak- 
iii^  lo  her,  nhercujKin  Ihe  said  servuiil  wsia  or- 
ilereil  lo  be  sworn,  and  called  ui>on  lo  di-clare 
what  lie  bad  saiil  lu  her.  ileini;  >ccordiD|;ly 
■worn,  be  oidy  bsid,  ihat  he  told  lier,  she  wan 
tent  tiir  by  tlie  Uoiirr,  and  thai  yeung  Palliser 
was  then  examiuin^;,  end  that  ahe  aoawereil,  I 
don't  care ;  if  I  go,  they'll  gtl  nothiag  by  it] 

Join  J  jffiB  haag  diractedbjifac  Coufttn  re- 1 


peat  the  accoiiol  she  bod  before  given  oTtbrw- 
paration,  and  lbs  occasion  of  it,  sayi,  tLat  Ui, 
Pjlliser  behated  very  ill  to  Ibeaervanti ;  ibuk 
put  some  borse-jallaji  into  some  of  tba>dri4 
and  used  to  tell  ray  lady  lica  of  ibeni ;  b 
which  reason   he  waa   so   Utile  tegaiM  k  i 
them  tbal  he  was  forced  to  wash  bisownNi^  i 
iuga  ;  that  my  lord  laid  a  plot  agaiail  hm  hi  J 
some  of  the  servants,  and  made  Anibsnt  Djs  I 
and  the  other  strranls  lake  an  oaib  of  kcmjj 
that  on  the  Sunday.morning  there  wuifa 
onlered  in  my  lady's  room,  «od  my  Mf» 
tended  to  my  lady  that  ha  wai  oblind  tcpM 
to  dinner;  that  &Ir.  Palliser  bmkfMi/ni 
roy  lord,  and  they  had  a  bottle  of  malUsii 
for  breakfast ;  Ihsl  as  soon  as  my  bd  in 
g^one  out,   Mr.   Palliaer  went  intu  irv  Ufi 
room,  and  the  plot  having  bero  Iwd  M^t 
Mgoal  was  made  which  brau^t  my  liri  M; 
Ihat  my  lord  run  up  with  hia  swurd.  lal  M 
him  broocht  out  of  the  room,  and  therm 
came  tu  PaUiier  and  aaid  to  him,   li  lliiii 
way  you  keej)  my  laily  compsoyF  Juini 
out  a  cate-kuife  in  order  to  cut  his  D(iM,kli 
was  ordered  only  to   cut  his  ear.    Tliil4» 
nent  nus  slandiiig  by  iu  ihe  room,  aiiil>bty 
the  child  in  her  hand,  and  he  shcval 
blood  fliitof  Pulliser'aear;  says,  ilml 
part  of  Uie  car  that  was  cut ;    snd  tin 
lAiinled  at  Ihe  lilnod  that  came  nutofibtHL 
Says,  that  Palliser  was  found  in  ibe    ' 
with  my  lord's  silk  nighl-cap  on  bit  boi 
bad   bishal  and  wi|(  ua  at  breakfiit.  !i^ 
thai  « lirii  hiT  lailyElii|i  breakfasled  in  liir  'M 
di<)Kiiietit  utU'iideil  her ;    but  whtn  slie  i-i^-if 
fiiKted  ill  the  uarlnur  some  of  iheniherKnas 
did.    Sjys,  that  ii»  man  was  ptiT mill'    ' 
herbcd  i'uom  lu  breakfutt.     lii'ia£  vi    , 
lime  «he  cameiutu  the  Keriic,  anilbniiil 
the  child   whs  al  thai  lime;  s:iys,  tii 
with  colonel  Uenn  when  kin;;  Ceurgei 
Ihe  crown,  and  that  she  came  inin  n, 
service  iu  17 1 J,  and  tliat  the  child  hm  i<^ 
aliout  Ihrci'  mouths  old,  and  hassteuMcF'' 
listr  often  pl.iy  with  hitn. 

Mr.  Palliser  being  asked,  if  licsiw  sci'il 
in  her  armM;  saya,  be  did  nol.  Uui  ^ 
Lalfdii  snore  he  did.  And  she  tartber)''. 
was  ahoiU  harvest  time  that  she  cimeii^'I 
lord's  service. 

[The  Court  said,  that  Laffan  bsd  !"' 
thing  contrary  to  tierlbrmerleMiiiifluv, 
she  had  only  explained  w  hat  sbi- mtsiii  If  *" 
ear's  liuiiii,' 'cut  in  her  first  eMminii!'H>''|J 
declaird  lhi:ir  hiiqirisc  at  the  cantnilKiM«< 
the  cvidcnirc  on  butb  siilea.] 
Mr.  J'allittr  continued  to  be  cro«s>eii>UM 

ISeiDg  nskcil,  if  he  believed  ray  lod  "^ 
have  run  him  lhriiu};li  if  he  bad  nut  ^''"^ 
vented;  says,  |H'ihaiis  he  might  liaie"""*** 
Lim,  fur  he  directed  the  sword  lofcl"'*" 

Crson.  Itciu>;  asked,  if  lie  ever  m»  *^ 
Ifan  attend  iiir  >ndy  albrcakfi^;  o^L 
Deter  did  i  il.at  it  wasMrs.Ucaili.aksiWf 
UtendcU  lierj  for  that  my  luly  wu  *^ 


] 


and  Richard  Earl  ofAngUsea* 


A.  D.  174S. 


[1288 


ID,  and  did  not  love  to  bafe  low  iser- 

aboiit  her.     Beinff  asked,  if  lie  ever 

fasted  Im*Iow  stairs  before  with  my  lady ; 

be  did,  and  was  freqaenti  v  desired  by  my 

0  to  do.  Says,  he  breakfasted  with  my 
lereral  times  tlie  very  week  before  the  se- 
ioD,  and  my  lord  knew  it.  Beiui;  a&ked  if 
J  not  tell  my  lady  of  my  lord's  ioclination 
t  with  her,  considerini;  how  intimate  de- 
t  was  with  her;  says,  he  never  did.  Bein^ir 
if  my  lord  ever  applied  to  deponent  to 
up  tiie  difference  between  them ;  says, 

rer  did.  Being  asked  how  many  days 
before  parting  tliat  he  had  that  cooversa- 
'ith  my  lord ;    says,  about  four  or  (ive 

but  does  not  remember  what  day; 
Lbat  Taylor  and  8utton  rode  before  my 
IV  the  time  of  the  conversation,  and 
'dship  seemeil  melancholy.  Beionf  asked 
lord  ever  talked  to  htm  before  that  time 
that  affair ;  says,  he  never  did.    Beingf 

where  he  breakfasted  that  morning; 
in  Sots- hole,  and  tliat  Taylor  and  8utton 
asted  with  them.  Being  asked  what  the 
iaat  was;   says,  he  believes  there  was 

1  wine  for  breakfast,  as  the  woman 
n)  said:  Says,  he  generally  used  every 
igf-match  to  call  my  lord.  Being  asked 
cap  he  wore  the  morning  of  the  separa- 
nd  if  it  wa4  a  silk  cap ;  says,  he  does  not 
ivhat  cap  he  wore,  or  if  he  changed  caps, 
ilieves  it  was  not  a  silk  cap  he  wore. 

asked  who  used  to  take  care  of  the 
believed  itmi^lit  be  Joan  Laffan.  Being 
where  my  lord  used  to  dress ;  says, 
stairs;  says,  he  knows  nothing  of  a  silk 
cap,  nor  what  night- cap  my  lord  wore; 
\  not  the  laundry- maid;  but  believes 
Laffan  assisted  her.  Says,  Taylor  and 
I  usefl  to  drink  late,  but  my  lord  did  not. 
that  he  often  breakfasted  with  my  lady 
my  lord  was  not  with  her.  Says,  my 
"enerally  was  in  bed  with  nothing  on  but 
e  gown  or  wrapper ;  but  the  maid  was 
Uly  backward  and  forward  in  the  room, 
aows  not  but  it  was  by  directions  of  my 
Being  asked  again  what  sort  of  cap  he 
that  rooming;  says,  he  is  not  certain, 
lieves  it  was  a  linen  cap,  but  is  jiositivo 
was  no  child  there.  Being  asked  if  he 
one  Mr.  Briscoe,  or  his  daughters ;  says, 
«8  not,  but  remembers  to  have  beard  of 
lias  Briscoe.  Bein^  aske<l  what  steps  he 
o  resent  the  usage  he  had  met  with  from 
rd  Altham ;  says,  he  sent  him  a  challeni^e 
at  morning,  and  i»osted  his  lordship  for 
eeting  him  ;  and  that  his  father  likewise 
nged  my  lord  to  fight  him,  if  his  lordship 
ht  deponent  too  young  an  antagonist. 
my  lord  went  out  of  the  country  soon 
ted  deponent  pursued  him  out  of  town 
^ilQls.  Being  asked  what  time  my  lonl 
•  coimtry ;  says,  he  does  not  know,  but 
B  be  fell  it  in  17 17.  Being  asked  whether 
K  MM  raeeiTe  several  blows  the  morning  of 
Vrntfam  s  Mys,  he  did,  and  fell  down  and 
AHitd  wiUa  iIm  hlowa.  Says,  it  was 
^I^  ZVlf . 


Anthony  Dyer  that  took  the  sword  out  of  my 
lord's  hands.  Being  asked  whother  he  ever 
saw-Mr.  Pigottof  Tintem  at  Dunmaiue ;  says, 
he  never  did  to  his  knowledge,  but  remembers 
to  have  seen  him  at  his  father's  house.  Says, 
that  when  my  lord  came  up  to  deponent  that 
morning,  he  told  deponent  he  was  going  to 
Tolnam  Green,i  but  that  deponent  should  not 
go  with  him.  Being  asked  how  he  came  to 
tell  my  lord,  that  there  was  Taylor  and  Sutton 
at  home  to  keep  my  lailv  company  ;  says,  that 
Taylor  and  Sutton  used  to  dine  with  my  lady, 
and  that  Taylor  was  a  kind  of  receiver.  Says, 
the  occasion  of  his  going  into  his  lady's  room 
that  morning,  was  to  carry  her  a  lap-dog  she 
was  fond  of,  and  swears  he  did  not  go  with  any 
criminal  intent. 

Thomat  Ralph  sworn  to  the  Voire  Dire,  and 
then  in  chief. 

Says,  that  he  was  very  well  acquainted  with 
my  lord  and  lady  Altham  ;»tliat  he  knew  my  lord 
first  in  England,  before  be  came  to  Ireland; 
that  my  lord  came  to  Ireland  before  my  lady, 
that  they  came  to  Dunmaine  a  little  before 
Christmas  1713,  and  deponent  was  in  the  ser- 
vice before  that  time  as  butler,  and  continued 
tliere  till  the  latter  end  of  1715,  and  was  about 
a  year  and  a  half  servant  there.  Says,  he 
never  heard  that  my  lady  was  with  child  ;  that 
deponent  waited  upon  her  twice  a-day,  At 
dinner  and  supper,  and  never  saw  a  child  at 
Dunmaine,  nor  ever  saw  any  signs  of  my 
lady  being  with  child,  nor  ever  heard  any  dis- 
course like  it,  bnt  has  heard  both  my  lord  and 
lady  wish  they  had  a  child.  Being  called  upon 
to  name  those  who  were  servants  with  my  lord 
in  deponent's  time;  says,  there  was  John 
Weeden,  the  coachman,  Bork,  the  postillion, 
Michael  Forster,  the  cook,  one  Arthur,  the 
gardener,  Martin,  the  smith,  one  Anthony 
Dyer  my  lord's  gentleman,  who  used  to  attend 
my  lord  except  of  hunting  days ;  that  there  was 
Smutty,  the  dog*boy,  hot  he  was  very  ugly  ; 
one  Joan  Landy,  the  kitchen  wench,  little  b»ck 
Nell,  a  weeding  wench  under  Arthur  the 
gardener,  one  Mary  Hays,  dairy  maid,  and  my 
lady  sent  over  one  Mrs.  Settright  to  be  house- 
keeper; that  there  likewise  was  one  Mary 
Waters,  chamber-maid,  and  Betty  Doyle,  a 
laundry  maid,  and  Mrs.  Heath,  my  lady's  wo- 
man; that  afler  Mary  Waters  .^ent  away, 
Nelly  Thomas  came  in  her  place,  and  she  usetl 
to  carry  the  tea-kettle  to  my  lady's  chamber. 
Being  asked  if  he  is  sure  he  would  remember 
Betty  Doyle;  says,  he  is  sure  he  should  re- 
member her.  Being  asked  if  he  Mver  knew 
one  Joan  Laffan  to  live  in  the  service ;  says^ 
be  never  did ;  but  says,  he  letl  my  lord's  ser« 
vice  in  1715,  between  Miohaelmas  and  Christ- 
mas. Being  asked  if  there  were  any  new  ser- 
vants came  into  the  family  while  deponent  was 
there;  says,  that  when  Waters  went,  Nelly 
Thomas  came  in  her  place,  but  remembers  no 
other  servant's  coming  there.  Being  asked  if 
he  knows  any  thing  about  Joan  I«anny  ;  says, 
Joan  Laody  was  turaed  %.*«%>)  K<a  \Msca.<^Ni>i^ 

4N 


rfM  want  fat  k  oottMa,  «r  fint  of  hw  fcaw*B  at 
lh«  ritMp  mlk,  Bd  than  ifat'wn  hoagbt  M 
bad|  tint  it  MM  abtM  a  furioBK  wU  a  halt 
ftvM  PuMMrfiia  haow.  Sf n,  In  oana  tB 
land  ma  Iba  aeifie%  aoi  >Me  in  tiM 


na  la  dtinnent,  to  his  bouse,  in  iltrjr  Ic  Kn 

Sp^ttti,  find  aent  a  diutiei  Iherc,  M^n- 

■d  fepaBftit  1»  dine  villi  hi  lu,  ami  Mke4kii| 

wal  fMMioDt,  nlielUer  Udj  Altbint  badi 

Id,  wal  wliBl  pervantB  were  in  the  heuM  a 

dafonaat^  time,  aud   asked  deponcDi  if  b 

wbdM  aflcayt  of  >  iieuiepaucy :  aaySiUieKwai 

tm  ganllaaea  with  Mr.  H'Kereba,  «Dt«f 

wbaw   dMf  called   sir    Tbomat;   tbat  Ht 

H'Karobar  came   there  a  s«c«ild  tine,  Wi 

iilnd  dtMKnl  ir  be  had  aaid  any  thing  w  ha 

|>I1 » Bauleiiancy  ;  and  deponent  oamc^it' 

■iwina,  «li^  b»  aaid,  were  ia  caaipaoj  ata 

Mr.  H*SMabfr  CUM  there  the  second 

fi«nf  MM  wbU  hniaecs  he  rollowi; 

bail  a  (prdaoar  and  vicUiftller,  and  kuM 

part  af  bia  firdoD  M  ao«M  genileiuea  liirfl» 

'-  -'hi  flowers.    Beioe  uked  if  bt » 

lard  ucl  Ud  J  Altbain  gaiag  U  »(» 
lonl  aaHMa  >t  odv  time;  sayi,  tsjlMdiri 
Uy,  Hn.Gifiard,  Ure.  HeatU  awtdtpM 

.1  —  ^  ibat  ADlhooyUyer  wtaaMlkk 

-  was  sick  i)ihaijt  waaattlwMf 


MMorgupdi.  taja.  (hat  ia.  twa  ar  Jkraa 
daja  dl^  Joaa  1^  ma  branclit  I*  bai,  da- 
fanaatveatto  tta  haate  wbavtbemi^-W 
•MMk  aMNMrtadaaTlaidlhhaairaa  Ifca 
iiheraf  bwtUd,  and  dwaaaatteAtha^M 
ta  bta  aiw.  ta  aaa  if  ka  oaM  Sad  MM  who  it 
llwlik^aBdadMdharwboahakidltta,apaa 
wUdt  iba  aid,  ta  My  load  i '^manaat  toU  W 
abawaa  ia  the  right  «ifit,ft«lfafihidywM 
batttraUatanAahitt  •adiaji.tenami 
«r  bia  looking  ao  at  thaehild  to  iad  whaba 
was  Uka,  wB,  tliat  hakaew  olben  hadjainirith 
tbe  diiU'a  mother.  Saya,  In  hai  aaaa  the 
flf^  tiroea,  aiid  oaed  ts  aJTeil 
I.  -Bmaq  a^ad  what  kiad  of 


itilwaa  thatJoaDlandylivad  iB;aaTa,it 
ta»  litllo  bnt,  and  aheby  where  her  fatber,- 
Bthar,  and  brother,  on  onma  airaw,  all  taga- 


,  aad  ibers  were  ctakea  drofe  into  the 
gtauad  to  keep  the  atraw  np ;  that  it  waa  all 
oaa  icon,  and  there  waa  a  &re-placa  on  the 
left-band,  hot  caiUMt  tell  iftbare  waa  a  ahtBHqr 
in  it,      Saya,  there  waa  no  paniUon,  but  a 
bordla  Axed  to  Uw  greund  to  baaf  OR  tbe 
Mnwi  wdaalaagaaJepaneatliwdat  Doe- 
mniat,  tkeekUd  Imd  Ikero  witk  bit  maOm. 
8aya,4ha  baidle  waa  abBatftor  or  flf*  fitot 
bigb.    8aya,   that  when   be  cnaw  into  tbm 
room,  be  had  a  fat)  view  «f  the  houae,  and  thai 
there  waa  do  window  lo  it,  and  neilber  chain 
nor  table*.     Says,  the  cahhin  waa  in  the  i 
condition  when  deponoit  lirst  went  there, 
waa  when  deponent  left  Irebuid,  aiid  ia 
there  waa  aoalleration  made  in  it,  Ibr  if  there 
bad,  depOMnt  ahould  hare  aeen   it.     Being 
ariced  how  ttw  okiM   waa  dreaaed  ;  aaya,  he 
wasdreaaedio  a  blanket;  that  deponent  oarer 
•aw  tbe  child  at  DuDmnina  houae,  for  it  waa 
Beret  auffered  to   come  there.      That  lady 
Althain  bad  forbid  JouLandy  to  come  d" 
Ifae  houae,  as  be  auppuKi,  becanae  of  tbe 
rt  of  it!  being  my  lord'a  child.     Being  ad 
lady  Allham  ever  went  to  Latidy'a  c^»bin 


uort  of  it!  being  my  lord'a  child. 
•if  lady  Allham  ever  went  to  1 
or  bnt ;  nyi,  ahe  nerer  did,  for  that  abe  was 
too  proud  to  go  to  inch  a  poor  place.    Being 
naked  whobvilttbe  aaid  cabbin;  aaya,  it  waa 
bailtbyone  Shea,  a  year  before  the  child  waa 
bom.      Baiog  asked  when  it  waa  deponent 
came  to  Dunmaine;  laya,  be  came  m  Ouo- 
maineaoactimeinlTU.    fieiog  naked  if  there 
waa  a  road  from  Dunmaine  houae  to  I^udy's 
«abbin ;  aaya  there  wa*  a  ouacb-road  down  tbe 
avenue.     Bnng  aaked  if  tbe  aaid  coach-road 
waa  made  on  purpcae  lo  ga  from  Dnnmnine 
bouae  to  the  cabUn ;  nya,  Uia  eoaeb  road  waa 
Madtt  a  year  before  tbaMfabin  waa'  I 
Hrpoae  ta  go  to  dturak,  to  iba  aMlL 
IWliaer'a.   aad  Mr.  Omuf^  mi4 


aMseaia  itu 

aea  w«*fa-ied; 
I  Ibiog,  that  be 

Saya,  Mn.  Heatk  foda  ugK  ■■ 
aoBotii,  and  Hra.  OiiBrd  wvat  «l 
latbecaaeti.    Bdng  aake^  bow 
laan  miy  lord'a  aertice ;   n 
maa  di^al"  with  the  garden 
walar  iaia  the  gsnieu,  deponent  k. 
apaa  wbM  he   went  tu   Uublis,  jll 
wd  tbaa  woe)  and  complained  tolu"' 
lord  sent  a  letter  lo  Duamoine,  Uv 
send  dapogeiit  lu  Wexford  gaol,  lidfl 
opoodepooi-iit  quilled  the  ic——  —■'^ 
Euglacd;  huys,  my  lord  ^  .    _ 

May,  ins,  end  lIi>iE  my  lonl  bdhI  laJ}  n 
Dublin  when  ilie  queen  died.     BeiM  >M 
what  time  of  tlie  year  it  was  h«  ™J'    ^ 
gardener;  iujs,  about  Miebaelmu;  lU"*   |.', 
ford  and  lady  were  in  Dublin  before  ibcMt    ,;„ 
but  depoueciiliduot  Hay  for  their  comirt*"^    |^ 
Btno^  aikeil,  ^fho  christened   Jcu  ImP    j, 
child ;  sayt,  he  liaa  hennl  he  waschiidaiif 
one  Downs  apriesUatatillaeecalMNiA* 
Ihat  be  wac  called  James.     Being  tikA  v 
aooo  alUr  bis  liinli  he  was  cb  liateued )  a}V| 
cattnot  tell,    lor   deponent    waa  doi  lij 
chriilening;  but  the  child  wu  alm^l" 
James,  and  deponent  nefer  beard  bia  * 
by  any  oUier  name. 

[C  roet-examiaed.] 
Being  ashed  when  it  waa  be  < 
army  ;  aajii,  immediately  after di, 
to  Brwland,  and  deponcut  waifl. 
Hyde-Park.  Being  aakcd  wb«  k 
my  lord's  *crvice ;  saya,  in  1711.  ■ 
wntinaad  tliere  for  a  year  acd  a  haK 

D    ladroaiBaiDi)uiunaia&   Bdng  m 

r<  abUnaiaaMad  tabakla.  aa> 


aitrl  Richard  Earl  of  AngUtea, 


A,  D.  17*9. 


[1286 


^ 


would  ia  Ihe  ilei'endanl's  cause 
Being  Bskcil  if  there  was  ddi  a 
^^(le  to  Iha  liome  whf re  llie  chilJ 
ecMch-madledroMr.  Fnlliapr'a 
il'a.  Being  luked  if  Klra.  Gif* 
me  bj  thut  house  (n  DuHRiaine ; 
t  eoBBlantly  rame  hy  that  house, 
I  ber  onreat  m»i\,  anti  thai  ihe 
Mioii  liy  tbe  bridge ;  and  saya, 
)  rooH  waa  iLe  ahonral  way  to 
,  end  the  usual  rosil ;  ■>]'■,  the 
I  RmiB  tras  built  befbre  deponrat 
mys,  Mrs.  Briacne  and  her 
not  come  to  Duiimaine  » ill)  my 
e  time  ofW.  Beinsf  axked  hoiv 
there  were  to  the  chariot  in 
dy  went  to  Wexford  aasizea ; 
nere  «tx  hones.  Being  asked 
horse  deponent  rid  ;  aays,  it 
Oroe.  Beinsr  aaked,  if  he  knew 
da ;    says,  he  did   not.     Being 


kg  Baked,  what  day  uf  the  waek 
wre  held  at  Wextbrt);  laya,  be 
aday  oflbe  weekor raontb;  but 
''  two  or  three  days.  Being 
rd  and  lady  lodged  ;  aayii, 

rlieretheyloilgeil;  that  ha  naa 
feing  all  the  time  of  tbo  niKizeg, 
Mgcd  at  the  posl-oliice.  BiHog 
ferd  and  lady  were  in  motiming ; 
M  tdl.  Ueing  asked,  if  he  ivure 
W,  he  never  di<l.     Being  asked, 

"d  when  he  went  tn  England  ; 

Being  asked,  what  ten 
'  lord  to  Wexford ;  says,  the 
^Edward  MTormuek,  tlie coach 
""        and  my  Inrd's  gentlemai 


^  diked,  if  he  did  not  attend 
^  hn  alay  at  Wexford  ;  says,  he 
Walked,  if  heeveraaw^eSjiaw 
iK^ord ;  says,  be  ner pr  did,  but 
Ibem ;  aays,  my  lady  wai  ill  Icir 
rht,  while  deponent  wai  in  the 
■I  not  keep  her  raom  above  a  day 
le  was  tny  lord's  clerk,*  and  his 
tford  waa  to  carry  exnminaiions 
the  clerk  of  the  peace  ;  but  duci 
re  he  lived.  Being  aiked,  how 
ly  lord's  senice ;  anyii,  he  had 
bree  years  a  house-keeiier  in 
lord  Altham  owing  him  sune 
over  here  to  tutii  for  it. 
what  agreement  he  made  with 


n  the  *< 


;  saya, 
at,  but  my  lord  told  bim, 
^  life  with  him,  as  hit  butler,  he 
\  Wya,  my  lord  had  little  to  pay 
"-^ire  da^ioneut  neter  demanded 
f*,  my  lord  otrgA  biDi  near 
r  Bebig  aaked,  if  mv  lord  nied 
(hatlUDled  olien,  ihal  he  had 


«ix  or  (even  honei  for  his  own  riding.  Being 
asked,  what  coloured  horse  my  lord  used  lo 
ride  B  huDtiitg ;  says,  he  had  a  black  marc, 
which  he  used  to  ride.  Beiii^'  asked,  if 
Anthony  Dyer  used  to  go  a  htinling  with  my 
ktrd ;  "aya,  he  did,  ih.it  he  used  to  ride  ■  horsa 
called  Forrest,  and  aomelinies  tny  lord  used  to 
ride  tbe  brono  gelding,  because  it  waa  ilie 
better  horse.  Being  aaked  hin  age ;  says,  be 
is  sixty  years  next  July:  that  my  lord  came 
first  from  Wexford  lo  Diinmaine,  and  aller- 
wardt  went  to  Dublin,  but  deponent  never 
travelled  with  bim  to  Dublin  :  says,  he  does 
not  remember  Charles  Heaglier  to  oe  a  aervanl 
with  my  lord.  Being  oskrd,  if  he  ever  told 
any  bod  v  that  Ihe  Preleailer's  men  were  tried 
at  the  assizes  at  Wexford  ;  aays,  be  bus  »pohe 
of  it  many  times.  Being  asked,  on  what 
otwasion  he  inenlioned  it ;  says,  be  lold  it  to 
his  comradeB  by  way  of  conversation.  Being 
aiked,  if  he  told  it  to  my  lord  Anijiesea  ; 
he  does  notremeinber  Ibat  beever  did. 
atked,  if  he  ever  told  it  to  Mr.  Jans, 
Burroughs ;  says,  he  cannot  remember  that 
lie  did,  or  to  any  of  my  lord's  uanagen. 
Being  aaked,  bow  many  came  over  with  depo* 
nrnt  on  sbiii'board  ;  says,  he  belieres  about 
iDrty.  Being  naked,  if  be  lold  it  lo  any  of 
liieno  ;  says,  he  dues  not  know  of  any  of  uien 
thai  he  lold  it  to.  Being  aikcd,  when  it  waa 
he  last  saw  Mrs.  Giffard,  and  if  he  bad  any 
discourse  with  her  about  that  affair ;  Days,  ha 
saw  her  yesterday,  bnl  had  no  discourse  witb 
her;    nor  does  be  know  what  she  has  been 

Oaen  Cuvanagh  swo: 
then 


Says,   Ihe  defendant  owed  him 
whicb  waa  lately  paid  him  by  I 
Mys,  be  served  lord  Althatu  if 


13/.  I5f; 
Derinaay  ; 
Dublin,  and 
wanlii  at  Dunmaine,  and  was  in  his  service 
belure  and  after  my  lady  came  there;  says, 
(tut  having  been  at  his  father's  after  a  fit  tif 
sickness,  he  went  tn  lord  Allbam  lo  ask  fur  his 
wuiies,  ithen  ray  lord  preraileil  uu  bim  lo  hire 
agam ;  that  some  time  after  he  fell  out  wilb 
ihecuok.and  my  lord  threatened  to  send  depa- 
neiit  10  Wexford  gaol,  and  Ibereupou  depunent 
parleit  with  him.  Being  asked,  if  be  was 
servant  to  his  lordshiii  after  tbe  separation  ; 
«i\s,  be  was  not.  Being  aski^d,  how  long  he 
continued  in  the  wrvice  after  my  lord  and  jady 
caina  to  Duiirauinc ;  says,  about  a  year. 
Being  aaked,  if  lie  renicmbers  tbe  deatli  of 
king  Oeurge  the  'First ;  aays,  he  remembers 
beiirg  in  mourning  for  him,  and  depunent  was 
then  a  hQUS(>-kec]>er  in  I'bnmas- street.  Being 
asked,  if  ho  rememben  sir  Constanline  Pbipps 
in  Ihe  government ;  says,  be  does  not,  nor  can 
lell  whtrre  dcjionent  was  at  Ihe  time  of  Queen 
Anne's  death,  but  believes  be  was  in  service  at 
Duumaiiic  ;  ssys,  be  was  in  Dublin  wliuu  my 
lord  receiied  my  lady  ill  Mrs,  Briscoe's 
Briug  iisked,  if  he  conunueil  in  ihe  )>errice  (ill 
the  umc  they  returned  to  Dublin  from  Don- 
uiatoc;  aay*!  he  does  nit  wnwvohiw  ■Ct>».^«. 


I 


■ 
i 

« 

m 


1S87]  17  GEORGE  IL    Trial  in  Ejectment  between  J.  Annedeg,  eif.  [U  |  B 

dill.  Being  asked,  if  he  ever  heard  of  my  lady 
Altbam's  Gsing  with  child,  or  that  she  had  a 
child  ;  savs,  he  never  did,  till  the  late  rumour. 
Beings  asked,  who  were  the  serranla  in  his 
time  ;  says,  be  remembers  my  lord  had  a  big 
fat  steward  (one  Taylor)  and  bad  a  cook  that 
used  to  drink  and  sing.  Being  asked,  who 
was  the  butler ;  savs,  one  Bolph,  and  my  lord 
had  a  page  (one  Anthony  Dwyer,)  and  one 
Mrs.  Heath  was  my  lady's  maid  ;  remembers 
Joan  Landy,  a  chair-woman.  Being  asked,  if 
she  washed  the  dishes ;  says,  he  cannot  tell ; 
says,  she  had  a  big  belly,  and  was  supposed  to 
be  with  child  ;  and  afler  my  lady  came  down, 
some  busy  body  (as  deponent  believes)  told  her 
ladyship  she  was  with  child  by  my  lord,  and 
thereupon  she  was  turned  off:  Says,  he  saw 
her  afWrwards,  when  he  used  to  air  the  horses, 
and  saw  a  child  with  her  who  was  called 
James,  and  deponent  believes  it  was  the  child 
he  saw  her  big  of.  Being  asked,  if  he  ever 
was  in  the  house  she  lived  in ;  says,  he  has 
been  within  side  of  it,  that  it  was  a  cabbin 
built  near  the  kheep-walk,  and  James  Landy, 
jber  father,  was  the  shepherd.  Being  asked, 
what  rooms  there  were  in  the  said  house; 
■ays,  he  believes  there  was  no  room  but  one, 
and  there  were  two  straw-beds  in  it,  and  depo- 
nent remembers  the  building  of  it.  Being 
asked,  if  he  believes  the  lady  Altham  would 
have  been  ^lad  to  have  had  a  son  and  heir ; 
says,  he  believes  she  would  to  disappoint  the 
present  Earl,  who  was  always  quarrelling 
with  her.  Being  asked,  if  be  believes  that  if 
lady  Altham  had  had  a  child  (while  deponent 
was  there)  he  should  have  known  it ;  says,  he 
believes  he  should;  says,  he  saw  a  child  at 
Incliicore,  but  cannot  tell  whether  it  was  the 
same  chiM  he  saw  with  Joan  Landy  ;  says,  he 
asked  my  lord  why  he  did  not  send  that  child 
to  a  trade,  and  that  his  lordship  answered,  that 
he  was  a  great  idler,  and  he  could  get  no  good 
of  him.  Being  asked,  if  be  knows  of  any 
child's  being  at  Kinnay  ;  says,  he  does  not. 

[Cross-examined.] 

Being  asked,  when  he  was  married ;  says, 
in  1719  ;  that  he  shewed  the  certiflcale  of  Lis 
marriage  lately  to  his  wife ;  says,  thei'e  was 
great  rrjoiciiig  among  the  servants,  when  lord 
and  lady  Altham  were  reconciled  at  captain 
Briscoe's. 


Anthony  Dxcyer  sworn  to  the  Voire  Dire  and 

then  in  chief. 


Says,  he  waited  on  lord  Altham  b  or  6  years, 
and  his  lordship  lived  at  Dunmaine  when  de- 
ponent came  to  him  ;  can't  tell  uhen  my  lady 
came  to  Dunmaine,  but  de|ioneiit  was  in  my 
lord's  service  bi'fbre  her  cuming,  and  alter  her 
going  away.  Being  asked,  if  lie  is  sure  he 
was  ht  Dunmaine  when  my  lady  came  there; 
says,  he  is  sure  lie  was,  and  that  he  lived  there 
2  or  3  years  after  her  leaving  Dunmaine,  and 
was  in  the  service  when  she  parted  from  my 
lord;  says,  he  attended  my  lord  when  he 
«^me  to  Dublin,  jand  never  was  abaent  froin  hia 


lordship  above  a  fortnight  at  BMrt.  \m     Cil 
asked,  if  he  ever  knew  my  lady  wuiillidhlj;    itl 
or  bad  a  child ;  says,  he  never  ilid,  lili  liii    lii 
this  year.    Being  asked,  if  be  wnnihnti    ril 
names  of  any  of  the  servants;  Kjiihc^ 
members  the  names^of  some  of  tbni:  Mi 
Wheedon  was  coachman,  Mrs.  HeMkvii^ 
lady's  woman,  and  Joau  Landy  wnkifeki' 
maid  under  the  cook,  and  coDtiaacd  thoilt  lit 
two  months,  till  she  was  turned  iivi|i  !•   p 
she  was  with  child  when  my  Isdy  cm  I 
Dunmaine,  and  it  being  repoiled  latt  Aew 
with  child  by  my  lord,  she  wutanedolrf 
the  house,  and  went  to  her  fatber't,.wbiM 
in  a  cabbin  near  the  lands ;  and  ^xfnakm 
the  child  in  about  a  fortnight  after  kcrMq^ 
and  the  child  she  was  delivered  of  wm  oil 
James  Landy ;   and  her  father  lird  ii  Al 
dibbin  aflter  the  child  was  bom.   BMf  «hi 
what  sort  of  a  cabbm  it  was ;  ia)i,itMii 
very  poor  one ;    that  it  was  all  one  ra«,iii 
no  glass  window  in  it ;    that  there  vmiIiA  h 
which  was  pulled  in  and  out,  iostetdtfitei  li! 
that  there  were  stakes  drove  in  the  giwiii  |lt 
the  cabbin,  and  straw  beds.    Says,  he iM 
purpose  to  see  the  child,  and  that  it  •*■■ 
m  a  poor  habit.     Says,  he  nevr  n*  14 
Altham  have  a  child  or  handle  a  ckiU;  ki 
Joan  Landy  used  to  come  by  stesUbtbew 
way  to  the  stables  and  bring  her  cbiMiairfB 
to  get  some  subsistance  from  the  lMtlff|ii 
used  to  say,  she  was  always  afraid,  beaaia 
her  having  fathered  the  child  oa  BfM  li 
Says,  he  lived  with  my  lord  Altbaawg*  |t 
separation,  and  parted   from  him  is  W» 
Says,  he  came  to  Dublin  the  tiret  pwlu*^ 
aft<»r  my  l(»rd  and  lady  parted.    Styi,  J 
Lalfan  was  a  servant  in  the  family  i^bto^ 
iient  was  there ;    but  says,  she  could  Mthtfi 
tlie  rare  of  a  child  without  deponcol's  bl»" 
le<lge,  and  deponent  ne%er  saw  a  cbiU  nW 
arms.     Says,  she  lived  3  or  4  moDlbs  iiv 
service,  to  the  best  of  deponent's  knuwldl^ 
Says,  he  never  saw  a  christening  al  D*  ] 
maiue  house,  or  any  bonfires  there  onaD\iw  j 
occasion.     Says,  he  has  seen  Mr.  V^o)i^  ■! ' 
lord's  chaplain ;  but  never  saw  him  cbriiWj 
child,  <»r  h«ard  him  say  he  had.     ^>*»/f 
never  iieaid  that  Landy 's  house  was  refiiirt"i 
or  a  road  made  to  it  frum  Dunmaine  bouse  ;W 
savs,  ihe;e  was  a  road  made  for  a  ^^'^ 
1  through  the  land.     Says,  he  knew  Bolpbw 
hiuler;     and  that  he  was  succeeded  by* 
Charles,  who  was  hired  in  iov%n.    Beinga*** 
ifmv  lord  made  deponent  take  any  <wtbiW 

Mr.  Tom  Piiiliser  ;  says,  he  i.everdid;  "J 
was  anv  oath  tenderedto  him.  Ileinjj  ittW^ 
if  Tom'  Palliser  misbehaved  to  the  ^^^\ 
K»}s,  he  never  found  he  did.  Being  vM^ 
ht'ever  heard  that  Mr.  Palliser  wasiirtlb'Vf 
Kiockings ;  says,  he  ne*er  did  ;  thai  I'**  JT 
sort  of  servants  were  resjiettlul  to  liiui.  *JJ 
he  has  seen  my  lady  breakfiibt  jn  her  fst*i* 
never  saw  lier  breakfast  in  bed. 


I^Crots  •examined 
B«iiigifln|l,ii'htW«lMi 


and  Jlichard  Eari  •/  Anglntn. 


^Hn>  be  » ;  •■)'*(  U«  oerer  suw  a  chiM 
HMeof  DUDUMLiie;  tlitt  lie  cuotiiiued 
lylord  tfUt  the  seiwaiioD,  aud  cnme 
hn  ■fierwanis  lo  [ikrliomeDt ;  an<l  ihal 
«l  vtaid  three  <|uariers  d1'  a  year  ni  Dan- 
■Act  ||»  ■eparalLUD.  BciiiK  Mbml  his 
■a;ii  he  ii  between  40anii  50;  liei^ves 
4.t.  Beiaic  •sbed,  ilJosD  Laflkn  wai  in 
use  alter  ihcieparalinn ;  myi,  lie  cannot 
•ly  uy,  but  to  ibe  best  ol'  bis  knowledge 
«■  ahe  was,  but  cannot  lell  wbak  baf»iiie 
■r  itler  ibe  aepkiraliOD ;    myt.  n>y  loril 

U  Dublin  in  parliament  lime,  hut 
Ull  wheiher  it  was  parliameot  winter  or 
bea  tbey  parted.  Haya,  he  (»uld  not 
hutiruetoy  lordcameln  Dublin  kiter  the 
itiop,  but  btliere*  it  was  summer  lime. 

he  wBi  lick  when  my  lord  anil  lady 
toWeiDird  a^nzes.  Bdn^  asked,  it'  lie 
pm    ill    cumpnny   wilb  Rolpli  aince   he 

jut  to  town ;  says,  he  has,  and  thai 
I  eimetniee  him  ;  and  ihai  drponenl  lay 
>  Jauii'a  tbe  tint  and  kecnnd  night  aflei 


sayl 


heh 


with  Itnlpb,  anil  that  they  conned 
>ld  jokea  and  marriraenta;  \m\  nni  a  word 
Mid  ol*  the  boy,  or  of  the  Wrxlonl 
<■,  nor  dill  drjiuiient  ever  tell  any  bodji 
ha  bail  to  sty  in  this  aflTsir,  fKCvpl  tbit 
U  Kolph,  unri  Knlph  tobt  biro  my  lady 

bad  a  child ;  lays,  he  haa  •een  colonel 
i«r,  anil  seteral  oi'bnrs  iif  the  defendant's 
saei  imce  bis  comii>ii[  to  Dublin.  Brinif 
if  he  ever  heani  ul'  Harrv  Ihe  t-ouk  ; 

be  never  did.  Beint;  asked  *il' the  cahblu 
B  Joan  l>an<ly  lived  was  huili  indeuonenl's 
I    taya,  thai  it  ivaa,  and  thai  my  loid  had 

400  iherp  un  ihu  sheep  walk.  Being 
I,   bow  old    Jugtry    I^Ddy'*  child    wa^ 

faeanw  bim  lajil  \  says,  he  nnnot  lell, 
iw  him  in  n  miinili  aticr  hia  binh  ;    and 

Jue^y  Londy  used  lo  Icare  hiin  wiili 
of  ilic  lirlpem  at  the  stable  when  ilie  weni 
Ike  haute  lor  Gubsis[aiti-r. 

I.  Mary  Iltalh  swam  to  the  Voir  Dire. 

Do  you  know  llie  pUinlilT,  Mr.  James 
ikjr— Mrs.  W«(/i.  No. 
M  he  any  law-suit  wiib  j'ou? — EIp  61ed  a 
piaiDst  me  fur  ihe  ttTi-cts  of  lady  Altham. 
la  aubiKena  give u  <i<e  in  England, 
whoaeiuit.'— Al  Mr.  James  Anuesley's. 
tee  you  any  of  Ihe  eflecls  of  Urt;  Altbaiii 
Ur  linnds  F 

le  i|ue*iion  is  ubjecled  tn  by  Ihe  ilefuidant' 
Ml,  who  wy,   tliBi  the  admiuislrator  will 

Ihe  ri^ht  to  recover  them,  tei  this  ca 
hich  way  it  will ;  and  ihe  eRvL'la  an! 
rebtice  to  ihe  real  eilate  nhicb  is  non 
lte.» 


1,  Ibe  followini^  i*  llie  ac- 
Triol  at  Bar,"  Sic. : 
'  tlic  plaiDliS  aiid,  it  ap< 
T  of  llie  plaiutifT  was  uui 
Udy  AlUiaiudied;  iliat 


A.  D.  1743. 
Tile  Witness  sworn  in 


them  ^^ 


Did  yOD  know  Arlhur  late  lord  Allbam 
and  his  lady  ? — Mr*.  Htath.  Yes,  very  well. 

What  time  did  you  first  iMCome  arajuainleil 
with  the  oneorolherof  tliem  f — I  have  known 
Ibein  a  ([real  many  years. 

Were  TOU  in  any  service  in  thai  family  J — 

ever  till  Ibe  lime  nf  my  cominor  to  Irelaod. 

When  was  thai  F— Id  the  year  1713. 

At  nhat  time?— In  Octolierl  came  over     " 

y  Indy  OS  her  woman. 

llow  long  did  you  lite  wilh   my  lady 

e  uauie  over  f— I  lived  with  Uer  le  th( 
of  her  death. 

ben  was  Ibe  day  of  lier  death? — 1  cai^W 
jUBlly  lell  I  it  was  some  time  in  October,  ITtf 

Daring' that  whole  eoufse  of  lime,  was  ' 
ever  uut  of  her  service  ? — Never  out  ef ' 

Did  you  eoDSlantly  reside  wilh  her  as  ti_ 

ira»Df — I  was  one  week  from  ber  in  Irelaari 

What  lime  was  that  P— When  1  ei 
ther,  I  can  tell  you. 

Do  you  not  remember  iliatyoD  were  lon^   j 
absent   from  her? — Not  in    Ireland,   r    "     "^ 
day,  pxcepishe  wnsoutB-visiling.  I  w. 
'  ini  her  a  night  hut  that  week. 

Do  TOU  know  a  plnce  called  Dunm 

is  kingdom?— Yes,  I  do. 

Do  you  remember  »  bo  lir«]  at  Diiii 

id  iny  lord  and  laily  Altliam  lite  i 

P9,  we  went  down  lliere. 

Al  what  time,  madam?— He  giil  down  t*   ] 

unnnaine  the  Ohrisimas-Evc  afler  « 

I)(iw  Innifitid  my  lord  and  lady  reside  lo>    1 
^eiheral  DunmaiKe?— My  lord  did  c 


it  likewiKe  appeared  by  Heath's  cnnfetsioo.  tba 
there  \ie\a^  nub^ily  entitled  to  take  out  adaii' 
numuon,  she  had  iMMsesaeil   herself  of   m< 
lady'acSeeU-,  thai  Mr.  Aunesley  having  aioe 
hiq  return  ohlaiiifil  ihe  administration,  hud  Alol 
a  bill  againsl  Henih,  lor  an  aernuut  of  Iboa 
etfecla ;  ID  which,  alihuu|{h  served  wilh  n  soh 
ptena.  she  had  never  yei  ihO',<^hl  lit  lo  pot  h 
her  answer;  so  ihal  it  wan  i^ain  she  was  inter 
esied  in  the  event  nl  the  preteiit  (|uestioa  ;  aa 
therefore  they  hoped,  as  she  was  under  sucb  ■    I 
bias,  she  should  not  he  ailiiiitied  ao  evideoM   i 
in  this  cause.    But  the  counnel  lur  ibe  plaintHT  k 
beinii  called  upon  10  pmduce  the  letters  of  ad-  T 
iiiinintraiioii,  and  the  fame  nut  beinif  jiroduoedi  I 
Ilia  counsel  lor  the  deieodaniiiisitiiril,  that  lb*  I 
plaintiff  having  failed  in  protinu  the  ifrant  if  J 
Iheadininiatralioo,  which   »u><  Ihe  t;.und4tiO«  f 
of  his  riiihl  lo  the  elfeels,  and  consequently  ih*  1 
very  basis  of  tiis  ohjeclion  to  the  eoni|iet< 
of  the  wilneSB,  hisnlnection   muil   tall   to 
ground.     Thai  if  ihe  filing  a  bill  iiEainiii  a 
nca,  wbo  was  inlendKt  t«  be  examined,  w 
destroy  that  wtlnesa's  coiDjietcncy,  ii  would  h%_  I 
Id  the  power  of  anj  party  to  binder  the  wit*  I 
nesaes  against  him  from '  '  "" '' 

expcuee  utily  of  a  bill  in  Chancvty  ti 
allegatioun  of  u  iuii«uvQua  wiMmA." 


n  being  eaaiiiined,  at  ibaJ 
in  Chaiic«ty  full  of  te  1 


lailjr         176B0BGBIL    TMmJ^fMmmdiikMmJ.Jbmi^,^ 


tel  I  aui'i  tdD  jmdv  whellier  H  WIS.  in  May 
or  June  foUowioff ;  Dot  I  know  be  was  there 
ipAftfil:  heoeaetoDnUHiliiiiiNin  andfeft 
my  hdf  ind  1  at  Dnnniaine.  Upea  8t 
Geofge^s  day  I  luMhr  Im  vae  aiPanmaiHi  I 
iM  aaieef  tnal» 

How  Umg  In  the  whole  dii  they  life  le» 
getheretlhumiainer— Ahb«t  t^aa  yean  and 
two  nrtrth%  to  the  heit  of  Biy  icnieiDhiiiiee* 

Do  yoonaiiiBifcui  hi  what  atanth  they  pavt* 
eir— In  FehHMy. 

Jn  what  year  P— I  eall  it  irt6*i1,      . 

Had  iiy  kdy  m  ehiUal  DuHMdneP*^ 
ddUl  nefeirhM>MrMferw«a«ithehild$  I 
MfMr  had  roMon  to  diinkdbe  waa^  with  oUld 
nU  tho  «*hlle  I  lifed  whh  her. 

Wha  iwii  mi  iadr— adany  iadyf*->I  al- 
w«(^didpaauapttiieweafclwaaahaeBt|  while 
aho  wai  at  Dnmnaine:  1  aiwnyayit  har.la  bod, 
and  attended  har  at  her  riaiog  inthomomhiiri 
ftr  aha  waa  aooh' •  woBMnt  no  wonU  not  per* 
nit  any  body  daeto  do  iL 

CooM  ahe  than  ater  be  with  ehild,  or  faafO  a 
hiffbeUy,  nnknown  to  yon  P—Noy  nofor. 

yTerenotyon  atDonmaina  at  the  tiuM  of 
Hia  eafaratianP<— Yea,  to  be  eore. 

Via  what  plaea  did  aha  ffo  when  they  parted  r 
—We  went  to  one  ent  Bnller'a,  in  Roaa. 

Dtfyonga  with  herr— Yea,  I  went  with 
a  wor-wheefted  ohaiae  and 


her  hi 


a  pahr  ef 


Udyoagetta  Beaa  thaaanedi^r-^Yea, 
al  night,  dm  night;  Ibr  my  lady  amde  it  aa 
lalaaa  aheeonldi  ftr  aha  had  no  mud  to  be 
aaan  eoming  in. 

Can  you  remember  the  particolar  day  thia 
happened  P-i-To  the  beat  ormy  remembrance, 
it  was  on  the  Sd  of  Febroary ;  bat  it  was  on  a 
fitamday,  I  am  poBitire. 

Did  you  life  any  time  there,  and  bow  looff  P 
•«-We  ured  abont  four  years  in  Rosa,  to  we 
heat  of  my  remembranoe. 

Did  my  lord  and  lad  jr  oome  together  again 
within  that  period  of  time  P— No,  nerer.  I 
don't  know  wnether  she  ever  saw  him. 

Will  you  recollect  yoarself,  who  were  the 
aanrants  of  the  boose  when  you  came  down  to 
Dnnmaine  P — It  is  rery  hm  for  me  to  do  so  at 
this  distance  of  time,  there  were  ao  many. 
There  was  Mr.  Rolph  aa  tlie  bntler,  and  there 
waa  Mr.  Anthony  Dyer,  my  lord's  gentleman ; 
there  waa  one  (I  beliere  Rolph  went  down  with 
ns)  Settwright,  the  house  keeper,  and  there  waa 
Michael,  watt  what  hiasimame  was,  I  canH 
tell,  hot  he  was  cook,  and  there  waa  Juggy 
Landy  that  was  the  kitohen-maid,  big  widb 
ehild.  ^ 

At  what  time  P— -When  we  eame  dowoi  my 
lard,  a  kind  of  acullion  under  the  cook. 

Did  you  obeerfo  her  to  be  with  ehild  P— » 
When  we  went  down  first,  i  went  up  to  the 
voom  to  my  hMly,  and  soon  after  I  <aune  down 
to  speak  to  the  hooae«keeper ;  and  I  turned 
abaot  and  aaw  this  woman  with  ohikis  What, 
aaya  I  ta  the  honm  haanar,  yen  hnaa  g«t  n 
maidbig  with  ehihl haml  Ye% 


got4ohadtorhar,  and  gmlRrwMiclli  mi 
1  heard  that  day |  miAinlSi] 


hunsad  abant  that  it  waa  atrlnl 
the  child,  and  aeaae  aaad  voy  krn 
some  the  dey>hoy,  aai  aapsiai  sf  in 
had  to  da  with  licr.    Thia  li  whia 
me,  it  waa  the  talk  ahoHk  the  ittifr 
Gife  an  aoconnt  whaa  haaamsV 


mantha,tiMthe 

her  any  IsMer,  tift  ww  * 

ery  ents  and  then  aha  went  ta  hw' 

and  I  naser  aaw  km  titaier  bntl 

Ufed  npen  the  hnA 

Did  aha  go  ef  har  cam  neflaidiwt 
tnmed  ontP-^I  eaaiH  tsi. 

Did  yewknaw  of  any  childihia 
ddisend  ofP^t  ana^  thin  «Md< 

Give  an  aoaanna  of  thtt^r^  mrilitiilll 

'awilblahidhachfnif  itaalir 


SrthBt  J  mkhtaanitinnd 
,  nod  it  waa  ii  fahmkeas  tfMk 

Who  hionght  the  tdiiUN^i«gy 
hanelf  favanght  It^ 

Ahavl  what  agn  midbt  the  chlils* 
iMMa  PM[  aan*t  really  tA,  whalhsr  i  * 
or  two'moBfha'ahl  when  I  aaw  it,  I 
jnMk. 

md  tUa  ehihl  any  tDlenUe  eiathn 
The  neakakith  it  had  en  wan  what  I 
waa  a  oanrinie  one,  naia  veiy  ia 
hionght  it  ftom  Knghmdaaaangmy 
and  die  chiU  waa  in  aelaan  hfiaiwl^i 
her  aereral  ether  thinga. 

How  came  it  to  pam,  that  yon  dU 
direct  that  the  chikTahaoid  be  bioatthtti9» 
maine- house,  than  to  that  gate  P— I  wmU^ 
bring  it  to  the  honse. 

What  waa  jour  rsaaon  for  that  P—fiMi' 
1  would  not  haTe  my  kwd  or  lady  kadw  af 
thing  of  it. 

What  waa  your  reaaon  ibr  seeiagtbt  cW 
•«-To  know  who  it  waa  like. 

How  far  was  that  sate  yon  mentisBed  M 
the  bouse  P — A  little  distance. 

What  was  your  reason  ibr  seeing  it  tfaan^* 
I  did  not  care  my  Udy  should  know  tsj  M 
about  it.  My  lady  would  not  care  die  cm 
should  be  brought  mto  the  house.  ^ 

Waa  there  e?er  a  child  either  chiiilisMf 
lifuig  at  that  house  while  you  were  it  l^ 
maineP— Nojuerer.  ,     , 

Did  my  lady  erer  talk  to  yon  any  lUlM 
her  being  with  child,  or  haring  bad  t  ^ 
during  that  timeP — No,  nerer  a  word. 

Ladies  sometimes  tattc  to  women  iBja^"* 
tuation  ;  had  yon  any  discourse  efvr  wilb^ 
lady  about  baring  children,  and  what owy 
diseouraeP — Yea,  Sir,  ray  lady  •^••IISl 
aha  had  a  ehild,  on  acoonnt  of  n  qanrn  ^ 
had  with  Mr.  Annesley.  ^ 

Pray,  giro  an  account  of  that  faflvf 
dent  toow  how  the  oaaml  hmn;  ^ 
caflM  nn  one  day  nAv  mnnar,  ana  WM' 

i  aakai  her,  wlMt  waa  tin  MMr  « 
t^  fli^  niMLThnllrala  hM»ff 


I9B5]  176SOEGEIL    TnaHmljfmhmikimmJ. 


M. 


jM  fawir  iDM  iMi  LdllMr-^Yfljib  I 


Wlutt  WM  di0r-4Bhe  mi  wbut  we  Mil 

. _•  •  _    _  ».  . 


Wm  11  iMrkniMHtoclMitlMtMnr— 
Yn,  to  frtnli  Ae  roiMMy  and  bmIw  tlw  bedi. 

WlMt  ttoM  did  ihe  wim  to  MfV  m  J>aii- 
naiM  r--Three  or  Ibvr  nooths  Mm«  my  Itrd 

Doru^tke  tfane  tbatyoo  Kfcd  It  DimMdDa, 
UliheaoycllMraDiphiyaeBliBtlM  fiunilyr 
•^HmMmtf  flieepc  tDeweit  to  Um  Itmdiy, 
whntlto  kuHMM  WM  done ia  the bMW,  AIM 
hdpid  tlw  hmndry'inMd  to  waih. 
'  Who  WW  lauiidiy-aMid  ot  thii  'timoF  1 
OMMCtoU,  w«  hod  nfonJ. 

Did  the  diTHrano  war  tkM  boAra  tbt 
■ifMHiin  r--N<s  w«  hod  no  ohiU  lor  hor  to 

ilTHMIOt. 

iMd  yoo  ofor  oeo  a  ohiM  io  the  bondo  or 
«Mo  or  Jooa  LtdBm  while.tho  woo  ot  Doo- 
■ihii  hoooof— Noyoovor,  Ibr  wo  hodao  child. 

Did  yoo  hoow  ono  Bdword  LotwjcbOy  o 
ohoo.onihor  ot  Booif— Ho,  I  don't  luiow  odv 
thteofbia. 

Who*  modo  yoor  1odj*o  ohooo  ot  Rooi?— I 
dhs  «  kaowy  lodood* 

Do  yoo  koow  of  her  bdyioff  oay  thoot 
whikt  oho  lifod  iboior— 1  dooH  noioaBber 
did. 

Whot  oort  of  thoot  did  her  hdyahlp  otoolly 


Of  what  ookwnrf ■■  Sefci'oi  oohwrty  ood  oe- 
vend  poir  of  ohooo,  I  ooonot  tall  whot. 

Do  yoo  reoMoiber  her  over  bcmooking  o 
poir  of  thoet  for  o  liille  boy  ?— Tbot  I  om 
ooro  oho  BOfcr  did. 

Had  tbo  a  pair  of  white  damadE  thoea  at 
Roaa  ? — She  oerer  had,  while  1  lired  with  her. 

Can  you  recollect  what  peraooa  were  pre* 
aent  when  you  taw  niy  lord  come  op  otaira 
with  hiatword  io  hit. hand? — Indeed,  I  don't 
knowony. 

Where  did  yoo  remore  to  firom  Roaa? — 
We  caoie  to  one  Mr.  Corcoagh'a,  in  a  place 
called  Stable-yard,  I  think  they  call  it  to,  in 
Mary'o-lane. 

There  too  came  to  o  lodging  ?— Yea,  and 
boarded  there. 

How  long  did  yoo  atayatthat  honae? — I 
really  canoot  tdl ;  but  from  tbeoce  we  went 
to  ooo  Mr.  Ikioij^'a. 

What  waa  he  ?— An  apothecary  in  Charleo- 


Did  yoo  lod|re  and  board  there  ? — ^Both. 
How  lootr  mi^t  you  atoy  there?—  I  canoot 
tdl ;   from  thence  we  went  to  ooe  Mrt.  Mac 
Mullen'a,  I  don't  know  whet  the  otrict  ia,  I 
think  it  ia  Tesh'e-aquere  in  MDontrath-atrod, 
it  tnma  up  by  Mr.  nUng'a,  and  there  wo 
n  illlo  while,  two  mao&a  or 
toEngland. 
■ocailoet  in  whot 
ir— Yoo,  I  om,  in  *o  vow  irM. 

■llMfcfl 


loakod  ooftftr  other  ladrioflo 
rhoriitapba  tlMNoEoiy, 


r-Vn^'Iwi 


Did  yoo  oeo  the  owMT  of  Umi  hMoM^ 


it 
Do  yon  loooHoet 
Did  yott'  oooM  to  any 

I  gofio  Mra  pitltb  m 

wo  dU awliiEoibo 

her  flo^thot  tho'di 

ohoM  Kfo  «poa  tbo 

the  piatolo  ogoin. 
Did  yoo 


^^dOror,  10  niy  OBOwietweia 
Did  ny  kdy  ever  tdl 
that  panao  r-4f  ▼  W 
her  hfe;  te  my  lady  boom  knew  iBy< 
of.her,liadaofordidanooktohar,to»tf 

Poring  your  hidy^  i oMdwea  ■*ir<Cho| 
nogh'k,  or  Kit^^  or  Mm.  Mm 
ony  boy  rlait  or  woit  «poa  hor, « 
No,  nofor,  MMhoy  Mtdd  wat.  '  -^i 

DU  ony  otfher  pmoM  fo  wM  yn^ 
Weot  to  flot     ' 


I 


yoo  went 

Mguga  F-jQoo  Mr< 


ii 


What 

Didooy 
yooF-^o. 

Did  yoo  oforlMor  M  Booor  ony 
thia  MBM  boy,  thot  yoo  My  wm  ' 
#y%  chaa,  ftoM  the  &00  yoo  Ml 
--No,  I  oeter  troobled  My  hoid  d  . 

Did  yoo  erer  hear  thot  bo  wm  it  fPo" 
lio?— IbadheordlbotMylord  hadMklio||^ 
but  I  know  nothing  of  him. 

Do  you  know  whether  my  tord  AMoo«> 
alive  when  yoo  went  to  iMiglaod?-4  hM 
he  WM  ahre. 

Had  you  any  accooot  oAerwaiditfli 

death?—!  had  a  letterftoM  Mia.  Mmm 

len,  giving  me  an  neeooot  thot  ha  4il  *• 
Wbatwaa  the  purport  of  thot  leltw?-J bo 

the  letter  io  my  pocket.* 

Did  yoo  oommooicatd  that  aciautt  ^  f^ 
lady?-ll  went  directly  and  ahewol  brW 
letter. 

How  lOon  after  yoo  rooeivod  thii  hM^ 
it  that  you  gave  her  the  nooooat  ?— 1  o^*i 
ractlT  and  ahewed  the  letter  to  her.  . 

What  happened  upon  that?  Did  nQM^' 
make  any  reHectiono  opoo  thatafiirf-*| 
aaid  oothing  at  aU.  , . 

Had  yon^  lady  any  fbrtoM  coMi  i>  M 
upon   the  death  of  her  bothaail  ?-^  *; 
ostato  went  to  the  loto  lord  Ai 
having^  a  jointore  nettled  opoo  her 
OhiM,  the  Abham  ealato  wotthi  hare  eMt 


h 


\ 


I 


urn 


«  Acoordiog  to  the*  Trial  ot  Bat*,  A»^ 
wiONM  piodoood  tho  letter  aad  oibai  « 
it,  hMphMintcooaaol  aljBfltad  tolbti* 

^0* 

lofilMaidr 


■  / 


Tl 


mnd  Richard  Earl  ifAngluea. 


A.  D.  1743. 


[1S93 


id  roy  lady  know  that  this  estate  went  to 
earl  of  Aoglesea? — My  lady  told  it  me, 
Ise  I  should  not  have  known  it ;   1  had  all 

knowledgre  of  it  from  her,  otberwiae  1 
lid  not  have  known  it. 
^hen  was  it  yon  had  that  disconrse  ;  be- 
,  or  after,  m^  kird's  death  ? — Both  before 
aeoonot  of  his  death  came,  and  after, 
^id  yoQ  acquaint  my  lady  Altham  of  the 
port  of  that  letter  P— I  directly  went  up 
^^  and  shewed  her  the  letter  as  soon  as  1 

read  it. 
Vben  did  my  lady  Altham  die? — Slie  died 
October,  17 S9  ;  she  has  been  dead  fourteen 
rs  last  October, 
lad  my  lady  any  account  how,  and  where 

Isrd  was  btiried,  and  any  circumstances  re- 
igto  it? — No  more  than  what  is  in  this 
ir. 

Kd  obe^  into  monrning? — ^No,  she  made  no 
irnin§f,  she  was  in  mourning  at  that  time. 
Fhat  sort  of  mourning  ? — A  Norwich  crape 
;  she  had  had  for  my  lord  duke,  and  which 

made  a  night-gown  of  when  king  George 

first  died. 

ITere  there  any  further  particulars  in  the 

er  ? — She  told  in  the  letter,  that  roy  lord 

f ,  and  was  miserably  poor. 

Iki  you  communicate  the  whole  contents  of 

.  letter  to  lady  Altham? — Yes,  I  did. 

lad  she  any  disconrse  with  yon,  or  did  she 

Ke  any  obserFations  toucbinji^  any  part  of 

contents  of  that  letter  ? — 1  do  not  know  any 

u  that  she  said  :    she  took  no  notice  of  it, 

wbm  read  che  letter  as»  well  as  f  • 

Vas  there  any  conversation  between  you 

Pit  nay  other  person  mentioned  in  that  letter 

<ics  m?  lord  her  husband  ?— No,  she  made 

reflection  upon  it,  nor  said  any  thing. 

lad  my  lady  any  maintainonce  or  allow- 

e  from  my  lord  af>er  their  tcparation  ? — 

my  lord  net  er  sent  her  a  farthing. 
Vho  supported  her  then  ? — My  lord  dnke. 
i^hat  allowance  diil  he  p?e  her? — ^There 
•  1,900/.  rcmaiiuler  of  her  fortune  in  the 
c's  hands,  for  wltich  he  allowetl  her  80/.  a 
r,  g^f  e  her  30/.  a  year  more,  and  when  he 

I  \ki  her  100/.  a  year. 

^  you  know  a  gentleman  whose  name  is 
Q  K[ercher?^-He  was  once  with  me. 
hould  yon  know  him  no^<7  if  you  shonM 
him?    Look  about. — That  is  the  gentle- 

I I  am  sure  (pointing  to  Mr.  Mac  Kercher) ; 
old  me  his  name  was  so. 

lad  you  any  acquaintance  with  him,  and 
^  did  that  acquaintance  commence  ? — He 
le  to  roy  house,  I  liye  in  8t.  Andrew's  court, 
(bora,  and  he  came  there ;  there  is  the  di- 
Lions  he  gave  me  to  find  a  gentlewoman, 

I  put  the  day  of  the  month  upon  it  that  he 
(  with  me.  It  was  the  ISth  of  April,  1749, 
lie  said,  one  of  captain  Brisco's  daughters 
I  m  town,  and  told  me  her  name ;  and  he 
Am  his  name  upon  it,  that  I  should  not 
fBtit. 
ire  you  certain  he  wrote  it  ?— He  wrote  it| 

I  Mw  bira  write  it. 

^OL.  XYII. 


Whit  pttsed  between  you  at  that  visit  ?— - 
When  be  first  came  in,  he  was  a  stranger  to 
™^»  li^ggr^  ™y  pardon,  and  said  he  came  to 
ask  me  some  questions  about  my  lady  Altham, 
Whether  she  had  e? er  a  child  ? — rtold  him. 
She  never  had  one  while  I  lifeil  \%itli  her,  I 
couk)  take  my  oath.  Then  he  told  me  how 
this  Mr.  Annesley  was  rei^mmeiided  to  him 
by  two  lieutenants,  one  of  tbeir  names  was 
Heutenant  Simpson,  bnt  the  other  I  do  not 
know  ;  and  then  he  tokl  me  how  he  came  to 
him,  and  that  be,  Mac  Kercher,  gave  him  ten 
guineas ;  and  then  Mr.  Annesley  told  him  he  had 
no  lodging,  and  did  not  know  where  to  get  one. 
He  said  his  house  was  small,  but  if  he  would 
lodge  with  him  he  might,  he  should  be  wel- 
come, and  took  him  in.  He  then  shewed  me 
a  list  of  the  servants  names,  and  my  name  was 
crowded  in  at  the  top,  and  I  laughed  at  it. 
There  were  sereral  names,  some  that  I  did 
know,  and  others  that  I  did  not ;  there  was  Mar- 
tin Nieff,  and  Charles  Magher  the  butler  after 
Rolph  went  away,  and  there  was  Juggy  liaf- 
fan ;  and  with  that  I  said :  What  can  she  know 
of  this  affair  ?  Why,  says  he.  Madam,  she  says, 
that  she  saw  old  parson  lioyd  christen  it ;  I 
suppose  yovL  know  him,  madam  ?  Aye,  says  I, 
I  knew  him  very  well,  hot  I  cannot  think  how 
she  can  know  any  tiling.  Why,  says  he,  she 
says  she  came  to  Dunmaine  about  a  quarter 
of'^a  year  after  my  lord  and  hdy  came  from 
Dublin.  So  she  did,  says  I,  but  that  was  the 
kttt  time  we  came  down  from  Dublin.  He 
then  thanked  me  very  kindly,  said,  he  was 
very  well  satisfied  with  what  1  had  told  him, 
that  he  would  go  home  and  wash  his  hands  of 
them,  and  turn  them  all  out  of  doors,  and  would 
not  for  a  thousand  pounds  that  he  had  not  seen 
me ;  for,  says  he,  if  yon  were  dead,  my  lord 
Anglesea  \vould  lose  his  estate  and  title,  as 
sore  as  you  are  aliTe,  there  would  be  such 
bloody  swearing.  Says  I,  Sir,  I  arn  sorry  yoa 
have  been  so  imposed  on,  for  I  assure  you  my 
lady  had  not  a  child.  He  said,  Madam,  for 
what  1  have  been  at  the  charge  of,  I  do  not 
value.  And  I  told  him  farther.  Do  you  sup- 
pose. Sir,  if  my  lord  and  lady  had  had  a  child 
bom  to  such  an  estate,  that  they  would  not  have 
him  registered  ?  He  said.  That  they  lived  in 
a  country  parish  where  no  register  is  kept,  and 
could  not  have  it  done.  But  I  told  him  again, 
could  he  suppose  if  they  had  had  a  child  born 
heir  to  sadi  an  estate,  that  they  would  not  have 
had  his  birth  registered  ?* 

*  It  appears  from  "  The  Trial  at  Bar,"  &c. 
that 

Mr.  Harvard,  connsel  for  the  plaintiff,  ob- 
jected to  Mrs.  Heath's  evidence,  with  respect 
to  Mr.  M'Kercher's  declaration,  that  it  was 
not  proved  he  made  those  declarations  by  Mr. 
Annesley's  order ;  and  though  it  was  admitted 
Mr.  M^Kercher  was  now  an  agent  for  him,  yet 
the  Ofrinion  of  an  a^nt  was  no  evidence  against 
the  principal ;  which  the  Court  admitted,  and 
said,  the  jury  were  not  to  take  notice  of  those 
declarations  as  evidence,     Mr.  Harward  de- 

40 


1807] 


17  GEOEGE  11.    Trial  in  lifecttneni  behoem  J.  Amedegf  eif. 


■oIkiioiw.Mj  Bl««iifftiNi;  whit  lady  Blet- 
nogtOD  do  yoa  omn  r  Th«re  wm  one  capt. 
Boyle,  I  lw?e  oecii  bit  UAj. 

Sbe  isibe  lady  I  ii^ean ;  did  yoa  Ofor  see 
Imt  Tint  lady  ihbMnP— I*  am  wife  I  liare 
neirerseen  ber. 

Do  you  remember  ooe  If ra.  Pfggot  P«— Yea. 

Did  she  risit  lady  AHham  ?— Yea,  ahe  did. 

l¥aa  there  ao  intimacy  in  the  family  P — Sbe 
viaitedua  more  in  Rbaa  than  at  Donmaine. 

Did  Ae  nui  my  lady  at  Donmaine  fire- 
qoently  P*-She  did,  but  not  often. 

Where  did  von  dine  the  day  of  Falliaer's 
affair? — Nowhere. 

Did  you  get  any  thing  to  eat  when  yoa 
came  into  Rosa  ? — I  know  we  had  aome  tea 
there,  1  cannot  tell  whether  we  had  any  thing 
cue* 

« Did  yoa  eat  nothing  elae  that  day  P — I  cannot 
tdl,  for  there  were  none  hot  the  aerranta  there. 

Did  not  crowds  gather  about  to  aee  my  lady 
come  into' RoaaP^There  waa  a  crowd  of 
peoplOy  bat  it  waaao  dark,  I  coald  not  aee  who 
they  were. 

Waa  it  dark  when  yoa  left  DanmameP — It 
waa  duakiah  when  we  left  Dunmaine,  but  it 
waa  dark  wheo  we  came  into  Roaa. 

What  happened  upon  the  quarrel  between 
my  lady  aiio  captain  Annealey,  (Kd  he  leare 
the  booae  opon  it  ?<^Not  immedntdy,  but  he 
ntf  er  came  op  to  dine  with  my  lady  after. 

Did  they  never  come  into  company  at  Dun* 
■Mine  aftor  P«— They  nerer  did ;  my  lady  aent 
Ibr  him  the  next  day  to  come  up  to  dinner,  but 
he  would  not ;  ahe  then  aent  to  know  if  he 
would  hare  aomething  aent  down,  and  he 
would  not. 

Did  he  erer  come  to  dinner  after  at  Dun- 
'  maine  P — Not  up  stairs  into  the  parlour. 

Did  he  ever  come  to  Dunmaiue  after  he  left 
it  while  my  lady  waa  there  ? — He  nerer  did. 

When  was  it  they  firat  met  after  this  quar- 
rel P— When  we  came  to  Dublin  afterwards ; 
when  we  came,  ray  lady  took  a  chair  to  Mrs. 
Vice'a,  and  she  met  Mr.  Annesley  in  En^x- 
atreet :  he  said,  Your  serrant,  my  lady  ;  yuur 
ladyship  is  welcome  to  town  ;  and  atWr  that 
he  came  to  Mra.  Vice's. 

Do  you  recollect  what  month  that  was  in  P — 
It  waa  riolent  hot  weather,  I  believe  iu  July, 
for  it  could  not  be  a  month  before  the  queen 
died« 

Do  you  know  one  Mr.  Hussey  P— I  do 
know  him. 

Did  you  see  him  at  your  house  in  London  ? 
—I  did. 

Did  you  ever  discourae  with  him  relating  to 
this  affair  P — Yes  ;  and  told  him  aeveral  times 
that  my  ladjr  had  note  child. 

What  Mr.  Husaey  is  this? — I  know  nothing 
but  that  he  was  an  acquaintance  of  an  ac- 
quaintance of  mine  that  brought  him  to  my 
house. 

Did  not  yoa  tell  Mr.  Hoaaey  that  the  plain- 
tiff waa  greatly  wroiml,  antf  that  joa  knew 
more  of  that  affair  than  any  bo^^Noi  kj 
the  virtno  of  ny  otlh|  Vmfnr  dkl. 


Did  not  you  see  Mr.  floasej  st  ji 
when  the  report  waa  that  this  Mr. 
waa  on  board  the  fleet  with  adminlV 
Indeed  I  do  not  know  what  time. 

Pray  recollect  yourself.  I  wk 
not  this  immediately  after  that  Mr. 
was  on  board  Vemon'a  fleet? — 1  do 
what  time. 

Waaita  month  after  you  heard  I 
•—I  do  not  know  indeed. 

When  was  it  you  firat  heard  th 
—The  first  time  1  heard  of  it,  I  h 
be  three  years  next  January. 

Who  first  informed  you  orit  ?— T 
of  Buckingham  sent  her  woman 
could  not  think  what  ahe  could  w 
said  nothing  to  her  woman,  but  wei 
and  when  1  came,  and  went  up  sta 
down,  her  woman  was  the  first  thai 
it 

Waa  it  not  immediately  after  thai 
John. Hussey  came  to  your  lodging 
not  (ell  what  time  he  came. 

la  it  three  years  ago  since  he  a 
you  P— I  believe  it  is  three  years  i 
cannot  tell  what  time. 

Waa  it  not  two  jrears  ago  P — I  bai 
aeveral  tiroes  within  these  two  yeai 
had  the  discourse  about  this  plait 
times. 

Was  it  two  years  since  you  saw  I 
Yea,  it  will  be  two  yeara— I  cano 

Waa  it  before  the  duchesa  of  B 
sent  for  you  P — No,  I  knew  nothing 
duchess  sent  for  roe. 

What  state  of  health  was  lady 
when  she  came  to  Dublin  from  i 
was  lame. 

Was  not  sbe  troubled  with  a  deai 
cannot  call  it  a  dead  palsy. 

Did  not  that  disorder  deprive 
limbs? — She  lost  her  limbs  by  that 
came  by  degrees ;  but  when  she 
Ross,  she  could  go  about  with  bold 
hand. 

When  she  went  to  London,  wbi 
she  in  ?— She  had  lost  the  use  of 
she  could  not  stand ;  when  I  first  n 
don,  with  one  hand  I  could  lead  he 
room,  and  then  with  both  hands,  a 
at  all ;  I  was  forced  to  put  her  in  : 
wheel  her  about. 

How  did  sbe  come  by  that  diso 
deed  I  cannot  tell. 

Did  not  that  disorder  come  on  hei 
was  a  report  that  she  had  a  child  i 
The  disorder  began  at  Ross. 

Was  there  any  report,  that  you  k 
lady*s  being  with  child  ? — Yes  th« 
port  before  I  lived  with  her ;  J  heai 
thing. 

Was  there  apy  such  report  afte 
to  Uve  with  her? — No,  I  donotkna 
there  waa  at  any  time  after  I  caoM 
her. 

Waa  not  ahe  bed-riddeo  of  ydii 
Ibra  ber  death  ?—N0|  ake  Mf«  VI 


^  jP 


IQ  end  Hkhard  Earl  ij  Angli 

KS  oolslie  iin|Hiirptl  iQ  lier  sense*? — No, 
lanr  was;  tht  wm  wrII  in  her  chair  tbe 
,  Wnre  liir  deitUi,  ■nd  the  touk  a  fit,  and 
lit  lier  tu  beij,  oail  she  died  Iht^  next  niglil, 
ill  lh«l  lime  she  liaJ  ber  leuses  as  perfect 
ay  body  in  the  coutt,  and  I'oulil  mauage 
fT  affain,  lur  1  oever  kept  any  BccounI  I'nr 

mm  not  lliitt  lUOf.  a  year  lell  lier  by  tbe 
ta  (vue  utKio  ibe  Ueatli  ut'  niy  lord  Al- 
1  ?— Yes,  ii  *Bi. 

Bw  was  kbe  supportnl  tben  to  ber  deaib  ? 
ICBiue  my  laJy  duubeis  ^nve  ber  100/.  a 
I  br  Ibe  interest  o(  Ihc  1,^1)0/.  ifker  the 
•f  dratb. 

«  liave  vou  lifed  aiiice  tbe  death  ol' 
illtbamr— In  ilie  bouse  I  now  lire  in. 
'     '     M  do  you  fullowT — I  take  in 
ork,  and  I  have  some  inoDcy  at  interest. 
U  wasbcr-womaii':' — No,  1  aiu 

attiroedid  tbe  dukeomiickiDgbamdief 
Hknoiv,  Ue  was  denil  Mnrc  luy  lady 
illu  Hii^luiiJ,  lie  W8)  dead  bel'ure  pte 

Mtil  your  pi'csent  way  nf  living  f — I  have 
terctt  ot  Bome  money  Icl't  me,  Kud  I  take 
^■irotk,  DDd  elear-itarcbiag ;  my  dau^h- 
id  llive  Itigelber, and  webaie  iheiotereat 
_Ml  700/.  bcitveca  us,  but  llie  greater  part 
jil  my  daugbio 'I. 

KWagf  about  eight  o'l-loch  at  Dig b I,  Ibe 
nfcy  llie  like  finsenl  as  usual,  sig^iied  by 
pnws  and  rrnil  in  u|>en  court,  adjourned 
■  next  morning  ii  ten  ol'ihe  clock.] 


1  Saturday,  NaveiaUr  19,  1743. 
%t  Ceart  being  met  at  ten  o'clucb  in  Ibe 
rt>K,  according  to  adiotiriiaient.  the  jnry 
|k  calM,  and  answered  In  llieir  names,  and 
like  enunwl  Inr  the  deTtndani  pnicceiled  to 
Wm  Ibcir  wi[ne«sei  as  tiilluws. 

Soierl  Kin);,  one  of  the  .Aldermeli  Ol'  the 
City  1)1  Dublin,  swoni. 
,  be  knew  ibe  laic  lady  Aliliam ;  that 
ne  to  lodge  at  dsponenl's  bouse  in  June 
il  Ihatsbe  bad  a  woman  and  a  roolman 
(ad  her,  and  Ibat  niie  Mrs.   Ilcalh   was 

C~0inau  1  sayi,  she  lodged  and  dieted  with 
nU;  sayt,  he  never  heard  her  say  sbc 
•  MB  ;  that  sbe  wai  almoal  every  day  at 
tuni'a  table,  and  deponent  ticquenily 
nl  her  luniriil  ber  minlortunes,  but  never 
ti  her  lalk  i>(  a  tou.  Being  tiBl>ed  if  il  was 
mal  ihat  ihe  bad  a  son;  tays,  he  caouol 
ilfllwurniuled  that  she  bad  a  son,  hut 
MM  that  il  ihe  had  had  am  tbe  wonbl 
■  tnvnlioned  il;  and  oi  dt-|ionent  never 
Td  !••  r  Nik  vf  lirr  liavini:'  ime,  ii  indnced 
>'!  bud.  Say*,  ftlra.  Heath 
.1  >vhde  in  di^iionsnt't  bouie ; 
■rtoie  lible  wuh  my  lailj, 
I  iH-d  i  and  bullevea  nhe  wa* 
BeingBikiidif  my 


lady  was  a  aickJy  w 
to  be  impaired  m  t: 


A.  D.  I74S.  [1310 

1  ir  bIic  aeefned 
ipaired  In  ber  understandine;  saja, 
sbe  liad  a  paralytic  disorder,  but  ihat  it  da* 
not  alTect  ber  understanding.  Being  asked  ' 
he  ever  saw  a  child  tisil  ber  while  at  bis  bonni 
Mys,  he  never  did,  unr  did  be  ae<t  any 
visit  her  but  one  Mrs.  Mears. 

[TJie  counsel  for  tbe  defendant  baTing  iske)] 
those   for  tbe  plnintilT,   whether  they  »oi" 
cross-examine  Mr,  Alderman  King;  Mr.  lli 
ward  answered,  Tbatifihev  n 
quaiated  will)  nil  tbe  defeudant's  witnesses 
thvy  were  wilh  Mr.  Alderman,  they 
not  cross  examine  any   at  Ibetn.    Tl; 
Chief'  Baron  observed,  that    the  counsel 
both  aides   were  very    polite  gentlemei 
morning,  and  wished  ibis  understanding 


ElUabeCh  Doi/U,  otherwise  Mallpy,  sworn  i{ 
Ihe  Voire  Oire,  and  then  in  ubief. 
Saya,  her  maiden  name  was  Ooyle,  bu 
now  Molloy ;  says,  she  knows  Dunniaine  vi 
well;  that  sbe  wsB  hired  in  Uubhn  d 
vanl  to  my  lord  and  lady,  and  lived  with  lliH 
there  uboul  thirty  years  ago,  lo  the  best  ul'  b 
knnnledee;  that  my  lady  came  toDnnmaii. 
on  tlieCbristniaB-eve,  in  1713,  and  depoaefl 
was  Ihere  the  night  before ;  lays,  the  conlinita 
iu  the  service  about  a  year,  and  was  laundry 
maid;  Ihul  sbe  married  nut  of  the  family,  and 
lircd  eleven  years  at  DuumHine  afler  my  Ion' 
and  lady  leA  il ;  says,  thai  my  lord  came  ' 
deponent's  cabbin  one  day  (after  ibe  had  I 
the  service)   as   he  was  bunting,  and   ask 
deponent    it'    sbe    would    dry  nurse    iugay  I 
Landy't  child ;  that    she    told    my  lord    Si*   I 
would  dry-nnrae  a  child  far  bis  lordship,  bvtV 
uol  fiiT  Juggy  Landy  ;  says,  thai  this  diseouns  J 
wai  after  my  ladv  came  to  Dunmaine;  sayif;^ 
she  saw  the  child  when  be  was  about  a  ynanj 
old;  that  Juggy  Landy  was  with  child  nba 
de|)onent   was  ib   the  service,   and   sbe  w; 
brought  tu-bed    about    May,    after  depone 
vaine ;  says,  my  lady  lived  ai  Duomaine  abo_ 
three  yeara,  Lllsbe  and  my   lord  parted  ;  ibaf^ 
this  waa  a  good  while  after  deponent  left  tl 
service ;  says,  deponent  waa  lo  have  lakeii  tl 
child    into  her  own   bouse,  lo   dry-nurse   itM 
Being  asked  bow  old  ihe  child  waa  when  njl 
lord  apfdied  lo  deponent ;  says,  she  cau 
Being  asked  wbnl  sbe  means  hy  dry-n 
says,  she  inesni  to  take  care  ol  a  child  alteTlj 
comeabome (Von)  the  nurse;  tbainoi 
child  of  six  years  old  is  dry-nuised.     B«ia| 
asked  if  she  ever  knew  of  my  lady's  beifl| 
delivered  of  a  child,  while  she  was  i:    '* 
vice;    says,  sbe  never  knew  uor  e 
il ;  Ibat  if  my  Isdy  bad  bad  a  child,  sbe  won 
not  liave  conccalud  it,  for  ihat  sbe  would  hu 
been  proud  of  il,  for  dc|ioneDl  has  heard  h 
aay,  ahe  wished  tu  liave  a  sou  or  daughM 
Being  asked  if  she  temembi-ts  any  cbrislenia| 
at  UuDinaiue  honiw,  or  atiy  r^oicings  on  thi 
——lion  while  she  was  there ;  aays,  she  dM 
remember    au5»  abiiAcM^,  —    ~~ 


1311]  17  GEORGE  II.     Trial  in 

kcard  of  uij  ngmdng*  tfae»  on  mj  meh 


[CroH-e»miDed.] 
Bciog  askw)  if  she  ii  lurs  (be  heard  luly 
AhlMin  uy  tbe  would  be  prsud  of  baruir,  or 
wiiliedlohaveacbiU;  ■ayB,iibflneTeri)urbeu' 
her  say  eo,  but  knows  ihe  would  btve  beeo 
pnind  of  barins  ■  child.  Beiug  asked  if  ahe 
crer  heard  tady  Attham  My,  she  bad  a  child  ; 
•ay«,  ahe  never  did.  lieing  asked  when  it  wsa 
my  lord  *pi)lied  to  her  lo  dry-uurte  the  child  ; 
■aya,  the  canoot  tell.  Lot  taya  she  hsa  dry- 
nnned  cfaildcen  al  teo  years  old.  Beioc-  a&ked 
if  she  knowi  Mr,  Juna,  and  Blr,  Keily  ; 
■aya,  she  knoifs  Mr.  Jaot,  but  not  Mr.  Reily. 
Being'  asked  if  she  knowa  one  David  Howlel ; 
nya,  abe  doea  not.  Being  asked  if  gIk  never 
hfd  any  discoune  with  any  one  about  my  lady'a 
batiog  a  child,  aod  that  if  she  did  not  My  Ibat 
my  lady  had  a  child  ;  aays,  ahe  does  not  know 
ol  any  aach  diicourse,  or  that  she  ever  aaid  my 
lady  had  a  diikl.  Being  a^ed  if  she  evir 
aaw  lady  Altham  after  the  left  Dunmaine ; 
saya,  ibe  lavr  her  at  Ron  and  in  Dithlin. 
Being  aaked  if  ahe  waa  never  married  before 
akfl  married  Molloy  ■,  says,  she  was  married  to 
one  Byro.  Being  asked  how  long  it  traa  stln 
b«r  marriage  llial  my  lord  ■pplied  to  her  to 
dry-uurte  the  child;  saya,  slie  cannot  tell: 
■Lys,  my  lord  was  un  horae-beck  wbeo  he 
■pokeloDcr;  saya,  ahe  baa  forgot  the  scrvanta' 
namei  that  lived  in  the  family  when  she  waa 
there ;  says,  her  husband  waa  a  farmer  and 
joiner,  and  paid  IS  or  10  pouuda  a  year  rent. 

Marlia  Ntife  sworn. 
Says,  he  koew  my  lord  and  ta<ly  Allham 
very  well,  and  know*  Dnnmainc  in  thf  cuuiity 
of  Wexford  very  well,  that  lie  livi-il  there  u 
yearbeforemy  lailycame;  that  he  na<i  smith 
and  larrier  (o  ray  lord,  and  he  bnn);bt  luuls  lor 
deponent,  and  built  him  a  t<>r-,'e.  SavR,  bt:  CM 
and  drank  in  the  boose,  anil  slein  iip-slsirs, 
and  lived  there  all  my  lady'a  lime,  but  was  Kirk 
three  monlhi,  and  waa  tlien  at  tints,  and  in 
Thomas-towD.  Being  askcJ  what  time  nf 
Ihe  year  he  waa  aick  j  am,  lie  cannot  tell, 
that  he  is  no  schuhir,  •nu  could  not  keejt  an 
acconnt  of  it ;  says,  my  lady  nas  ni'ar  a  year 
in  the  bouse  before  he  fell  aick.  Bein^  asked 
if  he  remembers  the  day  my  lady  Allham  dc- 
parteil  from  Dunmaine  ;  says,  he  does,  fur  that 
he  went  with  her  to  Uoaa.  Being  asked  liuw 
loDg  it  was  al'tcr  his  sickness  that  my  lady  Al- 
lham went  to  Hosi ;  says,  he  caauot  tell. 
Being' asked  u  hat  time  «l  the  year  it  was  he 
came  hotue  after  his  sickneaa ;  believes  it  was 
about  the  b(>i;innitis  of  winter,  hut  before  my 
lady  went  away.  Uein<;  asked  how  Inni;  my 
Udy  continued  lit  Dunmaine;  iiaxi.  my  lady 
came  (o  Dunraniiic  a  day  or  lu  ■^  )>eti>re  (  liriat- 
maa-day,  and  stuidlhiie  till  ulnml  (  Iiiistmas 
IbrM  yeera  alW,  and  to  the  Candleiiius  ful- 
lowiog.  BeinE  asked  if  he  did  ever  xee  a 
ehihl  at  the  Imusc  of  Uunmaine;  savs,  be 
SMW  uw  •  chilli  there, %tit  a  bai.lii  d  'son  of 


Ejectment  MueeH  J.  Aiuudty,  itq.  [ISII 

Joan  Landy's,  who  was  broufbi  Aite'a 
about  two   Rianths    aller    ny  lard  ai  h^ 
parted,  and  that  be  aaw  him  *<ib  *jm 
three  years    alter  the  teparali«n;  tW  at 
little  time  ader  my  lady  weal  airajF,  tktiill   v 
was  taken  into  the  house.    Boa; tdkd^   i\ 
were  the  aefvants  there  in  hia^ine;Hj«,h    ii 
Taylor  was  the  head  man,  AnlhoDj'I^*   ii 
tended  my  lord,  and  waa  ffentliBan  II  |a    * 
when  deponent  came  to  Ine  bo*e.  Bif 
aaked    who  was  my  lord's  gentlctnn  Ilk 
lime  of  taking  the  ebild  into  ibe  hen~ 
there  was  one  Kennedy,  who  also  itt 
my  lord,  botdepuDCiit  wp  not  pMtivtita 
ther  Kennedy  or  Dyer  waa  lliea  mj  '""^ 
gCDtleman,  but  one  of  them  wai  gniln — 
him  at  that  time.     Bein|[  asked  whemp    ■ 
lleman  after  Dyer  to  my  lord;  atji,  kib    >' 
lieved  Kennedy  was.    Beiitg  asked  if  bii 
saw  Joen  Ln*idy,  when  she  was  with  ibll;*^ 
he  did,  and  saw  hercbild  twentylinmiib  > 
arms,  when  abe  used  to  come  atwut  ftci^ 
of  Dunmaine,  and  especislly  when  njW 
was  abroad,  she uiied  to  come';  forahaH^V 
ask,  Is   ray  lord  abroad?     ile  oOniKvlf 
come  in  the  back  [lart  of  the  house,  whnik 
force  was,  to  get  aomething  to  eataalM^ 
ana   ahe   received   meat  and  drink  itmUl 
butler,  called  Thomas  Ralph.    Bristriri 
if  she  ever  nmsed  a  child ;  says,  ^  ~ 
nuned  a  child  except  her  own,  while  il 
ponent  waa  in  the  country.     Being  uka 
attended  the  child  when  it  was  brougk 
the  house  ;  says,  the  dairy-wonMD  ata* 
calUd  Black  Kale,  and  the  child  wu  *■ 
wards    brought  lo  Kinnay,  in  the  eoiBii 
Kildare,  when  my  lord  went  to  live  ibot,  J 
the  de|ioneTit  saw  him  therewith  mybrt,  J 
it  was  ^e  same  child  that  was  at  B""^ 
that  the  deponent  caw  at  Kinnay.  Beinfri* 
if  he  ever  saw  that  same  child  in  Dublisi^ 
he  did,  that  lie  saw  that  same  child  U  CiAp 
Utcc'n,  playing  among  the  Iny* ;  moM  <f >|| 
hojs  «ete  slioc-hoys;  that  hewasBfiihir'* 
dud,  Dor  had  shoes  nn,  nml  de|ioi>pnt  kha 
niy  lord   lived  at  that  time  in   PnIK^■■l 
lleing B-.l,ed  whethir  it  was  the  Hfx^* 
saw  in  Kinnay,  that  he  saw  in  Coll»geCr«« 
aays,  it  was  I'se  same  boy.     Being  i*'"'*'^ 
ther  he  saw  the   same   hoy  at  CinicW* 
saya,  lie  docs  not  know  CarrickdulT.  f 
obked  how  old  the  boy  was  when  lirn* 
at  Kinnay;  says,  bclweeii  foor  and  fiir) 
to  the  best  of  his  knowleilge.    Sup,  hn^ 
saw    the  hoy  siuce  he   saw   him  it  C«^ 
Green  ;  that  he  doe*  not  think  he  ronU  b* 
him  now,     Saya,  he  believes  my  lord  "l*"^ 
Dunmaine  two  years.    Being   "'"l  "Ijl 
child  was  the  boy  rf^putud  to  be  it  Ki»^i 
sajs,  lie  waa  then  rqmted,  by  ettTj  *J 
Ihe  servauts,  a  bastard  sou  of  Jonn  Uigj 
and    whenever  he  did  eraiss  mj  lor^  J*J 
Imve  him  nhlp;ied  ;  and  deponenl licinj 
!ui'd  once  say.  Damn  the  hisianl,  be  *'|'^ 
be  ^ood,  bccauito  be  had  JnggV  l"*^J''j!5 
inbim;  says,  mylonl  »hipii«[tb*koT«'2 
limn,  aud  used'to  aav  the  aaiiMtUfi'' 


5J 


and  Richard  Earl  ofAf^leseam 


A.  D.  1748. 


[1314 


liiin  a  bftitin] ;  and  my  lord  desired  the 
K  to  be  let  at  the  mother,  if  the  called  at 
caaj.  Being  asked  how  was  Joan  Landjr 
loyed  when  she  was  in  the  senrice ;  says, 
^ras  kitchen- maid  under  Forster  (the  cook), 
she  left  the  house  because  she  was  with 
I .  Being  asked  if  he  ever  heard  of  any 
I  being  christened  in  Dunmaino  bouse 
c  my  lady  was  there ;  says,  he  never 
Being  asked  who  was  my  la(i)r*s  woman  ; 
9  one  Mrs.  Heath,  and  nobody  (as  depo- 
;  knows)  attended  my  lady  but  she,  and  he 

at  Dunroaine  when  my  lady  came  there, 

before  it ;  but  can^t  tell  who  came  with 

ladyship  to  Dunmaine.  Being  asked  if 
ras  m  the  house  the  day  of  the  separation 
ay  k>rd  and  lady  ;  says,  he  was  tliere  at 

time ;  that  it  was  on  a  Sunday.  Being 
<1  if  he  could  tell  the  occasion  of  it ;  says, 
lord  called  him,  and  all  the  men  servants 
ae  house  up ;  that  my  lord  appointed  to 

at  one  Bennet's,  but  he  did  not  leave  the 
I  of  the  town  before  lie  returned  ;  that  the 
»aent  met  his  lordship  going  up  stairs  with 
i*awn  sword  in  his  hand,  and  asked  him 
rvB  be  was  going  ;  and  my  lord  ordered  the 
»ttent  to  go  alonff  with  him,  and  presently 

deponent  heard  the  hue  and  cry  in  the 

n ;  and  afterwards  the  deponent  went  with 

lady  to  Ross  at  night-fall ;  my  lady  de- 

ii  it  might  be  late  going  info  Ross  ;  says, 

nobody  was  with  her,  but  Mrs.  Heath  ; 

the  deponent  was  by  when  my  lady  went 

a  chair,  and  it  was  a  four-whceleif  chair, 
ae  best  of  his  remembrance.  Being  asked 
sere  was  any  child  brought  to  my  lady  to 

chair  to  take  leave  or,  as  she  was  going 
-y ;  says,  there  was  no  child  brought  to  her 
ike  leave  of,  and  the  deponent  saw  never  a 
il  there;  the  child  called  Jemmy  Landy 
with  his  nurse  that  day.  Being  asked 
*  was  his  nurse;  says,  Juggy  Landy  his 
lier  was.  And  being  asked  why  he  called 
bis  nurse ;  says,  because  he  saw  her  nurse 
9  and  if  he  did  not  call  it  right  it  was  be- 
ac  he  was  no  scholar.  Being  asked  what 
il  was  brought  to  Dunmaine  house ;  says, 
Sy  Landy *&  bastard  by  lord  Altbam  was 
ight  to  the  house.  Beinjf  asked  if  he 
«v  Joan  Laffan ;  says,  he  did :  she  was  in 
bouse  before  my  lord  and  lady  parted,  and 

in  the  house  after ;  she  was  there  in  the 
Mm  of  a  laundry- maid  or  chamber-maid, 
tig  asked  who  visited  my  lady  at  Dun- 
pe ;  says,  capt.  GifTard  and  his  lady,  capt. 
«rd's  brother  and  his  lady,  and  one  Mr.  f 
ftcs,  who  used  to  come  there  oflen,  and 
-t  with  my  lord  ;  says,  he  believes  his  name 

William  £lmes.  Being  asked  did  he  ever 
w  Joan  Laffan  attend  any  child  there ; 
I,  he  never  knew  her  to  attend  any  child  at 
oroaine ;  he  knew  the  child  used  to  sleep 
1  black  Kate,  while  Joau  Laffan  was  in 

house. 

[Cross-examined.] 

Idog  asked  if  he  lit  ad  with  my  lord  all 
VOL.  XTiL 


the  time  he  waa  at  Kinnay  ;  savs,  he  did  not 
live  with  my  lord  at  Kinnay  all  the  time  he 
was  there ;  he  staid  there  for  some  little  time, 
from  thence  he  went  to  live  at  Kildare.  Being 
asked  how  long  he  lived  in  Kildare ;  says,  he 
could  not  exactly  tell,  but  believes  he  lived 
there  30  or  21  years.  Says,  he  removed  with 
my  lord  to  Kinnay  ;  they  were  a  year  at  Bal- 
lysax  before  they  went  to  Kinnay  ;  mv  lord 
went  to  Dublin  after  the  separatiou,  and  can't 
tell  how  long  after  he  came  thither ;  but  he 
went  after  to  Dunmaine.  Being  asked  when 
was  the  child  taken  into  the  house  ;  savs,  he 
was  taken  into  the  house  of  Dunmaine  before 
my  lord  left  the  country,  that  the  child  was 
very  ill  dressed  then,  that  his  cluthes  were  not 
worth  6iz-|)ence ;  he  thinks  they  were  some 
old  things  that  were  made  into  clothes  for 
him  ;  believes  it  was  silk,  but  can't  tell  the 
colour  of  it.  Being  asked  how  long  was  my 
lord  in  Kinnay  after  deponent  parted  with 
him ;  says,  he  believes  about  a  year,  but  that 
he  never  saw  his  lordship  af^er  deponent  left 
him  at  Kinnay,  but  in  Dublin.  Being  asked 
how  old  was  the  child  ip  Kinnay,  when  he 
left  it ;  says,  about  five  years  old,  rather  over 
than  under.  The  child  was  in  the  beginning 
but  badly  dressed,  and  in  very  iudifferent 
clothes,  while  deponent  was  in  Rinnav  ;  but 
my  lord  af>er  bespoke  clothes  for  him.  He  had 
a  habit  and  a  little  petticoat,  and  he  went  to 
school  to  one  Johny  Mahony's,  who  kept  school 
near  the  Curragh  of  Kildare.  Beinj;  asked  ivhat 
colour  the  habit  was  of;  says,  he  believes  it  ups 
made  of  a  slate-coloured  frize.  The  clothes  the 
child  had  at  Dunmaine  were  mad?  of  an  old 
night-gown ;  and  the  first  clothes  he  had 
at  iCinnay  were  worse  than  the  first  clothes  he 
had  at  Dunmaine.  Being  asked  if  he  saw  him 
in  his  first  coat  andbreecbes ;  says,  he  saw  him 
dressed  in  the  first  coat  and  breeches  at  Dun- 
maine, and  that  they  were  red,  and  the  sonants 
used  to  say  Jemmy  would  foul  his  breeches, 
being  the  first  time.  Being  asked  if  he  heard 
my  lord  ffive  directions  to  have  him  whipped ; 
says,  he  iieard  my  lord  give  directions  to  have 
him  whipped,  and  that  he  was  whipped  when 
he  wore  the  slate-coloured  clothes;  and  the 
deponent  heard  my  lord  say  he  would  break 
any  servant's  head  that  would  let  Joan  Landy 
see  the  child :  my  loni  spoke  to  Rice,  who  was 
coachman,  to  whip  the  boy,  and  said  he  would 
never  be  goo<l,  he  had  so  much  of  ihe  hlood  of 
Juggy  Landy  in  him,  and  deponent  understood 
he  was  Juggy 's  son;  for  my  lord  used  the 
wonls  his  mother,  Juggy  Landy.  Being  asked 
how  old  the  boy  tlirn  ivas ;  says,  about  dfe 
years  old  ;  says,  that  he  never  saw  my  lord 
fond  of  tho  boy ;  that  he  was  used  to  see  the 
boy  running  m  and  out;  that  he  frequently 
saw  my  lord  at  dinner  and  supper,  but  did  not 
attend  at  table,  being  only  my  lord's  smith  ; 
but  that  he  was  as  free  with  my  lord  as  any 
servant  could  be  with  his  master ;  that  he  never 
saw  a  child  at  my  lord's  table:  that  he  >«a8 
used  to  see  my  lord  as  deponent  vteut  through 
the  passage  upon  several  occasicas ;  and  of\ea 
4P 


1315]  17  GEORGE  II.    Trial  in 

went  into  the  parlour  to  see  him,  and  to  get 
money  to  buy  iron,  and  had  access  to  him  at 
ahy  time.     Being   asked  if  Anthony  Dyer 
lifed  with  my  lora  at  Ballysaz ;  says,  he  did 
not ;   says,  he  knows  Mr.  Lawrence  Misset, 
bat,  to  the  best  of  his  remembrance,  ne?er  saw 
bim  at  Kinnay ;  that  he  had  no  knowledge  of 
bim  whilst  he  liyed  at  Kinnay,  but  it  was  pos- 
sible he  might  have  been  there  without  depo- 
nent's knowing  it;   says,  he  does  not  know 
that  Mr.  Misset  huntecf  with  my  lord.    Being 
asked  how  old  the  boy  was  when  he  saw  him 
at  College-green ;  says,  about  seven  or  eight 
years  old,  and  that  deponent  lived  about  two 
years  at  Kildare  before  he  saw  him  in  Dublin. 
Being  asked  if  he  could  know  him  then ;  says, 
he  should  then  have  known  him  among  five 
thousand :  he  knew  he  had  white  hair.    Being 
asked  if  he  knew  John  Fitzgerald ;  says,  he 
knows  two  of  that  name.    Being  asked  if  he 
bad  anv  discoucse  with  any  John  Fitzgerald 
about  the  plaintiff' or  defendant,  or  that  he  was 
to  getany  clothes  from  Mr.  Jans,  or  money  from 
apv  one ;  says,  that  the  day  before  he  bought  a 
baifpennv-worlh  of  tobacco  from  long  John 
Fitzgerald,  who  lives  in  8t.  Thomas-street,  and 
never  told  him  he  was  to  get  any  clothes  from 
Hr.  Jans,  or  that  lady  iUtharo  had  a  child ; 
says,  that  he  never  got  any  money  from  any 
man  to  appear  in  court;  and  the  way  he  came 
to  appear  was,  that  he  happened  to  lie  sliooing 
a  horse  for  a  man  in  Kildare,  who  came  irom 
the  county  of  Wexford,  and  happening  to  talk 
of  this  anair,  the  deponent  desired  him  to  tell 
lord  Anglesea  that  he  was  alive,  and  that  he 
would  tell  what  he  knew  of  the  matter ;  and 
desiicd  he  might  be  seut  for,  if  occasion  re- 
quired, to  give  his  testimony ;  and  desired  the 
man,  whose  horse  he  was  shoeing,  to  tell  Mr. 
Darenzy  that  he  was  willing  to  give  his>  tes- 
timony.    Being  asked  when  he  was  in  the 
county  of  Wexford ;  says,  he  has  net  been  in 
the  county  of  Wexford  these  twenty  year^,  ex- 
cept at  Gowry.    Being  asked  how  long  it  was 
since  he  saw  the  man  in  Kililure ;  says,  above 
a  twelvemonth  ago.    The  man  mentioned  the 
aHuir  to  him  as  he  was  shoeing  his  horse ;  his 
name  was  King,  to  tLe  best  of  the  depouent^s 
knowlcc^ge;  and,  as  he  thinks,  it  nas  men- 
tioned in  discourse,  that  the  man  said  that  he 
beard  that  the  right  heir  to  lord  Anglenca  was 
come  over.     Deponci*i  said,  ii'  he  heard  he  was 
the  right  heir,  it  was  iVom  those  who  knew  no- 
thing of  it ;  for  that  dtiM)ncut  knew  my  lord 
bad  no  sou,  but  by  JiigLfy  Landy ;  and  hearing 
it  talked  of  in  tbe  county  of  Kildare,  he  said 
it  was  Jciumy  Landy  that  was  come  over. 
The  dLj-.onent  said   liltle  care  he  saw  Joan 
Lafi'an  tiikcof  any  child.     Being  asked  if  the 
child  had  ever  a  scarlet  habit,  or  a  fealher  in  his 
cap  at  Dunmainc;  says,  he  neier  had  ;  that 
my  lord  came  to  Ballysax,  and  he  lived  there 
for  about  a  t\>cU'emonth;    that  he  kept  his 
hounds    and  horses    at  Ballysbannon,  when 
be  lived  at  Ballysax  himself.     Being  asked 
what    servants    my    lord   had    there ;    savs, 
Bwrry  Askjn  was  his  groom,  and  -«—  Uice 


was  his  coachman,  and  deponent  nuu 
two  other  servants;  says,  they  were H 
for  about  two  months  before  the  cbi 
there;  that  he  cannot  tell  wbetha 
Landy  was  ever  there,  hut  thtt  be  i 
Laffan  there,  and  my  lord  would  bar 
her  to  he  ducked,  but  that  something 
to  prevent  bim  ;  says,  he  cannot  tell 
my  lord  sent  for  the  child,  or  whobn 
child. 

It  being  mentioned  to  the  deponent, 
haps  hemiffht  be  mistaken,  it  wascai 
not  frize,  the  child  had  in  bis  habit ; 
nent  said,  he  knew  what  camblet  wi 
could  not  mistake  camblet  for  friz< 
asked  if  he  knows  Mulhall  a  taylor; 
believes  he  lived  at  Kilcutlen-bndge ! 
not  know  whether  he  saw  a  taylor  at 
not :  he  saw  a  coat  and  breeches  on  tl 
Kinnay  ;  but  is  not  sure  whether  it  wi 
or  not,  but  he  was  sure  it  was  re 
asked  to  whom  did  he  go  to  school  a 
says,  to  one  Johny  Mahony,  and  tl 
house  was  a  little  cabbin  near  the 
that  he  did  not  lodge  or  diet  there, 
was  not  a  bit  of  victuals  to  be  had  tb 
dieted  and  lodged  at  my  lord's.  Beit 
he  knew  one  Connor  a  schoolmas) 
says,  he  did,  but  he  did  not  know  tl 
go  m  any  other  school  but  Mahony' 
asked  wnat  sort  of  a  boy  he  was ;  si 
a  clean  faced  boy  with  flaxen  hair ;  i 
nonent  oflen  heard  my  lord  say 
bastard-son  of  Jnggy  Landy's;  ar 
sence  of  the  servants  it  was  said,  h 
much  ofthe  blood  of  the  mother  in  hii 
asked  how  was  the  child  treated  i 
gentlemen ;  says,  he  does  not  say  tl 
treated  as  a  bastard  among  the  ^en 
^lut  ho  never  knew  any  gentkfiit 
themselves  about  him  ;  but  he  was 
the  servants*  as  a  bastard-son  of  J( 
Being  asked  whether  he  was  introdu 
gentlemen  as  my  lord's  lawful  son 
was  not  introduced  to  any  gentler 
lord*s  lawful  son,  as  God  was  his  jui 
he  never  saw  the  child  dine  w  ith  m 
tliat  he  cat  with  his  servants;  tha 
saw  him  ride  abroad  with  my  lord,  i 
wai  not  able  to  ride  abroad  then  ;  t 
members  he  was  very  mischievoi 
cook  was  drtissinj;;  victuals,  he  usa 
him,  and  put  thing's  wroug.  B 
whereabouts  it  was  that  my  lord  g^av 
to  Kicc  (the  coachmau)  *al>out  wh 
boy  ;  says,  that  it  was  at  the  kitclu 
lord  gave  directioiis  to  Itice  abou 
the  boy.  Says,  that  he  never  saw  i 
Kinnay,  nor  did  he  ever  know  thi 
visited  Mrs.  Anncsley  at  Bally shaiir 
he  ever  see  the  child  in  coinpaoy  wii 
llemcn  at  Kinnay.  Being  asked 
present  when  my  lord  directed  the 
he  set  at  Joan  Landy;  says,  tb 
Elmcs  was  present,  and  it  was  saidi 
nent*s  hearing ;  aud  he  heard  my  loi 
he  would  not  wiidi  for  ^uoA  that  Jii| 


r 


and  llichard  Earl  nfAnglfsea. 


A.D.  1748. 


temnUitmr  (iiechllil, »!!  ibal  he  woulil 
SOnl.  more  lliat  lie  had  [;<'t  the  chilil  b;  nii 
ialiwaraaii;  titiJ  Ibecbilil  was  called  in  all 
otuQ  Jemrajr  JLaody;  but  Bomelimes  llie 
nucsllej  liim  Jenimy  Annesley,  but  be- 
I  il  was  becniue  my  loril  gol  tbe  cliiU ; 
ledepoaeni  never  beard  him  cnlleJ  young 

jinn  Caiilfielil  swoni, 
.  B  koew  tbe  late  lord  Allbara,  and 
^^■dy  M  Dunmaine,  when  sbe  liteil  nl  a 
called  A-Clare,  about  a  mile  from  Dun> 
e :  that  »he  was  bred  and  boru  ibere,  and 
tnpre  before  my  lady  caine  to  DunrDaioe, 
fter  Ebe  had  leh  il.  BeiDtf-  asked  if  sbe 
beard  ot'  my  lady's  baving  a  child  at 
Daine,  or  i)b»erved  her  beiog  with  cbild ; 
abe  neter  heard  of  ber  bnving  a  child  till 
«,  and  llint  abe  somelimes  went  to  Diln- 
B  house  about  Eome  business,  and  neter 
in;  sigoa  of  her  bein^  wjlli  child.  Seing 
I  il'  abe  knew  any  ul  the  servants  of  the 
) ;  says,  she  was  acquainted  with  Eliza- 
IHullay,  aud  with  Mr.  Rolpb,  and  witli 
Bay  Dyer,  and  knew  Joan  Lauily  tbe 
m  maid,  and  remembeml  Jnggy  Laody 
It.  Gisoree's  day,  and  ibat  abe  observed 
tg  bellied,  as  she  was  dancing,  aud  all  ihe 
wiy  DOticed  il,  and  wondered  bow  sbe 
djuice  so  well  in  ihat  conditioa:  try 
iptmoled  Ihat  day  t<i  be  bejit  a  day  uf 
I  uid  deponent  beard  sbe  was  soon  af^rr 
ftit  to  bvii,  and  saw  ber  tbe  summer  alter 
^OiKDt'a  father's  cabbin,  where  be  used  tr> 
!  hia  tuif,  and  there  was  some  discourse 
;  ber  sou.  Saya,  il  was  tbe  common  re- 
it  was  my  lord's  sod;  and  anerwardasbe 
the  chilS  at  school  at  one  Patrick  Fur- 
■,  at  a  jilace  called  Terry-rash,  and  be 
IokIiooI  |mrt  of  tbe  lime  from  my  lord's 
I,  Says,  (hat  my  lord  Allbam,  lu  some 
aner  the  Aeiisralion,  came  lo  Furlontc's, 
c  tbe  boy  was  at  school,  and  asked  Fur- 
,Wbere»  Jemmy?  aud  ihat  my  lord  said, 
Ofdd  boriie-whip  Purlou)f,  if  bo  would  lei 
tutanl  go  ue*r  Jugg  tiandy,  far  he  would 
ciMsii  be  saw  her;  aod  deponent  heard 
alMy  it  wbcn  sbe  called  to  see  Ihu  of 
I  who  went  Id  that  school,  but  abe 
"leboy  at  DuDinaine. 
'  [Croas-eiarained.] 
iked  bow  old  sbe  was;  says,  abe  is 
iriorly  fouryeanold)  Ihalsbenever 
'  to  Furlong 'n,  but  thai  she  called 
ultera,  whoconlinued  tbe  siim- 
kI,  and  weietary  young;  says,  she 
uli)  at  the  mother  a  breast;  saya,  she 
.  .  rj  till  wilbiu  these  two  years  that 
"yLaady's  child  was  dead,  bnt  that  abe 
f  thai  Joggy  Landy  bad  a  thild  by  her 
ind,  Saya  sua  was  present  when  my  lord 
I  to  FurlanK.  Uein^  allied  wbvlbcr  she 
kkt  npOO  her  to  say  it  whs  tbe  tame  child 
pa  M  tile  molber'a  bransi  ibnl  i,lic  aaw 
Hm'*J  fS't  abe  would  a«t  he  llie 


world  lake  npon  ber  lo  eay  it  was  tbe 
child  ihat  shv  «aw  at  nurse  that  she  s: 
Furlong's.  Saya,  she  knows  lather  Duwl 
and  saw  him  thai  very  i\Ay  of  her  examinalil 
Sayx,  she  is  a  Roman  Catbolic.  Being 
b^  tirtue  of  iier  oath,  whether  father  Dot 
did  iiromise  to  give  her  abaotution  for  < 
she  was  to  swear  in  court ;  says,  by  virlu 
her  oath,  be  never  promised  to  give  ber  si 
Itillon,  and  never  mentioned  any  such  thing  If 
her.  Being  asked  what  day  is  Kl.  Georga 
day;  says,  some  time  in  April. 

William  RoteU  sworn 

^ys,  he  knew  mv  lord  and  lady  Allham  i 
Dunmsine  ;  he  lived  at  a  place  called  Ballyci 
more  within  a  mile  of  Duomaine,  and  was  i^ 
r)a»ioted  wilh  my  lord's  family,  at  my  lof 
house,  till  atler  my  lord  and  lady  separaial 
8ay«,  he  oever  bean)  lady  Altbam  bad  a  c'  " 
or  was  with  child.    Says,  he  is  a  farmer,  aoa 
used  (o  go  hunt  with  my  lord,  and  ibat  my  lord 
atooj  godfolber  la  one  of  bts  children.     Being 
asked  if  my   Ion)  bad  any  con Teraaiion  .with 
him  at  any  time  about  a  child  ;  tey,  mr  tat^  m 
told  liim  several  limet  he  had  a  child  by  JugnqJ 
Iianily  ;  says,  sha  was  bronifbt  to  bed  m  t 
cabbiii  near  the  lands  of   Dunmaine.     I 
asked  if  he  beard  mv  lord  say  he  bad  any  i« 
by  his  lady;  says,  ne  heard  my  lord  say  I 
never  had  issue  by  bis  lady,  and  he  neTer  H 
peeled  to  have  any  ;  end  it   my  lord  bad  i 
child   by  his  lady,  Ihe   deponent   must   bt 
known  it,  for  he  woa  ai  free  with  my  lord  ii 
he  had  been  my  lord's  equal.    Mays,  thai  af 
the  separation  the  child  was  brouglit  home,  i 
one  (lay  my  lord  wds  siauding  in  the  bilchMJ 
and  Ihe  deponent  heard  it  said  Landy  did  D 
belie  him,  tor  the  child  was  like  him   by  I 
eyes.    AVhen  tbe  chitil  was  brought  borne,  r 
lord  named  it  himself  James  Landy. 
[Cross-examined.] 

Being  asketl  what  sge  the  child  was  al  tl 
time;  aaya,  beiweeu  3  and  4  yeara  old,  a  , 
couM  not  apeak  English.  Bemg  asked  ntu 
coloured  eves  my  lord  had;  says,  that  to  I 
best  of  his  knowledge  my  lord  Aliham's  — 
browa  were  very  lilack,  aod  bis  eyes  were  sra 
The  depunrnl  said,  thai  if  my  lord  ond  tl^ 
chilli  were  face  lo  face,  be  could  Icnon  if  ibajrl 
wera  the  same  colour,  but  cuinot  remeuibsfl 
pai'liculnrly  the  colour  of  my  lord's  eyes;  aajj 
the  child  had  a  while  linen  vap  on,  and  Ihei^ 
fure  the  deponent  could  uot  tell  tlie  colour  | 
hi*  eyes.  Being  asked  bow  be  came 
vcne  so  familiarly  witli  my  lord;  aaya, 
my   lord   gave  him  liberty  to  talk  I 

and  said,  tefore  my  lord  came  to  Dul _ 

deponent  hi  ducouric  luhl  my  lord,  that  Jofl 
Landy  told  deponeni  that  she  was  big  wij 
child  by  mj  lord.  Being  asked  where  Job 
Landy  lived  when  this  discourse  bap[>er-^ 
says,  in  my  lord's  Iioufic, 

Mr.  Michael  Vaamn  fwom. 

Says,  he  kueir  ihc  late  lord  and  ladv  Altbuj 
at^Hiimaino,  in  iJie  parinb  of  Tiuilwtu 


:•  GCOkGE  IL     T-id  bt  Jisr 


iifVcidM.    B* 


>«^ 


«  %i 


%^vt 


4 


I*1T       ?N* 


u  Vi  ".-MMMii  L«^;ifr  1  •ntuc*-.  xr^  ac^.  ^vo 
Tmc  »j  jdri  Mifi  M«t  T  c*««  to  m6 

f&U(  SMC  J*  «M?t  U  ^  ifea  M  Wft  K  J 

liri.  tsMr  «««  A  ft  iwtafLi  «r  tiMe  v»^», 

*tjt  !&«!,    W   «Alt<   t*   4(W   U^    K^   U    D'.S- 

•kym,  h<e  •«  ft  rcqpwiitTH  foett,  a»i  iT<4  ^ 
mifeW  T»dMv»  4i  v«ftr»  piML  Jmi. 
Itt  &f«i  wJtaa  ft  aiift  4if  iABbsniu;  ikftc'he 
■it««r  lMft#4  saijr  .ijifaaai  Ui  ft  cU4  ;  tbu  ike 
r«friUtiMi  «f  ti^  owtry  wftft.  ibfts 
uncrkftdftdJii;  tbu  k«  Wciaerei  if  ftbe 
In4  ft  eki4  be  tbMad  kftve  beard  ftf  h,  for 
iKiMAkcAt  ift  Mn  «f  bii  pftriftb.  Bcinfp  ft«k«d 
%bftt  fCftftMi  lift  bftfd  Ift  tdttve  be  sbobld  bftie 
beard  it,  if  »bft  lifti  a  cbiU ;  uji,  tbe  reftft&o 
va»  lecftiuft  fftjr  lord  SMd  u>  Cft^l  at  hi*  L/ose 
after  bobtiftjf  f «rj  ftfun,  OMsd  to  ukc  ft  cup  of 
biftdfiakyftod  tbcd«poiB«Blb«ftrdinjr  lord  wisb 
bft  bftd  ft  cbtld  by  bift  wiift,  %^  if  tbe  bftd  bft.i  ft 
cbild,  it  could  uoi  be  wiUKiat  tbe  de;«oaeBr« 
koowkdge,  becftme  tbftt  he  was  fo  weil  ac- 
^uaiattsd  ia  tbe  fftioUy,  and  was  trcftted  by  my 
Wd  wiUi  irre^  ciriUy.  8jys,  be  kept  a  re'- 
ffi»t«T,  biit  did  not  re^ifttcr  Proteatant  cfailJren. 
BeiD^  ftfckcd  wheo  h  waa  tbat  ny  bml  nid  be 
witbed  10  bare  a  child ;  aaya,  it  waa  wheo  my  ; 
kprd  liffcd  at  Duamftioe,  and  tbat  roy  lord  said;  ' 
be  wiiiiied  to  hare  ft  sod  by  bii  wife.  Bein;^ 
asked  if  he  koevr  aoy  of  the  serrftots  of  the  fa-  , 
ffiiiy  ;  Mys,  he  was  acqaainted  witli  31  rs. 
litMlh,  Uith  Jtofph  and  with  Aothooy  Jiyer; 
i>ut  did  Dot  niucti  care  to  be  acquainted  with 
a:.y  of  the  rest.  Beln^  asked  if  Martin  Niefe 
the  smith  went  to  mass ;  says,  he  did  ;  hut  hr- 
B*:v«r  Kftw  Ji^au  LafTan  at  mass.  Beint^  a«)kfcd 
if  he  knew  Joan  I^ondy ;  says,  he  saw  Joan 
Tniiiiy  ;  she  wa<  kitchen  maid  for  some  time  in 
Dunmaine,  when  my  lady  first  came  there— it  ^ 
aei-ms  she  proved  with  child,  and  my  lord  had  ' 
ft  IaII,  and  the  danced  at  it,  and  was  discovered 
to  be  with  child,  and  thereu|>on  soon  after  she 
iras  turned  out  of  the  house ;  she  went  after- 
%rard«  to  a  cahbin,  where  her  father  lived,  and 
was  there  broui^ht  to  -iKtl  in  tbe  latter  end  of 
April  1714.  ^ys,  he  was  applicJ  to,  to  , 
christen  the  child,  but  an  my  lord  and  he 
were  upon  f(ood  trrms,  he  was  loth  to  christen 
the  child  where  it  was,  Int  it  might  offend  my 
lord  ;  hut  the  mother  (and  an  old  woman) 
brought  it  to  one  J)nvid  Baron*s  house  at  NaKh, 
whf'ii  the  child  was  alK>ut  tf  fbrtnii^ht  old,  and 
lh(  ri:  he  chrihtencd  it ;  but  he  firnt  enquired 
who  was  the  father  of  the  child,  and  was  told 
that  lord  Allham  was :  that  he  afterwards  told 
tnj|^  hid,  that  he  had  made  a  Christian  of  the 
child,  hut  had  not  received  any  retribution  for 
it ;  I  hat  m  V  Iml  said  it  was  well  done, — lauflrhed, 
lind  said,  he  Mould  requite  me  hereaAer  ;  and 
ihcH  my  lord  added.  It  seems  they  put  the  child 
apoa  inc.    bays,  be  imned  the  child  Jamef, 


there,  be  Le.jcTci  be  oasK  :  l*< 
t^  be  aevef  beari  «  bat  >rraa 
afier  be  kft  Dcnxzuiae.  Si j  r.  1 
Landv's  motiMrr'»  yr,ti»,*g  •  -^^ 
hu:  w'as  not  %\:i9,  of  v.. 

Belo^  asked  whether  be  m^ 
maioe  without  s««.d^  c^y  la  '\  : 
CO  tliither  and  D'.t  «£e  i=.t  'i':y. 
if  be  could  recollect  wli:  lsj 
was  the  separati^io  cf  rrv  i.rJ 
[Xriied ;  sayj,  th^  VEparir  -n  : 
Canoteoiaa ;  and  bcug'  a^kei 
his  Michaehnsis  i^o<«se  \«i:j  i£.\ 
at  liucmaine;  savs,  th^t  he  \ 
lord  and  lady  «ere  at  I)u;in~.  jiiii 
mas-da V  ;  savs.  that  latlv  Aliha 
Dunmaioe  a  day  or  two  bt-ture  i 
but  cannot  tell  vihere  laiy  A 
Christinas  after,  but  kQo>« «  slie  i 
mas  in  Dublin.  Being' a^k«.d  it 
the  time  the  Pretender^s  men  ^ 
assizes  of  Wexford  ;  ss}  <:,  he  i] 
was  in  some  trouble  then  ;  and 
April  assizes,  and  tliat  he  cume 
day  before  the  day  of  tbe  ^reat 
was  the  22d  of  April,  and  luy 
came  to  Dunmaiue  in  a  few  c 
they  went  afterwards  to  Duhli 
continued  in  Dublin,  and  my  h 
Dunmaioe,  and  tbat  the  depoue 
my  lord  there.  Says,  Dunmai 
of  Mr.  Cscsar  Colclough,  but 
has  a  lease  of  it.  Beingfaskc 
the  child  to  him  to  be  cbriate 
grandmother  brought  the  child 
my  lord  would  have  it  christenei 
and  it  was  delayed  aboat  a  ibrt 
was  chrittened.  Says,  she  did  i 
directed  by  my  lord  to  bring  th 
deponent  to  lie  christened;  ihi 


Rfid  Richard  Earl  of  Angle 

felber,  and  liia  dirEClions  were, 
ihoulJ  be  called  Jainec ;  where- 
•eut  »id.  You  My  the  lord  ii  the 

■nd  be  «iiauld  be  called  Jemmy 
Ituree.  .Says,  he  did  not  desire 

Kbeu  ue  Ibund  it  nas  my  loril'a 
it  WM  bis  custom  uuon  iiich 

gfet    security,    Ihal    ihc    child 

le   a   burthen    to   the    pariah ; 

bout  July  he RBiTibe child  the 

without 
andalnced-hat ; 
iru  not  silk;  it  waiuf  a  whitish 
best  of  hii  knowledge.  Says, 
went  JDtD  the  house  that  day. 


A.  D.  1713. 


•aid  any  thing.  Says,  that  the 
n  belweeu  three  ana  four  yeara 
iced  what  he  said  ti>  the  child ; 
ed  Ood  10  bleu  him  ;  that  my 
rite  op,  and  that  he  tlid  rise 
(irn  in  a  little  time  after.  Being 
diild  could  speak  plain  at  thai 
)r  did  not  speak  plain  to  le  un- 
et  he  believes  the  child  went  to 
time.  Being  asked  if  he  saw 
the  bail  he  nienlioaed  ;  says,  he 
Bt  the  hall,  hut  those  who  raw 
if  it,  not  long  nder  the  ball,  and 
I  on  St.  George's  dnj  the  ball 
Rked  if  he  did  regiEiter  the  chil- 


aays. 


edid  n 


Ihey  had.     Being  asked   if  he 

ihat  Joan  Landy  had  a  child  that 

lall-pox ;  says,  he  heard  such  a 

i  not  mind  it ;  says,  he  did  not 

Id  of  Joan  Lanily'a.      Savs,  he 

Xjnady  to  one  M'Cormnck,  but 

Ited  ta  bury  anv  child  ;  sbvb,  it 

Illy  vears  ago  that  he  first  iieard 

;  ileatli  of  Joan  Landy's  child, 

tuld  nf  it  afterwards ;  aays,  he 

it  was  like  lord  Ahham ;  says, 

lember  the  cnlunr  of  his  bait, 

wa«  black,  but  cannot  be  pusi- 

tg  ago.     Bavs,  be  cannot  be  po- 

t  lime  my  lord  taid  it  was  his 

ither  it  was  before  or  after  (be 

K  asked  what  was  his  biiiiuen  at 

^~a  ;    says,  he  was  bonnd  over  to 

le  mi  cbargeil  with  giving  meat 

ha  Preleuder's  men,  who  were 

_  lyi,  Ihat  he  thinks  Mr.  Thomas 

■herilf.     Being  asked  if  he  did 

iCicsar  Cnlcloiigb  or  any  iHxIy 

j ;  Bays,  be  did  not — the  higb- 

nnred   hlra,  and  look  his  own 

Ht  was  bound  to  appear  at  the 

bit  word  to  the  sbenff,  and  lord 

to  be  bound  lor  him,  alicr  be 

with  the  aflair.     Says,  he  does 

he  had  any  ctaTersalion  about 

i*en  to  Mm,  nor  did  be  consult 

■jriM  to  give  him  absaluli'm  ; 

HMiMDnBinaine  about  a  yeai' 


after  the  Beparation.  Being  asked  if  it  i 
coMimon  Willi  people  of  his  religion  to  teon  (or 
persons  of  hislnnclinu  when  their  children  diet 
says,  that  commonly  they  do  ;  but  suraetinea 
the  poor  people  don't ;  but  if  a  child  dies  under 
seven  yeara  old,  tbey  iicMom  are  aent  lor,  be- 
cause It  ia  BUjiposed  a  child  under  thai  age  can- 
nut  commit  murtal  sio.  Hays,  be  neter  mud* 
an  affiduf  it  in  ibis  cause.  Says,  he  did  not  ap- 
iilv  tn  loni  Aliham  when  be  was  to  appear  at 
cxford  NBsi'fFS,  tiir  he  naa  under  no  fear,  but 


he  rememlerH  my  lord  voluiitarilv  oRcred  bit 
friendihip.  Kays,  that  after  the  ciirisleoiog  oT 
Jniin  I.«ndy'i  child,  she  was  married,  and  that 
he  christened  alt  Joan  Landy's  children  aflrr 
that  time,  but  does  not  remeiul>er  the  names  oi* 
the  children  bechrietene<l ;  says,  that  he  heard 
the  report  nf  Ibe  death  of  Jnnn  Lnndy's  child 
ofthesmall-|)OX  from  one  David  Barou  titu«i 
three  days  after  the  separation. 

Pal  Furlong  sworn. 


year.  Says,  he  bad  no  employment  under  mj 
lord.  Bay«  he  wai  a  foHter  for  live  or  sis 
years ;  lliat  he  had  a  lillle  farm,  and  kepi  • 
little  school  by  llie  bounds  of  Dunmaine  nn  the 
lands  of  Italbclaman.  Being  asked  if  he  re- 
members the  name  of  any  one  that  went  to 
school  lo  him  ;  luys,  he  remembers  the  uomei 
of  two  yoang  women  that  went  to  school  lo 
bim,  and  tbeir  names  were  Mary  Croke  and 
Nancy  Croke,  and  two  brothers  whose  names 
were  Hnnlona.  Says,  he  had  a  son  uf  Joan 
Landy's  4»1led  Jemmy  ;  that  lord  Altham  seal 
him  to  school  lo  bim,  and  he  remained  witU 
him  fire  or  six  munlhs.  that  he  was  about  two 
or  three  years  of  age  when  became  to  school ; 
and  that  deponent  went  every  morning  for  tha 
child.  Being  ask >tl  if  he  knew  thai  my  lord 
and  la<ly  separated  ;  says,  he  knew  that  tbey 
separated,  and  ll  was  about  two  months  after 
the  separation  that  the  boy  was  put  (o  achool 
to  him.  Says,  my  lord  called  several  times,  m 
he  was  huniing,  and  desired  the  depooenl  at 
hi*  peril,  ihat  Joan  Landy  ibe  mother  should 
not  see  iJie  child,  and  my  lord  gave  the  depo- 
nent Ibe  same  direciinn*  at  his  own  bouse 
when  deponeol  came  to  Dunmaine.  Being 
askeil.wlicn  he  last  saw  Joan  Landy ;  says,  at 
a  baker's  in  Ross,  about  a  year  ut;o,  and  lis 
■aw  her  about  seven  years  atro  in  Itiiim,  Says, 
when  the  child  was  at  school  with  him,  be  had 
n  bahit  ofadark  colour  and  wore  ocap.  Says, 
the  haliil  was  not  silk ;  says,  the  child  wni 
deemed  lord  Allham's  son  by  Joan  Landy. 
Being  oaked  if  he  knows  one  lleixlenHin,  b 
QiiBKcr,  says,  he  met  not  long  ago  a  grntle- 
miQ  called  flendenon.  and  was  tnid  he  was  a 
Uoaker ;  says,  he  remritiliers  lady  Altham'a 
c<iming  to  Dunmaine,  but  never  heard  she  had 
a  child.  Being  asked  if  be  ever  saw  the  boy 
alXer  be  lei)  the  school ;  says,  he  saw  him  U 
ti^tm,  when  be  was  about  four  or  lite  yean  old, 
and  believes  it  waa  the  u,m«  W^ 


^Cmss-exaniint;<J.] 
IMnf; asked  if  lip  iVTiicmljiTs llie  scptratinn; 
f  ajfl,  lie  iliiet,  and  tliat  vbniil  a  monlli  or  Iwg 
•Her  ihe  (;-|>nruli<>u,  tin-  chiiil  vat  pul  to  school 
toliim:  8U}'R,  tlic  cliilil  uas  lli«i  about  two 
years  duiI  a  lialf,  or  tlirre  vcirs  old  ;  tlial  be 
was  very  smart,  s|inte  Irish,  llie  laii^runge  liia 
f^nilfallier  and  ^randaioIliL-r  spuke  ;  tliat  be 
sometimes  walked  to  school,  somctiuteB  the 
deponent  tirnu^lit  liim,  and  soinctinieB  tlie 
Oilier  bojaliru'ight  liitu  ;  snj'ti,  lieiva*  not  of  a 
bUJck  complexion,  hut  had  hruu-ii  hair  ;  lays, 
he  MW  hini  at  Itns^,  at  Mr.  E\y'e  siiop  ;  lays, 
the  buy  he  saw  at  Hdss  naft  the  lauie  that  had 
been  at  his  school ;  Bti\  a,  the  tviutir  coining  on, 
the  boy  >vaf  taken  trum  liis  school,  and  had 
made  no  (;rcat  [ircgrtfii  uhilsl  he  whs  at  It ; 
•ays,  depooeiil  soon  aner  hU  vfT  krrpinfr  the 
Bchool,  that  he  a(\eni'arils  Raw  the  liny  >I 
lie,  and  tnj  lord  gaTe  tbe  deponent  a. 


Arthur  Merdsiiom  to  the  Voire  Dire. 
Sayi,  be  neier  had  any  reward  fur  appearioK 
and  ipvin;;  tiia  tesliniooy,  btit  his  received 
two  guineas  and  a  i>i!^tule  to  lieir  his  rhar^^es 
to  town,  froiu  the  couuty  ul'  Wexford,  uhere 
lie  liies  ;  says,  he  is  a  ^ii.Triu'i|{-iiiaker  by 
trade.  Bein<r  sworn  ia  cluef,  says,  lie  knew 
]ord  Altham  rery  wi'll,  and  lived  iviih  hiiii  as  a 
•ervanl,  and  came  iiitu  bis  serf  ii»  abuut  twenty 
or  twenty-onG  years  ago  ;  cays,  my  lord  hap- 
pened to  come  to  the  shop,  ulicrc  the  dEjiouenl 
vas  an  appreDiiet;  iu  Ross,  niid  bcarini;  depo- 
nent'* name  meuiioned,  niy  loitl  said.  Yon  are 
niy  country  man,  if  j  ou  come  In  lire  with  ue, 
3?uu  sliull  never  u  ant  a  ^hilliii:;  in  your  pocket, 
«  guB  io  ioul,  a  horse  to  riili-,  or  a  whore. 
Says,  lie  went  tu  live  with  uii  lord,  nlicn  tuy 
loril  liTcd  at  Currickdufl';  tliat  one  Mr.  Tho- 
mas Gregory  was  then  uith  iny  lurd,  and  that 
lie  remciiiliii-ed  one  Weeden  in  lire  with  my 
lord  ns  ooaciiiiiau  or  ^ootn,  und  that  there  was 
a  child  I'litrc  rcputifd  to  be  my  lord's  knn  by 
Joau  Landy  ;  that  the  child  was  Irealed  as  niy 
lord's  uatuial  sun,  that  he  eat  hunietimes  ul  my 
lord's  table  ;  lliat  there  was  one  Slnifaen,  a 
Larpcr,  wbo  used  to  draw  picturtv  and  fiuicies, 
and  lauglitJemmyAuDeslcy  to  spelt  ;  that  the 
child  had  ascurtetcoat  and  a  Ifteed-Uat  ;  llist 
iny  lord  was  i  isitcd  by  Mr.  \\  urreo  anil  inBJor 
Dunbar  ;  says,  ilic  child  was  nccinieil  of  pillt 
ing,  and  depooL'Ul  saw  my  lurd  correct  hi 
very  severely,  in  Froper-fune.  iiays,  there 
was  a  hurlins  in  the  country,  between  lord 
Allham  and  Jilr.  Durn,  and  that  ray  lord  went 
to  tlic  New-ion  in  Micliaelmas  1734,  and  went 
■Her  to  Cross-lane,  and  thut  one  Catharine 
Caiiltield,  married  to  Neil  o'.Neil  the  footman, 
look  care  of  llie  child  ;  that  my  liirJ  slaved  at 
the  NcW'innlill  lo\iarJsChrisi"nias,  andlodged 
anerHards  at  Cross-lane  ;  and  stayed  there  till 
tlie  25th  of  March ;  that  deiioneni  gave  cap- 
tain Uimpton  a  three  ihilliuj^s  and  tbur-penoe 
piece  earnest,  fur  takioir  captain  Simpsoo'i 
WUN  u  l^pix-luie  J    thatjiLviCKgoryud 


IS-^JJ  17GE011GEII.    Trial  iAEjeelmnt  between  J.  AimaUy.ttq.  [IS| 

a  serranl  maid  bred  with  my  lord;  thit^ 
hoy  was  kept  worse  in  Propcr-laur,  lluDa 
where  else ;  that  he  went  to  schMl  M  m 
Carty'n,  who  kept  school  in  FluiilulVTri 
in  Froper-lane  ;  that  my  lord  went  (nat^ 
per-lane  to  Inchicure,  and  that  dioctltto 
was  corrected  moat  severelv,  and  Ibu  «i(kj 
laid  he  had  the  Ihieviog-  blood  of  iheLuM 
in  him,  who  usetl  to  steal  corn  and  ihtep  in) 
my  lord  finding  he  could  get  do  uwdifh 
boy,  sent  him  lo  one  Cooper's  in  SbJp-n^ 
to  lodge;  end  the  deponent  uerec  si*li 
since,  till  the  15ih  of  MuTcmber  lut;  a^ 
that  my  lord  lived  at  Inchicore  in  tbt  jil 
1731. 

Deinc;  calk-d  upon  lo  eire  an  aceowilri'll 
meeting  the  lessor  of  the  plaiotiS'.  uJ  ill 
hnppencd  thereon  ;    says,  that  oa  the  Uti 
Nuvemher,   in   the  year    1749,   od   Hm* 
morning,  he  was  sent  for  lo  EoaiKHlh,! 
the  QTieat  snow,  by  one  Whclan,  whoWUUs    , 
If  he  siiid  two  woids  cunningly,  biifixtBHii|    ^ 
made  ;  whereupon  the  dei>onent  went  all 
Bear-inn,  asked  for  the  eentleman,  udM 
shen-n  into  a  room,  where  Mr,  MackertbttH 
writing;  that  Hr.Mackercberaskfd  hiail^   ' 
iher  he  hurl  lived  with  my  lord  Altb*B,d   . 
sp'ike  about  Mr.  Aooeslry.     That  htu 
be  had  lived  w  iih  my  lord,  and  cut  llrAn 
hair,  and  belieieil  he  should  know  bii    , 
by  the  parttcuUr  Ibrm  of  his  face;  ikaili 
dciionent   used   to  make  him  fiddk'iinJ;)^- 
things ;  says,  that  when  itlr.  AoDcdfj    ~ 
into  the  room,  be  kissed  the  di!|ion<!it,  ui 
thi-deponeiit  cnuhl  ^cnat  his  lace, liuln 
positive  it  was  be  till  he  gai  e  some  mubal 
tokens ;  that  Mr.  Anneiiley  said  tu  lii 
name  is  llorJ  ;  that  the  iTeponcut  ai 
should  be  called  upuu  as  a  witnrss;  ud^ 
he  said,  thai  for  llie  Anirlesca  cstalc  In  nA 
not  tell  a  lie.  That  !tlr.  Alnckerchir  iJ^il* 
who  was  Mr.  Aniiesli;y'$  ii.'nlier ;  anJ  iiiuif 

CBueiit  said,  his  answering  that qotjli'j.i ••-^ 
e  of  no  service  lo  bim  ;  that  JugiT)  Li^i' 
was  his  mother.  ThcnWr.  MackerciiffWi', 
if  Hr.  Annesley  had  nutsonit  IiUii'a«"I 
lady  Altham  ;  to  which  the  deiioui^ul  i>i>-m'> 
that  he  did  iiul  «e  a  ftatuit:  In  hislacr,  tti'*' 
like  kdy  Allham  ;  that  ihen  Mr.  iluit^ 
toidt  the  paper  he  was  writing,  and  '"^'ifjf 
threwit  intuthelire;and  theiiune>>U°>?' 
the  footman,  claj>iied  the  de{iunuil  m  ** 
shoBlder,and  said,  Dr.  Arthur,  youiIuJI^*} 
longer  in  this  place  ;  this  was  in  F"''^ 
Mr.  Anncslcy,  Mr.  Blackercher,  uvl  ci^ 
Liviston  ;  that  the  deponent  then  looknl*''* 
coat,  and  frowned  at  Ihe  fellow,  immiwS* 
S|ioke  iu  that  manner,  oaaccLiunt  orUM»* 
ness  of  deponent's  dress.  Being  aikdl  "  *? 
rest  of  the  gentlemen  heard  it;  siy),^'''. 
say  Ihey  did.  Being  asked,  did  he  ^x^. 
was  tilt  Bime  perion  that  was  with  B)'|"V 
Bays,  he  helicv'd  it  nasthe  samepersJn- ^^ 
oiy  lord  houcht  his  lime,  before  k  i"*^ 
live  with  his  lordship.  Being  uiknl,  bf 
waB  employed  in  mj^  lord's  strviCBjgJV 
WM  emf  kiyed  ia  waTing  n;  lord,  taif^~ 


] 


Mnd  Richari  Sari  qfAngteua. 


bi>  kltm,  tnil  wu  employetl  in  olhEf 
i.  Depnnem  remember*  ■•  be  wia  capj- 
it  some  (lenoininKlions  of  tuidi,  lo  ba  sold 
Ersion  to  Mr.  Oneaipboru*  Gamble,  orthe 
f  dfCork,  tliBl  there  WM some  talk,  to 
,  llief^reatpslalenoaldfall:  mflordsiid 
lid  gi)  to  BIr.  Charles  Anneiileyt  but  lis 

eiidpai'our  to  get  an  act  of  )iarf lament  to 
it  on   liis  brother;  and   mjf  lurd  wai  so 

itli  ibe  deponent,  that  he  cat  de|ian(?at*a 

and  when  Jepo neat  had  a  great  cold,  iny 
rauifbt  biin  b  copper  ol'  mulled  clarcl  to 
Tor  bia  cold  ;  savs,  that  my  loril  avked 
oce  in  preseni-'e  of  Mr,  Anocsley,  Artbur, 
ur  mother  a  Protestant  or  a  Papiit  7  that 
cnt  aniK'ertd,  hia  molber  wbh  a  Pro- 
t;  and  thpreupen  my  lord  said,  I'd  rather 
one  hundred  [Kiunns  that  boy's  ntolher 
a.  8aya,hetoldMr.MackercherinEo- 
thv,  tbat  Mr.  Anoesley  sent  several  du- 
•j  Dim  to  bis  mother,  and  that  he  brought 
Bg*  frvm  bis  mother  Joan  Landy  lo  bim ; 
lat  bo  remember'd  to  have  once  broiicbt 
'  of  stockuigs  to  bim  from  her ;  tbat 
iipoD  Air.  Mackercher  said,  it  nag  com- 

lor  Irish  women  to  call  one  that  tbey 
d,  their  own  child ;  days,  that  Ur.  filac- 
er bid  the  deiiont:nt  tliink  better  on't ; 
At.  Annesley  shook  his  head  on  this,  snd 
d  pale,  and  said,  it  was  strange  the  depo- 
i*ould  not  say  aa  all  the  olbcr  aerTanta 

lo  which  deponent  answered,  You  know, 

bad  a  better  opportunity  of  knoniog  than 
(her  servants,  and  1  was  nearer  lo  you 
they;  sayt,  he  meant  by  that,  hissliaving 
)rd  and  copying  his  letters  ;  says,  tbat 
he  had  mealioned  the  pair  ot  stock- 
tbat  he  brougbl  lo  Mr.  Annesley,  Mr. 
lercher  said,  that  such  trifles  aa  those  irere 
aOD  from  nurses  to  tbose  they  nursed, 
the  deponent  pointed  lo  Mr.  Slackcrcber 
art  u  one  of  tbe  company. 

[Cross  -  exami  ned,  ] 
ing  ulced  if  he  saw  my  lord  correct  the 

;  says,  be  saw  mytord  correct' the  child 
al  times,  because  be  bad  bim  on  his  back  ; 
Ibit  in  Proper-lane  my  lord  currecled 
reryseferely ;  that  he  was  accused  of  pil- 
g,  and  he  owned  it  himself;  it  na^  uiy 
Riiised  tbe  things.      Iteing  asked  what 

tbe  Lbings  he  was  accused  of  pilfering  ; 
>  a  jockey  belt,  and  some  pigeons,  whicli 
BDressed  ;  saya,  he  never  knew  of  any 
plaints  made  by  miss  Gregory  to  my  loni 
t  him;  says,  when  he  was  an  apprentice 
"Ms,  he  saw  my  lady  going  to  cbnrcb  ; 
■By  lord  was  angry  that  Ibe  hoy  was  dull. 
C  aaked  about  bis  own  sge ;  says,  Ih'ii  he 
"■K  book  that  he  was  born  in  ITOS ;  but  tliat 
'VdoD  his  marriage,  bis  fat  hern  i  ad:!  bim 


A.D.  ms.  tISM 

wasatCarrickdiifT;  that  be  saw  Mr.  Owag, 
Mr.  Stone,  and  some  others  liiit  there.  Sjya, 
he  was  employed  by  my  lord  in  sereral  sta- 
tions ;  says,  henerer  saw  Ihe  plaitililt' ride  out 
nilb  my  lord  ;  Bays,  be  never  saw  a  feather  \a 
his  hat  there,  and  bclieres  it  could  not  be  a  silk 
mat  be  wore ;  says,  the  plabtiff  somelimea 
dined  al  table  with  my  lord  at  Carrickduff,  but 
when  people  of  rank  ditied  with  my  lord,  ha 
did  not ;  lays,  he  told  captain  Lefiston,  that 
lie  used  tucut  Sir.  Annesley 's  hair,  but  did  not 
»>e  tu  altcnil  bim  ;  bays,  be  told  them  thalCa- 
Ibariiie  O'Neilbad  some  care  of  bim,  and  tbat 


bis 

By  G— d  I  ke^  him  in  bin  m 
*  bu  mother  wore  a  red  peiiii:u 
2*t  tail  whether  my  lord  i-u-i 
■■yn'k  «  at  Hr.  CkTCDagli'i, 


Woyagea,  woliime  tbe  third; 
James  and  Paddy  used  to  call  one  another 
cousins;  says,  ba  beard  the  plaint! IT  went  to 
one  Cooper's,  and  that  he  heard  my  lord  say, 
he  was  a  son  of  Joan  Landy's. 

The  counsel  for  Ihe  plauitiff  asked,  if  he 
CTcr  said  tbat  my  lord  debauched  Alisa  Ore. 
goryF 

The  connsel  for  tbe  defendant  ohjecled  (o 
that  question,  because  it  would  subject  the  wit- 
ness to  an  action  for  slander ;  therefore  he  waa 
not  obliged  toanswer:  they  said,  that  lady  was 
one  of  tbe  wiloesses  to  be  examined  by  Ibe  de- 
fendant, and  ought  not  to  be  discredited  by 
anticipation,  and  as  she  wss  not  present  to  clear 
it  up,  no  imputation  ought  not  to  be  thrown  on 
her. 

They  insisted,  thai  no  witness  was  to  he  dis- 
credited by  particalar  facta,  bnt  by  genera) 
cbarac'ter ;  that  particnlar  facta  might  intro- 
duce dirt  in  all  catisea,  therefore  tbe  qoeMion 
was  not  proper, 

Mr.  Titdall,  of  connael  for  Ibe  defendant. 
When  a  witness  is  examined  tu  a  con  Tent  nt  Ion, 
it  Is  proper  to  examioe  him  to  ail  parts  of  it,  (o 
have  the  whole  before  the  Court,  because  Ihtt 
Court  and  jury  cannot  distinguish  the  ronTer- 
sation  properly,  unless  they  hare  all  parts  of 
it  before  lliem.  The  witness  may  demur  to 
nliat  may  criminate  him^lf,  bat  cannot  demur 
as  1(1  another. 

Mr.  Walsh,  for  tbe  plaintiff.  The  point  is, 
whether  the  <)ueBliDn  is  uroper ;  if  it  bf,  Ibe 
consequence  is  not  to  M  considered ;  your 
lorcliibipa  and  the  jury  can't  judge  of  a  conver- 
sation, without  knowing  the  whole:  of  It. 

Jjird  Chief  Baron.  There  is  a  wide  diffe- 
rence lietween  what  is  aaid  in  prexvcc  of  the 
plniutiir,  and  what  is  not  Riiid  in  his  presence. 
Whatever  is  said  in  presence  nf  the  plainlifT,  is 
evidence  sgainKt  ihe  plaintiff.  If  gentlemen 
will  nir|u>re  what  infloence  Miss  Gregory  had 
nr<-r  b'^.l  Altliain,  it  may  he  pniper  to  be  exa- 
liiifcd  iul'i ;  but  nii  man  is  nhligcd  to  answer  a 
•iui'N!i>'ii,  il':t<  iiiaysiibji-ct  him  luan  action ;  but 
,  Im'.I  ,  1,-.' ni^'^  :<':'.i>L.- ihefprcslion  it'  he  pleases  vo- 
1,  I''    ,'  l::nli'<'iiy.'*     Jl'j.  ijuektion  be  relalive  tu  a  mat- 

ici  :•!  I      +•  I;"  .111  :s  i;rr-[,'-iry  hid  been  cx:mwit&whv 
lit  b'j  I  n  ;li<v>:,  vi  t\ic  ■:«.«>«,  «v\&t:a£«  \n  ^«si  ^^Mk 


1387] 


17  GEORGE  IL    Trial  in  Eftctmeia  hHween  J,  Antitdci/,  aj. 


UriniMiM,  it  my  beuuwered,  if  it  doe*  not 


1  to  &  ^ueation,  iT  he  be  litble  to  u 
■ctina  tberaon. 

Hr.  BMtMtrd,  for  the  plunllff.  No  nun 
canbenl^eottoanactioDior  wiut  he  njtia 
ft  oont  of jiHtice. 

The  Coart  elloved  tbe  objection. 

Tbe  deponent  wM  uked,  if  beereruddftat 
Him  Grccory  miMerricd  ? 

Hr.  Prime  SeijeoHt  o^ected  to  tbe  qoett 
becAnee  it  migbt  ley  en  imputation  on  her,  ee  it 


Then  tbe  ileponeet  nee  eiked,  if  be  ever 
beard  tlitt  Sliii  Gregory  waa  married  to  lord 
Allharof 

Couoael  for  tbe  deftadant  oUected  to  ihat 
doeetioD,  at  it  tends  to  defame  Hin  Gregory, 
became  lady  Altham  was  then  liriog. 

Beiog'  then  asked  if  he  told  tlie  compeny  Ihat 
Mi**  Gregory  did  not  use  tlie  child  irell ;  says, 
be  beliered  be  mlt^ht  tell  ibein  bd,  but  did  not 
knoir  that  he  erer  sair  ber  use  bim  ID.  Being 
asked  if  be  told  Ibem  thai  Miss  Gregory's  mo- 
tber  bad  a  great  falliog'out  with  my  lord  ; 
cays,  he  believes  he  did.  Hsys,  he  does  not 
remember  that  Hiss  Gregory  was  called  lady 
Altham,  but  that  be  heard  at  Boa*  that  ahe  was 
called  lady  Altham. 

Tbe  -plaintiS's  counsel  obserred,  that  Ihe 
vitoesB  used  some  subterfuges,  in  oot  answer- 
ing the  qnestiona  properly. 

And  then  tbey  asked  bim,  whether  wluit  he 
told  Mr.  M'Kercher  at  that  time  was  true  or 
false? 

The  Court  wa«  of  opiaion,  that  a  qncstion  in 
that  way  was  improper,  because  it  tfould  iu- 
Iroduce  what  he  tneu  said,  not  only  ad  evidence 
against  the  credit  of  the  wituess,  but  as  evidence 
against  the  defendant. 

Tbe  deponent  bein^   asked   what  was  ibe 


Says,  he  beli..'ves  my  lord  would  du  any  thing 
lo  please  Blias  Gregory,  and  that  be  Mliefcd 
■he  was  not  eery  fond  of  Mr.  Aunesley. 

[Herd's  cxarninatiao  being  finlsbeJ  about 
8  o^clock  nn  Sitliirday  night  the  ISlh  of  No- 
vember, tbe  Court,  by  the  like  consent  ns 
usual,  wbicb  was  read  in  opun  Court,  adjourned 
to  9  o'clock  thrnext  Monday  mDrning.] 


she  was  not  deserving  of  credit  might  certainly 
haTs  liten  received  ;  but  what  the  Lord  Chief 
Varuo  is  here  rupresenlEd  to  hsTe  said,  tends  to 
the  monstruus  and  intolerable  doctrine  Ihat  the 
trial  of  an  action  between  anytwoprnions  may 
be  maile  the  instrument  of  ilvfaniation  againht 
a  third  peisiin,  uut  appearing'  in  aiidi  trial,  and 
Mt  ioiereiled  ii)  the  et  eat  ol  it. 


Monday,  A'oveafierSl. 
The  Coart  met  on  Monday  merai 
cording  to  o^ourament,  and  ihejin 
called  over,  aiuwercd  to  theii  laws' 


Says,  be  went  (o  school  ts  oneO 
Proper-lane;  that  be  Mmenden eei 
went  to  school  with  bim,  BDd  a  boj 
school  there  under  the  name  of  h)rd  J 
son ;  that  to  the  best  of  depoQenl'i 
brance,  ha  wss  reputed  to  be  my  loid'i 
son,  but  cannot  remember  what  wh 
licular  name,  or  bow  loiw  it  is  ago,  be 
beat  of  his  knowledge,  Ite  aaw  the  a 
last  summer  in  Ann-atreet.  Beiag  ul 
old  he  is;  says,  about  S3  years okl,) 
about  tbirteeo  or  fbnrleen  yean  oMi 
went  lo  Mr.  Carty's  achool.  Ssyi,  tl 
of  ibe  boys  who  went  to  that  scbool  i 
sons  of  people  in  low  ctrcumstaoMt. 
TAmuM  Strtmg  sworn. 

Says,  be  rememben  Daniel  Csrty 
school  in  Plnnkett'a  yard  in  Propet-l 
lb  at  the  deponent  went  to  his  scboo 
that  he  remembers  one  Anoesley,  *  In 
to  Bcboof  there,  who  waa  reputed  lordJ 
tiastanl  sou ;  that  Annealey  was  a  n 
school  there,  lo  the  best  of  tbe  dfpoH 
membranee;  that  be  saw  the  same  bi 
wards  in  Ormoad-iuarket,  but  never  ca 
lord.  Says,  that  the  boys  nba  wra 
school  were  mostly  tradesmen's  cliildrt 
he  remembers  one  Harry  timuti  w: 
at  the  same  time,  and  that  the  price 
scbool  was  a  cmwn  the  quarter. 
[Cross-examined.] 

Says, it  was  the  ciimniuii  rc[>orl  oil!:' 
tlial  the  boy  was  unl  my  lanl  Atrhii'^r 
son.  .  Kays,  he  knows  Patilck  I'lunkM 
sure  he  is  acquainted  with  him;  bcliir 
a  very  hone'l  man,  and  that  he  wuuid 
aralBethin^Fui>on  bi^oath. 

Thomat  h.ii  ret  sworn  to  the  Voire  I 

Says,  he  knew  a  boy  at  Ross  ia  tl 
1734,  who  went  under  Ihe  name  or 
Ljtndy  :  Savii,  the  boy  litiilin  hisliou' 
iVL-eks,  and  in  the  dcpouenl's  brolhiT'i 
lour  months  that  year,  end  that  the  il 
had  no  coiuiileretion  fur  maintaining  Kia 
be  was  reputed  to  be  lord  Allbam'i  nm  I 
Landy  ;  that  he  came  to  Itoss,  *i  bn 
liody  In  take  care  of  bim,  and  that  tU  i 
Ross  bflnni^ed  to  bjssnppctLed  falbo'; 
came  l-)  Ross  after  lord  Altham  kit  C 
duff;  Ihat  one  Mr.  Weldman,  my  hi 
ceirer,  desired  the  deponent's  broUMcl 
care  of  him.  Savs,  he  saw  him  in  Re 
bis  mother  Joan  Landy,  before  be  Find 
deponent's  bouse,  when  he  was  skci 
years  old  or  tbemboot*.   Saj^  IW ' 


^  and  Richard  Earl  of  Angles: 

11  yeiraold  nhen  he  came  (o  Kora  the 
d  lime ;  *n<l  Hie  reoMin  tbe  bny  came  la 
epoticnl  wu,  becaiiae  one  Cormnck.  his 
tra  buibtiid,  would  not  encoura^  him. 
Juan  LbdiIv  mairieil  Cormuck  at  Rest; 
be  lieknl  ifie  bnj  w«iil  to  Dublin  after 
i|f  hiimolher;  says,  Juan  Luid;  never 
to  see  him,  while  lie  was  nitli  t-'ne  de- 
ll ;  nyx.  lie  wasBonietlniei  called  Jcroony 
■ley,  and  luiueiinies  Jeiamy  l>Bnily  ; 
lie  DGTer  saw  him  before  bis  mutber 
111  bim  Id  Itoii,  and  ihe  first  lime  lie  nas 
M,  lie  <*aii  abuiit  fne  year*  "Id,  and  Ihe 
d  tiuie  lie  (-iiiiie  lli^e  he  wis  about  II 
old  i  taya,  he  cannot  tell  where  ilie  Ixty 
fa'uttjme  beliveen  the  nge  <il'  6  and  11 
c  uja,  be  auw  bim  about  a  iiioiitli  agu 
tM,  and  also  about  twelve  montlii  ago, 
IM  he  noH  llien  called  Jaroea  Annrsley  ; 
be  is  *>iro  be  is  the  aame  person  ibat  liail 
nrlf  livwl  wiib  bim,  nod  ibui  ilie  Jepn- 
luew  bis  face ;  aaya,  iliai  ibe  plaiiiiitr 
willi  about  Iwi^lve  men  iuto  Rois.  iiuil 
lie  deiionent  knew  him  umong  them,  and 
vaa  llie  first  lime  the  de|ioDeiit  na\r  Dm 
he  lived  wilh  the  dqioiicut  al  \loM. 


A.  D.  trts. 


[1330 


trro 


].inn).] 


ft,  lie  lired  in  Rou  barorB  Jnaii  Landy 
married,  but  can't  tell  how  lonif ;  Kuys, 
ifljr  tvaa  about  5  yeara  old  the  6ist  lime 
lt[iooeiU  *aw  bim,  aa  near  aa  lie  could 
li  aaya,  b«  did  not  ask  whose  son  he  wna, 
Ueitwaa  in  rrery  body's  mnulb  that  he 
lieuLandy'a  luD  ;  says,  thai  Joan  Lnndy 

In  Boss  till  within  lUese  three  yeuta, 
Y  bs  cuinot  exacily  aiy  wbatclolbva  ilie 
tad  on  tl>e  first  time  he  savr  bim  ;  that 
dMlies  were  of  bo  liltle  talue,  thai  they 

Mt  worth  obaervini^ ;  It  wax  seme  )ort  of 
r&,  but  the  deponent  never  look  notice  or 
Haya,  he  nerer  look  notice  of  his  having 
mall-pox  iheiitst  lime,  uor  did  he  ob- 
'  any  impreasioua  of  tbe  cmall-pox  ibe 
4  time  i  Myi>,  he  saw  bim  at  Carrick- 
tome  lime  before  he  came  to  live  wiih  the 
kot,  and  then  he  was  between  nine  und 
Mraold;  iayB,bc  never  bad  any  dincnurse 
UanepiDOllier. 

.and 

IP*,  he  came  for  the  aake  of  truth  and  jus- 
Beini;  eskeJ  bow  liini;  be  had  bred  in 
I  aaya,  he  hat  lived  in  Robe  about  50 
\t  (asceplabuui  ayear  and  a  half.)  Kaya, 
taaeen  a  boy  al  Row,  aliewo  by  Thomas 
N  (o  biin,  and  never  nan'  ttim  alter,  to  llie 
of  bia  kniiwlcdee,  rxcpt  with  a  genllv- 
WbviacBlltd  Mr.  H'Kerchfr,  b«  drfio- 
la  iulbmii-d.  Ileiuff  asked  11'  he  «rer 
I  that  lady  Altham  bnd  a  child  ;  aaya,  lie 
'  did,  and  btlicvea  it  ia  impuMible  the 
Id  bave  a  rliild  without  bin  knowing  it ; 
tlut  he  bti  heard  a  bunJrMl  time%  that 
—  ■  4acfiild;  tliathevras  well  oc- 
'Hlfabip  nhca  »he  livad  al 


DunniaiDe,  and  it  was  ibc  reputation  of  iha 
country,  ibat  ihe  never  bail  a  clilld  in  OiiH'^ 
maioc  or  in  Irebmd.    Says,  he  wna  very  well 
acquaiuted  with  the  late  lord  An>{leaai ;    tbaV  J 
he  was  ofien  lo  visit  my  lord  Anattaca  wiitf  ] 
many   genilemen,  aud  never  heaAuiy  chiUi   [ 
made  mention  of,  and  believes  if  tliere  was  en]<  I 
uucb,  il  would  hove  b«en  talked  uf:  rays,  m«  | 
lord  had  some  Giisplciun  of  some  Eug-l'ish  afi 
lair,  bat  nol  of  this  sort.     Says,  he  ia  mairiedr   1 
to  a  niece  of  iMunsetlor   Auneiley'i  in   b!ii^  J 
land,  and  that  when  he  viijsieil  lord  Angleirel   ( 
lord  Altham  would  never  be  pleased  at  it.     Be4   ' 
in;;  aSiked  if  tie  aaw   locd  Anglt^ca  Eaon  aflev,   I 
the  death  of  lord  Altbani;    says,  be   paid  hw 
conijiliinent  to  my  lord  Aiigleaea  nftet  my  lord   I 
Allliam's  death,  and  he  never  beard  ufatty  bmi    I 
of  ii>y  lord  Allham's.    Saya,  that  Ion)  Angltw  J 
aca  cams  into  possesBion  of  the  lord  AlthamW   I 
eslaie,  undcujuyed  it  ten  years  ;   and  Ibeda-^  J 
iioiieiit  had  a  letter  of  attorney  from  I 
lord   Aiiglesea,  and  ^ve  minules  of  il 
tenants,  and  no  person  framed  a  nntiont 
of  lutd  Al Jtaiu's,  nnr  ever  made  any  olijcetws ' 
iiu  account  of  il.    Saya,  the  tmva  of  Imm  it' 
alinohi  entirely  the  Altham  csiste,  ^  if  lunf  1 
AllhaiD  had  a  Bun,  he  belierea  lliti'e  mul  ha**  1 
been  aouie  nliis|>ers,  nnd  it  would  liave  rtut  J 
from   one  to  another,  and  would  have  been  aq  1 
seeret ;    there  would  baie  been  TgaicingB  ia   [ 
RiHis,  anil  it  would  hate  been  talked  of  by  lliK 
whole  country,  and  would  hare  been  known  ik    I 
every    cnunty,    nay,  he  birtieves   the    whoW   - 
kingdom,  and  all  bngland  would  have  heard 
'■  ■  -■  -    -  „   ,  - 

aon   by    Jou 

[Cross-examined.] 
Says,  be  baa  seen  earl  Jaroea.  Being  ashed 
if  he  knew  Joan  Landy'a  child  ;  says,  he  did 
not  know  the  person,  but  he  was  shewn  to  him 
by  one  Barret.  Remembers  eail  Anbnr  al 
Dromolan.  Believes  one  Miggiaou  waecon- 
ccrneii  RS  agent  for  lord  Aoglesea.  Says,  hecnlN 
not  recollect  when  he  was  fn^t  acqtiaioled  wilb 
earl  Arthur ;  and  says,  Ibat  after  the  time  llia4 
lord  Altham  look  to  his  lady  again,  earl  Arthur 
never  cared  for  lord  Alllinm. 

Ge«rge  Brthan,  one  of  tbe  atlornjes  of  tiil 
moJKily's  Court  oF  Exche(|uer  anorn  t« 
Ihe  Voire  Dire,  and  then  svinrn  in  chief, 


Annesley;  says,  thelirstnlacs  heaaw  him  waa:   ' 
ill  ftois  ;  he  was  then  called  Jemmy  Altham  i  j 
and  liie  deponent  did  not  know  him  ibeti  ]ff   I 
any  other  name,  but  does  not  remember  tnt 
year,     iiaya,  he  rcnicmbets  tbe  dealU  of  king 
tiWTge  Ihe  first,  and  thiit  the  guide  la  bis  me* 
inory  waa  tbe  flection  fur  Rosa ;    says,  he  re^    < 
members  that   bis  I'albcr  was  served  wiih  M 
eicotnient,  for  giving  bis  vote  lo  Mr.  L(«  nod  M^^ 
Totnam.  8ay»,  ho  saw  ilie  lessor  of  the  plaiuiMT^ 
at  llie  drnoiient's  father'a  houae,  and  be  v     '- 
a  roiacniulecoiuliiUw,    httia;<Va'««&  i' 


1331]  17  GEORGE  IL     Trial  in  Ejectment  between  J.  Anmsloff  esq.  [IS 


lord  Althaiti's  natural  soii,  the  deponent  gaf  e 
him  bread,  and  supported  him,  and  took  him  to 
his  father's  stable,  lest  he  should  lie  in  the 
street ;  says,  he  also  saw  him  at  the  house  of 
Francis  fiarret,  who  was  an  ale-seller,  next 
door  to  the  deponent's  father's  house :  says, 
the  boy  used  to  run  of  errands,  and  the  de- 

Eonent  remembers  to  ha?e  heard  he  misbe- 
aFed.  [Deponent  was  going  to  give  an  account 
of  a  conversation  he  had  at  the  Walsh's-head 
tarem,  but  was  prerented,  as  it  was  matter  of 
hearsay.)  fidng  asked,  if  he  saw  the  same 
person  afterwards ;  says,  he  belieFCS  he  saw 
the  same  person  afterwords.  His  reason  for  it 
is :  about  the  time  of  the  report  of  the  taking 
of  Carthagena,  there  was  a  rumour,  that  there 
was  a  person  in  the  West  Indies  who  claimed 
the  estate  of  the  earl  of  Anglesea  ;  and  in  No- 
vember  last,  as  the  deponent  intended  to  come 
to  Dublin,  he  beard  that  Mr.  Annesley  was 
eoming  to  Ross,  and  tvaited  to  see  him ,  and 
when  he  was  riding  into  Ross  the  de)>onent  saw 
hiiu  with  many  others,  and  observed  his  face, 
and  says,  he  pointed  to  him,  for  he  remembered 
he  had  a  high  nose ;  and  the  deponent  beliered 
it  was  the  same  face  ho  formerly  knew,  and 
which  he  described  to  one  Mr.  Millbank  before 
he  saw  him.  Says,  he  bclieres  he  is  the  same 
person  he  formerly  knew,  and  tliat  his  face  is 
every  day  more  and  more  familiar  to  him  since 
he  saw  him.  Hays,  he  was  reputed  to  be  the 
son  of  lord  All  ham  by  Joan  Landy  (a  woman 
who  sold  bread  in  Ross.) 

[Cross-examined.] 

Says,,  he  can't  tell  how  lung  it  was  before  the 
elsctiou  of  Itoss,  that  he  saw  the  boy,  or  whe- 
ther it  was  two  or  three  years.  Says,  he  be- 
lieves the  lioy  was  the  older  of  il»e  two,  because 
he  was  then  bigger  than  the  deponent ;  says,  he 
believes  the  boy  was  then  10  or  11  years  old ; 
*ays,  he  does  not  kuow  how  long  the  boy  con- 
tinued ut  Uuss,  and  that  he  took  no  notice  of 
the  tiute ;  knows  his  father  had  a  lease  dated  in 
17'.M,  and  that  in  17127  he  quitted  the  house 
about  Clnisimiis.  Says,  he  belicFes  it  was  near 
the  time  of  the  election  of  parliament  that  he 
kaw  the  Iwy  ;  says,  he  remembers  more  parti- 
cularly his  father's  removing,  because  it  was 
more  remarkable  to  him ;  says,  he  believes 
Joan  Laudy  lived  in  Ross  when  the  boy  was 
there,  for  the  boys  used  to  say,  there  is  Jemmy 
Altham's  mother.  Says,  he  can't  tell  how 
long  the  lessor  of  the  phuutifl'  was  in  Ross,  but 
knows  he  lodged  him  in  his  father's  hay-loi\  ; 
and  when  the  lessor  of  the  plaintifl' came  into 
Barret's  house  lie  was  lililc  provided  for.  l>ein«f 
luked  what  school  he  went  to;  says,  he  went 
firel  to  oue  Culleu  to  learn  to  read  and  write,  and 
after  to  one  Piggot,  who  taught  Laiin  ;  that  he 
iiiiX  that  .school,  ar.d  returned  to* it  asfain  ;  that 
he  was  at  I'iffgot's  school  when  he  knew  the 
hoy.  Says,  he  was  about  eight  or  nine  years 
old  when  tie  went  to  Piggot ;  that  he  was  at 
Pig<rot-s  school  for  about  four  or  tire  years; 
that  he  went  to  one  Buckley's  school  to  learn 
U  ¥fr\\,%  but  canaut  rcmeonber  Vvow  Vqo%  Ue 


was  there.  Says,  that  Francis  Bvrel  M 
next  door  to  the  deponent's  mother,  i| 
above  him  one  Thomas  Barret;  nyi,  Ag 
the  boy  was  just  come  to  Roh  when  beai 
him,  and  that  his  mother  was  not  ibletoM» 
tain  him  ;  says,  be  nerer  knew  one  Ediri 
Lutwich,  nor  any  of  that  name. 

Elizabeth  M^MuUen  swon. 

Says,  she  knew  lady  Altham  when  d»U 
in  Dunmaine,  and  the  deponent  then  lrfil| 
Ross,  and  ?iuted  her  lady  ah  ip  once  it  Di»: 
mame ;  she  belierea  it  was  about  three  fi 
of  a  year  after  her  coming  thither,  btt( 
be  exact  as  to  the  time.  Says,  ihewmi 
acquainted  with  my  lady  after  she  Ieft]|» 
mame.  Says,  she  saw  her  at  captain  BM 
at  Ross,  and  remained  in  Ross  for  three  irfti 
years,  and  very  often  visited  my  lady  it  hs; 
she  believes  twice  a  week  for  two  yetn.  Sn 
my  lady  went  from  Ross  to  lire  in  Dm: 
that  the  first  place  she  lodged  at  (wki# 
came  to  Dublin)  was,  at  one  CavesifhVii 
Stable-lane,  near  Mary 's-lane ;  and  tM|b 
deponent  seldom  missed  a  week  withuutH| 
my  lady,  while  she  lived  in  Stable-lane:  te, 
she  left  Ross  in  17 19,  and  came  to  Dabfii^a 
lived  in  Uride-street  for  a  while,  but  tauRtt 
actly  tell  when  my  lady  canoe  to  Doblii;  M 
deponent  knows  she  went  in  a  coach  viAK, 
Cavenagb,  to  the  stage-coach  inn  in  Gcoi|ri^( 
lane,  to  l»ing[  my  lady  to  Cavenagh^lo^n^ 
Says,  she  visited  my  lady,  when  sbeieM 
her  lodging  to  alderman  King's,  where  ikfi 
put  into  stupes;  and  one  Dr.  Irwin  vis hf 
physician  ;  and  that  the  deponent  osed  MM 
lier  very  frequently.  Says,  her  lad}&iiipMP' 
ed  at  Mr.  King's  for  about  a  year,  tad  irteriM 
came  to  lodge  with  deponent  at  ber  iiows 
Tashe's- square  in  Alontrath -street,  wbeRii 
continued  for  about  eight  or  nine  weeks,  ■ 
from  thence  she  went  to  England.  Beiitf  i^ 
ed  if  she  discoursed  very  familiarly  wiuif 
lady  ;  says,  she  did  ;  and  had  heard  ber  v*f 
often  wish  she  had  a  child.  Being  asked  *W 
hiie  understood  by  that ;  says,  she  uaiknSB 
ray  lady  meant  an  heir  to  ray  terd's  e<* 
Being  asked  if  she  ever  heard  my  lady  W« 
child  by  my  lord  Altham;  says,  ibe  i«* 
heard  my  lady  had  a  child,  and  it  \ras  uie|^ 
neral  reputation  she  never  had  a  child.  ^ 
she  never  saw  a  child  with  my  lord  at  D* 
maiue  or  Ross :  that  Mrs.  Heath,  1»«^*^ 
and  the  deponent  put  her  on  ship-botrd.  W 
she  remembers  she  was  with  my  lady  oo*  jvj 
after  supper,  as  she  was  preparing  to  sw-JJ 
her  ladyship  requested  thede|K)nenltosfliJ* 
the  tirst  account  of  njy  lord's  death ;  tajsj 
took  the  deponent  by  the  hand  to  o«k«  ''* 
promise  of  it ;  and  said,  that  the  depon«*"* 
a  faithful  Irishwoman  ;  and  the d^pooeo^T 
nilKcd  she  would  write  to  Mrs.  H***\  ?2 
that  in  some  tiuie  after  when  she  betrd^? 
lord's  death,  she  waited  for  his  funeralii'V^ 
served  who  were  the  bearers,  and  »ha**JT 


ki 


V 


there  were,  and  sent  over  an  sccomtf  ^ 
^^a^  ahft  saw  a  boy  at  th«  fiuiertli  ^0^ 


Uchard  Earl  ofAngfesea, 


A.  D.  174S. 


[1331 


bat  she  turned  hiin 
s ;  and  asked  hiin, 
i  your  mother  ?  that 
an  Landy  is  my  ino- 
V  lather.  Says,  she 
ieath,  directed  to  her 

I  John  Weedon  the 
id  .loan  Landy *8  son, 
iic  funeral :  says,  she 
le  gentral  reputation, 
son  by  lord  Altham. 
lition  was  the  boy  at 
»oked  like  a  black- 
vas  surprised  to  hear 
use  she  never  heard 
Id,  except  by  Joan 
iw  him  since. 

lined.] 

vith  her  father,  who 
J  my  lord  and  lady 
ij  before  the  separa- 
leard  that  my  lord 
eman  thither ;  says, 
r  at  Donmaine  but 

II  how  long  my  lord 
e,  but  belieTes  above 
nbers  my  lady  came 
lies  were  just  be^n 
"emember  the  day  ; 
was  acquainted  with 
lear  the  Cross,  and 
el  Boucher.  Being 
cud  woman ;  says, 
3d  very  often  at  the 
ards  the  hill,  when 
unment.  Says,  the 
itap  at  her  father's 
«  in  the  year  1719 ; 
nuary,  and  went  to 
I  after  in  Tashc's- 

recollect  the  time 
Ts  in  Dublin  ;  says, 
I  Smitli's  in  Dubhn ; 
I.  Hofi^rs ;  says,  she 
took  lod^uj^  for  my 
ime  of  the  person  at 
ivere  taken.  Betng 
,1k  when  she  lodged 
lys,  that  she  was  not 
nan  had  htr  in  her 
^  heard  of  any  per- 
thild-bearinfif ;  says, 
id  if  she  ever  heard 
ag  her  limbs,  or  did 
ost  them  by  a  cold 
f  8,  she  never  heard 
limbs,  and  my  lady 
f  it ;  and  that  she 
e  of  her  disorder. 
1  Ross  ;  that  when 
.0  church  in  a  chair, 
>  the  pew ;  that  she 
'f,  and  walked  but 
rehended  a  disorder 
r.  Butler's  in  Ross, 
with  her  about  it; 


says,  she  believes  it  proceeded  from  her  grief; 
that  the  deponent  saw  her  several  days  cryij^ 
for  grief.  Says,  she  never  knew  any  such  per- 
son as  Edwaird  Lntwiteh  a  shoe-maker  in  Ross; 
sa^'s,  that  one  Allen  was  the  best  shoe-maker 
in  Ross.    Being  asked  if  my  lady  lodc[ed  at 
any  other  place  in  Ross,  but  at  Mr.  Butler's ; 
says,  she  lodged  at  one  Wright's  in  Ross,  and 
that  the  deponent  visited  her  there,  and  was  then 
mmarripd.    Being  asked  to  whom  did  she  pro- 
mise to  write,  concerning  lord  Altham's  death  ; 
says,  she  said  she  would  write  to  my  lady's  wo- 
man, BIrs.  Heath,  because  my  lady  was  sickly: 
and  because  in  all  probability  Mrs.  Heath  Y»as 
likely  to  live  longer.    Says,  she  hevd  of  my 
lord's  death  in  the  news,  and  in  the  elegy  that 
was  cried  about.    Says,  she  believes  it  was 
curiosity  led  my  lady,  when  she  desired  the 
letter  to  be  written.    Says,  she  watched  the 
funeral  at  the  comer  of  Christ-church-yard, 
and  followed  it;   that  h  was   about   10   at 
night ;  that  she  did  not  see  the  choir  attend 
the  burial,  nor  BIr.  Hawkins,  kins'  at  arms; 
that  she  does  not  know  who  were  the  bearers 
or  mourners,  nor  whether  slie  gave  any  ac- 
count of  them  in  her  letter,  nor  whether  the 
scarfs   were  black  or    white ;    but   knows 
that  whatever  she   writ  in   her  letter  was 
true,  but  has  not  read  the  letter  since.    Says, 
she  saw  but  one  clergyman,  and  the  rirger  of 
Christ  church  attend  tue  funeral,  and  that  she 
remembers  the  boy  stood  at  the  opening  of  the 
vault.    Being  asked  if  she  told  any  person, 
within  these  two  years,  that  she  saw  the  boy 
at  the  funeral ;  vsays,  she  can't  recollect  that 
she  did.    Being  asked   if  she  got  directions 
where  to  write  to  England ;  says,  Mrs.  Heatb 
desired  the  letter  to  be  directed  to  her  brother ; 
and  that  the  deponent  gave  directions  where 
to  write  to  herself.    Says,  the  boy  did  wear 
his  own  hair :  that  two  of  the  flambeaus  re- 
niained  with  him,  and  some  others  went  away. 
Says,  she  never  heard  that  my  lady  miscar^ 
ried,  or  that  she  was  with  child ;  says,  that 
she  knows  Mrs.  Lenox,  but  never  told  her  that 
my  lady  miscarried.    Being  asked  if  she  tokl 
one  Reily,  a  servant  to  my  lord  Montjoy,  or 
his  wile,  that  the  plaintin  had  a  right  to  the 
estate ;  says,  she  lived  with  my  lord  Montjoy 
as  a  servant,  and  with  squire  Hamilton,  and 
that  she  now  lives  with  Mr.  Lee,  and  that  she 
never  said  to  my  lord  Montjoy,  that  the  plain- 
tiff was  the  right  heir ;  nor  does  she  recolleet 
that  she  told  Reily  or  his  wife,  that  the  plain- 
tiff had,  or  had  not  a  right  to  the  estate.   oays» 
she  heard  a  runMHir  that  my  lady  had  a  cliild 
in  England.    Being  asked  what  was  her  rea- 
son for  turning  the  boy  about  at  the  funeral ; 
says,  because  he  said  he  was  Joan  Landy's 
child. 

Matthew  Darenzy^  sworn  to  the  Voire  Dire. 

The  witness  was  asked  by  the  counsel,  whe- 
ther he  was  not  bound  in  several  sums  i'ur  the 
defendant,  or  whc^ther  the  defendant  owes  him 
any  money,  which  defendant  will  be  di' 
frno  psyiugi  if  he  loses  hia  «M^  \d^« 


17  GEORGE  II. 


1335] 

Court.  Tbrap  (iucMJodb  miy  be  ubed  no 
cross-  examJDJnff,  but  not  on  Voire  Dire. 

The  wilnrsK  vraa  aiked  whether  he  it  not 
nccirer  lor  lord  Ani{te>M,  which  he  will  Uim 
if  the  (iluintlff  prenilt  ? 

Couruel  for  the  Deftadant.  A  i 
ezimiae  his  receiver,  becauie  he  hu 
interert,  and  especially  if  Dot  receiver  uf  the 
Unds  in  queation,  hecante  theo  he  is  Dot  iin- 
inedittelj',  bul  consequential  I  jr  iatcreated.  For 
the  tame  reasoo  a  tenant  at  will  of  lauda,  nut 
immeiliately  in  question,  may  be  examined. 
A  man  may  examine  hl«  son  and  heir.  The 
heir  at  law  was  produced  at  Waterford  before 
.my  lurd  chief  Jusllce  Whiuhed,  and  it  was  de- 
termined that  be  mi^ht  be  exumined,  because 
he  had  only  a  poKEJIiiliiy,  and  no  cslato  rested 
in  biin.  And  ao  heir  lias  ■  more  certain  tenure 
iban  m  sen  ant. 

Court.    The  (|Uestian   is  pnii>er   on  cmn- 

The  witness  wan  nsbetl  a^-Hiii  whether  be  will 
■uRer  iftlie  defendant  loses. 

The  wilneHs  said,  be  acrcpted  some  of  the 
ddeudent'ii  bilU  drann  upon  hicu  (tiometh ills' 
less  iban  a  lliousaml  pounds)  and  that  he  has 
Dot  aetlled  apcountt,  but  is  suie  he  has  the 
fCreateil  part  of  ihc  money  in  hia  hands,  and 
doea  nnl  apprehend  that  300l.  are  due  to  him  ; 
ami  atya,  that  the  earl  of  Aogleaea  dealt  with 
him  aa  honourably  as  any  mau  could  do  Milb 
another. 

Courf.  When  the  particular  qiicalions  are 
naked  ref^ulaily,  the  p:eurrnl  queslton  cannot 
lie  asked  ;  but  nevertheless  it  may  be  asked  on 
Voire  Dire.  A  person's  beintr  a  servaiil,  is  an 
objection  tii  hia  being  a  juror,  but  it  caiiiiiil  be 
an  objection  to  bb  being  a  wiinets. 

Mr.  Darcnsy,  sworn  in  chief. 

Says,  be  hnew  the  hie  lord  Allham  at  Car- 
fivkdulF,  and  con^nued  bis  ac(|nainlance  with 
him  till  my  lord's  death.  Says,  be  never  heard 
niy  loni  Aliham  say  any  thing  of  a  child  of 
liis  ;  says,  he  saw  a  boy  at  Carrickduff  at  a 
hurling,  and  that  he  was  clad  in  red  ;  but  llial 
he  had  no  riisconrsc  with  my  lord  alxiut  the 
hoy;  says,  that  he  heard  that  the  boy  which 
he  saw  at  Carrickduff  was  a  bastard  ;  and  that 
he  never  heard  my  lady  Altham  had  a  child. 
Says,  Ihe  lirst  ul'  bis  acquaiulauce  with  iny 
lord  was,  when  my  lord  livetl  at CarrickduR; 
thai  he  dined  with  my  lord  at  Carrickduff,  and 
that  he  did  not  see  any  bny  dine  with  him. 
feiays,  he  lived  at  bis  ui'ilher''«  Iiouhc  wiltiin 
three  miles  of  Carrickrlulf,  and  never  heard  a 
)vonl  of  my  lord's  having  a  child. 

Jamn  Mtdlicot,  esq.  sirorn. 

8a^t,  he  knew  Ihe  late  lord  Allham  in  Kin- 
nay,  iji  the  enitnty  of  KJIilare  ;  (bat  he  kept 
a  pack  of  hounds,  and  that  sonietimet  the  de- 

Ceut  used  to  go  a  hunting  with  bim  ;  that 
dined  tomelimes  with  my  lord  at  KiDoay, 
Mif^PVMlijnKf  MHTr  Annuleji'iUSAll^MJi. 


Triid  in  Ejedvieta  betneen  J.  Amaley,  a^.  [IS 

Being  asked  if  heat  any  time  bid  ay  <m» 
with  my  lord  Akhaf      '    -   '    ' 


abonl  ttal» 
•ays,  be  reawoibcn  m  mi 


Anf{letea  title  and  estate;  and  iblarlil 
said,  he  bad  rcaMn  to  expect  hesbatMkU 
Ansleiea,  and  then  added,  Wbeo  I  M^ 
at  I  have  no  ton  of  iiiy  own,  1  dont  tattrit 
will  become  of  tbe  estate,  or  if  ite  i—l 
should  have  iL  Deponent  iays,iny  I 
useoftheaeworda,  orto  thatef^or ,  , 
Eiaya,  he  never  aaw  any  boy  at  Iuaq,H 
heard  of  any  buy  beiog  there. 

[  Cross .  examined .  ] 

Being  atkcd  if  he  can  remeniko'  wimM 
ditcourte  happened  i  aayi,  hecauDOINala  it 
where  the  iJitcoune  happened,  nor  aWw  n 
iu  company  then.  8ayt,  he  bad  m  icfMt 
SDce  with  my  lord  till  he  came  to  lire  ■  b 
nay.  Being  asked  if  he  ever  told  s  , 
this  convsreauon  within  these  two  ywij^ 
says,  he  never  remembered  it  till  this  ii^ 
■ays,  he  fell  into  some  discount  atteW 
Curragh  race,  whicb  brought  tbe  coi 
of  my  lord  Altbam  to  hia  memori ;  ibilbl* 
members  my  lord  made  use  ot  these  m^ 
As  I  have  no  son  of  my  own:  atlnMMM 
as  tbe  deponent  can  recollect,  that  *Hi< 
meaning  and  sense  of  the  words.  Stj%,\l 
had  no  conienration  with  him  about  ba  Uli 
and  Ibat  Mr.  John  Annealey  was  n;  M 
rclaliou. 

Colonel  William  Beektt  sww 

Says,  he  know  the  late  lord  AllhiBiW 
JO  years  ago;  that  he  first  knew  kn»»t> 
my'lard  luilifed  in  Eisex- street,  soil  lkll|> 
ktiew  him  in  Incbicore;  that  he  tatitm 
with  him  several  limea,  and  remenibe«ii'2 
were  some  animosities  between  mj  W  ■* 
his  brother,  and  that  my  lord  atiJ,  he*i* 
bis  natural  sun  had  been  a  legiiimaie  '^* 
cut  the  scoundrel  his  brother  out  of  ibr  .tifr 
seaesute;  that  he  never  heard  till  of  lU^M 
my  lord  bad  a  Iccitimale  son,  but  it  "•* 
ways  reputed  in  the  country,  be  had  a  to"* 
SOD,  and  no  other. 

[  Cross-  examineil .] 

Being  asked  where  be  waa  fast  acygj 
wiib  my  lord  ;  says,  he  was  first  wi*jS 
with  my  lord  in  Essex-street,  and  Ihii  *■ 
acquaintance  never  broke  off;  d>*l  .'''^ 
him  at  his  lodgings,  and  dined  *>>■  * 
there;  aiidlbat  hesaw  him  at  iDcbiw™!** 
be  was  sure  he  was  not  a  whole  J'*f*rJ 
seeing  my  lord  Altharo,  and  that  he  '1*'°  fr 
my  lord  in  the  fcummer.houJe»iVia'',*'r 
be  lodged  in  Esses-street;  that  he  "V  ^ 
seen  my  lord  from  the  time  be  u"  •* 
Vice's,  until  be  saw  him  at  Inchicore.  "n 
asked  how  long  it  waa  from  lb«  0**'^^ 
lodged  at  Vice's,  to  the  lime  that  be  IMP^ 
Incliicore  ;  tavs,  be  belierea  it  niwbt  Ml 


AMa,  ^iahirat^  U  have  ai 


ami  Richard  Earl  of  Anglesea. 
ton  and  one  CiiTtnagh  wftc 
was  al  night  before  supper, 
lour ;  thai  there  was  a  botlle  of 
Iwl  of  punch  on  the  Ulile,  anJ 
inl  (ta^it  till  three  o'clnck  next 
lag  uliei],  nhcther  miss  Gre- 
^  ;  Mys,  he  was  lold  ihat  miss 
latioti  of  my  lord,  was  in  ihe 
was  not  present. 
rth  Harman,  esq.  sworn. 
I  very  well  ftcqitainied  itilli  Ihe 
n,  ff^m  the  year  17H0r  I71S, 
when  hs  lived  »l  Kinnay  ;  Ihm 
besriJ  my  lord  it  liis  own  house 
t  harl  a  child  hy  his  wife  ;  thai 
very  often  «peak  of  a  haslani 
Bly  lord  ttaid,  he  could  not  tell 
bis  own  child,  or  his  brolher'a, 
I'd  ;  and  when  my  lord  would 
the  subject,  that  the  deponent 
I,  Why  do  you  pester  toe,  io 
your  "bastard  son?  Why  don't 
wife,  and  ^el  a  child  hy  herP 
■nswered,  FTugfoe  un  the  h— ch, 
le,  and  ihai  Ihe  deponent  heard 
itly  s|ieak  ID  I  bat  purpose. 
^C  roM-  ekamined.  ] 
I  not  Vnow  when  my  lady  came 
n  ;  lhat  he  became  acquainted 
Altbam  immediately  alter  lie 
itt%Attm\  tlint  he  cannot  tecol- 
'  '  diacoiinc  with  Mt.  Med- 
lir  ;  that  lie  never  saw  my 
rilh  bis  lady,  nor  iluei  he  know 
I  Altham  lived  at  the  queen's 
jal  at  the  queen's  death  the  de- 
t  Dawinn'S' street,  and  that  he 
(mtpnaliou  with  my  lord  when 
■t  Kinnay,  near  ilie  Curragh. 
t  saw  the  boy,  and  believes  it 
iiMn'*  death,  that  lonl  Altham 


lerwardt  sworn  in  chief. 

if  he  knew  John   Pureelt  the 

he  knows  John    Purcell  the 

son,  aod  thai  John  Purcell  is 

tenant.    Says,  that  Purcell,  the 

l«t  to  bim  that  he  was  sum- 

mdcnce,  and  asked,  what  could 

M  the  father  related  the  trans- 

''boy,  and  said,  he  happened  to 

U,  and  saw  a  boy  there  with  a 

nil  bia  middle,  who  laid  he  wis 

iltham'si  and  that  Purcell  then 

woald  speak  to  lord   All  ham  to 

'at ;   Biid  that  he  would  haie 

apprentice,  but  said,  he  hoped 

bom  to  better   fortune.    Says, 

Puree II,  one  thing  vuu  lold  lue, 

I  did  not  tell  mo,  about  seuiog  a 

V^ift.    8*yB,  be  coiJit  uol 


A.  D.  I7«.  f  133S 

charge  his  memory,  that  the  r^lhei-  said  any 
tbingaboiit  the  variations  of  his  evidence. 

[Crou-«ainine(l.3 
Being  asked  if  he  believes  Purcetl  to  be  an 
hoDCSt  mail  ;  says,  be  believes  he  is. 
Mrs.  Hannah  Shan;  swotn. 

Bein^  asked  if  she  knew  one  Calharioa 
M'Cormuck;  says,  she  knew  one  Catharine 
M'Carmuck  that  pa|»ers  rooms;  lhat  she  came 
to  the  deponent  about  a  year  before  to  paper  a 
room ;  lhat  she  then  said,  she  had  a  comical 
diacourte  with  a  young  man,  who  used  to  go 
about  In  iret  evirfeuces  for  Hr.  Annesley ;  aod 
that  she  told  him,  lady  Altham  never  was  with 
child,  uor  had  a  child,  but  that  women  used  (o 
quack  with  her  with  herbs.  Says,  thai 
M'Cormuck  farther  mentioned,  that  she  de- 
sired liim  not  to  call  upon  her  as  a  witness,  for 
lhat  my  ]ady  never  had  a  child  ;  and  she 
could  not  do  them  any  service  by  ber  evi- 
dence, but  that  she  would  make  against  tbem. 
Phititiff  called  upon  Io  reply. 

But  Mr.  Daly  first  offered  Io  give  in  evi- 
dence, a  record  between  the  earl  of  Anglesett 
aod  Graham  on  a  speeial  verdict,  which  found, 
that  Arthur  lord  Altham  died  without  issue, 
and  relied  upon  Hardress  473,  that  a  remainder 
man  shall  lake  adranlage  of  a  verdict  for  the 
panicular  tenant. 

Mr.  Broadilreei.  The  notion  io  the  family, 
lhat  lord  Altham  bad  no  son,  is  material. 

Court.  Thid  record  is  no  evidence  againtt 
the  lesKir  of  the  plaintiff,  nho  is  no  pnTly 

Serjeant  itarthall.  My  lord,  tbe^nllemea 
have  by  their  defence,  made  it  necessary  for  ut 
to  give  some  ntw  evidence.  It  has  lieen  in- 
sisted on  by  them,  and  they  have  endeavoureil 
to  prove,  that  lady  Altham  was  at  tho  spring 
assizes  171.5,  at  Wexford,  without  any  appa- 
rent sign  of  pre^ancy  ;  that  beiog  a  new 
point,  your  lordship  will  ^ive  us  leave  to  con- 
trovert, because  the  credit  of  the  lessor  of  the 
plaintiff's  birth  may,  in  some  measare,  depend 
upon  it.  They  have  gone  a  step  farther,  and 
have  attempted  to  impeach  Ibe  credit  of  Joan 
Laffan  ;  we  apprehend  it  will  be  material  to 
defend  the  character  of  that  witness,  and  to 
■hew  that  some  of  the  wilneMes  produced  on 
their  part,  have  been  prepared  lor  this  trial. 
Cirwr  Coklough,  esq.,  sworn  to  the  Voire 
Dire  tuid  then  in  chief. 

Says,  be  has  seen  the  lady  Altham,  and 
knovvB  Mrs.  Giffard.  Says,  he  remembers  the 
trial  of  Mr.  Masterson,  «nd  Mr.  Walsh,  for  be 
was  at  the  trial  at  Wexford  auizes.  Says, 
they  were  indicted  for  enlisting  men  for  the 
Preleoder,  and  they  came  off  with  honour, 
and  shame  Io  their  prosecutors.  Says,  be  took 
as  much  care  as  he  eould  to  aee  justice  dona 
them.  Says,  that  colonel  Toplady  was  hi^li- 
sheriff.  Wav«,  \\«,  i(W4  wA  TeTOe^ViM  \a^«**. 
seenbily  UtliaiBa.Xi^axuKiWt*^^^^'^^ 


Irialfl ;  njri^  be  mtct  «w  a  lady  at  inch 
triab.  /  BeiRH^  atked  who  was  theriffthe  year 
Wfore  Mr.  Toplady ;  Mye,  be  kioked  in  the 
•ffiee  at  the  eastle,  and  foond  Mr.  Edwards 
was  sheriff  the  year  before  Mr.  Toplady, 

[Cross-examined  .3 

Being  asked  if  Mr.  Walsh  and  Mr.  Master- 
son  were  related  to  one  another ;  says,  one  was 
uncle,  and  the  other  was  his  nephew.  Being 
asked  if  gentlewomen  do  not  sometimes  go  to 
the  assizes ;  says^  some  gentlewomen  do  go 
sometimes.  Being  askel  what  was  Mrs.  Gif- 
fiurd's  husband ;  says,  he  was  a  justice  of  the 
peace,  but  a  poor  man ;  says,  he  would  hare 
taken  notice  of  lady  Altham  if  she  had  been 
in  court.  Being  asked  if  he  believes  Mrs. 
€Kfiard  can  be  believed  on  her  oath  ;  savs,  he 
cannot  form  a  belief  whether  she  can  be  be- 
lieved 'f  as  circumstances  happen  persons  may 
change,  and  that  Mrs.  Giffiurd  is  very  poor. 

John  Huttey^  confronted  with  Mrs.  Heath. 

Q.  Do  yoa  know  Mrs.  Heath  ? — J.  Hustey. 
I  do,  Sir. 

Had  yoa  any  conversation  with  her  about 
th&  plaintiff  being,  or  not  being  the  son  of  lady 
Altham  ?— I  had. 

How  long  ago  is  it  since  Ton  had  the  con- 
versation with  Mrs.  Heath?— I  think  about 
two  years  and  a  half  sffo. 

Give  an  account  of  what  passed  between 
you  ? — About  two  years  and  a  half  ago,  I  went 
with  a  gentlewoman  to  Mrs.  Heath^s  to  drink 
tea  in  Holbom,  within  30  or  40  yards  of  St. 
Andrew's  church,  and  as  ftlr.  Anneslev  was 
the  Gommon  conversation  of  the  coffSee- booses 


much  wronged  or  injured*? — ^ 
the  young  sentleman  was  verv 
and  that  nobodv  knew  better  tli 
she  had  lived  long  with  the  li 
mother. 

Pray,  Sir,  had  this  Mrs.  Heat 
concerning  her  coming  to  Ireh 
expected  any  thing  ?---She  sai 
she  should  come  into  Ireland,  I 
member  that  she  said  she  expec 
it  would  have  been  very  impni 
tell  me  so,  if  she  did.* 

*  According  to  the  "  Genui 
Mr.  Hussey,  upon  cross-examii 

''  He  came  to  Ireland  the  btl 
and  lives  at  a  place  called  P 
Rath-C!offee,  in  the  county  of 
he  saw  Mrs.  Heath  several  timei 
acquaintance  with  her  was  ab 
ago ;  says,  that  he  told  several 
oonversatioo ;  that  he  spoke  of 
in  Smithfidd ;  that  he  spoke  of 
bouse ;  that  he  believes  he  mi 
and  then  since  bis  coming  to  t 
be  told  it  to  some  gentlemen  in '. 
coffee- houses.  Says,  he  never 
Kercher  till  last  year  in  the 
bouse ;  savs,  he  lodiped  in  Oran 
St  James's,  in  London;  says, 
vant  to  one  of  the  yachts,  ana  s< 
in  linen.  Being  asked  who  wa 
when  Mrs.  Heath  spoke  to  hi 
Mrs.  Simpson,  and  a  young  gen 
lodged  lip  one  pair  of  stairs,  wer 
and  that  deponeot  had  seen  Mrs 
that  in  company  with  Mrs.  Si 


and  Richard  Eatl  ii/Aiiglaea. 


A.  D.  17+3. 


V>  Uary  Heath  ev/ora. 

hnili,  do  you  know  Ibat  gentle- 

rn  lh«re  ? 
Y«,  I  liBVP  Been  him  serenl 

Bember  about  tno  yean  agti,  that 
i  St  jour  liouie,  triih  one  Mrs. 
Be  bu  aefbrBl  times. 
A  leK  iritb  yon  after  the  HDConnt 
IJng  Mr.  Aaaeeley  ?— He  ba«  le- 

Iben,  whether  you  had  erer  any 
'irilh  him  in  relaliunto  the  plaiii' 
I WM  it  you  said  i' — 1  have  seTcral 
[  about  ii,  and  said.  What  a  tile 
io  lake  away  the  earl's  right,  and 
■Iberer  waa  with  child ;  and  I  can- 
Itoeif  yuu  rack  metii  dcnlli. 
'\vc you koonn  IhBt  Mr.  Hus- 
fcer  three  years  or  how  long  1 


^  bnneen  the  I 
ji  last  coovenalioii,  becauxe  she 
Krned  foe  Mr.  Annesley  ihe  first 
JBVersatioo  was  about  Il!r.  Ad- 
pore  lie  rcraembered  llie  Hordi, 
pre  the  meotioned  lady  Altham 
,_  Says,  he  was  employed  as  a 
peol  the  yachts  by  the  Board  of 
I  Being  asked  what  religion  he 
W  be  woa  a  Roman  Catholic. — 
pi  tlie  affair  Isllted  of  in  common 
^uys.  he  was  introduced  to  Mr. 
n,  lie  heard  that  his  name  naa 
I'm  court  when  Mrs.  Heath  was 
Peing  asked  how  lie  heard  what 
rore ;  says,  he  heard  it  by  a  ae- 
U  lays,  lie  was  brought  into  tlie 
ue  witnesscH  were  by  the  person 
lim  nilh  the  siibpceu'a ;  aays,  he 

iand  went  to  Jue's  ooflee -house, 
where  he  was,~nussey  being 
the  knew  before  last  Thursday 
be  examined ;  says,  he  did  not, 
i  whether  he  look  any  notica  to 
file  second  lime,  when  he  found 
^er  mind  ;  Eays,  he  did  not  take 
0r  did  he  mention  any  ihiog'  of  h 
ffukei  by  defendant's  counsel  why 
iprefent  perjury;  says,  he  did  not 
«bout  it ;  says,  that  Mrs,  Heath's 
a  be  examined  for  lord  Anglesea, 
ml  think  she  changed  ber  mind, 
fwhelher  be  believed  what  Heath 
IVt  contersstion  In  be  true  ;  says, 
nv  that  he  believed  it  to  be  Irue 
f  the  first  couversatian,  but  gave 
(DublG  about  it.  Says,  that  at  the 
iMMnd  conversation  he  did  not  ra- 
Was  said  at  the  lime  of  the  first, 
n  was  since  llie  second  conversa- 
TCcolkcted  Ihe  first  conTersation ; 
pa  of  it  before,  and  therefore  rc- 
,  be  sjioke  of  it  sef  eml  tiiuei 


Can  you  say  anything  of  his  character? — 
I  can  say  no  more  Iheo  thai  some  ssid  he  wm 
a  geiillt'man'E  serrant,  and  some  said  be  lived 
by  Kaming. 

Do  you  beliere  him  an  honest  nmn  f — I  caa 
say  nmhiDgof  him  ;  but  if  he  saya  that  I  said 
my  lady  had  a  child,  1  cannot  say  he  ti  an 
honest  man. 

bid  you  ever  say  that  nobody  knew  diat 

Jroungman'taflkirB  better  than  you?— No,  mr 
wd,!  never  did. 

Did  you  ever  giTo  it,  in  his  presence,  as  a 
reason  why  you  should  know  the  ynung  man's 
affairs,  that  you  had  long  lived  witb  lady  Al- 
tham, his  molber  ? — No,  my  lord,  I  never  did ; 
and  if  I  was  to  be  torn  to  pieces,  I  vrould  say 
no  such  thing. 

To  Mr.  Huuey. 

Q.  Repeat  the  words  you  heard  her  say. 

Hutity.  She  told  me  thai  the  duchess  of 
Buckingham  had  sent  for  ber  herself,  and  1 
cannot  say  who  introduced  the  conversation 
first;  but  nlrs.  Heath  said.  Poor  gentleman,  ] 
am  sorry  for  him  from  my  heart ;  for  no  one 
has  reason  to  know  his  alfUrs  better  Ihan  I  do; 
for  1  lived  long  with  lady  Altham  bis  mother. 

Mrs.  Heath.  By  ail  that  is  good  and  givat, 
I  never  said  any  such  word ;  I  never  thought 
thai  yoji  were  such  a  man  ;  I  have  heai-d  people 


I 


ac-an 


odd  way,  but  1  could  never  believe  it  till  now, 
but  I  always  took  your  part,  and  said  you  be- 
haved  like  a  gentleman. 

Huuey.  I  am  a  gentleman,  1  can  bring  bt' 
veral  people  to  justify  me  lo  be  a  gentlemaD, 
and  a  man  of  family  ;  indeed  I  hate  heard  you 
say  it,  and  sjieak  it  with  all  the  regret  and  con- 
cern imaginable. 

To  Mrs.  Heath. 

Q.  Do  you  remember  the  time  that  lady  Al- 
lliam  Weill  to  VVextbvd  assizes  ? 

Mrs.  Healh.     Yes. 

Was  ihal  for  the  trial  of  one  Doyle?—!  Ov 
not  know  any  otlier  that  was  tried  but  Mr 
Walsh  ;  my  lady  came  home  and  io|d  mp  how 
handsomely  Mr.  Walsh  pleaded  for  himself. 

Do  you  remember  what  day  of  the  week  it 
was  yiiu  went  to  the  assizes? — Jndeed,  my 
lord,  I  do  not. 

Did  my  lady  Altham  lodge  at  Mrs.  Vice's 
mure  than  twice? — No  more  than  twice. 

Would  you  be  understood  then,  thai  the  first 
time  was  when  she  came  from  Dunmaine,  alter 
she  went  down  from  Mrs.  Briscoe's.' — A  little 
before  the  queen  died  the  first  time  was,  and 
the  second  a  little  before  king  George's  birlh- 

Wbat  time  of  the  year  was  it  after  the  king's 
birlb-day  that  you  went  into  the  country  ? — 
ISomelime  in  tbe  summer. 

Did  you  ever  come  up  lo  town  after  the  se- 
paration F — Not  till  the  lime  we  left  Rou. 

Were  the  assizes  began  before  you  wetilto' 

Wexford,  or  did  Ihey  fe^in  aller  ?— I  belie?*- 

IdoD'Iknaw. 


1313] 


17  GEORGE  11.    Tritd  in  Ejeameitt  beheem  J.  AnnuUy,  wy.  [m 


Do  yon  kaow  one  Hr.  HigginioD,  Ibat  wu 
---r  to  Arlliuteul  of  Anglcwaf— No,  I 


S*]^,  beknetr  thelalelordandlaily  Allham, 
ud  Ibat  lie  kncir  Arlhar  the  late  earl  nf  An- 
gleaea  ;  MVi|  thai  be  wu  rccdf er  of  ihe  late 
WrI  of  Aagleaca'a  nnla  ia  the  county  of  Wex- 
Ibrd  Ironi  tbe  year  17  tl,  to  (he  year  171S,  and 
Ibalha  knew  lady  Altham  Id  1715;  that  he 
mlleGted  KOta  at  a  place  called  Cloniniea  in 
1715;  that  the  Thniaday  belbre  Easier  he 
went  lo  CloDimec  to  no  to  nerfnril  aseizea,  and 
llial  be  neot  the  Tuesday  alter  Eailer  Sun- 
day Id  Dunmaine,  and  met  (hi^rc  John  Weeden'a 
Trife,  and  one  Taylor, and  aomciuhcr  lerTaatt  ; 
aaya,  be  enquired  If  my  lord  wan  at  liunic,  but 
was  loM  be  itbh  g'one  abmaJ  ;  aayi,  iny  [lUy 
came  down,  and  lliat  he  taiv  licr  at  the  back- 
door, and  remeiubera  llial  khe  wns  bif;  betly'd, 
and  that  she  K3ve  hini  two  i^tasiies  nf  nliite 
wine,  and  thai  lie  drank  tu  lier  ladyship'*  ba|fpy 
delirery.  Saya,  he  went  lu  inajnr  Roi,'era's  in 
Enniicorthy,  and  went  from  Ennitconhy  la  nne 
Hayca'a,  who  IiteiI  between  Enniicortby  aud 
Wexford;  and  Thunuiay  murnin);,  which  was 
the  Thumlay  alter  liaster  Uunday,  he  eame 
to  Wexford  aiiizea ;  Kaya,  Ihal  Ihe  ■pring'  aa- 
siaea  that  year  bc^n  ud  Saturday,  April  the 
16lh ;  says,  be  saw  atima  tenant!  of  my  lord 
Anglesea  there,  and  received  wme  mnney  from 
Ihcm.  Being  asked  if  he  could  remember 
what  dress  my  lady  had  on  ;  says,  he  remem- 
beramy  lady  Alibam  had  on  a  white  ajjron,  a 
white  band  kerchief,  and  a  striped  (;u»u. 
Says,  he  paid  money  to  lord  Altham  in  WeX' 
ford,  and  saw  his  roachman;  says,  lie  n-as  at 
the  Big  Inn,  and  had  cue  pint  of  white  wiue 
there;  says,  he  lieard  afterwardi  that  Mr. 
Walsh  and  Mr.  MaKicrJion  were  tried  at  Wex- 
ford, Says,  he  paid  my  lord  28/.  rent,  which 
deponent's  son  receired  at  the  Nanny-wnter, 
in  the  county  of  Mcath,  which  is  part  of  my 
lord  Altham's  estate.  Being  asked  if  he  en- 
tered all  the  money  Ite  reocifed  uf  my  lurd 
Aoelesea's  rents  in  his  book  ;  says,  lie  did, 
and  made  an  entry  every  day  in  his  bonks  of 
what  he  received  ;  says,  he  received  10/.  from 
Sirs.  GIRard  on  Thursday  |^ini;luClnnimeB  ; 
that  he  received  -1/.  from  'Mr.  Tli-jmas  Hough- 
ton ;  that  ho  received  Ihe  33/.  at  Eniiiscorthy, 
Wednesday  in  Easter  week  from  his  sou  (ex- 
cept 14t.  expenccs)  which  the  deponent  paid 
my  lord  in  Wexturd.  ijayii,  as  benasguin^ 
lu  m^jiir  llogcrs's  be  met  his  son. 
[C  ross  -examined.] 

Bcin;;  asked  what  day  of  the  month  was  it 
he  came  to  Cloiiitnct ;  says,  on  Thursilay  be- 
tbre  Easter  Sunday  ;  that  he  was  backwards 
ud  forwards  In  and  from  Clonimcs  fur  three 
days  ;  that  he  lay  at  iMr.Sutton'N  every  night; 
that  he  went  to  itir.  Houghton's  on  ftlonday, 
and  returned  to  Air.  Satton's  at  nigpbi ;  that  be 
went  firtt  to  Uunmiinc,  and  aHetwarda  went  to 

i 


Ennitcotlby  ;  that  he  liad  no  bminaKlW 
maine  but  in  order  to  pajr  hi*  caiapliwta  ■ 
my  lord,  and,  if  hemct  hiin,laldlhBMdk 
that  Ihe deponent'a son  got  lheauantt£ 
Nanny-water.  Says,  lie  cannot  till  sUi 
Dunmaine  be  the  neareat  roadfrMaCWH 
to  Enniscorthy  ;  and  denonent  sayi,  ihiild 
Anglesea  said  there  would  be  many  jrOai^ 
to  his  estate,  and  desired  the  depoantnln 
tenant  to  Ur.  Charles  Anueslcy. 

[DeTendaul's  counsel  desired  depoatatltlai 
over  his  papers,  which  he  accordi^t  CI; 
and  then  mentioned  paiticular  times  dTIb* 
ceiTinr  some  rents:  That  he  recdiidrak 
from  Mr.  Tfaomaa  Honghton  in  IT 
Ihe  best  of  bif  memory  received  1/.] 

n  C»art,* 
aUWek 
isiaes ;  says,  he  does  not  remcmba  u  tot 


Then  Biggiioti  being  again  iateinj,iKd, 
Says,  he  could  not  tell  the  day  ofibrsKtlt 
received  Hnughlon's  rents  ;  layi,  br  reoM 
Gitfard'a,  Houghton's  and  one  SdUds'i  n< 
within  three  dajs  time  ;  says,  he  briipni 
was  after  the  81st  of  May.  he  lay  U  Bsi 
That  be  lay  either  at  one  Drovnii;'*  w 
Boucher's.  Being  asked  llie  panicahrM* 
ner  of  bia  eniering  the  receipt  of  the  rtriH 
■ays,  he  entered  the  particular  day  it  ^ 
month  on  which  he  received  the  monry.  !!iii> 
he  very  ofieii  lay  at  Dunmaine  brfurcihtMi 
of  his  going  to  the  assizes;  and  liyxst' 
nights  at  Uunmainc  before  lady  iMihtmaM 
thither.  Says,  lie  called  at  Uiioniaise  u*- 
quaint  my  lord  that  hiisounould  jisyilinB^ 
uey.  Being  asked  if  he  made  an  earn' rfM 
niuney  ;  says,  he  is  sure  be  made  on  rati}  ■ 
that  money,  and  took  receipts,  and  bwM 
that  entry,  and  believes  it  was  tbe  ;■!<<■ 
April.  Says,  liie  money  was  paid  atwatMS 
Ihe  morning.  Says,  lie  Iii'lieres  he  uhM' 
Dunmaine  far  iwo  years  belnre  that  lisr,' 
was  he  there  afterwarils.  Says,  livilidsax 
my  lady  at  Uuiimaine  befDre  that  liiiir,himf 
heral  Itoss.  Says,  he  renived  InrH  Ailmt 
rents  a  lung  time  in  the  county  oflln^,'' 
did  not  recdve  tbe  rents  at  Ku«.  Sml* 
paid  sniue  pari  uf  the  rents  tnu  aids  l  rlui^i 
llial  he  wa.1  hound  for  70/.  and  lo»t  2J'.*I* 
Says,  be  surteyetl  lands  li>r  earl  Jann-i.  >■ 
earl  Artliur.  Says,  that  in  Jtinc  or  Jnl.v  '-^ 
it  wus  aaiil  in  tbe  pre^ent'e  of  the  \ilr  |^ 
Ani:lFsra,  that  lord  Altham  had  a  sail  idJ  M 
Au^le»a  wished  he  hnd  iinc.  »iii(,  he 
ceil  cd  a  subjKnna  to  apiiear  on  ihi*  laial.  Un 
asked  if  he  heiieveil  Mr.  William  kiiipj>rlil' 
I,  or  that  be  wiinld  Hintiinr  lif 


aril;  says,  In:  holiuve?*  .Mr.  K.n:i|>[ifr  l")*' 
honest  niiin,  and  ihiit  be  belicvid  au  kMrf 

nnuhl  liiiswear  himself, 

dunci  JjiJ'lui  nas  r:ilW  to  suliji*'!  1^ 
Gillard's  character,  and  lie  was  iiMil  V^ 

idanlD  couQsd.  Whether  be MittffW 


^] 


and  Richard  Earl  ofAngleiea, 


A.  D.  1748. 


[IS46 


ii  could  be  beliered  upoo  ber  oatb  :  col. 
u  aoswered,  that  he  believes  she  may  be 
ed  upon  her  oath.— The  ptaiatifiPs  coun- 
ereupoD  a&ked  oolooel  Loftus,— Whether 
Lamoert  could  be  believed  upon  ber  oath : 
id,  he  could  not  take  upoo  him  to  say  how 
nan  could  be  believed,  that  lived  in  the 
she  lived  in. — And  thereupon  mentioned 
liiog  injurious  to  her  character. 

re  ends  the  ninth  da^^'s  examinatipn  of 
sees,  in  this  cause,  on  Monday  the  Sist 
r  November,  about  eight  o'clock  at  night. 
tbe  Court,  by  the  like  consent,  as  usual, 
I  was  signed  by  the  parties  and  their  re- 
ve  attornies,  and  read  in  open  court,  ad- 
ed  till  nine  o'clock  the  next  morning. 


e  Court  met  according  to  adjournment,  and 
try  being  called  over  as  before,  answered  to 
aames,  respectively. 

William  SUphens,  sworn. 

ing  asked  if  he  knew  Arthur  Herd,  and 
ler  he  had  any,  ami  what  discourse  with 

says,  he  knew  Arthur  Herd  and  saw 
vben  Mr.  Annesley  came  to  the  Bear -inn 
iniscorthy  ;  and  that  he  then  asked  Herd, 

itrangers  those  were ;  that  Herd  then 
This  is  the  right  heir  to  the  Anglesea 
^9  if  right  would  take  place. 

[Cross-  examined.] 

af  asked  whether  he  said  that  Herd  told 
y  Altham  had  a  child ;  says,  Herd  did 
•y  that  lady  Altham  had  a  child ;  hut  de- 
ic  taysy  he  met  Herd  in  the  street,  and 
Berd  told  him  he  (Mr.  Annesley)  was  the 
g  lord.  Being  asked  as  to  Herd's  cha- 
r;  says,  he  never  heard  but  that  he  was 
aiiesi  man,  and  believes  that  Herd  may  be 
red  00  his  oath :  and  deponent  said,  he  did 
s^  the  young  lord  at  the  time  that  Herd  had 
liscourse  with  him,  for  that  he  was  down 
an  King's  at  the  Bear.  Deponent  says, 
Iked  of  the  discourse  he  had  with  Herd  to 
Bartholomew  Furlong,  who  lives  under 
el  Richards,  when  Furlong  was  sub- 
led.  Being  asked  upon  what  occasion  he 
t  to  Furlong ;  says,  because  Furlong  said 
Br  Herd  was  a  material  evidence.  Being 
I  what  Furlong  told  him  ;  ssys.  Furlong 
him  nothing.  Being  asked  what  brought 
lo  town  I  says,  his  horse  brought  him  to 
• 

"he  deQ^daot's  counsel  made  some  re- 
'M  00  the  indecency  of  the  witness's  an- 
i  CO  so  folemn  an  examination,  and  then 

Me  hone  was  bu  own;  he  answered,  it 
not  bhi  own  but  lie  hired 'it:  And  being 
i  who  hired  tbe  horse  for  him  ;  he  said  he 
l"  ool  Icll,  he  found  the  horse  at  the  door ; 
M  Imi  weaMTfcd  with  a  MbpflMUt  by  one 
>L.  XVIL 


O'Nei),  but  that  he  had  no  discourse  with 
O'Neil  about  giving  his  evidence.  Being 
asked  what  business  he  followed ;  he  said,  be 
kept  a  public  house  and  a  shop  in  Ennisoorthy. 

William  Houghton,  sworn  to  the  Voire  Dire. 

Says,  he  has  known  Arthur  Herd  very  well 
these  fifteen  or  sixteen  years  past;  that  he 
happened  to  go  into  Arthur  Herd's  shop  about 
a  wig,  and  had  some  discourse  with  him,  and 
heard  him  say  Mr.  James  Annesley  was  the 
true  heir  to  the  estate  the  earl  of  Anglesea 
possessed,  as  he  verilv  believed,  and  that  be 
knew  him  from  a  child  at  Duumaine  and  at 
Ross. 

[Cross- examined.] 

Being  asked  if  he  made  use  of  these  words. 
That  he  knew  him  at  Dunmaine  and  at  Ross  ; 
says,  he  did.     Being  asked  where  he  was 
born ;  says,  he  was  born  at  Ross,  and  lived  at 
the  town  of  Enniscortby  fiAy  three  years  next 
Candlemas.     Being  asked  how  he  came  to 
ffive  his  evidence  here  ;  says,  he  heard  of  a 
letter  which  went  to  Ross,  and  that  tbe  letter 
was  the  sole  thing  that  occasioned  his  coming 
to  give  his  evidence,  and  that  he  came  of  hu 
own  accord.    Bein^  asked  what  he  said  to  tlie 
letter ;  says,  he  said  he  would  do  all  the  jus* 
tice  in  his  power  to  Mr.  Annesley ;  says,  he 
had  no  tboughtii  of  coming,  but  that  his  con- 
science   pricked    him,    hearing    that    Arthur 
Herd  bad  given  such  evidence.    Being  asked 
when  it  was  he  resolved  on  coming  to  give  his 
evidence ;  says,  when  he  heard  it  was  going 
bard-  against  Mr.  Annesley  he  had  thoughts  of 
coming.     Being  asked  what  the  substance  of 
the  letter  was ;  says,  the  letter  gave  an  account 
of  tlie  trial ;  that  the  letter  came  to  Mrs.  Sinnot, 
and  as  she  was  talking  of  the  trial,  it  was  said 
that  Arthur  Herd  turned  tail  to  Mr.  James  An-* 
nesley,  and   that  that    surprized  every  one. 
Says,  that  it  being  told  about  that  Herd  was  lie- 
come  an  evidence  for  lord  Anglesey,  deponent 
mentioned  that  Herd  had  formerly  declared 
otherwise ;  and  deponent  said,  that  hearing  of 
Herd's  evidence,  be  did  recollect  what  Herd 
had  formerly  sai«l.    Being  asked  whether  he 
knew  that  he  should  come  time  enough  to  give 
his  evidence ;  say  a,  if  he  did  not,  he  shouki 
know  the  road  baick  again. 

John  Ryan,  sworn. 

Being  asked  if  he  knew  Mr.  Dowoes,  and 
had  any  converaation  with  him  about  Mr. 
James  Annesley  the  lessor  of  the  plaintitf';  saya 
he  knows  Mr.  Downes  very  well,  that  Mr. 
Downes  told  him  in  discourse,  that  lord  Altham 
said  to  the  chikl.  You  bastard,  get  up  and  salute 
the  man  who  made  you  a  Christian,  and  that 
he  should  get  900/.  for  giving  this  evidence. 
Deponent  said,  it  was  on  a  Sunday  in  the 
summer  or  harvest  last  was  a  twelve  month 
that  Mr.  Downes  said  those  words  ;  says,  that 
deponeot  then  told  Mr.  Downes,  that  he  was 
old,  and  bis  memory  might  be  treacherom^ 
whereupou  Ur.DoNiutft  v^^^  \\ax^i«  ^wi^ 

4R 


MBtt]  irOBOIOBIL    Trid in^Efmhmd tttmm X.  if ■wJf i, if. 


B«i«gadBri  boir  loag  aflir  WeifM 
■pylori wwiHoPqMia;  kiiMM,mylQvi««il 
dwQt  Uim  wttki  or  a  BMDth,  biil  it  «ol  fove 
tM B^'My  vmIIImii ;  be  mhI»  he MievMi 
il  iVM^Ihiiyftr  after  UMRebelliM  Im  M  JXw- 
naloe,  «M  WM  cdoaniped  in  fiydii  Ptefc.    . 

.2Wni^  wMCCWDWid  M  to  lady  Altiiam'b  MiV 
alWeifoid 


fia  rtM^'tfial  bfl  ofailoukaty  IcNpd (viiy  to 
tta  itoitaa  Ui  a  ebaiioi^  aid  Aat'thcra  awe 
fwo  atrvaaAaak^f  with  lmD»  hat  thai  ha  «iw 
Ma  waaMtt  aUag  with  hin  |  ha  laid  ny  la4y 
WM  at  hoaMp  aaa  thai  ha  #aw  har  al  hoflia  after 
«y  lef4  w«M  to  tha  aMMa.  BmgmkaiW 
ha  haard  af  any  rctaarkabto  trid  at  Ihi  lawait ; 
he  laid,  h«  biliefaillir.  Wakh  and  aooM  othar 
Mnona  wwa  iadifltid  tbera.  Bainffadkedif 
he  raneoiharad  tlie  ecMpaa;  ken&slMdid; 
thai  ha  Miavtd  it  waa  to  the  year  ha  was 
jnprriad,  and  ha  tfaoMfht  it  WM  to  the  bigto- 
Bipir  aT  auauMTy  and  that  ha  believed  itwM 
after  Wexfiifd  aMUie.  Betogatbedifbadid 
TOMwabir  where  he  waa  at  the  time  of  the 
eeBpoai  heeud,thatatthetinieaftbeeolipee 
h^waabftweeoMpglwry  and  Wezferd,  neor 
Mr.  Ooleleiigli'^  hot  that  he  doei  nel  reoMQ- 
her  what  area  hie  boiineei-  tiboe  at  that  tiaM^ 

'  The  Cowt  entored  Mrf.  fiMrief  ^a  Cok  and 
Mia.  JKartAi,  to  ooofhiot  eoch  other. 

TiMflO-fiMfA. 

Q.  Mn.  Heathy  yen  aud,  aaweH  ail  re* 
nMnbar  your  ttttimooyy  that  Ralph  waa  botler 
atDunmaineP 

Mrs.  Heiith,  Yes,  when  I  fint  went  down. 

Can  yon  reoollffst  bow  long  he  oontiqued 
there  P— No,  but  I  remember  be  went  away 
when  we  were  in  Dublin. 

When  P— -The  but  thne  that  we  came  np, 

You  mentioned  thatyoo  taw  the  fire-workt, 
the  fint  birth  day  of  bing  George  the  fint, 
from  captain  Annealev's  iMgings  P->«1  did. 

Had  yon  left  Rolpn  in  the  country  then,  or 
had  yon  not  F — ^I  left  him  in  the  country,  m  the 
honae. 

Did  von  find  him  in  the  boose  when  yon  re- 
turned r — No,  for  my  toid  hired  a  butler  m 
DnUin,  one  Cbarlea  Magber,  and  sent  him 
^wn. 

Waa  be  sent  before  my  kdy  went  bacbP— 
He  was  sent  while  we  were  at  Mrs.  Vice's,  and 
Jured  there. 

Was  there  any  account  that  Ralph  had 
quitted  the  frmily  before  Magber  was  hired  ? 
«— 1  cannot  tell ;  but  there  was  a  aoarrel  be- 
tween Rolpb  and  the  gardeaer,  and  he  was  or- 
dered to  quit  it. 

What  time  of  the  year  did  yon  go  back 
with  my  lady  to  DnnmameP— ft  was  aborea 
year  we  stoyed  in  town. 

Did  Magher  act  as  butler  daring  that  time  P 
«-^He  did,  my  lord. 

Yon  ceme  orer  with  my  lady  from  Sag^andP 

Yen  first  aame  to  the  hoQsa  eC  OMtato  Bris- 
«^fiin/-rF«  flMM  thrn  to^l^p. 


Wbiiw'did'  yon  go  kMaoMs^  d 
left  ca|it«n  Brisooe^?— We  wcatii 
Donmame,  and  got  thenonCUtMa 

Did  net  yea  ^  firet  into  etbwto 
*^  We  did  not  go  at  all  to  any  hsemti  i 

ToMin.CMr. 

Do  you  remember  the  time  of  My  I 
coming  to  your  honaa,  whan  the  icsM 
hanpenedP— Mn.  Cols.  I  do. 

What  becaaM  of  my  lovd  lai  W 
wardiP-^Tb  the bmit  af  asy  knsvM^ 
did  not  stoy  to  our  hoitee  abate  ftoi 
days,  and  they  went  and  teekkUeV 
▼toa^a. 

To  Mra.  Hsaf  A. 

Q.  Do'Ton  knew  thto  gentle wsbm 

Mrs.  mUL  I  do  renMmbcr  bsr. 

ToMra.  Coif. 

Q.  Did  yon  ewn  mit,  alter  tbij 
year  honae,  while  they  remained  in  to 

Mra.Cble.  I  eannot  tell,  Imt  I U 
miffbt.  . 

Re^Mllsct  Tonrself  and  fix,  wbctba 
cyertam  that  they  went  to  Vice's,  or  a 
nlaoe  fWnn  your  fhther^P— ^Indeed,  i 
I  beliofe  thrf  went  to  Mrs.  Ylee»s. 

Canyon  oepositire that th^ tote 
other  house  in  Dubtin  but  your  wk 
Am  they  left  DubKnP— 1  am  poaitite 

What  do  yon  fbnnd  yonr  opmion  i 
beliefo  I  bare  soon  them  In  Duyia. 

Well,  but  what  reason  liave  yea 
they  went  to  Vice's  before  they  weal 
maineP— The  reason  I  canrecotted 
after  my  l<nd  aod  ladv  came  togd 
fiUber  was  still  uneasy,  thoosh  tbey  w 
together,  till  my  brd  took  her  to  a  k 
bis  own ;  and  be  tbougbt  if  tbey  weal 
at  aome  other  place,  it  might  have  a  b 
or  air  of  a  reconciliation. 

Did  you  understand  your  father  to 
that,  that  it  would  become  more  puMi< 
lorious  to  mankind,  that 'lord  and  ladj 
were  really  reconciled  P — ^Yes,  I  ^ 
stand  that  to  be  hb  meaning. 

How  long  was  lady  Altbam  at  ye 
m  the  whole  f — A  month  or  aix  wed 
my  lord  came  and  was  reconciled, 
sMf e  four  or  fire  days  after  the  recoi 
at  our  bouse. 

You  remember  tlie  time  of  your  goi 
to  DunmaineP— I  do. 

What  tioM  was  it  P— It  was  in  the  ^ 

Do  yon  remember  any  thing  cones 
lady's  being  indisposed  there?—- Yes^; 

Tell  that  again.— There  was  snaeci 
pened,  which  frightened  and  fretted 
upon  which  she  became  iadisposed,  i 
member  a  servant's  being  sent  up  by 
to  desire  ray  lady  to  ooose  to  snppo^ 
mother  was  with  her  two  or  three  Ihi 
her,  and  yet  ahe  excused  herself. 

Poyou  remember  any  thing  thitl 
upon  thatP— My  tody  nSssMrisdLr.  .V 

Whansa  th«t  Mltoaintto|Mpi 
HMk        .  ^^ea 


and  Richard  Earl  qfAn^kaa. 


A.  D.  1748. 


[ISM 


ne  P— My  motbtr  was  calkd  up 

? — By  Bin.  Hetth,  who  cftme 
•r's  room,  and  nid,  For  God'i 
,  9et  up  as  sood  at  yoa  can,  for 
ceediDg  ill. 

To  Mrs.  Beatk. 
remember  that  ftct  f 
.  No,  my  lord,  there  was  no  soeh 
ed,  for  my  lady  nerer  miacarried. 
member  that  you  called  up  Mrs. 
aniffht?— No,  1  iieTer  did;    I 
hat  I  ahoold  oill  her  for. 
ver  tell  Mrs.  Briscoe  that  your 
scarriedf — No,  for  if  1  had,  I 
did  a  folse  things;  and  I  nerer  lay 
ly  house  in  Dublin  bat  captain 
we  came  to  Dunmainew 

To  Mrs.  Cole. 
on,  aAer  that  time,  in  my  lady's 
P— 1  was. 
lAer  ?— .The  next  morning. 

To  Mrs.  Heath. 

ie  in  my  lady's  bed-chamber  the 
? 

• 

\.   I  do  not  know  but  she  mighl, 
always  breakfasted  in  her  bed- 
To  Mrs.  Colt, 

ras  it  that  shewed  to  yon  that, 

ok  to  be  the  abortion  ? 
My  mother,  my  lord. 

I  Mrs.  Heath  then?-  ^Indeed  I 

bether  she  was  there  or  not. 

ere  you  when  my  lady  came  into 

xras  either  13, 14,  or  15, 1  cannot 

«  yon  now  ? — ^I  beliere  I  am  either 

vere  you  when  at  Dnnmaine?— 1 
e  I  was  either  Id,  14,  or  15, 1 

!Ct. 

smember  how  long^  my  lord  and 
in  Dublin  after  they  left  your  fa* 
before  they  went  to  Dunmaine  ? 
ong:  I  cannot  exactly  tell, 
lee  them  in  that  time  seldom  or 
nnot  tell  how  often. 

To  Mrs.  Heath. 
y  ladv  keep  her  bed,  or  not,  the 
.  accident  of  the  sancersP 
h.  No,  my  lord,  it  never  disturbed 
vras  glad  they  were  g^one. 
keep  her  room  the  next  day  f — 

To  Mrs.  Cole. 
ly  lady  keep  her  room  the  day 

.  She  did,  and  for  some  davs  after, 
butler  when  you  were  there  f—- 


e  nvideoce  for  the  plaintiff  on  the 
hwwdy  Mr.  Scijeant  Marshall,  of 
4hn  i^i^iifctMP    itatad  the  *itU  of 


Here  both  parties,  plaintiff  and  defendant, 
dosed  their  eridenoe  about  6  o^clock  on  Tues- 
day night  the  28d  of  November,  and  the 
Court  expressed  great  surprize  at  finding  snch 
contradiction  between  the  plaintiff  and  defeO'- 
dant's  witnesses;  and  tbie  Court  and  jury 
being  greatly  fotigued  with  this  long  trial,  ad- 
joumM  to  8  o'clock  on  Thursday  morning 
following;  at  which  time  it  was  agreeil  by 
plaintiff  and  defendant,  that  three  lawyers  on 
each  side  should  speak  to  the  matter.  The 
consent  for  a^umment  was  signed  as  usual 
by  the  plaintiff  and  defendant,  and  their  rr- 
spectire  attomies,  and  read  in  open  court. 
And  thus  ended  the  10th  day's  examination  of 
witnesses  in  this  cause. 


^ovem^er  24,  1743. 

Thorsday  morning,  half  an  homr  pest  eight 
o'ckKsk,  the  Court  met  according  to  adjourn- 
ment, and  the  jury  being  called  over,  answerai 
to  their  names  respeoti^y. 

Court.  Thb  day,  ^tlenien,benig  appointed 
for  counsel  on  both  sides  to  speak  to  this  causey 
which  has  so  long  taken  np  the  time  of  the 
Court,  and  prevented  the  progress  of  other  suita, 
it  is  hoped  you  will  finish  speaking  to  it  this 
day. — Mr.  Prime  Sajeant  Malone,  please  to 
begin. 

.  8ir  Thomat  Taylor^  Foreman  of  the  Jury, 
Mv  lords,  my  fellow  jurors  have  directed  me 
uHcnow  what  they  are  entitled  to  if  they  find  a 
verdict,  and  hope  the  attomies  on  both  sidee 
will  settle  that  matter. 

Arthur  kurd  Altham,  from  the  wills  and  codicila 
of  James,  the  first  eari  of  Aufflesea,  to  ahew  that 
Arthur  lord  Altham  was  otdy  tenant  for  life  ; 
the  counsel  for  the  defendant  having  insirted, 
that  he  was  tenant  in  tail  under,  the  said  wills 
and  codicils ;  upon  which  the  wills  and  codi- 
cils were  in  part  read.— But  the  Court  were 
pleaaed  to  interpose,  and  said.  That  this  was. 
a  question  of  law  that  might  require  great 
consideration,  and  was  not  necessary  to  be  de« 
termined  at  this  time ;  the  only  material  point 
being,  what  waa  the  opinion  of  kird  Altham 
concerning  his  title ;  that  is,  at  the  time  men- 
troned  by  col.  Wall,  in  hb  evidence,  (which 
was,  that  he  never  heard  lord  Altham  had  a 
diild  by  my  lady ;  for  in  1795,  counsel  gave 
an  opinion  that  ne  had  an  estate  tail,  in  the 
remainder  of  the  Angleaea  estate.  Col.  WaU 
told  my  lord,  that  he  could  sell  the  reversion  of 
the  Anglesea  estate  better  if  he  had  a  son, 
for  he  conkl  by  a  fine  bar  his  issue ;  but  that 
he  could  not  bar  the  remainder,  net  being  in 
possession;  and  that  he  often  beard  my  lord 
wiah  he  had  a  legitimate  son ;  and  that 
he  had  an  illegitimate  one)  therefore  Nvhe- 
ther  Arthur  lord  Akbam  conaidered  himself 
as  tenant  in  tail,  or  only  tenant  for  life,  of  the 
Anglesea  estate,  for,  according  to  his  opinion, 
concerning  his  title  in  that  eatate,  it  was  bia 
interest  to  own  or  disown  his  hiving  a  liwflill 
JPormcr  £cU(i<m% 


IMQ;  nOSQIGllI.    Tridm 

CbMrt.  nil  rar  ptMrJ^-ChU  Ifr.  CM. 
»tB  iHinny  Ifcr  Jh«  jUMt,  mt  Mr.  Itm^ 
JBwmw^^Mnv  Ar  th*  OriMW;   ud 

^JlfaMrifcaimrbns  teirad  to  hM« 
KllK  th^  tn  adU  11^  if  «7  kkg  b  a 
nriigti  iTfcUi  Ihg  Cmrl  tWoki  ^kM. 
TIm  MMMtiM  itlwiM  •ami,  thm  Mali 

lh«  HtailMos.t  wUBb  «M  tote  mU  AMlive- 
iy  ^  bott  pwdMi  nUiiliC  ni  MMhL 

lU  daiMnt.  n*  BHlur.  m  yiiHii,  qy 
1m4i,  kM  token  vp  « iBMh  of  nw  lofMhs' 
Uti,  ihd  rfith«  gwMlwii  of  >B»  jOT.lUl  I 
MmU  bs  u  MwiM  u  I  CM,  aad  hop*  to  MtWj 
■ho  JHTT,  ttot «  ndiBt  PV>t  to  be  RmmI  fai  fc. 
vwB  of  Iha  AtAaM  mr  cUtat  But  if  I 
■hoidd  boBMO,  mj  mdt,  to  tooeh  wm  any 
4ih«ilhM£M*aMft7  AcwioMd  (« lEta  •«> 
bto  MM  tttcnM  viih  noh  anuiflidi*  bf 
«MMeN)|wMUntqM  yoor  kriiUpi^ia. 

'  fti  Mc  ^QNfiM,  «7  lordi^  boAn  Ihe 

jMatiff,  Hr.  i«toM  Aaanin,  fa,  ork  ml  the 
(l^riate  «•  of  lh«  kto  Aidwrtwd  AUIkto  r 
n*  phdiWa  owtonl  bus  van  bMuoM. 
Ij AhhI  oat  Ihiir  OM*;  bntwhanOt  ana- 
nnto  u*  taken  >wn,  U  wiUIhopompMu-, 
tM  dM  »W*t» fa  th*  Mtanl  Md^bii )i«i. 


Mr  loHc  bAra  1  incMd  to  tha  •*Mme, 
it  will  b»  prapv  to  onmiiM  tha 


citcatBataBMS  «f  the  bautv  bafere  Iba  time 
aHagad  Ibr  Iba  hirtb  of  tbakMor  af  tba  pluBtifr. 
'  Jutfanr  Aiateari  o(  Aagtcfaa,  bad  faana  Bve 
aani,  Junei,  hii  aldeat  wn,  Allbam  hfa  Mooail 
apa,  Riobard,  tbiid  wn,  created  lord  Alibun, 
^•riaa hfa  fourth Mn,  iiid  Arihnr  hiiflAhnn. 

Ob  tba  tMrruge  of  Jamra  in  1690,  a  tatik- 
nenl  waa  aude  bj  Arthur  tha  fiiM  ear),  anil 
aafcral  nrorinoM  and  Uraitatuini  tfaerda ; 
(whiob  Hr.  l*riine  Serjeant  DMntioned.] 

BicbartI  lord  Altbam  died  in  ITOI,  leai 
Aftiiar  tata  lord  Allbam,  and 


1  ITOl,  leaviag 


Jamei  aon  of  carl  Arthur,  leTiedfiDef,aBi) 
angited  a  reeorerjr  of  bis  eal««,  and  on  Ulu 
IMh  ofUay,  1701,  made  Ua  will,  « barcia  wat 
Unutod  a  remaiDder  to  Richard  lord  AUiain  far 
life,  ranaindartohiafiiataiidaTarr  other  mo 
-       ■inala.vilhaf *  ' 


1101,  he  Biade  aiMtiier  will,  liBuliar  a  ranain- 
dar  to  Arthur  lata  lord  Allbaia  fbv  IDa^  nuMia- 
dar  to  hfa  firat,  and  area;  otbar  aoo,  with  ae- 
Vnal  ranaaidwa  orar ;  bat  no  manMr  of  aa- 
tiaa  waa  taken  «f  Iha  daftndant,  who  ia  ike 
aaaimd  eoa  of  lord  Uohaid,  and  carlJaiaaa  Iha 
MB*  day  affizad  a  codieil  Iherito. 


.  f  Tkm  Jnry  aOarwarda  farr  diaritayr  and 
kanonraUyinadaa  preaant  theraar  to  iMia- 
Anurtaf  lbaJiiMa«tf,  Thirdtoi  Hw  tfc- 
j*nidatBar,*'p.lor.  ■ 


And  the  hmot  of  the  pluoliff  |itn 
pretend  a  right  to  the  <slate  of  Hie  Iir 
tbaiD  under  the  said  wilU  sad  codioihi 

Earl  James  had  isaue  James,  J  ah! 
thur,  who  were  lUCceuiTcly  nris  of  i 
and  who  all  died  wiihout  issue  n»le  i 
(he  late  lord  Allhain,  who  iraa  next  ■ 
sinu  in  poJDl  of  liluod,  lefl  a  sou,  (batt 
hate  succeeded  lo  Ibe  AlUiam  ind 
;  but  I  believe  ii 


t  oo«dd  not  ba  eoMMlcd. 
na  naar  lahdow  «r  tk*  Aidj 


Thanaariahi 
rnadafwyiauiladi 


kMdakip,! 


rt  know-aoiaalhiag  of  il 
il,lhatanT<(rihaa*  WOT 
af  the htolfrd  Aldiam^a  anr  k«ri|f 
htiladj;  iflbeca WMaoob  aaoa.Mi 
action  wonU  ba  pubHe,  it  could  net 
doubt,  and  it  it  iinpottibis  it  abould  b 
to  all  Ihe  world,  ezoapt  two  or  ihi 
meanaat  8er*anta;  which  Carrie*  a 
liim  very  near  a  demonslralioa,  thai 
Altliam  nercf  bad  a  aon  by  hta  lady. 
1  would,  tny  lorda,  obaerre  auoaic 
itance  wbich  emit  be  prodigioaBly  > 
if  then  bad  bc^a  aucn  aeon  ;  it  wa 


anv  ■Dcli 

ianmn  joar  lonlabipi,  bow  iadon 
aetni-wntera  are  to  fiu  their  W*era  ■ 
graph!  on  luch  occatiooa,  and  eapeei 
«  ncritleiBaD  ia  bleaaed  win  99  bnr  1 
tnenae  an  saiate ;  i«  it  not  conalantl: 
in  ibe  daily  and  waekly  paoera  ba 
kiivdaw.  Hid  Eagknd,  Tha  lady  of  1 
waa  aafely  JalifawJ  of  aaon,  latha 
af  thai  oeUc  ftnilt  r  &0.  and  thaaali 
are  pattioiklarly  added  when  any  ad 


feat,  hfa  tordabv  neter  had  air ' 
iaaue.  I  ny,  my  lorda,  if  hud  Al 
haen  aa  h^ipy  aa  10  harc  a  aon  nAfe 
hfa  family,  who  weraiotaraaladiBll 
aioo,  cannot  be  anppoaed  to  bo  anagM 
il  wooU  be  the  enHMan  twnonrOTi 
rfthawhelaMiibhamhaad,M41 
■aqaaal  wanM  ka»«  MekbntMblv  I 
'  aaM^Mi^toy Wa^JiyWHl 


and  Richard  Earl  nfAngUiea. 


A.  D.  1743. 


[135S 


ilT's  coansel,  on  the  fonrineas  sheweil  by 

Llthara  to  the  lessor  of  the  plaintiff  when  a 

We  see,  my  lords,  very  frequently, 

bnd  men  ore  of  an  illeg;itiinate  son,  espe- 

when  they  hare  no  leji^iti mate  issue ;  and 
eve  nome  instances  miglit  he  shewn,  that 
have  soroetimes  preferred  their  natural 
.  to  tfieir  lawful  children ;  so  that  I  say, 
bndness  of  the  kite  lord  Altham  can  have 
reiii^ht  to  support  tfie  pretensions  of  the 
r  of  the  plaintiff;  for  if  a  man  should  have 
tard  by  a  servant  maid,  is  it  not  natural  for 
Mktake  care  of  his  offtfpring  ? 
le  lessor  of  the  plaintiff  has  endeavoured  to 
■p  ctrcumBtances,yet  has  fsiled  in  provin^f 
nth ;  and  the  foundation  beings  sapped,  the 
ntmcture  will  consequently  fall. 
«  began  with  endeavouring'  to  prove  lady 
im  a  woman  likely  to  have  children,  and 
she  had  two  miscarriages  aod  a  real  birth 
IB  Tear.    I  believe,  m)r  lords,  the  gentle - 

or  the  jury,  from  their  own  attention  to 
docorreDces  in  lite,  will  obsen'e  how  im- 
lUe,  Day  even  imposubleit  is,  for  a  woman 
iiearry  twice,  at  times  so  very  distant,  and 
«  space  of  that  very  year  to  oe  brought  to 
if  a  son.  This  shews  how  the  lessor  of  the 
itiir  lias  overshot  himself,  and  has  quite 
lamed  the  credibility  of  his  pretensions, 
ii  agreed,  my  lords,  that  the  late  lord  Al- 
i  ana  hia  lady  were  married  in  1706 ;  that 
afterwards  parted  in  1709,  and  that  about 
I  ibey  were  reconciled,  and  lady  Altham 
I  into  Ireland  ;  the  falling  out  on  account 
Ir.  Palliser,  and  the  separation  thereupon 

publicly  known  in  the  neighbourhood. 
CBcumstances  of  their  reconciliation  afler 
iqiaratiou  of  four  years,  would  call  iu  ge- 
1 00  the  attention  of  the  family,  and  the 
■itjT  of  the  people ;  so  that  if  a  child  was 
lo  inherit  tiiat  estate,  it  must  have  neces  ■ 
f  engaged  the  attention  of  the  family  ;  it 
id  have  engaged  the  attention  of  the  whole 
dom  ;  and  if  this  has  uotap|)eared  with  the 
wt  deamess,  it  carries  with  it  the  strongest 
imption  against  the  plaintiff.  My  hirds, 
t  of  such  importance  that  appears  in  the 
doubtful,  must  l>e  folse ;  liecause,  if  true, 
laM  have  been  evident  and  notorious  beyond 
each  of  a  doubt. 

y  lords,  two  ladies  arc  produced  as  evi- 
a  for  the  plaintiff,  Mrs.  Cole  and  Miss 
Boe,  whereon  a  good  deal  of  stress  is  laid, 
le^tectto  the  period  of  time  that  lady  Al- 
I  went  to  Donmaine  after  the  reconciliation. 
.Cole  said.  That  lady  Altham  came  to  Irc- 
m  1713,  and  stayed  at  her  father's  house 
ome  time ;  from  thence  went  to  lodge  at 
\  and  from  Vice's  went  to  Dunmaine. 
^  I  aay,  is  made  use  of  to  lessen  the  evi- 
c  of  Mrs.  Neath,  who  said,  that  lady  Al- 
I  went  directly  to  Dunmaine  from  cnpt. 
eoe*!  house,  and  therein  disagreed  with 
evidence  of  Mrs.  Cole. 
;  mast  be  presumed,  that  if  lady  Altham 
t  to  Viee'a  before  she  went  to  the  couii- 

Miss   BtiMoe  wo^ld  have  visited    her, 


.which  she  nor  Mrs.  Cole  does  not  remember- 
want  ofmemory  in  that  particular  lessens  their 
credit  in  others.  And  indeed  1  think  it  very 
improbable,  that  ladv  Altham  would  have 
changed  her  lodgings  iro/u  HriscoK's  house  to 
Vice's  for  such  a  short  space  of  time,  and  so 
idle  a  reason  as  is  suggested  ;  and  this  circum^^ 
stance  should  in  a  creat  measure  take  away 
the  force  of  Mrs.  Cole  and  Miss  Briscoe's  evi* 
dence. 

It  may  be  reasonably  snpposed,  my  lords, 
that  after  the  pretended  recunciliation,  some  of 
my  lord  Alt  ham's  relations  (as  I  observed  be- 
fore) would  pay  her  ladyship  some  of  the  or* 
(Hoary  honours  due  on  such  an  occasion,  some 
of  the  family  would  have  been  entertained, 
some  of  them  would  have  been  invited,  some  of 
them  woulfl  have  visited  her,  or  would  have 
taken  leave  of  her  when  she  «>ent  to  the  coun* 
try ;  and  as  Rliss  Briscoe  or  Mrs.  Cole  had 
never  mentioned  any  of  these  circumstances, 
their  testimony  is  not  much  to  be  relied  on ;  so 
that  in  this  case,  what  Mrs.  Cole  said  in  favoor 
of  the  plaintiff,  and  the  evidence  of  Aire.  Heath 
in  behalf  of  the  defendant,  deserve  to  be  very 
\rell  considered  by  the  gentlemen  of  the  jury. 

M}'  lords,  1  believe  the  gentlemen  of  ihcjury 
on  their  notes  remember,  that  Mrs.  Cole  first 
swore  she  was  12  or  IS  years  old  at  the  time  of 
the  pretended  miscarriage,  and  aflerwanls  said 
she  was  15  years  old  ;  a  girl  of  12  cannot  be 
supposed  to  take  notice  of  such  miuutc  circum- 
stances, in  relation  to  the  miscarriap^  fur  such 
things  conld  not  make  an  impression  at  that 
age;  it  was  indeed  prudent  of  Mrs.  Cole,  to 
have  afterwards  added  two  years,  to  the  best  of 
her  remembrance.  As  Mrs.  Heath  was  con- 
stantly \«  ith  lady  Altham,  she  could  not  forget 
such  remarkable  circumstances  as  Mrs.  Cole 
mentioned. 

Mrs.  Heath  was  then  in  the  bloom  of  life, 
about  the  age  of  S5  years,  when  all  the  humaa 
faculties  are  in  full  vigour;  aod  surely  it  is 
natural  to  believe,  that  a  person  can  remember 
transactions  at  that  age,  when  the  juilgmeiit  is 
ripe,  and  the  memory  more  susccpiilile  of  re- 
tention, than  at  the  age  of  12  or  13  years,  as 
Mrs.  Cole  says  she  then  was  ;  so  tbat'l  appeal 
to  tbc  common  sense  of  mankind,  whether  the 
evidence  of  Mrs.  Cole,  or  Mrs.  Heath  should 
prevail.  Mrs.  Cole,  i  think,  said,  that  lady 
Altham  lo<lged  at  her  father's  house  six  weeks ; 
Mra.  Heath  mentioncil  only  three  weeks ;  one 
was  a  child,  and  the  other  a  woman  ;;rown :  It 
was  impossible  that  .Mrs.  Heath  could  tie  mis- 
taken, but  Mrs.  Cole  was  liable  to  l>e  mistaken. 

Therefore  in  my  humble  apprehension,  and 
I  hope  your  lordships  and  the  jury  will  lie  of 
the  same  opinion,  tne  cvidcucc  oV  Mrs.  Cole 
can  have  no  great  weight. 

The  first  liiiscarriiigc,  my  lords,  according  to 
Mrs.  Cole's  account,  was  in  .April,  May,  or 
June,  1714;  Rhc  is  not  rrrlnin  in  which  of 
these  months  it  happened  ;  it  Sf'cms  a  dream 
to  her,  anil  iioi  a  reality  ;  yet  she  prtteiuU  to 
have  heard  it  I'roin  I^Iik.  lioath  ;  but  heceva^ 
1  apprcheivu^  si\ft  t3LT\\vA\MU.v\v^^t^:^\\. 


I9!19]  17  GEORGE  IL    Trialin 

The  circamstances  which  Mn.  Cole  men- 
tioned, of  awakiDg  her  mother  at  ni^ht  by 
Mrs.  Heath,  Bhoakl  be  considered,  and  that 
Mrs.  Cole  was  not  the  person  who  was  awaked 
or  called  up.  And  as  to  what  she  says,  that 
her  mother  shewed  her  the  abortion  the  next 
morning ;  it  cannot  be  supposed,  that  a  girl  of 
12  years  old  cuuld  know  what  an  abortion  was, 
or  what  the  word  meant,  which  must  be  pre- 
sumed to  have  been  lately  put  into  her  mouth, 
by  comparing  what  she  has  lately  heard,  with 
other  incidents,  in  order  to  be  made  a  story  ; 
,  therefore  I  say,  it  carries  with  it  the  strongest 
presumption,  that  this  must  arise  from  some 
late  discourses,  adiling  thereto  a  leint  remem- 
brance, and  mentioning  some  circumstances 
that  happened  29  years  ago,  whereby  she  has 
persuaded  herself  that  these  things  are  true, 
which  are  the  mere  eflccts  of  her  own  brain ; 
and  thus  Mrs.  Cole  is  made  to  say,  what  she 
has  offered  in  evidence. 

My  lords,  Mrs.  Cole  in  this  respect  is  hot  a 
single  witness,  and  is  contradicted  by  Airs. 
Heath  and  Rolph,  to  whom  she  appeals,  and 
who,  she  owns,  were  servants  in  the  house. 
And  surely,  if  lady  Altham  had  miscarried,  it 
must  certainly  be  supposed  that  Mrs.  Heath, 
her  ladyship's  woman,  would  be  privy  thereto; 
und  as  she  never  knew  any  thing  of  that  mat- 
ter, and  there  is  not  a  single  instance  offered  to 
prove  it  but  the  memory  of  a  young  girl,\vhich 
is  but  little  to  be  relied  on,  it  is  plain,  that  no 
such  pretended  miscarriage  ever  happened. 

Catherine  M*Corraick,  a  woman  in  low  cir- 
cumstances, is  produced  to  prove  a  second 
miscarriage;  a  child  proves  the  first,  and  a  ser- 
vant maid  who  lived  at  Vice's  is  now  pre- 
tended to  prove  a  second  miscarriage. 

M^Cormick  swears,  laily  Altham  came  to 
town  to  Vice's  about  the  latter  end  of  May,  or 
beginning  of  June  1714,  and  about  six  weeks 
all^r  miscarried,  which  must  be  near,  or  abuui 
the  month  of  August.  Cole's  and  M'Cormick's 
accounts  are  inconsistent,  and  as  both,  my  lords, 
are  impossible  to  be  believed,  it  brings  a  disre- 
pute on  one  or  other  of  the  witnesses  ;  so  that 
as  one  cannot  tell  which  to  believe,  there  can 
be  no  dependence  on  the  testimony  of  either. 
Both  Mrs.  Briscoe  and  Mrs.  Cole  s*\vear,  they 
saw  lady  Altham  in  Dublin  in  Auj^ust  1714, 
and  that  they  never  heard  of  a  second  mibcar- 
riagc  ;  and,  as  they  s«\v,  tiicy  frequently  visited 
Jady  Altham,  she  could  not  miscarry  without 
their  knowlodge.  M^Cormick  said,  one  Law- 
lor,  a  mid  wife,  attended  lady  Alihaui,  and  that 
she  prevctited  the  sending  fur  Mrs.  Lucas,  who 
was  the  midi^ife  called  for;  and  that  it  %vas 
Mrs.  Heath  informed  her  of  the  second  mis- 
carriaire.  It  seems  very  odd  and  absurd,  that 
Mrs.  Lucis  should  be  mentioned  to  be  sent  for, 
and  not  one  word  of  l^wior,  yet  that  Luwlor 
should  be  the  person  brought  to  attend  on  that 
occasion.  -» 

The  account  Mrs.  Heath  gives  of  Mrs.  Lucas 
being  intended  to  be  sent  for,  is  very  consistent; 
but  this  soems  improvH  by  the  in^^enuity  of  the 
conductorsi  that  the  said  miscarriage*  should 


K 


Zjeetment  letaeen  J.  AnMiky^m,  [IXD 

like  a  madness  be  bk>wn  over,  tnd  tbit  dii 
Briscoes  should  know  nothing  of  iL 

Mrs.  Alice  Bates,  my  lordSyisiilnB|vii 
the  second  miscarriage  at  Vice's :  jbenp, 
that  in  two  months  after  lady  Akbua'ieMai 
to  Vice's,  she  was  visibly  with  child,  udlk 
she  clapped  her  hand  on  her  Uilyibip'i  hji 
belly.  This  is  ?ery  improbable ;  or  thttU 
Altham  should  say  to  her,  By  God,  IBj, 
Moll's  with  child ;  and  though  ooewmiU  » 
deavour  to  prove  her  ladyship's  prefuiqlf 
the  manner  she  pretends  lord  Altham  ipob* 
familiarly  to  her,  yet^  in  my  humUe  i||» 
hension,  it  destroys  her  credit. 

U  lord  Altham  gloried  in  her  ladjikip^l| 
belly,  it  is  astonisning  that  it  should  Mlii 
known  to  all  his  acquaintance  aod  rdMiM; 
for  if  he  spoke  with  so  mnch  freedom  ttli 
Bates,  it  must  besuppoaed,  he  wooUbi 
published  it  to  all  the  world.  Balei  uid,ii 
published  it  in  the  family  of  the  BriMOo,  at 
tliey  say,  they  knew  nothing  of  it 

Bates  said,  that  ladj  Almam  wu  bigiil 
child  in  November  at  Vice's.  M'CornuckmRb 
when  she  obserred  lady  Altham  with  chil^  il 
was  about  Christmas ;  and  as  these  efihMi 
vary  in  sueh  a  manner,  it  should  take  mf 
the  force  of  their  evidence. 

I  am  now,  my  lords  and  gentlemen,  mm, 
to  the  period  ot  time  wherein  the  nifiiid 
birth  of  the  lessor  of  the  plaintiff  is  ssid  to  taa 
happened,  which  was  either  tbe  latter  csdd 
April,  or  beginniog  of  May  n  l.S,  arenivkw 
fcra  for  two  miscarriages,  aod  tbebiithrfl 
child  in  one  year. 

To  prove  which,  Mr.  Dennis  Redmoods  a 
the  first  iierson  produced,  who,  by  lib  t«i 
confession,  was  a  stable  boy  ;  and  thitisihi 
best  description  of  bini :    but  his  ^vi'Ieoceii 
falsified  by  himself:  he  tells  you  that  hecMi; 
to  lord  Althaiu's  service  about  J  J  yesisssi^j 
which  was  before  the  reconciliation  of  his  bra- j 
ship  to  his  lady,  and  that  he  continued  in  tbei^. 
vice  for  thice  years  ;   if  he  is  right  in  this,  hij 
must  have  left  the  service  before  the  time  at  Ai 
pretended  bitth. 

My  lordi,  it  appears  that  lord  Altbam  ^ 
to  live  at  Donmuine  in  1711,  yet  Rtdoosdi^ 
must  be  in  the  service,  as  he  says,  is  171^ 
This  point  seems  to  be  carried  by  the  pnli^ 
men  a  little  too  f ui- ;  ihcy  have  seitled  tlsf 
wiuiess  in  the  service  five  years  aQicoeU 
to  the  birth  ;  and  as  he  lived  but  aboiu  llutf 
I  \'(^ars  in  lord  Allham's  service,  he  <s>uJii^ 
havekuoun  the  transactions  of  the  supp^ 
birth.  How  little  stress  is  to  lie  U;d  ud  »' 
witness  is  very  plain,  liideetl  hib  vet y  \^^\ 
ance  created  a  strong  prrjudicc  to  lit»  ditfr! 
vantage,  and  tiiat  prejudice  is  well  ju^ii^tdlf 
the  inconsistency  of  his  evidence. 

He  said,  that  he  knew  Ilolpli  wai  ioAi: 
family  in  his  time;  and  he  remembered  i* 
other  circumstance  iu  relation  to  him,  hi 
that  he  was  about  the  cellar:  And  he  didiA, 
remember  any  serraiit,  but  that  CkaM 
Meagher  was  butler  at  the  tiiiio  of  the  hrth« 
and  yat  it  apiiears  that  Meagher  came     '^ 

\ 


3 


and  Rii^tard  Earl  tfAi^Usea. 


A.  D.  1749. 


[13M 


rvioe  nntil  aAer  the  time  of  the  pretended 
It  is  pretty  remarkable,  that  all  the 

defendant's  witnesses  know  nothing;  of 
■'s  being  in  the  family  ;  but  they  fix  on 
es  Meaj^her  as  a  prelude  to  the  play. 
ry  Doyle,  my  lords,  is  the  next  evidence 
>portof  this  pretended  birth.  She  was  a 
ber  maid  in  the  family ;  and  about  28  or 
ars  ago  she  came  into  the  service,  and 

a  very   short  stay    therein;   she  was 

in  the  family  before,  and  never  came 
idy  Altham's  chamber  belbre  the  time  of 
rth;  ^et  she  is  so  lucky  to  come  there 
nt  critical  juncture.  fc>he  could  not  re- 
ler  of  any  porsun  boinci^  there,  except 
m  Butler  of  Rnss,  Klean<>r  Murphy,  the 
ife,  anil  herself. — But  Mrs.  Heath  was 
some  time  aflrrwards,  yet  Eleanor  Mur- 
SDuld  not  remember  of  any  person  being 
iroom  when  lady  Althum  was  brought  to 
except  Mrs.  Ht-uth.  When  an  uflair,  my 
» is  ushere«l  in  after  this  manner,  and  the 
Dce  an  alMolute  stranirer  to  other  circum  • 
es  (which  are  to  be  known  by  the  rest  of 
ritoesses  ;)  this  I  apprehend  miibt  greatly 
to  have  overtum<Hl  the  creilit  of  their 
Mmy. 

n  it  be  siipposted,  my  lords,  that  a  child 
to  all  those  honours  should  only  be  known 
ibamher  maid  and  an  under  laundry-maid 
nor  Murphy)?  If  they  were  in  the  ser- 
[which  I  must  own  1  cannot  prevail  on 
If  to  believe)  it  must  lie  after  the  time 
for  ihe  supposed  birth,  and  by  the  mean- 
rf*  their  stations  it  can  scarce  be  presumed 

would    have    been  employed  about  the 
My  lords,  it  is  demonstrable  from  their 
ibcwmg,  tiiat  one  or  the  mher  of  them  is 
ned  ;  for  Mary  Doyle  said  bhe  wsk  in  the 
ie  before  Eleanor  Murphy,  and  Murphy 
bat  Doyle  was  in  the  service  lietore  her. 
ois  ihey  both  forgot  their  lessons ;  anil 
Doyle  bfing  interroi^ated  last  day,  said 
that  Eleanor  Murphy  was  in  bird  Al- 
's  serf  ice  before  her,  and  afterwards  said 
mid  not  tell  if  Eleanor  Murphy  was  in 
rvioe  before  her  time.    These,  my  lords, 
imtnulictioos  not  to  l>e  reconciled,  and 
I  induce  a  disbelief  of  both  their  evidence. 
lUSt  DOW  observe  to  your  lordships,  how 
or  Nurphy  contradictM  herself  m  |>oint 
teas  to  the  eclipse,  which  happened  the  j 
r  April  in  the  year  1715  ;  it  was  a  very  ' 
»rable  thing,  and  she  saiil  that  she  was  at  ; 
ime  at  captain  Butler*s  at  Ross ;  if  she  \ 
true  she  niuat  biive  been  in  Dunmaine  at  ' 
me,  it  being  about  that  {leriod  of  lime  ; 
he  lescur  of  the  plaintiff  baa  fixed  bis 

And  another  coniradiction  arises  from 
stimooy,  that  she  Mid  she  was  in  Dun- 
\  three  months  before  the  birth  (which 
I  April  or  May«  as  pretended ;)  yet  from  | 
vn  admiflsioo  abe  was  in  Ross  the  ?  ^d  ol  ! 
and  coaie  (as  she  aays)  to  lord  A  It  ham's 
e  the  da/  following.  This  is  as  e^iually 
Mteat  as  Ibe  rest ;  and,  my  k>rds,  to 
ler  her  tcetimoiij  ia  anotbcr  napect,  if 
UZFIL 


she  came  to  the  service  the  day  after  the 
eclipse,  and  was  in  the  service  three  montlii 
before  the  birth,  the  child  must  be  born  in  Uie 
month  of  July.  From  circiimKtancf*8  only 
persons  sometimes  can  be  proved  peijured*; 
hut  it  is  plain  they  were  at  a  loss  and  coidd  not 
make  all  parts  of  the  machine  to  hang  together. 
As  a  proof  hereof,  let  us  consider  how  Mary 
Doyle  swears  that  major  Fitzgerald  nunc  to 
Dnnmaine  the  day  alter  the  birth,  and  lay 
there  that  nigbt :  He  swore  he  came  to  Dun- 
maine in  the  month  of  September,  the  day 
after  the  child  was  bom,  but  did  not  continue 
there;  for  that  he  went  to  Ross  that  night. 
Mr.  Fitzfferald  gave  very  imrticular  rcasona 
for  his  being  at  T)unmaine  that  month ;  that 
tl.e  harvest  was  over,  and  that  people  at  that 
time  generally  pay  their  half  years  rent :  Ami 
he  gave  an  account  how  be  was  invited  by 
lonl  Altham ;  and  that  the  child  was  shewn 
to  him,  and  he  gave  the  nurse  half  a  guinea. 
Surely,  my  lords,  it  is  incredible  that  ludy 
Altham  could  have  a  child  in  May  and  another 
in  September  following. 

I  humbly  conceive,  my  lords,  that  major 
Fitzgerald,  from  his  CMducation  and  character, 
must  be  presumed  to  be  believed  before  Doyle 
or  Murphy  ;  or  if  their  evidence  be  regarded, 
conse(|uently  what  Mr.  Fitzgerald  swore 
cannot  be  tnic.  As  ibr  my  part,  1  would  not 
give  up  the  major  to  them  in  poini  of  credit. 

He  tells  you  how  he  was  atlncked,  and  how 
he  defeuded*hiiuM'lf  and  recovered  his  hoiise. 
He  appears  to  be  a  gentleman  of  figure  and 
reputation,  and  therelore  his  te.Ktimony  ought 
to  be  reliiil  on  preferably  to  theirs:  but  as  it 
M  impossible  both  stories  should  he  true,  it 
must  bring  an  imputation  on  tbe  cause  ;  and, 
my  lords,  it  is  hnmhly  presumed  that  by  the 
several  contradictions  arising  from  the  cviiience 
in  liehalf  of  the  lessor  of  the  plaintiff,  that  in 
oriler  to  entitle  him  to  a  verdict  it  is  essentially 
requisite  on  him  to  ascertain  a  more  positive, 
distinct,  and  creditable  account  of  his  birth. 

My  lords,  f  must  take  notice  to  your  lord- 
ships to  what  difficulties  the  plaintifi'  was  drove, 
in  point  of  evi«lence.  There  has  not  lieen  a 
single  |ierson  of  credit  near  Ross,  nor  a  free- 
holder of  10/.  a  year  about  that  plice,  pro- 
duced to  prove  his  birth,  though  JJunmaine 
lies  within  three  miles  of  Ro^«,  (a  town  of 
great  trade  and  business,)  and  though  lord 
Altham  had  a  considerable  estate  there;  and 
this  is  attended  with  another  circumst:ince, 
that  the  plaintiff's  birth  was  not  rpgi^itercd 
in  the  paribh  where  he  ifs  pretended  to  Le 
bom.  And  though  it  is  said  that  there  were 
public  rej/>icings  in  Duninairie  for  his  birth, 
yet  we  find  no  gentleman  in  that  part  of  tlie 
country  knew  any  thing  of  it,  nor  is  there  any 
person  above  the'degree  of  a  servant  product 
to  give  any  account  of  his  birth.  vVhy  hat 
not  tbe  plaintiff  produced  better  evidence? 
Every  thing  is  to  be  proved  by  tbe  beU 
testimony  it  will  admit  of.  The  fact  might 
well  admit  better  tiidcace,  but  tbe  caoae  «iU 
not  aflbrd  it. 

4Si 


1S83J  17  GEORGE  11.     Trial  hi  Ejedmeni  lehseen  J.  Amedejjf,  esq.   [IS64 


I  shall  next  make  ^ome  obserratioM,  my 
lordfi,  on  the  appointing  Joan  I^andy  to  be 
nume  for  this  pretended  child.  It  ia  said  the 
child  remained  with  her  fourteen  or  fifteen 
months ;  her  name  was  given  in  to  the  de- 
fendant's counsel  to  be  examined  as  one  of  the 
witnesses  for  the  plaintiff:  Why  is  not  she 
produced  ?   The  gfentlemen  of  the  other  side 

E remised  from  day  to  day  that  we  should  see 
er  examined ;  and  we  expected  that  accord- 
ingly she  was  to  have  wound  up  the  liottom. 
She  could  not  shelter  herself  by  saying  she 
was  only  three  months  in  the  service :  Either 
the  consciousness  that  she  coald  not  swear 
that  lady  Altham  had  a  child,  or  that  her  infir- 
mity would  not  admit  her  to  have  art  enough 
to  disguise,  prevented  the  plaintiff  from  exa- 
mining her. 
The   ulaintifTs  counsel,  my   lords,  being 

Eressed  ny  the  defendant's  counsel  to  produce 
er,  have  made  an  ingenious  apology  forlier ; 
that  she  is  an  infirm  old  woman ;  but  this  can- 
not he  the  reason.  However  weak  she  is,  she 
must  still  speak  truth  ;  she  was  longer  conver- 
sant in  the  affairs  of  the  family,  than  either 
Doyle  or  Murphy,  consequently  it  induces  a 
■tn»ng  presumption  of  the  Iwdness  of  the 
cause.  There  must  be  some  contrivance  in 
giving  her  name  amon^  the  list  of  evidences, 
and  aftenvards  in  omitting  to  examine  her.-— f 
■a^^  therefore,  my  lords,  it  is  plain,  that  the 
plaintiff  anprehended  truth  would  force  its  way, 
ifLiindy  had  l>een  examined  ;  she  must  know 
wlH>tlier  she  had  a  bastard  by  lord  Altham,  or 
whether  she  nursed  any  child  for  him  ;  and  as 
1  am  iiifornicd  that  she  is  in  town,  and  per* 
liaps  in  ouurt,  it  must  have  the  strongest 
im|)rrssion  on  the  miiid  of  every  man,  that 
the  whole  affair  on  the  part  of  the  plaintiff,  is  a 
mere  fiction,  since  he  avoids  the  examination 
of  a  person  who  must  be  best  apprized  of  the 
whole  transaetion. 

And  here,  my  lords,  T  should  take  notice  to 
your  lordships,  and  the  gentlemen  of  the  jury, 
that  Mary  Doyle  swore  that  Joan  Landy  was 
married  to  one  IVrCormick,  l>efore  the  birth  of 
the  lessor  of  the  plaintiff;  and  that  they  lived 
in  the  lands  of  Dunmaine;  though  nil  the 
otluT  ivitn(*Mses  say,  they  were  not  married  till 
nfier  the  separation  of  my  lord  and  lady  at 
Duninaino,  whirli  was  a  long  time  af^er  the 
lessor  of  t1)c  plaintiff  is  sup|M)8e<l  to  he  born  ; 
and  this  likewise  shews  the  improbability  of 
the  plaintiff's  story. 

.loan  Liindy  must  l»e  with  child,  it  is  true,  to 
qnaliCy  her  to  he  a  nurse ;  and  it  appears  she 
\\a<  unmarried  at  the  time  of  nursing  the 
child,  and  her  ehild  must  be  a  year  older  than 
lady  \ltiianrs  prttended  child. 

n  lady  Aliham  had  a  child,  my  lonls,  it  is 
rxlremely  ^u^|)rising  that  so  little  care  should 
he  taken  of  it,  as  to  give  it  into  the  care  of 
Joan  Landy  to  be  nursed,  who  was  scarce 
t'hah'  eiinn;;h  (if  1  am  rightly  instructed)  to 
cunline  herself  to  one  person ;  nobody  can 
tell  what  disorders  she  might  contract:  for 
Uicse  reasons,  irom  the  apprehension  of  noch 

3 


daogen,  it  ii  veiy  improbable  lady  Ahbin 
woiild  have  entrusted  her  child  to  such  t 
nurse. 

There  are  other  reasons,  my  lords,  which 
must  weigh  greatly  with  your  lordships,  aod 
the  gentlemen  of  the  jury.  It  is  proved  that 
lady  Altham  suspected  Joan  Landy  to  be  with 
child  by  my  lord,  and  therefore  turned  her  ost 
of  the  house  on  that  account ;  is  it  poesibte  to 
think,  that  this  person  to  which  laoy  Altbaa 
bad  so  great  a  disgust  and  aversiooy  slioold  be 
the  very  person  she  should  think  proper  to  fix 
on  for  the  nursing  her  son  and  heir  ?  And  cu 
it  enter  into  the  mind  of  man,  that  lord  Al- 
tham, who  never  before  had  a  chiM  by  hii 
lady,  and  could  not  well. expect  to  have  muj 
more,  should  consent  that  this  only  child  uf 
the  family,  bom  to  such  high  hopoor  and  io* 
mense  estate,  should  be  sent  to  such  a  eres* 
ture  as  Landy  was,  and  be  nursed  in  a  nun 
cottier's  cabbin  P  It  is  unusual  w  ith  gentlem 
of  the  couutrv  to  send  their  only«cnild  to  be 
nursed  abroad,  and  especially  when  there  ue 
conveniences  for  that  purpose  at  home;  uti 
Landy's  cottage,  it  appeared  to  be  a  ctUii  if 
the  meanest  kind. 

It  is  natural  to  suppose,  my  lords,  that  if 
lord  Altham  had  a  legitimate  son,  he  wooM 
not  be  admitted  to  be  nursed  abroad,  prope 
persons  would  have  been  appointed  to  allm 
the  child  at  home  ;  and  the  tenderness  of  hdy 
Altham  for  her  child,  would  ao  strongly  0Te^ 
flow  in  her,  that  she  could  not  bear  having  hn 
out  of  her  sight,  and  lord  Altham*s  interest,  h 
well  as  his  fondness,  would  influence  bim  ti 
have  the  child  always  under  his  eye. 

But  to  gloss  over 'this  fiction,  and  give  it  the 
appearance  of  a  reality,  this  cabbin  is  tu  k 
dressed  up ;  and  Murphy  adds  a  third  roemio 
the  cottage,  and  this  room  is  decke<l  and  or&i- 
mented  for  the  nursing  of  the  child ;  but  tiie 
other  witnesses  contra<]ict  Murphy,  and  affirtfi 
that  there  was  nut  a  third  room  added. 

Murphy  said,  that  about  three  weeks  a.'irr 
the  birth  of  the  child,  it  was  sent  to  be  naned 
in  this  new-made  room,  a  habitatitm  extremH}' 
improper  for  a  tender  infant,  liorn  to  soch  lio- 
nonr  and  such  an  estate,  and  whose  prtfspn:r 
tion  must  at  that  time  have  been  hiii  pvfofi 
greatest  care.  The  fiction  is  too  improbabletf 
meet  any  credit. 

My  lords,  one  Dartholomew  Furlong  oin* 
tions,  that  thi-ee  weeks  before  the  cliildvu 
born,  he  applied  in  order  to  get  the  niirsicg^ 
the  child  for  his  wife ;  by  the  nlaintifT*!  en- 
dence,  in  about  si.x  weeks  after  this  spplicabaii 
the  cliild  was  sent  to  T«andy*s;  ann  thmfb 
this  man  was  well  recommended,  aa*)  bailiki 
character  of  an  honest  man^  yet  his  nitt  «• 
refused,  and  a  kitchen- wench  under  ao  10  r^ 
pute  (as  appeared  i:i  evidence)  with  the  mcsct^ 
of  the  serrants,  was  preferred  to  F^^ 
wife.  But  this  is  varnished  over  by  a  wnl* 
indisposition,  to  occasion  lier  milk  sot  l»^ 
wliolesome ;  and  doctor  Brown,  who  wai  •■ 
to  have  examined  her  milk,  happens  oo««l 
to  be  living. 


Id65] 


and  Hiehard  Earl  tif  Arigltsea. 


A.  D.  1T«. 


Hinlvit 
•  child 

nicocei,  IhU  niiijhi  lie  iiwi){iieil  as  a 
•uuliaK  lh«  cliilil  ubroiii].  But  limt 
bl  tli«  Innl  jlltliain'i  cite,  lie  had  a  liirge 
Coontrj'- house,  and  a  number  nt'  tervauti ;  it 
b  »rjr  imprubaUe,  that  he  should  send  liisonlj- 
■M  uJ  heir  out  uf  his  own  houM. 
^  The  iiltunliff,  my  lord*,  to  make  hlsprplen- 
VMU  the  mnre  plaiuible,  hu  produced  Ptiili|i 
3t**»  'id  xome  other  wiwestes  ithu  taid  thert 
Vn«g'reiilreji>idng;a  anil  ttoniires  made  fur  the 
linb  ol'  the  child  1  and  that  lhi:re  was  a  great 
•britteniim;,  •od  liquor  giieti  iii  ahundaiice  to 
Vta  MTTtnta  on  thai  uccaaioa.  IT  there  were 
Mr  Mich  rejoiciags,  the}'  would  have  been 
MUltC,  aud  other  sertaolji  diubI  haie  seen 
lltno  ;  btit  thik,  it  (eeins,  was  ioleudvd  lo  be 
apBcealad  from  all  the  other  scif anis,  anil  the 
PU  of  mankind,  except  the  witneuea  wlio  ooit 
pulcurour  to  prureit. 

Tbe  Ero*e,  near  loid  Althani's  house,  was  an 
attiaCK  lor  a  UinBre  lor  jmblic  rejoicio^<  ;  if 
;ha  Are  iris  made  nilhaut  the  grore,  the  ncigh- 
iurB  mutt  have  seen  it ;  but  tbe  whole  lualler 
M  U«nded  nitii  buch  ioconBlMeocee,  that  il 
nmt appear  an  odJjumbled story. 

My  lords,  1  ntnst  now  heg  l^ve  Id  make 
ttnp  nbaeriatiDns,  to  shew  your  loidchips  and 
Im  gentleiaen  of  the  jury,  that  tiie  proof  in 
nint  of  credibility  ia  oo  ilie  tide  of  the  del'en- 
Iwi,  the  earl  of  AliKlesea,  and  that  il  lord  Al- 
IpaBl  bad  a  child  at  the  time  pretended  by  the 
nldence  to  he  born,  Joan  Idody  and  out  lady 
Blbaifn  must  he  the  mother. 

^  lliis  exlranrdiuary  case,  my  lords,  rolls  nn 
4tt  fcirth  of  the  lessor  of  the  plniDtilf,  I  shall 
aooaider  some  of  of  the  deleiidaut'd  proofs, 
|a4«baUflritukenoliceofMr«.  Heath,  who 
■■Milady  Altham's  woman,  and  lived  with  her 
iH  bee  death;  she  shears  positirely,  that  her 
'" '  "  --  '  '  a  child  while  she  was  in 
>r heard  till  iatuly  Ibal  lidy 
n  erer  had  a  child.  Hbe  came  lo  Irdund 
■I  1713,  and  went  from  Dublin  with  her  lady- 
HnP  lo  Duumaiae  the  ChristmaB-ere  aller  her 
IWmhut  over,  and  lived  with  her  till  her  death, 
IpH  Dever  wns  aliseul  one  week  from  her :  so 
llMtit  waj  impowiblt:  fur  lady  Altham  lo  hare 
B  child  without  her  knuwii^dge  ;  yet  alie  says, 
Mw  ntncr  olMrred  any  si^ns  of  her  Indynhip's 
kagmiicy  i  and  Dobndy  can  he  supponed  lo 
Maw  the  circiuiiMaDceii  of  tbe  family  belter 
■ttisfa*.  '' 

ftoiph  swore  that  lady  Aliham  never  bud  a 
■lild,  nor  efer  miscarried.     Dwyer,  my  lord's 

KBOian,  swears  the  same,  and  lliry  must 
known  il,  if  toy  auch  liad  heeu,  for  they 
*«r«  (he  priiici|wl  perMos  vita  were  serraou 
■  Ute  taiiuly  :  so  thit,  1  say,  Mrs.  Ilealh's 
^■imoDy  is  slTM^Iy  confirmed  hy  their  evi- 

ttlf  kiedi,  I  would  subniil  to  ynur  lordshipa, 
*4  la  ill*  mmiory  of  the  geuilcmvn  of  the 

Kl  thv   ijRijtlcmeii  of  lluil  part  of  the 
iwccr  tb«y  brlicrc  that  huly  Althnm 


iadyalii|)iuiifr 
btraervice,  Bn< 


[1360 


never  bad  a  child,  that  Ihry  n 
Isleiy  that  her  ladyship  hud  acliiiu  ;  auu  luui 
it  nbc  had  had  a  chihl,  ihe^  uiiist  hoe  heard 
of  it;  and  the  reason  ul  the  thing  pbiTdy 
speaks,  that  the  faet,  if  true,  must  buve  Inwa 
pulilicly  known  in  the  nei|{h boil rliood. 

Hr.  Palliser  tlie  younger,  who  lived  in  Iha 
fsmity  fur  a  long  lime,  and  is  menlioned  as  (he 
tiithappy  caute  of  tliv  separation,  swears  he 
neier  heard  that  ludy  Althsm  had  a  child. 

Mr.  William  Nnjiper  swears  he  lived  at  Host 
for  50  years,  and  was  married  to  a  near  rels> 
lion  of  lord  Allliam's,  and  intrusted  iu  the 
afTairs  of  ibc  family,  and  was  employed  ly  the 
Ule  lord  Ao^lesea  lo  make  leases  of  llie  Itnss 
«stale,  (the  lute  lord  Anglesea  coming  iotu  pos- 
sessioQ  thereof  ailcr  the  death  of  the  Isle  lord 
Alllmm  0  so  that  he  must  well  know,  if  lard 
Altham  had  d  sou.  the  lonl  Anglesea  could  not 
have  a  right.  Vet  no  person  made  any  ub- 
Jccliun  to  the  late  lord  Anglesea's  title,  uiir  did 
the  tenants  make  a  difKcuTty  lo  attorn  to  himj 
oud  if  lord  Altbam  left  a  son,  it  is  impowihie 
U  would  not  have  been  known  in  the  tnwu  of 
Boss. 

My  lords,  if  lady  Alihain  had  a  son,  it  would 
oalurally  he  a  great  comfort  lo  her  in  lier 
afflictioD  after  the  sepamlino  ;  the  proi|iect  of 
having  a  son  wlia  was  to  succeed  lo  so  consi- 
derable an  estate,  must  allef  iaie  her  anxiety  ; 
in  every  caaipanv  she  would  have  mide  frc> 
quent  mention  uf  him  ;  yet  she  never  spoke 
one  syllable  of  bim  10  any  person  whatever. 

As  to  James  Walsh,  il  is  impossible,  luy 
lords,  histesiimony  coulith«true:  he  siaies  ii, 
that  the  day  of  the  sepnnition  ladv  Allham 
woidd  choose  to  come  to  town  in  the  middle 
of  the  day,  lo  be  the  object  of  pnhlio  view, 
Ihough  iiiikocenl,  and  come  te  captain  Butler's 
before  dinner ;  herein  Walsh  differs  from  ihe 
plaintiif's  other  witnea^es,  as  lu  the  lime  of 

Walsh  swears  further,  that  her  ladyshi|> 
came  to  Uoss  in  a  chslr  drawn  by  one  horse, 
and  that  he  handed  Iict  out  of  it ;  some  of  the 
other  witnesses  say,  she  came  in  a  fnur-wheel 
chair,  others  a  four- wheel  carriage,  and  in  this 
reapect  Walsh  also  varies  I'roiu  the  rest  of  the 
eviileuoes. 

Kirs.  IleMh  says,  that  laily  Altham  pa«- 
tiv«ly  directed  tite  coacbnaa  to  go  easy,  Uut 
it  snighl  he  lale  whenshecomc  to  Iloss;  uud 
ibis  tallies  with  what  the  other  w Tin nics  swear 
in  Ihal  respect,  that  it  was  diiskish  and  Inlc  in 
the  evening  wlten  lady  Altham  came  lo  H«sa 
(llie  day  she  leit  Dunmaine)  conseiiuenily  she 
inusl come  there  iRer  dinner-time:  ■•>  ihat  if 
tliere  be  any  reliance  on  llie  lestiinoDy  of  tli« 
plBinlilT'soiberwiinesaea,  Walsh  in  Ibisparti- 
cular  must  be  looked  upon  as  a  made  witneaa, 
and  not  to  be  creiliied.  Ji  is  very  observable, 
nty  lords,  how  convuicing  llw  prvds  arc  on  the 
side  of  the  defendani  ;  whereas  ifaoie  for  tin 
plaiatiffure  iocampalible,  and  sap  the  tbunda- 
liuM  wlwreon  they  build. 

For  tb«  drvMiue  up  tbe  story  at  DunnaiiMi 
my  lords,  Joau  Loifin  ia  produced.     J«>% 


wn 


ITGEOSGEIL    TfU'im£lteknMldmtmJ.Jkmedes,af..^ 


ImAj  WW  jlidgcd  bj  Hm  pidotiir.  te  be  u 
fmi^mf^  witMM;  tkerafera  lln.LtlBM  At 

•  4h7niirae(beeAiiMtb«iitQppoicdti»bmTemoi« 
^  «iiniuiig)w  bioufflittotopplytlie  wantof  tbe 
'  0fideooe«fLtiMl^  the  wet  bone. 

I^iffiui  al  fim  Httd.  she  etme  into  Ibe  eernoe 

•  in  ine,  but  efterwerdf  reeollecled  heneirtha 
it  WM  in  herfcit  1715.   Though  tbie  wh  ai 

-  enelliiiisteke,  HweefbimdiDtteriallooomcC 
it,  Yet  Hill  her  teidmoiiy  ean*t  be  reooodM 

:  botVr  her  eomiiig  iMo  ibeeeivice  io  ITlfif 
wbieb  iMkei  tnKb  break  ost  to  shew  the  im* 

•  prebaMlitjefhereTideiiee. 

If  Latteeam^faito  tb«  eerriee  ui  1716,  It 

•  -would  overreaeh  tliethnea;i?en  io  eriilMoe 
'  bjf  Dojie  and  Mor^y;  therefore  ebe  nioift, 

eay,  the  ehild  wae-  three  inoDtha  old  at  Imt 

«omio|f  iDto  die  family  hi  1715.    It  ie  dear 

'  liiatthiepieeeiorher  erideiioai  waa  mtrodoeed 

•in  thb  period,  to  gire  a  lanolion  to  the  other 

wfl8eeeei,!Doyleand  Mtnrpby. 

I  would,  my  kirdf,  beg  teate  to  aelc  liow 

-  «oukl  the  phintiff'e  wftncaeea  know  how^  a 

-  noMeman'e  ehild  wai  to  be  dineed  ?  itiepbin 
tbif  point  wae  eettled  before  they  eamo  on  the 
table  to  be  enimhitfd ;  but  the  mannerin  whioh 

•  ;tfaey  ddif  ered  in  their  etridenoea,  and  their 
tery  looke,  betrayed  n  eonfeeioaa  gnih. 

uflbn  eaye,  abo  Waa  a  ohabiwmaid  hi  the 
.  aerviooatlfoeB;  and  tbaiihoobiUI  wiaaboat 
>  nryenrand  a  kairhilhe 'Whole  under  her  eare, 
••iNMre  the  aeparatlofrr  and  that  'Cbaffoi 
Meagher  the  batler  brodtfht  the  ehild  ttt  Rhi- 
vnay^  Rolpbaaysy  boMttotleafetheeerfioe 
.  liiraboot  Chrietmaa,  1715.    It  ie  eaiily  4if. 

•  earned  bow  eoneiatently  I^tlph  ga^e  his  en* 

•  denoe;  bit  quarrel  with   the  jfardener,   hit 

•  ffoing  into  the  goardt,  and  the  time  of  hit  en- 
campment most  make  such  impretsiont  on  his 
•mind,  that  he  must  hare  remembered  it;  but 

'■'  I>oyle  and  Murpby  foltify  each  other,  and 
liattau  contradicts  them,  as  I  shall  shew  im- 

•  mediately.  So  that  I  humbly  conceiTe  their 
eridenQB  ought  to  be  rnected. 

If  .the  chfld  was  in  Laflan's  care  for  a  year 

•  and  a  half,  and  that  she  came  into  the  serrice 

•  in  August  1715,  then  all  her  care  of  the  child 
must  cease  at  least  before  July  or  Aueust  1717. 

Now,  my  lords,  it  n  not  pretended  that  lord 

•Altham  went  to  Kinnay  till  the  year  1718; 

.  and  if  what  Laifan  says,  be  true,  that  the  child 

was  Uken  from  her  and  s«it  to  lord  Aliham'e 

to  Kinnay,  then  there  is  a  chasm  of  a  year, 

from  1717  to  1718,  not  accounted  for,  which 

■  cannot  be  filled  up,  but  by  supposing  that  Laf- 

fan  came  into  the  service  in  1716.    So  that,  f 

aay,  the  circumstance  of  her  coming  into  the 

aervice  in  the  ;jrear  1715  cannot  reconcile  her 

-evidence;  but  in   1710  might  answer  to  the 

.child's  going  to  Kinnay  in  1718;  however, 

.that  would  not  ^correspond  with  her  dry-nnrring 

of  the  child  before  the  separation:    I  appeal 

therefore  to  your  lordshipe,  what  dependnee 

-there  can  be  on  Laflan'e  testimony. 

Lord  Altham's  uking  the  child  to  hie  hwd- 
.ahip^a  bonaa,  and  hia  irindnam  to  bin  at  Kinnay 


Aar 


to  ahow  tllo  'IcgMnHiBy  af 
tiwplilatifft  iatmri  itliaoaM 
■MNi  who  have  wTlawM  Ihhl  is  ml 
ehifaim  gmtari  linMiiiin,  ai^inaiM 
graad  mannar.  bM  God  forbid  that  lammHr 
ftat  kuid  ahooU  ablnido  •■  hidr  an  MUk 

It  ia  eaaly  iBBiaamii  by  tha  phiiffl. 
deneea,  that  the  oUM  '  ~ 
hooao  after  tha  aanmtM 
tabled  byiard  AMmub,  a^miibtlaMiai 
byaoBiaaahiaiawfyaaB|biit>^lbrtMjh 
not  jproved,  aU  iho  mat  or  ina  otiitaBimall; 
tothe^rottod.  - 

1  wB  neienonni  me  prevnOf  nni  Ma-SHni 
fta^naatly  withad^that  hia  WigUimiiMih 
Icgitimata,  in  aider  to  eat  oat  hh  biM; 
therrfova  aapaaiur  tba  diBJaaini  tf Mi 
Althalii*a«iadButtod.tki 
cient  toauoanaet  to  baiievo  the  hmr 
phhUHrhialawfdl  aan.  And  hisniyd 
thatif  knd  Akham  tmiadnoad  bfaaMI 
nerof  exprtaimi,  Thie  ia  my lMnU>aiy 
pictended  by  tha  ptabtilPa    ' 


common  n  way  oftptabiag,  UHkHni 
poipiefoB  of  hto  limHlMaf,y.  Od.1 
tiaoiNiy  avaib Mthiatf  I  hefairiiiM 


\l 


that  lady  AUham  had  a  cUU;  tbik  ki 
lawunatlogototkojmw.    ' 
.  If  tba  dectoi^iana  af  iwd  Jbto 
bavaainf  waigblf  tllo  pliMHliPi 
iBoatradicted%  witMomwrfaai 
batfofthedafoiidaBt  Dr.Mtilha^i 
hwd  Althamdaetarad,  thaaat  Iwhadi 
did  not cara  what  becaoMaf  tbetidi 
death;  and  this  ia  ao  like  hia  chanMhr. 
doubt  can  be  madeof  the  tmth  of  it  iw< 
disposition  he  shewed  to  make  wkjt 
money  he  could  of  the  estate, 
he  bad  no  legitimate  issue.  ,  ^, 

Colonel  Herman  is  very  C3rpre«iiibj'[ 
mooy  with  respect  to  my  lord's  btriof  *|fj 
fnl  issue ;  and  he  was  in  tneh  odegnia^ 
timaoy,  that  hia  evidence  most  be  w^ff^ 
Me. 

I  shall  now,  my  lords,  proceed  ti  t^ 
denoe  in  Proper^lane.    John  Bym  tiM  f^ 
and  Thomas  Bym  the  eon,  and  Pibick 
ket,  produced  aa  witnesaea  for  tbepli 
my,  tnat  Mr.  Jamea  AnncsJey  was  nfrt^fL . 
hiwfulsonofmykMdAltham.    TbeaitW 
says,  that  the  lessor.of  the  ptentif  •**?] 
him  in  a  mean  condition,  ki  Septeafca 
and  that  he  then  took  care  of  Iw  bi 
brewery,  his  fother  being  then  in  the 
and  that  he  concealed  the  leaser  of  tk] 
for  six  wedcs  in  his  fother's  home. 

It  appears  by  the  testimony  of  WaMft*i' 
he  went  to  seliool  with  him  in  Warta** 
street  to  one  Donn;  and  Dunn  «vBi^' 
September  1794  to  the  Easter  m^^l 
was  at  his  school.    So  that  bis  teHifli*" 
Thomas  Byrn's  don't  square  togetM'* 
said,  he  .called  him  the  youag  kr'.' 
during  that  time;  bat  if  Byra  beUlk! 
wat  then  in  the  loweat  condilioBi  a  (^ 
daititoteofallmlief.  ' 

Lent  Ailkam^  bakavieiw  aAv  IM 


I 


h 


\ 


1 


and  Richard  Earl  of  Anglfst 


•r-hii*,  M  Ibe  strungett  proof,  llial  llic 
of  tbephiDtiffvTBsnat  Ins  lawrul 
It  Id  be  L-fxiccired,  my  lords,  lliat  a  father 
\  throw  oJf  Ills  lawliil  enn  «1  tbr  ag«  ul' 
«i|;ill  or  nine  yearw,  anil  expose  liiill  ■<  ~ 
Hud,  wlicn  tile  cbilil  i*  lacufialiW  uf  coi 
Ig  an  otTrnce  Ihit  ctm\A  deserte  sucll  |i 
nenif  The  naiural  lies  of  lilonil  must  be 
»«d  lit  0|>ernte;  and  it  cannot  be  mn- 
ilhnliiny  inannfthele««iburaaniiy  rojld 
lilty  Dr«n act olthal kind.  Bui  tbis eon- 
)f  alather  may  )>«  Tceooclltd  in  ihccaie 
bulani  -,  because  be  at  lirsl  may  t«lie>e 
le  was  bis  aon,  anil  iirt^rwanlB  mny  be 
nl  lo  believe  the  contrary  ;  and  the  boy's 
BO  inoorrigiblif,  aa  np[«nred  in  proof, 
faare  aomv  influence  lo  raiie  doubta  in 


Jea,  inrely.  my  lords,  it  ■<  intposiible  to 
IM,  he  would  9v^  him  SD  abandi-ned. 
All  been  ijreally  lo  tbe  adfantage  of  the 
rd  Allbam  lo  have  a  son. 
I  lale  loril  Allham  had  a  remainder  in  lail 
r»*t  part  uf  the  Angleaen  estnle,  expect- 

the  fslule  for  life  of  earl  Anliur,  who 
lO  i«aue  ;  and  if  be  had  ■  ion,  be  could 
iMrreil  the  remtiuder  by  Wyinif  a  fine; 
woatil  bare  been  bis  interest  tu  bare  done 
kitae  hia  lordthip  could  then  tniike  a  better 
I  a  pufchaaer  ;  but  if  he  tiled  wilbuut  a 
►e  r«nainderaoter  would  lake  place,  and 
[uenlty  the  estate  nould  be  tbe  worK  tu 
liaier.     IJut  now  let  us  see  hnw  llie  case 

•land  If  lord  Allham  bad  a  luwful  sun. 
rd  ihen  could  hate  raised  money  by  aale 
enioni,   in  r^ard  that  ihe  earl  was  |iul 

for  lile ;  and  It  la  trelJ  known,  tliat  big 
I  such  a  son  uiUTit  have  procured  him 
t  and  reaped  as  well  as  pmfii,  it  being 
[I  M  shew  greater  regdrd  In  Ihose  who  ire 
it  their  estaie*  and  litlca  to  ibeir 


I  It  must  create  an  additional  respect  to 
•Isbip,  to  consider,  if  be  bad  nucb  a  son, 
lould  happen  to  survive  Ihe  lale  Inril  An- 
I  that  be  might  witb  bis  concurrencedia- 
i'hia  own  and  Ibe  AoglexA  estate.  Lei 
iot  of  law  be  what  it  h  111,  it  appears  by 
I  Wall  (baring  takeii  opinion  of'  counsel 
ti]tbal  lord  AUham  'ia\Tlb,  tbuiightit 

be  of  inlinile  service  to  bim  to  hate  a 
■11  he  mighl  thereby  enlargs  his  fortune-, 
hile  he  was  passe«sed  with  Ibis  belief,  aud 
b  a  DTceuttuus  condition  at  that  time.  If 
1  ativ  apprehension  that  there  was  a  no- 
i»t  be  bad  a  son  and  heir,  would  il  not 
icen  a  good  opparlunity  for  bim  to  lalte 
ilM  into  his  care  and  impose  him  on  Ibe 

as  his  legitimate  son,  when  be  knew  the 
'Mneatit  of  biajiower  In  Ihalcase?  Or  if 
I  altgltimite  son,  which  be  might  tbinlc 
■  tu  conceal  fur  some  time  betore,  surely 
[ta  he  judged  it  ao  iiiuoh  hia  inlerest  lu 
a«Ott)he  would  hare  declared  it  to  the 
kkgdnra  ;  therefore  his  not  doing  to  is 

tdrstmuUnce  to  prove  ihst  he  had 


■a.  A.  D.  !V*3.  [137»J 

My  lords,  there  is  another  neighly  rircnn*  \ 
■taoi-e,  which  must  strike  every  penman  tbMfl 
bean  this  all'uir.  Ladv  Altham  was  in  DubltftF 
fri)nillieyeiirl719Ui  1734,  wbenlbeboyw  . 
wanderin;^  uhoul  ihe  streels  in  the  grealetit  dia>f 
tress,  and  nu  appllcalioit  was  made  lo  her  ladt> 
ship  for  tbe  buy ;  and  curcly  If  he  imngineil  ft. 
wea  bersnn,  lie  would  have  ap|dinl  lohertL 
such  indigence.  Moreover,  niy  hmls,  lady  AM 
tliam  liveil  at  Ross  three  or  four  -  -  -  ■  '  -  • 
0ublin  for  four  or  Hie  years,  i 
menlioned  Ihe  name  of  a  son  CKcent  lo  Mr*.  % 
Margaret  Hodgent,  who  watin  the  Temple  i 
luremy  lime,  and  is  belter  known  by  Horae  of  1 
gentlemen  of  tbe  other  side  iIibd  she  la  lo  me}  I 
hut  lipr  evidence  must  be  an  iJle  story.  " 
PiVi;  Hodijfera  tells  yon,  she  netf r  sal 
bidynhlp  but  once,  and  yet  abecnuiesin 
riHiin  to  alderman  King'i,  makes  a  low  c)ir>  1 
le«y,*  and  iinmeilinlely  alter  my  lady  Allban  1 
(who  had  never  exchan^d  a  wurd  with  herbs*  1 
lore)  «nters  iula  cnutiTnalion  with  her,  telli  1 
Mrs.  Hudgers,  tliat  her  ladyship  boil  achlM.  1 
and  ibsl  you  bate  better  luck  than  I  hav<;  I 
wblth  apfieura  lo  be  very  improbable.  ' 

My  lords,  lady  Allham  fas  appears  by  a1d«w  1 
man  King's  leiitimony)  ludged  and  dieted  wilk   J 
bim  luralioiii  13  months,  and  frequently  dis> 
coursed  with  him  ulwut  her  fiimlly  affair 


and  I 


serve  lo  your  lordihips,   that  alderman  Kiiw 
gives  a  very  good  acooutil  of  Ibe  behaviour  «    ] 
Mrs.    Heath,   and  ihis  la  a  strong  reason  Ibal 
she  is  to  be  believed  before  Mrs.  Uudgers. 

Mra.   EtiEDbetb  M'Mullen,  a  wltoeas  exk 
mined   for  llie  defendant,  says,  she  was  ao- 
quainled  witb  lady  Allbam  for  a  bum  sere  nor 
piKht  years,  and  frequently  conversed  with  her 
ladyship  whilst  she  lodged  at  bor  house,  yet 
■be  never  mentioned  any  thing  of  a  son  to  her, 
iinr  did  she  eter  hear  she   bad  a   son.     Aua   I 
when  my  lady  vrus  apprised  uf  the  death   of  | 
lord  Allbam,  liy  Mrs.  M'Mullen 's  lellerlo  Mr«(  1 
Heath,   which  was  dated  ISth   of  December   I 
1727,    and  tbe  conteiiU  of  it  cororoiinicalad   j 
In  her  ladyship  by   Mrs.    Heath  ;    yel    ladf   ] 
Allham  never  lobb  notice  of-«  son,  and  ouv>    , 
with&landing  she    survived    lord  Allbam    Rlr 
two  years,  vei  she  never  so  much  as  stwke  of    \ 
a  Mu  ;   and  though  she  was  disordered  in  her 
limbs,  her  under 'landing  and  memory  wen 
not    in   Ibe  least  Impaired;    for   Mrs.  Heath 
said,  she  retained  ber  aenM*  to  tbe  last  day  of 
her  death. 

Lady  Allham  waa  siippnrtei)  by  the  late  duke 
of  Buckingham,  during  hia  lite,  and  by  bti  . 
duchess  after  hu  death  ;  and  her  ladyship  wad 
knew  she  had  Irlfuds,  who  would  be  glad  tm 
support  the  bin  bright  of  ber  cbitd,  ifKbe  bad 
any  :  but  as  no  such  thing  baa  ever  appeared,    i 


*  Hereupon  the  Prime  Serjuanl 
Mrs.  Hodgers  Id  a  curtesy,  and  Liin)  CliieT.  . 
Baron smilnigly said, You havaadded  acurtesj',  - 
MLFflueE^erjeanl,  gniGd'ullYtubiGteruli      " 


\ 

I 


«itife  evidence,  oonfcquently  ought  to  bate' no 
inflaence  in  determining  this  cause,  and  I  can- 
not help  saying  it  was  cooked  up  to  give  credit 
to  the  story ;  lor  it  is  most  likely  that  the  boy 
iodeuturedf  voluntarily,  and  that  the  defendant 
did  not  transport  him  againnt  his  own  will. 

Douiinick  rArrell,  a  witness  for  the  plaintiff, 
lets  out  as  seeming  to  be  a  genileman  of  credit 
and  %ure,  by  ftis  fisita  to  Dunmaine ;  there 
be  says  he  saw  the  lady  dandle  and  treat  the 
child ;  but  his  teakimony  cannot  be  true,  be- 
cause be  says  he  saw  the  child  in  Dunmaine  in 
17 17  or  1718,  yet  the  separation  hapfiened  in 
February  1716.  Farrell,  my  lords,  is  ushered 
in  previously  to  the  transportation,  to  ahew 
that  it  was  he  recommended  the  boy  to  Purcell, 
and  how  charitably  Purc^}  behaved  to  the 
hoy.  1  must  own,  it  ia  not  common  to  see  in- 
stances of  humanity  from  a  butcher,  to  support 
Ibf  chikl  of  another  person  out  of  mere  chanty : 
however,  1  shall  only  observe  some  contradic- 
tions in  theteatimony  of  Parrell  from  the  plain- 
tiff's other  witoeascs  :  he  widely  diiSers  from 
Ihem,  as  to  the  period  of  time  of  bis  seeing  the 
child  in  Dunmaine  in  1718  ;  and  he  likewise 
varies  from  Puroell  in  other  particulars.  Far- 
rell  iiays,  h^  called  the  boy  when  he  saw  him 
riding  in  Smitbfield ;  and  Pureell  says,  the  boy 
was  talking  to  Farrell  when  he  first  saw  him. 
Puroell  fiuys,  the  boy  was  present,  and  Parrel  I 
flays  tiie  contrary.  Farreh  awearsit  will  be 
eleven  years  uext  Christmas  since  he  went  first 
to  Cork  to  live,  and  that  the  boy  was  at  Pur- 
cell's,  when  he  went  there,  and  an  year  and  a 
half  in  PttraeH's  care,  and  therein  he  stands 
falaified  by  the  rest  of  the  witnesses. 

Jt  is  vei^  improhable,  my  lords,  that  an  at- 
leroptahould  be  made  to  kidnap  the  boy  at 


when  it  na^ 
out  nmoini 

Now,  uk\ 
for  the  tran 
Bym  the  < 
iototlieboal 
to  George's 
peared  pnbl 
vant  swears 
he  sent  him 
stayed  for  s 
hour  and  a 
fendant  still 
(the  place  Wi 
miles  distac 
sonably  sup 
reckons  goii 
was  said,  t 
boat,  and  afi 
first,  and  D< 
not  to  be  bel 
be  believed 
differ  about 
tioo  on  their 

I'he  uext 
books  of  tl 
Tholselbool 
concluded, 
himself  as  ; 
James  Hem 
indentured : 
is  not  enten 
withstanding 
ley  and  Jinn 
cause  Henn/ 
who  went 
same  ship  \ 
books.     Thi 


mnd  Richard  Earl  ofAnglesen, 


A.  D.  1745. 


[137* 


enC  ftboand,  were  brought  before  the  lord 
;  that  he  never  knew  of  any  person  who 
foard  but  such  as  were  indentured,  and 
cnew  of  any  taken  by  force  ;  it  may  be 
ell  presumed,  that  Hennesley  and  An- 
il one  and  the  same  {lerson  ;  and  the 
iitj  weighs,  that  the  lessor  of  the  plain- 
I  tired  of  wandering  and  strolling  about 
sets  here,  and  therefore  transported  him- 
f  cod  the  seas. 

,  my  lords,  f  sholl  obserre  to  year  lord- 
lie  eridence  of  Mr.  GifTsrd,  with  respect 
prosecution  ;  but  as  it  has  been  already 
hrerted  on,  when  he  was  on  the  table,  f 
ttuble  your  lordships  but  with  very  little 
pgsrd  to  him.  This  gentleman  comes 
iril?  to  betray  his  client,  who  could  not 
pelted  by  a  process  from  a  foreign  king- 
ind  therefore  no  stress  should  be  laid  on 
dmony.  If  there  had  been  any  method 
>  oblige  him  to  discover  the  secrets  of 
»t,  there  might  be  some  inducement  to 
jn  credit ;  but  when  he  appears  here  in 
r  light,  it  must  be  supposed,  there  hangs 
lias  on  his  mind.  He  owns,  lord  An- 
provoked  him,  because  there  were  dis- 
*etweeu  them  on  account  of  bills  of  cost ; 
Giffanl  has  shewn  a  resentment  on  that 
»D,  he  cannot  be  said  to  be  an  uniuflu- 
(ritness  ;  and  though  he  might  be  em- 

by  the  defendant  in  the  prosecution, 
M  improper  means  were  made  use  of, 
fendant  cannot  be  said  strictly  to  be 
of  a  crime :  and  indeed  it  is  very  im- 
le,  that  the  defendant  could  be  so  weak 
nake  such  declarations  to  Giffard,  and 
iving  put  himself  in  his  pouer,  to  fall 
ih  him  for  so  small  a  sum  as  '200/. 
lords,  I  am  sorry  to  mention  what  con- 
ies there  have  been  made  use  of  to  throw 
t  the  defendant,  and  no  art  has  been 
J  to  take  away  the  crcxlit  of  his  evi- 
A  bill  has  been  file<l  against  Mrs. 
,  to  discover  lady  A Itham's  effects,  which 
irely  calculated,  in  order  to  prevent  her 
^ing  examined  in  behalf  ot  the  defen- 

IVny  was  a  lieutenancy  offered  to 
?  The  tendency  of  it  is  easily  seen 
;h,  to  induce  circumstances  of  suspicion. 
>irds,  the  earl  of  Anglesea  was  then  in 
distress,  being  involved  in  so  many  suits, 
ich  he  was  perhaps  actuated  with  resent- 
I  and  a  man  thus  enraged,  may  possibly 
logs  contrary  to  his  sentiments,  which  on 
'  reflation,  may  fill  him  with  concern  ; 
I  then  inflamed  with  passion,  and  might 
^y  think  a  proposal  of  a  sum  of  money 
extricate  him  from  his  difficulties.  How- 
3iiard  is  but  a  single  witness,  and  not 
wn  influence ;  but  truth  is  not  to  be 
Died  by  suspicions. 

lords,  I  fear  I  have  taken  up  too  much 
f  time,  and  of  the  gentlemen  of  the  jury  ; 
V  aow  oonclude,  by  only  observing  to 
lordshlpa,  that  no  man  can  be  safe  in 
^peity.  if  a  child  thus  trumped  up  is 
'  up  IM  beds  of  tbis  rightful  b'eir  to 


the  family  ;  because  a  precedent  of  this  kind 
might  be  attended  with  the  most  dangerous 
consequence  to  every  gentleman's  family ; 
for  if  It  should  at  any  time  happen  that  a  maa 
should  have  a  child  bom  out  of^  wed  lock,  who, 
by  some  means  or  other,  might  fall  into  the 
hands  of  artful  men,  he  might  set  up  some  pre* 
tensions  in  prejudice  to  tbe  lawful  heir,  by  the 
same  plan,  and  by  such  evidence  as  is  cooked' 
up  fbr  the  lessor  of  the  plaintiff.  Therefore  to 
prevent  any  such  impositions  on  the  public^ 
anil  to  deter  all  adventurers  from  engaging  in 
such  practices,  so  destructive  to  society  in  ge* 
neral,  and  for  the  sake  of  justice,  I  hope  the 
gentlemen  of  the  jury  will  give  a  verdict  for 
tbe  defendant. 

Note,  The  Torching  argument  lasted  front 
a  quaiier  before  nme  o'clock  till  a  quarter  past 


one. 


I 


Mr.  Solicitor  General  (Warden  Flood,  esq.)- 
of  counsel  for  tbe  defendant. 

My  lords,  the  evidence  on  both  sides  has 
been  so  fully  spoke  to,  aud  so  clearly  stated  by 
Mr.  IVime  Serjeant,  that  I  shall  only  trouble 
your  lordships  and  the  gentlemen  of  the  jury 
(who  have  the  greatest  estate  in  their  disposal 
that  was  ever  tried  by  any  jury)  with  some  ob- 
servations on  tbe  evidence  produced  in  behalf 
of  the  plaintif}\ 

The  lord  and  lady  AUham  were  married  very 
early,  and  cohabited  a  long  time  in  England' 
without  having  a  child ;   they  separated  for 
some  time,  and  in  1713  were  reunited. 

Before  the  re«union  no  proof,  my  lords,  baa 
been  attempted  to  be  made  by  the  plaintiff  Uiat 
lady  Altham  was  a  fruitful  woman  ;  but  after 
the  reconciliation,  in  order  to  support  a  pre- 
tended birth,  it  must  be  thought  necessary  first 
to  prove  her  ladyship's  fruitfulness  by  two 
rupposed  miscarriages. 

The  evidence  of  Mrs.  Cole  is  endeavoured 
to  be  applied  for  proof  of  the  first  miscarriage, 
which  (she  says)  was  occasioned  by  the  china 
saucers  being  thrown  by  lord  Altham ;  but  the 
improbability  of  her  evidence  is  very  clear,  in  re- 
gard the  saucers  were  levelled  at  the  butler  and 
not  at  my  lady,  how  could  her  ladyship  be  dis- 
pleased at  what  was  intended  to  her  as  a  com- 
pliment? Moreover,  as  it  does  not  appear  at 
that  time  there  was  any  cause  of  quarrel  be- 
tween myi  lord  and  lady,  so  there  could  not  be 
a  presumption  of  a  fright,  nor  consequently  of 
a  mtscamage. 

Mrs.  Catharine  M*Cormick  is  to  be  depend- 
ed on  to  provea  second  miscarriage,  and  she  only 
must  be  supposed  privy  thereto  ;  how  consist- 
ent her  testimony  is,  I  submit  to  your  lord- 
ships and  the  gentlemen  of  the  Jury. 

The  account  Mrs.  Bates  gives  of  the  first 
miscarriage  is'equally  absurd,  the  bare  mention 
of  it  is  suflicient  to  reject  it.  Is  it  probable^ 
my  lords,  that  lady  Altham,  who  is  proved  by 
plaintifl^s  witnesses  to  be  a  proud  exalted^ 
woman,  would  admit  such  an  ordinary  mean' 
servant  to  be  so  familiar  to  put  her  haadi  on  her. 
ladyship's  belly  ? 


1S75J  17  GEORGE  II.     Trial  in  Ejectment  beixveen  J.  AnneJej/,  esq.    [1376 


My  lords,  Mrs.  Doyle  (Hic  cliamber-maid,) 
and  Nurpliy  the(lauiidry-maid)  must  next  come 
on  to  prove  the  firt-tcnded  biith  atDunmuitie; 
yet  not  one  person  of  tbc  family  must  either 
know  or  hear  any  thint;  in  relation  thereto. 
The  rule  of  reason,  my  lords,  is  to  prove  jp-eat 
things  by  great  persons,  and  low  things  by  low 
persons  ;  and  every  proof  ought  to  be  adapted 
to  the  nature  of  the  thing.  It  has  apjieared, 
my  lords,  that  in  the  year  17 15  the  earl  of  An- 
glesea  was  so  afflicted  with  the  gout,  that  lord 
Altbam  apprehended  his  life  was  despaired  of, 
and  it  was  judged  by  most  people  he  could  not 
live  long.  Lord  Anglesea  then  resided  in  that 
part  of  the  country,  and  had  no  prospect  of 
naving  any  issue,  yet  he  never  heard  of  the 
lady  AUham's  having  a  child  to  be  heir  to  the 
title  and  estate  of  his  family. 

Doyle  and  Murphy  swear  they  live<l  in  the 
house  of  Dunmaine  at  the  time  of  the  birth, 
and  here  they  stand  contradicteil  by  liolpb, 
^hom  they  said  they  never  knew  to  live  there, 
though  he  was  the  butler  at  the  time  they 
would  pretend  the  child  was  born.  Every  one 
of  the  witnesses  for  the  plainiifl*, except  Poyle, 
say,  that  Joan  Landy  was  not  married  till  after 
the  birth  :  but  Doyle  says  she  was  married  be- 
fore the  birth:  consequently  she  should  be 
looked  upon  as  a  made  witness.  Murphy  con- 
tradicts herself  as  to  the  time  of  the  eclipse; 
«he  swears^he  was  then  at  Madam  Butler's  at 
Ross,  consequently  she  could  not  be  at  Dun- 
maine at  the  time  prefixed  for  the  birth  ?  so 
that  unless  we  suppose  her  in  two  places  at  one 
and  the  same  time,  her  evidence  must  be  re- 
pugnant to  truth. 

Breen  (a  labourer's  son,)  and  Brooks  (a  petty 
surgeon)  are  the  next  witnesses  for  this  pre- 
tended birth.  Brooks  says,  he  bled  ludy  Al- 
tham  just  bclbre  her  deliver}'.  I  believe,  my 
lords,  it  is  very  unusual  for  women  to  be  .let 
bloud  on  such  occasions.  Brooks  very  mo- 
dcKstly  tells  you  he  was  bur  a  ))iece  of  a  sur- 
geon, and  I  fenr  he  was  but  a  very  indifferent 
one  :  Neither  was  he  ever  cmplo\  Cil  before  by 
the  family  ;  I  am  inclined  to  tliink  he  never 
was,  otherwise  be  would  not  venture  to  bleed 
in  the  dark  (uithout  a  candle.)  Mr.  Sutton,  a 
very  eminent  sturgeon,  who  was  well  acquuiut- 
ed  with  thefunuly,andrncdin  thetoun  ol  Uoss, 
was  not  sent  for  ;  but  the  other  quack  was  pre- 
ferred to  him.  IIow  reconcilable  this  can  be, 
I  appeal  to  your  lordships. 

Turner  is  anotlier  witness  produced  by  the 
plaintiflf  to  support  his  pretensions.  The  difli- 
culty  of  belicvmg  his  testimony  may  be  easily 
observed  ;  that  he  who  lived  so  long  in  the 
house  can't  tell  the  name  of  any  one  of  the 
servants.  And  moreover,  lady  Altham  must 
be  in  Dublin  in  August  1715,  at  the  time  he 
says  she  had  a  chihl. 

As  to  alderman  Thames,  I  shall  ascribe  the 
inconsistency  of  histestimoo}',  to  his  great  age, 
and  want  of  memory  ;  lord  Altham  tells  him, 
Ihat  his  wife,  Moll  Slieflield,  was  delivered  of 
a  son ;  yet  the  day  after  he  dined  at  Dunmaine 
with  licr  ladyship*  and  he  never  enquired  about 


any  son,  nor  was  the  name  of  a  son  msdt 
mention  of  tliere. 

Mrs.  Annesley,  who  is  produced  ns  a  wit- 
ness for  the  plaiutiflT,  only  mentions  the  toaatin;; 
of  a  health,  but  speaks  not  a  word  of  a  Inrth; 
nor  did  she  ever  bear  of  a  miscarriage. 

Christopher  Brown  is  prodaced  by  the  plaio- 
tifl*  as  to  proof  of  the  pretended  christeabir; 
he  had  his  lesson  to  be  exact  as  to  the  gcu- 
fathers ;  but  can't  tell  any  other  person  in  com- 
pany, though  he  waited  at  table  that  daT.  He 
describes  the  great  hall  where  he  dineJ,  yet  it 
appears  by  Soott  there  is  no  such  hall  in  tU 
house.  But,  my  lords,  it  is  plain  that  the  oolv 
way  of  detecting  these  evidences  is  in  tile 
them  out  of  the  road  they  were  instructed  io, 
and  by  other  circumstances  the  inoonsistency 
of  their  testimony  is  shewn.  When  BroKu 
was  asked  to  name  any  of  the  servants  tkit 
dined  with  him,  he  could  not  tell.  It  is  nesii- 
less,  my  lords,  in  me  to  remark  how  impio- 
perly  he  gave  his  evidence,  your  lordships  msl 
have  it  on  your  memories. 

The  transaction  at  Wexford  assizes  bis  ap* 
peared  to  your  lonlshins ;  and  the  defteodui 
has  proved  ve/y  fully  tne  lady  Altbam'sbefos 
there  at  that  time  :  If  that  be  true  as  appnn 
from  the  circumstances  (which  they  raentios- 
eti)  of  the  lord  and  lady  AUham's  i^otng  tbm; 
to  wit,  that  my  lady  and  Mrs.  Giffard  weatii 
a  coach,  my  iord  nxle,  Mrs.  Heath  rode,  nl 
such  and  such  servants  rode ;  I  say,  then  tbm 
was  no  appearance  of  a  child  ;  thus,  oolH^ 
qiiently ,  toe  pretended  birth  must  be  ovcrtunwl 

To  disprove  this,  ]\Ir.  Colcloii^^h  is  produced; 
he  was  then  on  the  grand  jury,  and  so  engagid 
that  he  did  not  notice  the  lady  Altham;  id^ 
though  it  is  allowed  lord  Aithaiu  was  there,  in 
owns  he  did  not  see  him  ;  and  by  the  very  sant 
reason  lady  Altham  and  Mrs.  GiiTdrd  migiii 
be  there,  and  possildy  have  escaped  his  bi^h:. 

1  shall  not  trouble  your  lordships  widirf- 
spect  to  m-ijor  Fitz^r^raid;  he  stands  oppwli 
to  all  the  uiiior  witnesses,  in  point  of  iuue,as 
to  the  :!iu;i;)0secl  birth. 

My  lords,  J  bo-ji:  leave  to  observe  to  jrout 
lordships,  thai  IIi;j;';finson's  evidence  is  aiteaJ- 
ed  with  a  ufood  deal  of  doubt  and  uncertaiatr; 
111?  said,  he  was  at  Dunmaine,  and  lh;!t  laiif 
Altham  (whom  he  ne\er  saw  before)  called  lo 
him,  and  gave  him  a  glass  of  uine,aiiil  1m 
drank  to  her  safe  deliver^':  If  tlie  plaiatilT 
thought  him  so  material  a  \\  itness,  how  codki 
it  that  his  name  was  not  given  io  at  the  be- 
ginning of  this  trial,  among  the  list  of  \!m 
plaiiuiff's  other  witnesses,  and  not  to  iuinHle 
him  at  the  close  thereof,  without  the  defend- 
ant's knowledge?  But,  my  lords,  it  is  plain  bi 
was  only  produced  to  stop  a  gap;  hut  frtnn 
such  kind  of  evidence  the  jur^'  can  discerD  oo 
which  side  the  probability  lies. 

My  lords,  it  appears  (from  a  previous  appli- 
cation to  Mrs.  Heath)  how  sensible  the  plain- 
tiff was  of  the  force  of  her  evidence,  and  tiicf^ 
fore  a  bill  was  thought  pnvper  to  be  filed  for 
prevention  thereof;  which  plainly  demN* 
btratcs,  that  tlie  lessor  of  the  plaiotiff  «M 


nnd  Richard  ISarl  ofAnglcseiu 


A.  D.  1748. 


[1378 


•f  hh  pretensions  beings  affected  by  the 

6f  ber  testimony. 

Hassey,  tny  lords,  his  attempted  to 
iict  Mrs.  Hetiih ;  he  says,  be  spent 
r  his  time  in  Eoj^and,  and  he  floorishes 
teell  J  on  himselfiu  bis  examination  Jthat 
raid  talce  him  for  a  gfentleman  of  figure 
itinction  ;  he  tells  you,  that  he  ordered 
vtLutM  to  put  up  the  person's  horse  who 

him  wim  a  subpoena;  that  he  has 
affsd  to  come  up  to  Dnbiin ;  that  he 
I  employ  in  one  of  his  majesty's  yachts 
;land ;  and  when  this  affair  is  discussed, 
mly  a  common  waiter  to  the  Board  of 
•cloth,  and  his  religion  prerented  him 
leing  entitled  to  a  commission;  and 
I  be  gives  you  an  account  of  Rlrs. 
's  changing  her  sentiments  at  the  second 
snce  differently  from  the  first,  yet  he 
remarked  the  same  to  her.  But  it  is 
seen  to  what  purpose  he  is  examined ; 
en  the  stratagem  of  a  bill  could  not  take 
this  knight-errant  (if  one  may  call  him 
prodncH,  ba?ing  no  other  expedient  to 
111  Mrs,  Heath's  evidence, 
lords,  1  must  say,  it  is  next  to  an  impos- 
'  to  imagine  that  lord  Altham,  who  bad  a 
s  estate  of  his  own,  and  the  expectancy 

lord  Anglesea's  estate,  should  have  a 
late  son  and  beir ;  and  that  the  Pallisers 
vere  acquainted  in  the  family)  or  that 
r  Mrs.  Lambert,  Mr.  Elmes,  or  Mrs. 
i,  who  (as  plain liff''s  witnesses  confess) 
lady  Altbam,  should  know  nothing 
f;  nay,  that  even  the  neighbouring 
I  must  be  strangers  to  it. 

lords,  How  can  it  be  reconciled  to  the 
on  rules  of  prudence  and  good -nature, 
'  lady  Altham  had  a  son,  she  should  send 
[Id  to  be  nursed  by  a  mean  woman  of  an 
ute?  by  a  woman  who  had  criminal 
erce  with  her  husband  ?  Surely  a  lady  of 
nk  and  distinction  would  not  nave  made 

of  such  a  nnrse.  It  is  plain  then,  that 
ppo8e<l  birth  must  be  only  a  fiction  com- 
td  with  absurdities. 

allow  that  the  lessor  of  the   plaintiff 

be  lord  Ahliam's  son  by  Joan  Landy, 
at  lady  Altham  conceiving  a  displeasure 
I  her,  and  being  incensed  against  tord 
n  for  the  dishonour  done  her,  would  not 

Jvigsry  Landy  hi  the  house  of  Dun- 
;  and  this  seems  the  most  rational  way 

,  my  lords,  Laffan,  Mnrphy,  and  Doyle 
I,  that  a  new  room  was  furnished  in 
•'s  house,  and  the  child  sent  thither  to 
-scd ;  it  is  equally  improbable,  that  lord 
dy  Altham  should  not  have  more  care 
nderness  for  a  son  bora  to  such  honours 
ties,  than  to  send  him  to  a  new-built 
or  to  subject  an  infant  to  a  cold  and 
disorders. 

I  very  manifest,  my  lords,  how  ingenious 
ndnctors  of  this  affair,  have  contrired  it, 
e  fixed  on  persons  to  be  sponsors  who 
ng  since  dead ;  JUid  Ihongn  they  have 

L.  :^vu,  ^ 


cooked  op  t  ttory  as  artfully  as  they  could, 
they  could  not  stifl  frame  it  free  from  iroproba- 
hiKty.    We  find  that  the  sponsors  were  not 

3ual  to  the  birth,  and  one  of  the  godl'atliers, 
r.  Anthony  Coldough,  was  a  Roman  Ca- 
tholic ;  and  if  my  lord  Ahham  had  a  sun  by 
his  lady,  it  is  presumed  he  would  not  have 
pitched  on  a  Papist  to  be  godfather,  who  by 
the  laws  of  this  kingdom  is  not  qualified  to 
stand  surety  for  a  Protestant  child  in  baptism. 

But,  my  lords,  at  the  time  of  this  pretended 
christening,  the  dnke  of  Buckingham  wm 
then  living,  lord  Haversham,  and  the  late  earl 
ol'  Anglesea  were  alive,  the  duchess  of  Buck- 
ingham was  alive ;  they  were  relations  to  the 
family,  and  would  not  refuse  being  sponsors, 
but  would  bare  readily  offered  themselves  on 
that  occasion ;  so  that  1  say,  my  lords,  fiction 
detects  itself  through  the  whole  affair. 

My  lords,  I  woiud  take  notice  to  your  lord- 
ships, that  the  late  lord  Altham  happened  to  be 
somewhat  extravagant,  which  occasioned  bis 
want  of  money,  and  therefore  proposed  selling 
the  Altham  estate ;  bat  freuuent  disputes  arose 
between  the  defendant  and  him,  for  not  joining 
therein ;  but  if  bis  lordship  had  a  son,  he 
could  have  made  a  better  title  to  purchasers, 
as  Mr.  Prime  Serjeant  observed. 

The  two  props  which  support  this  cause,  are 
the  transportation  and  prosecution  ;  but  the 
tftle  here  contended  for  by  the  plaintiff,  ought 
to  be  proved  beyond  all  contradiction ;  and  I 
would  beg  leave,  my  lords,  to  remind  your 
lordships,  and  the  gentlemen  of  the  jury,  tliat 
on  the  death  of  the  late  lord  Altham,  the  Al- 
tham estate  devolved  to  the  late  earl  of  Ansle- 
sea,  and  nothing  descended  to  the  defendant 
hot  the  title ;  and  therefore  I  would  observe 
as  to  the  transportation,  that  as  it  appears  the 
lessor  of  the  plaintiff  wandered  about  the  streets 
In  an  idle  way,  it  is  most  likely  he  voluntarily 
transported  himself.  If  the  defendant  appre- 
hended he  was  to  come  into  possession  of  the 
Altham  estate,  afleir  the  death  of  his  brother, 
there  might  be  some  reason  offered  for  the 
kidnapping ;  but  as  the  defendant,  the  earl  of 
Anglesea,*  could  reap  no  advantage  by  so 
strange  a  proceeding,  the  thing  appears  very 
improbable  and  romantic. 

My  lords,  the  dnke  and  duchess  of  Buck- 
ingham, and  lord  Anelesea,  were  alive  when 
the  late  lord  Altham  'died ;  and  it  cannot  be 
supposed,  if  he  bad  a  son,  but  that  they  would 
have  been  fflad  to  have^ taken  care  of  him,  and 
that  he  might  receive  a  proper  educatign 
suitable  to  bis  high  rank  and  qiulilv. 

My  lords,  I  humbly  apprehend,  there  is  ano- 
ther incident  very  proper  for  the  consideration 
of  the  jury,  thai  is,  that  the  lady  Altham  con- 
tinued in  Pnblin  for  about  five  months  after 
lord  Altham*s  death.  It  is  surprising  if  she 
had  a  son,  she  shouM  make  no  opposition  to 
the  defendant's  taking  the  title  of  lord  Altham, 
or  that  some  of  his  noble  relations  should  not 
have  asserted  his  right. 

My  lords,  aoothCT  drcamstance  occurs  in 
this  affair ;  that  if  lady  AUhnav  V<t^  %  v«k^  ^^ 


1379]  1-7  GEORGE  II.    Trial  in  EJedmefii  iOmeen  J.  Anneslet/,  esq.   [1S90 

may  be  presumed,  that  some  of  the  gentlemen 
who  took  leases  from  the  late  earl  of  Aoglesea, 
of  the  Altham  estate,  would  have  been  glad  to 
haf e  set  him  up,  either  in  point  of  charity,  or 
humanity,  or  perhaps  out  of  aversion  to  the 
late  iord  Angleaea. 

My  lords,  we  may  infer  from  Mr.  Tighe*s 
bebafiour  to  Mr.  Aonesley,  that  he  did  not 
believe  he  was  the  son  of  the  lady  Allham ;  he 
b  a  gentleman  of  character,  and  it  cannot  be 
supposed,  that  any  man  susceptible  of  the  least 
generosity  or  g«iod  nature,  if  he  had  any  ap- 
prehension of  the  plaintiff's  legitimacy,  would 
admit  him  to  be  a  turn-snit,  or  wear  a  livery. 
Moreover,  Mr.  Tighe  by  njs  profession,  being 
bred  to  the  liw,  must  know  what  proper  steps 
were  to  be  taken  by  the  lessor  of  the  plaintiff, 
if  he  was  lord  Altham's  son,  to  recover  his 
right ;  but  his  not  troubling  himself  about  that 
matter,  is  a  strong  presumption  be  had  judged 
bim  to  be  what  he  nad  heard,  the  natural  son 
of  the  bite  lord  Altham. 

My  lords,  as  this  is  a  cause  of  the  greatest 
consequence  that  ever  was  tried  by  any  jury, 
it  must  be  a  singular  pleasure  to  ever}'  person 
concerned  (and  1  am  sure  it  is  so  to  me)  that 
jurors  of  such  worth,  honour,  and  probity  at 
this  time,  are  to  determine  an  affair  of  such 
importance;  and  as  nothing  but  justice  can 
.influence  the  minds  of  gentlemen  of  such  dis- 
tinction, I  hope  they  will  And  a  verdict  tor  the 
defendant. 


Eaton  Stanyardy  esq.  recorder  of  the  city  of 
Dublin,  for  the  defendant. 

Mj^  lords,  and  gentlemen  of  the  jury,  the 

auestion  to  be  considered  is,  whether  lady  Al- 
lam  ever  had  a  son  ?  And  if  shu  had,  whether 
Mr.  Anncslcy,  the  lessor  of  the  plaintiff,  is 
that  person  ?  And  if  this  cannot  be  proved 
clearly,  the  jury  cannot  rely  on  presump- 
tions. 

My  lords,  it  was  thought  proper  to  introduce 
two  riii8carria^cs  pre^  iuus  to  the  birth  ;  the 
plaintiff  pretends  to  assi^^n  as  a  cause  of  the 
first  miscarriacfe,  the  breaking  the  China  sau- 
cers. Tliis  piece  of  eviilonce  appears  very 
improbable  ;  because  destroying  the  cups  was 
intended  a  respect  to  mv  lady.  Can  it  be  con- 
ceived, my  lords,  that  ford  Altham,  who  was 
10  solicitous  for  a  son  and  heir  by  my  lady, 
would  not  be  more  cautious  of  putting  her  into 
irights,  wiiich  might  endanger  a  miscarriajje  ? 
And  it  is  suiticient  tu  rlestroy  the  credit  of  Mi-s. 
Cole,  tiiut  the  account  she  gave  of  tiie  abortion, 
•hould  be  communicate  d  to  a  yount;  child. 

As  to  the  second  miscnrria;^^,  there  can  be 
no  colou!'  io  have  the  least  reliaiicc  on  the  tes- 
timony of  Catha/iue  31*Ccrniijk  io  support  of 
it.  It  has  appearod,  my  lords,  that  Mn».  I3Iake 
is  a  relaiiori  to  the  fauiliy,  and  vi«iitc(l  lady  Al- 
tham in  Dublin  at  the  time  J>i'Cormick  pre- 
tends the  second  miscarriage  happened,  yet 
xny  lady  never  told  her  a  word  of  it.  Mrs. 
Hannah  Shaw  swore  that  Catharine  M*Cor- 
znick  mentioned  to  her  that  lady  Allham  never 
lidaciiiidi  aud  3I*C(iriuick  fat  ther  signified 


\ 


to  Mrs.  Shaw,  bow  application  wai  made  ts 
her  by  a  person  who  uaed  to  get  evidences  far 
the  lessor  of  the  plaintiff;  therefore  UOir- 
mick'a  evidence  can  have  no  weight,  and  if 
proved  to  be  f idse,  bringa  a  disrepute  on  aU  ths 
rest  of  the  evidences. 

As  to  Mrs.  Deborah  Annesley,  she  ooly 
swore  her  brother  drank  the  child's  health, 
which  can  avail  nothing. 

Now,  my  lords,  let  us  see  how  this  pretasM 
birth  is  proved.    The  pUintiff 's  witnesses  say, 
that  a  midwife  was  sent  for  to  Ross,  and  ihxi 
Dennis  Redmonds  was    the   person  pitched 
upon  for  that  errand.     Can  it  be  presumed  that 
if  lady  Altham  was  in  that  condition,  that  eve 
would  not  be  taken  that  a  midwife  should  be  is 
the  house  some  time  before  the  birth,  and  not 
be  under  tlie  necessity  of  sending  for  one  the 
moment  she  was  in  labour  ?  There  was  nobody 
to  assist  her  hot  Mrs.  Heath,  and  none  al^ 
tended  her  ladyship  but  a  chamber-maid  sod  t 
laundry-maid.    Every  expectation,  my  lonis, 
from  such  a  birth  would  mduce  better  atkn- 
dants  and  more  proper  nurse  tendera. 

It  is  surprizing  that  Redmonds  sliooM  rm 
know  for  what  purpose  he  was  sent,  and  ikabc 
should  leave  the  midwife  in  the  yard  iritboac 
taking  any  farther  notice  of  her,  aud  iro  inm^ 
diately  to  the  stable  to  take  care  of  his  barv, 
which  it  seems  he  regarded  naore  than  liie 
midwife. 

As  to  Brooke's  testimony,  my  lords,  it  ii  i  \ 
heap  of  nonsense  and  absurdity.  He  %wwt 
he  was  a  piece  of  a  surgeon  tor  47  yean,  aiiil 
was  so  10  years  before  the  birth  of  the  child,  < 
and  yet  is  but  50  years  old.  He  aflcrnrdi 
said,  when  he  was  cross-examined,  thithe 
practised  surgery  since  he  was  four  years  oM; 
and  says  he  did  not  consider  what  quaniilv  n 
blood  he  had  taken  from  lady  Altham.  \U 
said  he  had  a  farm  at  a  place  called  Farvfa, 
near  Ross,  yet  no  gentleman  of  that  Dc>;rti- 
bourhood  knew  of  any  such  man  livini;  there: 
Besides,  my  lords,  this  must  be  attcniled  nub 
all  imaginable  inconsistency :  It  was  uoctn^ib 
to  meet  him  at  home,  but  there  was  a  certaini) 
of  meeting  a  surgeon  in  Ross,  and  one  better 
skilled  in  his  profession.  So  that  on  the  vrbdr. 
what  regard  can  be  paid,  my  lords,  to  cviJero^ 
so  diametrically  opposite  to  all  the  rulei  mI 
probability. 

Turner  is  a  witness  not  to  be  credited ;  the 
manner  of  his  faultering  in  bis  ezaminatioD  io* 
duces  a  suspicion  :  He  fixes  the  time  of  the 
eclipse  ten  months  after  it  happened ;  but  it 
seems  he  was  not  prepared  to  give  any  answer 
to  that  period,  8o  that  we  tind  when  th€^ 
witnesses  are  taken  out  of  their  course,  they  are 
at  a  loss  what  answer  to  give. 

Scott  says  he  used  to  come  to  Dunrnaioi 
with  hovv-do-yoi/s,  in  enquiring  after  the  cbild'i 
health ;  and  that  he  delivemi  message*  ta 
Jjaffan,  and  sometimes  to  Ridpb  ;  and  that 
Rclph  was  butler  at  tho  birlh  of  the  cbilil, 
though  Rol|)h  and  Laffan  swore  they  never  ss« 
one  another  before  the  day  of  their  examiuatioo. 
In  Gnoi  he  stands  in  opposition  to  the  plaistiiTi 


tSa  1  ]  and  liichard  Earl  ofAngieita. 

Mh«r  Iribc  of  vilnesEc*  ilmul  Holph  li«in^  io 
nunmBJiiL-  at  the  time  ortiie  birth. 

GiBanl'*  testitnony,  my  lords,  is  sup- 


|>on«d  by  ihe  ErmnU  of  the  Irtmily,  that  lady 
AUhaiii  wiu  at  Wcxlbril  niuizes,  and  lodg-ed  at 
•HM  Bwceny'*.  Mr.  John  Kerr  hat  priiveJ  ihe 
titBe  fif  the  amizei,  Bud  tint  lord  chief  justice 
Foster  went  that  circuit.  This  is  a  cireuin- 
vtJtnce  Tcry  mnterisl,  anil  tlint  eotin^ly  nver- 
tonu  the  pbinlilT'i  vvliule  system ;  for  bv  the 
■tlaialilTs  eiulrniw  she  mint  be  with  chifd,  or 
IjiOK'ta  at  that  lime;  nhtch  cuinot  be  true, 
Wcame  she  was  then  in  Wexford.  And  lady 
Ahham  could  not  be  brouglit  to  bed  id  Hay 
mb*e<)uentlo  the  unBei,  because  she  was  the 
tSih  ot  that  munlh  (beingibe  hirih-dny  of  king 
Geargi  the  firal)  in  Dublin.  And  I  mual  beg 
1«*T«  to  tny  that  Itlr.  Colclouith  ilid  not  ile- 
■trojr  k  tiliie  of  nhat  Mrs.  Gilfard  anore ;  for 
he  aaid,  be  did  not  see  Ion)  Alttiam  then  at 
Weslord  ;  yet  Hie^iisDn  paid  his  lardabiji  90J. 
there,  and  Mr.  Cotcbugh  roiglit  as  probably 
kare  orcilooteil  lady  AUham  tlierc  as  his 
lorJsbip. 

Uary  Doyle  and  Eleanor  Murptiy  are  quite 
SOOtrary  to  one  Boolber  in  pninl  of  cTideoce. 
Doyle  aay*  the  child  nucbristencd  in  the  big 
fMWUr,  and  Murphy  swears  it  was  in  the 
yrikn*  room  op  one  pair  of  stairs. 

A«  to  Higcisson,  it  i«  plain  he  is  produced  as 
•  witneu  tu  iotenperse  false  facia  with  real 
«na}  he  lays,  he  only  received  the  rents  of 
Ibc  eMate  near  Nanov  VValer,  hut  nut  of  the 
AoMcsUle:  HedescrihespartoriadyAliham's 
tlraa*  t  that  she  worn  a  while  apron  ai»l  a 
-wklle  band  kerchief,  and  adds  thai  her  lady- 
abia  was  big  wiih-ohUd.  Is  it  probable,  my 
ioraa,  that  she  would  cume  down  two  pair  of 
Wain  and  call  fur  wine  for  hini,  and  all  this 
obile  he  was  on  horsebaftk,  and  would  not 
«*ra  voucliiafe  lo  pay  her  ladysbipHlie  common 
compliment  by  ali|[hlin^-  ?  Nay,  it  can't  be 
yrcaumedthat  a  lady  of  her  high  spirit  would 
«iMne  down  stairs,  but  would  have  chotn  on 
■neb  an  occaeion  to  t?nd  ber  servant.  I  must 
repeat  it,  that  here  a  false  fact  is  tacked  to  a 
rati  fact  by  the  ingenuity  uf  the  tnaniijers,  to 
•pvA  a  ruhiur  ta  the  fiction. 

f  come  now,  my  Innis,  to  the  leEtimony  uf 
-Catbanne  O'Neal,  which  I  can't  help  catling  a 
■ceoeof  iniijiiity.  Hhesays,  she  went  lolady 
-Altham  iu  Crou-laue  iu  Dublin,  and  told  her 
4ke  circumilauces  nf  the  child.  Is  it  uaturat 
to  inagino  that  a  lady  (loat  to  all  cotofort,  being 
<b«a  aeparaied  from  lord  Atthatn)  should  be 
told,  that  her  onl  v  son  was  begf^ing  ahuui  the 
•MTMts,  and  wmdd  oeilhcr  euijuire  or  send  for 
■fcim  ?  This  wiinesi  says  farther,  that  ber  lady- 
•bip'a  reasou  for  not  atlmilliai;  any  of  the  ser- 
vaota  lo  carry  the  chihl  to  see  her,  was,  fur  fear 
k  might  dccafiion  Iketn  to  lose  their  places. 
Can  it  ba  presumed,  that  a  dwtreasei)  mother 
wonht  set  a  jfrcaler  regard  on  what  might  bare 
bapptnwl  to  a  Mr*anl,  tbao  on  the  welfare  of 
kK  only  child,  or  that  abe  would   have  neif- 

Kbim  in  thatnmoaer^  No,  my  lordi,  Ihe 
xnilnry  nuit  be  aoppoaed,  vid  that  the 


A.D.  17«.  [I3S« 

would  have  been  glad  tn  see  him  at  any  risk, 
(hat  proper  care  mi({ht  be  taken  of  him. 

But  aldermau  King's  testimony  dcura  it  ati, 
that  my  lady  had  no  son ;  for  il  she  had,  sua 
would  most  certainly  some  time  or  other  Iia*« 
spokeof  it  while  she  lodged  at  the  alderman 'a. 
And  would  it  not  be  thegreatest  aatislitclian  to 
berself,  in  cue  she  bad  a  son,  lo  bring  him  ta 
England  along  with  her?  The  duke  anil 
duchess  of  BuckingbsTD,  and  all  her  relation! 
in  England,  would  bare  received  with  pleasure, 
and  educated  wiih  great  care  a  son,  who 
might  in  lime  by  his  rank  and  fortune  becotna 
conspicuous.  Besides,  my  lords,  her  internt 
as  well  as  nature  would  have  induced  her  to 
it;  for  al\er  the  death  of  the  late  lord  Al- 
tham,  lady  Attbnm  might  become  guanlisn  ta 
the  child.  She  bad  a  natural  right  to  that 
trust,  and  out  of  great  estates,  large  allowance* 
are  given  to  those  who  are  entrusted  uiih  the 
cai«  of  children  ;  and  where  such  a  trust  de- 
rolres  on  a  parent,  otherwise  indifferently  pro- 
vided for,  that  incident  is  of  some  weight  with 
B  couK  of  equity,  lo  be  more  liberal  in  ihciral- 
tnwance.  Tlie^e  considerations  might  be  ad- 
ditional motives  to  induce  her  to  take  care  of 
his  education,  and  espou«e  his  interest ;  and  ai 
none  of  these  ihingi  appeared  in  evidence,  it  la 
contrary  to  all  reason  m  the  world  to  imagine, 
that  the  lesEoroflheplainlilfcanbe  therealor 
legi^male  son  of  Ibo  lord  and  lady  .lllhsm. 

As  to  the  trans porlalion,  your  lordships  will 
please  to  observe,  tliat  Cromie  swears,  that 
Skellem  made  entriea  iu  Stephenson's  book  s, 
for  fear  of  being  imposed  upon,  of  the  several 
persons  that  went  aboard,  and  that  the  clerk 
t^nm'?  aboard,  and  took  a  list  of  all  persons,  and 
called  then  over  on  board  before  the  abii* 
Miled,  and  every  person  walked  by  as  be  an> 
awered  to  his  name;  and  though  the  boy 
might  answer  lo  the  name  of  Annciley,  tha 
master  of  the  ship  might  pronounce  it  Hen- 
iiesley,  and  write  it  so ;  and  when  he  went  to 
the  'Tholsel  In  give  io  the  names  to  Mr.  Gune, 
the  town  clerk,  he  mighl  spell  the  name  Hen- 
iiestey  instead  of  Aone^ley,  and  tbrreby  oc- 
casion a  mistake  in  Ibe  Tholsel  book. 

But,  my  lords,  can  any  one  pretend  tnaay^ 
if  the  hoy  was  forced  away,  that  when  Air. 
Skellern  the  clerk  came  on  board  to  lake  iba 
names,  the  boy  would  not  have  complained  of 
his  misfortunes,  anil  uf  his  being  taken  sway 
by  force,  or  made  some  clnmnur,  and  tben  ha 
tnigbl  hare  l>ecn  redressed?  yet  it  has  DBver 
appeared,  that  tbo  plainliU'  made  any  such 
complaints. 

It  it  very  evident,  my  lords,  that  Doindualty 
ha«  been  warning  in  the  plainiilfto  seek  ouifor 
witnesses,  in  order  tu  deprive  Ihe  defendant  of 
their  tmimony.  How  cornea  it,  that  a  dinner 
of  lamb  and  other  victuals,  has  been  aeol  by 
Mr.  Mackercher  lo  Rulph'ii  bouoe  r  Why  woa 
there  apidicatiun  made  to  Itolpb  by  liim? 
Why  truly,  betausc  he  was  informed,  that 
Itolpb  was  in  the  family,  and  that  be  wa«  a 
material  wilnesa. 

My  lonla,  1  inutl  take  notice  lo  jour  In 


ttU]  l^QtOKOB  tL     Trtql.m:EjectmeRt  between  J.  AnHulet/,f ij.  [m 


•xaaJoMl  for.  Hm  dtGnilMrt*  k  van  «m^  i 
■bnogb  Im4o«  BM  t»k«  UMi  UmMf  t»  ««Mi 
MM  poiilita  titati  jpHA  iken  wbt  b^*wim 
VM  mw,  ud  ihwild  hkv*  ««i(i«  «i4i  tb» 

fcn  WwHMiiin.    Ww  h.  BBtnnI  vkM  br 


»  haw  HffWflMM  »itli.  tw 
WMHH  r^  Ba  faM  ^n  fl*i»i  t»  wiKUa 
SMMb  to  llweaMMi  or  Ui  nataaaqri  l»  ■« iiqr 
MMWwtrf  UkmmI  mtb}  bM  if  fe>  eww 
kM*  to  W^  tralb,  what  oMMcn  ma  Uttn 


«•  hdtora  ba  «•■•  mw  < 
iImm  ba  baa  aoMwod  ta.ba7 
Mrlwdi,  Aa  rliMiTa  I 
>MtplaJ  to  ba  wppartaA  wilb  tbe  riigbliit 
iraok  -  Voor  Inriihijw,  aad  Dm  gwtiwim  of 
Ibcjafvitill  taka  it  intotMr  ooaademiion, 
what  olgaatiaaa  faavaheaamub  latin  fUaHS^ 
iritBMaa^.haw  laaoaawHW  caeh  eoadf  Umim 
baa  kaaa  with  bhaarif,  aad  baw  inmaiiatart 
IfcajbaiabMBidlirilbcaehatberi  aadif.tba 
Inair  «f  tba  pUafifit  ta  pro**  hia  hgitlBaa*, 
il  abanU  ba  by  padtive  aad  aacaamiWitiWa 
avidiBaai  aad  aoa  hr  MggBitiiin  or  pMawp- 
liaaa.  AnfnaaadMih^aiylordt^iaaafaiJMry 
•a  I  ha  lai^nil  doaar,  to  tba  rcmrindai  torn,  to 


a^ibip  abanU  aot  cteiin  il  wbUit 

i  fear  I  bafo  tfupaageJ  too  much  on  yoor 
lardabipa*  time,  and  on  the  gcaUenMa  of  the 

ffir,  and  iball  only  obaanro,  tbal  tho  defea- 
t  i*  now  poaWMed  of  the  aataU  of  ibo 
"  "m  birth  il  Daqnealioaible,  and 

I  BDOcrluoiy  in 
laoftha'  -  - 


fttoily ;  aad  aa  hi*  birth  is  Daqnei 
tlial  ibere  ia  all  tba  doabt  aad  a 


UN  world  alKiHliu[tbeprctca_ 
of  Ibo  ttlaiolif',  1  hope  tbe  leDtUman  of  Iba 
jaiy  will  Ibiofc  a  v«rdi«t  ou^i  to  be  Ibond  for 
the  defendant  in  poauauon. 

Court.  GenllemcQ  of  ibe  Juryi  trill  joa 
l^teaaa  (a  Uke  any  lel'reihnwnt  before  pUDtifiTi 
•oanael  begin  lo  (peak  to  tbe  erideoce  on  ibeii 
ridaortbeqaeatian? 

Jury.  Wehombly  (bank  your  lord(hipa,wa 
•hall  be  glad  lo  refrei houraelrea.  [Il  waa  now 
between  four  and  fi*e  o'clock  in  Ihe  aftemoon, 
wheu  Ihe  Jury  refreabed  Ibeonelrea  for  about 
half  as  hour.] 

Ccurt.  GrAtleaieB  of  coonael  for  Uie  lenor 
of  tbe  plaint,  pleate  to  proceed. 

So).  ManlLalL  Hy1ordi,andToagaatle«en 
•fthejury,  I  amia  tbiaeauaeoF  couaael  with 
Hr.  Jaawt  Anncaley,  tbe  Immt  of  tbe  plaintiff, 
■adlbe&en  tberatiaaaearoabeanaainalaooe 
ia  aay  age,  of  aach  a  aeeaa  of  iaiquty,  cradly, 
•ad  iabtnaaoity  aa  tbia,  with  wkicb  Ur.  la- 
Jtoalay  bai  boeo  peneeuted  fitr  Iba  oaaiw  af 
■MBj  jdiat  ho  hM  baas  Mnnfad^  Mw> 


ported,  and  koIiI  ua  slarerorlhirlHiiuiW' 
teen  yEar»:  ibeTery  Tedlalof ilnufliuai 
oampusiaQ  ia  every  human  bitta;  udiU' 
bit  slavery  was  ex|iired,  lie  came  inie  Ei|lai 
loimert  hit  ri|{kit,  but  hul  Ibomahtwa 
ahoot  a  maD  arcidentallj  ;  and  ihra  lkd» 
randwit  (1  am  sorry  to  ineDtiao  il)  owlaDla 
itidict  bim  liir  murder  at  the  Mwivw  U  ih 
Old  Bailey,  held  Air  a  gaal'delofrjUlii 
tily  ut'Lunclonaiid  county  of  Miildk»i.«bi 
llie  lewDv  of  Llie  pliiiiiliff  was  tried,  uui ' 
alily  aci|iiitte(l. 

Hylnrils,  tliedefeDdiuit'aoauDHliDOpMUf 
Ilia  case,   Eeid,    lliuy  woukl  pmia  tht  fUoM 
npptieil  lo  sevirTBt   |«>iplB,  and  lolil  lUo  b 
would  be  pleased  to  go  o<er  leiu,  ud  ihoit 
was  iiul  kidnapped  ;  and  ibal  ■tofnraiofna' 
pulsion  was  made  it»e  of  to  Iraai|xirl  liM,^ 
tbal  be  wcul  abniad  loluiiUriljri  jit  ith 
gentleiiieii  liave  not  atlemjtted  tu  ncn'tll,! 
stands  unoonuo* cried,    ihat  lb«  pluilif  « 
iiiirited  away  liy  ihcdeleDdant  IMMrialtt- 
glesea,  tofeel  llieeSecta  ofslairr;  m-taxmi 
la  subject  him  to  the  JiinijFrsef  ihcKal.l'ta' 
GtemeoGieii  oidiflcrent  ell  males,  with  iaWW* 
put  an  end  tu  a  life  lb4t  sI-mhI  iu  ibv  delnJM'' 
way.      But  tbe  hand  of  PtovidtntD  ta'' 
protected  bim  in  ilie  aiidM  ot  biiafflxuMiI 
aduiiral  Vprnon  eonlriluitek  to  baii:  bim  t*  I 
dueled  lo  these  kia^omi,  and  g««d  baa  I 
f'urnithed   iiim  with  I'riiNida  nbeo  hii1ife*a  I 
Ihinled  after ;  he  nuw  cuinea  ialtiooailWial  I 
yoiir  lordabips  («  iup(>ort  Lii  imduubwdn^  ' 
aud  shew  the  wurld  th«  Kciecitiea  he  aadertMl 

My  lorda,  ibe  letisur  of  ihe  pisiutiff  lutoi 

Joungi  about  IweNe  yeara  old  when  Ix  n> 
iiiuBpf>ed  aud  iransporled,  aud  ibui  depafd 
ol  au  ojiporlunity  otatserLiag  his  right,  bt«a 
abnuduueil  and  reduced  lo  ihe  lowest  eL^  tl  at- 
xery.  The  defend unt  ibeearlol'ADglesea.U 
uew  additiuus  ot  honour  and  lille  by  tba  |>!<iB- 
tiffs  misfortunes;  and  being  of  apruud, an 
ricinus  disposition,  lempered  with  ciuelly,  u 
iuclineil  tu  oppressioD,  (il  is  with  reluutiaoe 
meniion  tbcse  cbaracieiMJ  could  not  tirar  'bU 
boy  iu  tbnie  low  ci  re  u  mi  lancet  nhould  sacct* 
lo  Ibe  Aliham  estate  and  title,  or  he  preiani 
live  beir  tn  ib«  earl  of  Aaglesea.  Espolisa 
were  to  be  found  out  to  prerenl  hia  aniiini  i 
these  honours,  which  were  acoordiogly  p«|i 
eicctilion. 

My  lords,  IhedcfendtintwDuh]  cndearMti 
OTerliirn  ihc  plaiDtifi~B  right,  by  preieodiog  i 
joeu£cieocy  of  his  etideoce  ;  but,  my  kn 
this  must  be  a  vain  pretext,  since  he  kimm 
was  the  sole  occasion  ihereof ;  and  as  ib«  tiat 
puliation  has  been  proved  as  clear  ai  ihcaa 
day,  tbe  defendant,  iheearl  of  Auglewa,  m» 
he  contiiJered  as  a  spuliator  ii>  law,  and  mi 
not  lake  adrsulage  of  the  diffieultima  anaa 
from  the  h  ickediiess  of  liis  own  acts,  to  pi^ 
dice  the  plaintiff. 

1 1' llie  leSHir  of  Ibe  nlaintiff  at  Ibe  liaae  af  d 
fatiil  Iraasporlation,  abaul  IS  yean  tgOt  b 
h^u  admitted  (o  proaecule  bia  fvU  nf^  I 
ibcn  niiKbtbave  had  an  opporluiiity  of  pi — - 
bia  Uitb  bj  dwmwtwtnrr,  v-^^-'~'- 


and  Richard  Rati  of  AnglcsM> 

lerefoiT,  by  ibis  mraas,  Uie 
riutlages  a)iiin<l>Dtl^  luperior 
t  Irssor  of  llic  plniutifi'laliauri 
t disadvantages;  and  iDilred 
alure  ol'  the  thing,  it  is  very 
ax  ibia  (itne  of  Jay  any  of  the 
tiiwho  prole  biiuirth,bD|>|ieii 
ul,  my  lord*,  when  I  come  to 
enccsuu  both  sideK,  and  cum- 
er,  I  bellere  I  Bliall  be  nble 


liilily  i 


\D  be  applied  lotbe 


de,  and  that  tlieydi 

pnd  all  duulit  the  le^limacy 

,  niy  lords,  aome  lillte  vari- 
liDce.  bul  thi»  ia  very  natural, 
isUtice  ol'  3S  yean  since  the 
tiff  waa  born. 

ball  beg  leare  to  lay  before 
id  the  f^Dtlenwn  or  the  jury 
plaintiff'a  case,  aod  hope  your 
ilun  me,  if  I  bnppca  to  repeal 
I  fiirinvrly  mentioned  wbcD 
of  natin^  the  ptsiDlifPs  t\'\- 
iroceeileU  la  the  exumiuntjon. 
d  ma^t  etidently,  my  lonli, 
p{ireheiuioi>>  that  ibe  plaiuliff 
■Mine,  in  the  cuunly  of  \Stx- 
in  ol'  Arthur  late  lord  Althaw, 
dy  Allham. 

lema  lord  Altfanm  was  a  pas- 
I  my  lady  wt*  a  lieUy  puny 
oiber  rMMtit,  which  I  shall 
y,  tthvB  I  come  10  tpeak  to 
I  by  dtfemlaut'c  counsel  to 
IWBi thoiitibt  {irap«r  by  lord 
,  to  tend  tbeir  I'liild  lu  Joui 
ted,  who  was  married  («i  ap- 
Ihe  pbiinliff's  Fviileuce)  to  one 
lilor,  by  whom  Joan  Landy 

ibe  witneasea  bare  aaid,  that 
pA  Joau  Landy  with  child  ; 
ter  be  aa  it  may,  after  lier 
rioa,  ahe  went  to  her  falher'a 
Is  ofDaDmaiiie,  anil  there  lay- 
ire  lailv  Altham  was  brought- 
>— Mylady  aiupecled  lord  Al- 
ther  of  Joan  Landy's  chitd, 
t  her  ladyship  receired  from 
i;  btit  being  alter  wanla  roa- 
lyhad  a  child  by  her  hii^b.-iad 
1  ladv  Allhnra  aent  the  lessor 
V  laoyBhip's  son  aod  heir,  to 
andy ;  arid  lhou)rb  the  dc- 
woatd  etideBTOur  lu  ui^e  how 
-■'    to  h 

e  ^Dtlemen  ot  the  jury,  Iiave 
•bol  circa  mapecliua  was  used 
■ilk  uf  Fucluug'a  wile,  and  it 
oU  by  tke  epiniwi  of  one  Dr. 
r  of  ibe  plautliff  woa  aeiU  lu 
ed,  sbe  being  apputvuJ  a  lit 

lliat  all  |>ro[ier  care  «  as 
'•  tioune  proper 


irpoK. 
iMaaw  lliat  all  | 


for  the  receptioq  of  the  child  ;  and  thai  lord 
Altham  caused  a  coach  road  to  be  made  fi'Oi^ 
Dunmaine  to  Landy's  house  fur  ilie  conve. 
tiiency  of  his  lady's  risitinu  ihe  child,  Hhera 
the  child  remained  at  nurse  for  about  It 
mDiilhs,  until  my  lord  Altham  toiik  him  home, 
and  look  the  proper  care  of  his  jieriou  aoj 
eduralion. 

And  now  I  must  mention  that  my  lord  and 
lady  separated  on  aceonut  of  an  unlbrtiiaat* 
suspicion  of  Mr.  Thomas  Palliser,  and  after- 
wards my  lord  became  familiar  wilh  one  Mia* 
tiregory.  who  expected  his  lordship  would 
marry  her,  in  caseladyAllham  had  died.  Slie, 
it  seems,  was  my  client's  bilter  eoeray,  because 
sbe  apprcbeoded  he  was  a  bar  to  ber  ambition} 
and  bar  in);  a  great  ascendant  over  lord  Allhara 
she  contrived  lo  set  the  boy  adrifl  naked  to  tbe 
world,  when  lie  was  scarce  8  years  old,  and 
Tery  arltully  gaTe  out  (bat  the  hoy  was  the  son 
or  Joau  Landy.  And  the  hoy  being  thus  abaa- 
dnned,  knew  not  what  id  do,  but  wandered 
about  the  slreela;  and  the  detisniUnt  afler/ 
wards  readily  eocouraged  Ihe  report  of  his  ille- 
gitimacy, to  aerve  his  ioiquiious  designs  of 
uaurping  liia  tille,  ami  llierefore  transnorlad 
him  to  America  in  hopes  he  should  never  niQtB 
be  heard  of. 

My  lords,  we  hare  produced  Mrs.  Annesley, 
who  is  married  to  a  near  relation  of  the  de- 
fendant, wh^  siveara  positively  ibat  it  was 
well  kaowti  in  the  family  that  lady  Aiiham  bad 
a  son.  Iftbe  title  of  the  lessor  of  the  plaintiff 
was  a  mere  pretension  (as  conteoded  for  by  tbe 
geellemen  of  the  other  side)  it  is  surprising  that 
the  earl  of  Anglesey  would  not  produce  any  one 
person  of  his  family  in  favour  of  his  side  of  the 
queiiiioii,  ilioui;h  he  i*  so  well  acquainted  with 
them,  and  might  have  influence  enough  Ip 
produce  ibera,  if  they  could  testify  any  thing 
against  tbe  plainliif's  right. 

Air.  tlfCE'!'''''!  my  lords,  says,  it  was  known 
in  Enubcorty  that  lady  Alihaiti  had  a  ebild; 
and  aldcriitan  Barnes  says,  it  was  well  knoifD 
iD  Ross  t  yet,  I  say,  none  of  the  family  haa 
been  produced  to  declare  Ibat  it  wna  >aL 
ktionn. 

The  counsel  on  the  other  side  would  eodw- 
vour  to  lay  a  mighty  stress  on  the  meanoeti 
and  poverty  of  some  of  the  ^plaiolifTs  wit- 
nesses :  but,  my  lords,  how  trivial  this  objeclioA 
is,  1  appeal  lo  your  lordsbjpa  mid  tUegeDilc- 
nien  ofthejury.  It  ia  impossible  to  keep  wit- 
nesses alire  ;  and  we  must  prove  nur  right  bjr 
such  witnesses  a*  itre  living ;  ilie  plaintiff  cane 
lo  Eoglaiul  as  early  as  he  couhl  to  claim  bi« 
title. 

Mrs.  Heaih  say«,  lady  Altham  was  viailed 
but  seldomj  and  but  by  rery  lew  neighbours  in 
that  counlry  ;  indeed  she  says,  Mrs.  Piggqt 
Tistted  her  fadyship;  and  I  mubt  own,  in  uiy 
opinion,  tbose  tliat  wtre  produced  were  wt 
suitable  visitors  br  a  lady  of  ber  iVstincliaa  ; 
iLrrc  arc  uu  women  produced  for  the  de- 
tCDcUnl.  wlio  jnid  her  ladyship  viuu,  but  ihejr 
never  viHted  ber  aJtur  tbe  Re{iarauon,  nod  1  am 
aliaid  likcj  au  uot  persons  lo  be  credited,  »l 


1S91] 


17  GEORGE  II.    Trial  in  Ejectment  Between  J.  Annedey^  esq.    [199! 


pteate  to  oootider,  that  they  all  agree  in  a  same- 
nets  of  expression  in  their  examination,  and 
knew  nothinff  at  all  in  their  cross-examination, 
which  must  he  attended  with  some  suspicion. 
As  to  the  credit  to  t)e  Ji^iven  to  those  witnesses, 
1  must  beg  leave  to  take  notice,  that  Mr.  Palli- 
aer  the  elder  seems  to  have  lost  all  his  memory 
in  this  affair  ;  for  on  his  cross-examination,  he 
.did  not  know  when  he  was  in  the  barony  of 
Forth,  or  when  he  lived  in  the  Great  Island. 
Mr.  Lambert  happens  to  have  the  same  misfor- 
tune, be  even  ibi^ot  the  time  he  vi*as  married, 
«Qd  some  other  drcnmstances.  As  to  Mrs. 
Lambert,  it  is  sufficient  to  name  her. 

Mr.  I^lliser  the  younger,  happens  to  be  a 
Tery  extraordinary  witness ;  he  says,  that  a 
very  few  days  before  the  separation,  lord  AI- 
tham  had  told  him  his  intentions  of  parting 
from  his  wife,  tiecause  he  had  no  children  by 
her,  in  order  to  oblit^e  lufsi  Anglesea. 

It  is  very  unlikely,  my  lonls,  that  if  lord 
Altham  was  so  determined,  he  would  have 
imparted  his  resolutions  to  him  ;  and  Mr.  Pal- 
User  said,  he  beti«fved  that  lord  Altham  did  not 
intend  to  kill  him,  he  was  so  conscious  of  his 
innocence;  and  alWr  hu  owned,  that  passes 
were  directed  by  lord  Altham  at  his  body,  and 
that  Anthony  Dwyer  took  the  sword  out  of  his 
lordship's  baud. 

It  has  appeared,  my  lords,  that  a  coach 
road  was  made  (as  I  already  intimated)  to 
Laudy's,  where  the  child  was  nursed.  I  sub- 
mit to  your  lordships,  and  the  gentlemen  of 
the  jury,  how  the  defendant's  witnesses  con* 
tradiot  each  other  in  attcimplinii^  to  disprove 
this.  Uutph  said,  there  was  no  road  made, 
}^lms  said  the  same,  but  with  difficulty  it  ivas 
extorted  from  Elms,  that  there  was  a  road 
ioaade ;  for  that  there  was  a  slough  thrown  up 
at  each  side  to  make  it  passable,  which  was  a 
short  way,  as  he  pretended,  for  my  lord  to  go  a 
hunting.  Holph  says,  there  was  a  coach -road 
made  on  purpose  to  go  to  the  church,  and  to 
the  mill,  and  to  Mr.  Palliser^s  and  ]\Irs.  Gif- 
fard*s  houses,  and  that  Mrs.  Giffard  usnaUy 
came  that  way,  and  not  round  by  the  bridge ; 
yet  Mrs.  Gificird  said,  she  knew  no  other  road 
from  her  house  to  Duomaino,  than  the  road 
over  the  bridge.  As  thest^  evidences  urc  in- 
consistent, the  defendant  entirely  fails  in  his 
defence. 

"My  lords,  the  defendant's  counsel  insisted, 
that  the  child  was  takrii  no  notice  of  by  lady 
Altham  ;  but  Lutwich  swcnrs,  that  ho  saw  the 
child  with  her  ladyship  at  one  \\  rit;rl>t's  in  lloss, 
where  her  ladysliip  went  to  iod^^^e  utter  she  left 
"Mrs.  Butler^s.  He  further  proves,  how  the 
child  was  taken  away  by  stealth.  Marr^'-aret 
Hodges  says,  that  lady  A'l:!]".ni  mcu'iioTi.?d  her 
child  to  her  at  aldermaa  Iwiu^'s  in  Dn!)!in  ; 
and  Mrs.  Heath  thus  fur  af>reeiu:^  with  i\ir9. 
Hodges,  that  lodi>ings  were  taken  on  the  Quay 
for  lady  Altham  bctbre  her  ladyship  went  to 
k>dge  at  Mr.   lvin<{*s,  and  that  a  pistole  was 

S'ven  in  earnest  a:id  returned,  coulirms  strongly 
e  testimony  (»f  Mrs.  Hodi^es. 
Aly  Ivrds,  as  to  aldsnuan  Kiug^s  testmony. 


it  only  amounts  to  this,  that  lady  Althim  did 
never  mention  any  thing  of  her  wd  to  bin. 
This  may  be  easily  accnunted  for,  beetoiefcrd 
Altham  fbrbid  the  child  to  be  brought  to  bit 
mother :  lady  Althain's  conditioD  et  that  daw 
is  well  known  ;  she  was  confined  to  her  ebui- 
ber,  and  could  receive  no  intdligenoe  but  from 
Mrs.  Heath. 

Lady  Altham  left  this  kingdom  in  September 
1734,  and  it  has  been  proved  by  Herd,  ooe  of 
defendant's  witnesses,  that  the  cnild  was  in  tbe 
care  of  lord  Altham  the  Auffuit  preceding  Unt 
September,  so  there  was  only  a  naonth  betveea 
the  fatlier's  deserting  him  and  ber  ladyships 
going  out  of  the  kingdom  ;    therefore  it  b  doi 
extraordinary  that  she  did    not  bear  of  her 
child's  misfortunes. — But  it  is  undeniable  tbt 
the  plaintiff  was  taken  care  of  and  edocattd 
as  the  son  of  a  nobleman,  and  likewise  acknon- 
ledged  by  lord  Altham  as  his  son  and  beir.  Vr. 
Misset,  a  gentleman  of  an  undoubted  charMter, 
proves,  that  the  late  lord  Altham  raentioafd  b 
nim  at  Kinnay,  tliat  that  boy  (meaning  Mr. 
Annesley)  would  be  earl  of  Anglesea.   Ifr. 
Charles  Bym  swears,  that  lord  Altham  tontal 
him  at  Carrickduff  as  his  eon  and  heir,  and  le* 
knowledged  him  as  such  z  and  this  witneBd^ 
dares,  that  he  would  have  resented  the  pUii* 
tiff's  iieing  brouglit  to  his   house  if  be  ni 
thought  the  natural  son  of  hird  Altbam.    Mr. 
James  Cavenagh  acknowledgeil  )ikewiK,tbii 
he  was  treated  at  Carrickduff  as  lord  AlihunH 
lawful  son  ;  and   I  believe  the  defendoil  vl 
not  contest  the  veracity  and  character  of  dios 
gc-nllctnen. 

My  lords,  I  must  beg  leave  to  take  some  ro* 
tice  to  your  lordships  of  the  circumstances  ot 
lady  Altham  in  London,  to  obviate  iihtt  'Ji-j 
gentlemen  say  as  to  that  point,  and  to  accouat 
for  her  ladyship's  not  endeavouring  to  sff^* 
the  plaintiff's  title.  It  was  proved  by  Mn. 
Heath  that  lady  Altham  had  100/.  a  }'eir  \> 
live  on  till  the  death  of  lord  Altham  ;  bat  if 
she  liapponed  to  survive  him,  then  she  was  o 
have  nothing  :  therefore  after  his  death  hfr 
ladyship  was  supported  by  the  booaty  of  tbe 
duke  and  duchess  of  Buckingham :  and  eoosi- 
dcring  her  condition  and  the  distance  of  kiDg- 
donis,  she  was  incapable  of  asserting  the  plsin- 
tiff's  right.  Besides,  the  infirmities  and  sick- 
tiess  she  laboured  under  might  affect  her  me- 
mory ;  and  it  may  be  presumed  strongly,  tlui 
she  imagined  he  was  dead. 

My  lords,  by  the  limitation  of  th^  settleont 
under  the  will'of  1701,  lord  Altham  bad  bfit  a 
tenancy  for  life:  the  first  will  limited  theestilt 
to  Itichard  lord  Ahham  for  life,  remainder  to 
his  issue  in  tail.  It  was  undoubtedly  for  tlii 
honcfit  of  lord  Altham,  in  point  of  raising  monfj 
hy  sale  of  reversion,  to  have  deserted  nis  ino, 
for  he  wax  then  under  age  and  could  not  joii; 
besides,  if  lie  was  dead,  or  put  out  of  tbe  MV, 
the  estate  must  of  course  come  to  the  defim- 
danl ;  so  that  by  the  defendant's  joining  irilb 
his  brother,  the  late  lord  Altham,  they  could  fks 
easier  raise  money  by  selling  such  part  of  tki 
estate  as  they  thought  proper.--M9reoTcr|  vj 


and  Ricluud  Earl  <if  Aitgteiai. 


A.  D.  1743. 


[ism 


Grcgorjr  bad  such  an  BMi;eniliiiit  f  imporlatice,  and  as  all  ihescUoflhedefeniluilt 
lli«iii,  lUiil  alie  could  L'ail  him  u  |  iiiiluce  th«  siri>ng;est  beliel'  ot'  llie  indubiuU* 
proper  (u  I  remtrkEil  btture).  and  right  of  Ibe  lessor  of  tbe  iilainliff,  and  raiat 
Bteresi  m  previiling  on  lii*  lord-  conanjuently  E(i|iport  hi*  |iroofi  and  weak«i^ 
-^bissomuidieawuiiied  iheiitle  ,  tliuse  «!'  the  defendant,  I  humbly  bo[i«  ibCi 
m,  and  «xpein>!d  ifshe  had  cliil-  \  gentlemen  of  Uih  jury  will  cDiiwUer  it  w<^)|^' 
7  mitcht  Bucirecd  to  (he  eiilate :  and  give  a  trnlicl  agreeable  to  jusllce,  whicbi' 
^raiity  an  imperious  miiirewi,  ibat  I  doubt  not  wtU  be  for  my  client  the  lessur  ^ 
nobkman  wm  induced  tu  abanijoa     the  pUiuliff, 


tba  Iranaporlalinn  htiinf;  nn  ncl  of 
U'a,  apealiv  alrongcr  ihiio  wonia ; 
lilt  eslablish  «  iiresuuipiion  of  the 
;ht;  and  do  later  ihaii  last  Saiur- 
by  Ihe  eridencu  nf  Air.  Stone,  ai- 
'  been  made  lo  disjirove  I'urceH's 
rhicb  ulieiiipU  have  berii  retidered 
\  lerte  only  tu  coulirui  the  truth  of 

t  uf  Aimeslc^y  nod  Heiiueiley  are 
n  each  other,  and  ihiiikiic  diatiaci 
d  lleouealEy  not  heini;  uteiitioned 
-'shook  imin  reason  tfial  Annetley 
rmuilbi:tbeName[iGriiou,becau*e 

,ipear(  by  the  Tlniltiell  liook»  lo 
lileiittirod  Wore  the  3  jiii  of  March 
Ar.  TJgh  HweHi-s.  Mr.  Anueilcy  did 
a  bnuie  till  April  nSB;  and  Ihii 
itroDg  presumptioD   ihal  Auiirsley 

Honimley  who  vyas  indeolureJ. 
I  ahip  did  not  sail  till  ilic  3iilb  of 
ta  apprared  by  Suplienwin't  liucika) 
pDn'a  list  nag  lakeu  junt  butiiru  Ibi: 
aereral  tint  were  iiultniurerl  aflir- 
*Hy ;  it  Bppearinif  thai  above  luO 
tred,  and  onJy  UO  persona  itere  iu 
lliat. 
inljiiuilenceuf  couimiliiiig  nn  evil 

npFU  day,  we  have  loo  many  in- 
nf  fiutB  tbe  misconduct  of  acri-ral 

if  the  lessor  of  the  plaintilThad 
red  at  the  Tbotsell,  Mr.  Gune  iLe 
Buit  have  known  him,  aa  lie  was 
fitU  Ilia  father ;  ainl  il  has  a|i|>cared 
i  «ery  Mrict  eni|uii'y  is  luaile  at  the 
W  fruai  llioae  Ibul  uo  lo  ibe  plan- 
her  ihey  indentured  voluntarily  or 
M>ca  it  iblluws,  that  the  lesaur  of 
ivaa  leoretly  kidnapped  and  Irani- 

d'a  leatimony  itands  uuimpeacbed. 
_A1  coofi'asei)  to  him  the  just  title  of 
the  plaintiff,  and  that  he  was  hia 
Bl  and  tkou|[h  be  mi^lit  be  sup- 
^BsioQ  wheu  he  expressed  those 
Buot  be  presumed  he  would  make 
of  aiirrendering  lo  Mr.  Aonesley 
llcsa  he  was  conwioUB  that  Air.  An- 
■wfully  eolilleil  thereto. 
Ui  lianau,  my .  Ionia,  unlbitig  but 
rath  could  rnake  ber  aa  cnusialeut 
She  baa  been  examined  a  second 
ittaiwe  of  three  daya,  and  rc-exa- 
ad  orer  agraiu  the  tliird  and  fourth 
rer  vaiied  in  hi-r  lettimouy. 
,U>ia  being  a  cause  of  Ibe  greatest 

rit. 


Mr.  Serjeant  TitJall,  of  counsel  far  Ui^ 
lesaor  of  Ibe  plaintiff: 

My  lordii,  and  you  gentlemen  of  the  jury, 
I  am  counsel  of  ibe  same  aide  with  Mr.  8er- 
JL-aiit  IMarsliall,  litis  ia  certainly  a  cause  of 
the  greatest  consequence,  and  1  am  sure  from 
your  wisa  eonstderationa,  it  will  feceive  its  du* 
'determination. 

I  shall  first  think  necessary  to  observe,  that 
from  the  circumatancea  of  the  ploioltifa  easet 
and  the  death  of  partiet,  it  wna  natural  lor  soma 
of  the  wiiueasea,  in  the  space  of  so  many  yeanu 
lo  foi^et  some  things  with  respect  to  lime  ana 
place ;  variations  of  this  hind  must  necessarily 
iiappCD  in  a  course  of  evidence  aller  ku  king  ■ 
tine ;  but  thu  principal  fact  remaiDS  true. 

Tbe  matter  in  dispute,  my  lords,  is  attended 
with  a  very  particularmiallurtune  on  tbe  aide  of 
theptaiotifl*.  Mr.  Annesley'a  father,  the' late  lord 
Allliain,  had  no  relations  in  the  county  tvliera 
the  lessor  of  the  plaiDliff  was  born  ;  uor  had 
hie  Qiollier  any  relations  in  this  kingdom, 
irltich  iu  a  great  measure  accounts  for  thai 
circumslBuce,  ibat  there  are  not  people  of  rank, 
or  relatiuus  in  the  family  tu  prove  hia  legi- 
timacy, 

My  lords,  the  defendant  ia  a  peer  of  Ihit 
krugtium,  and  of  England,  and  is  in  posaeasint 
oCa  great  entate  near  the  place  of  the  plaintiff^ 
birth  i  and  as  must  of  tbe  inhabitants  ara 
tenants  and  acc|unintance  of  the  defendant,  and 
under  hia  inlluence,  they  might  not  be  ■• 
eunily  prevailed  upon  lo  give  evidence  here. 

It  has  been  prored.  that  the  plaintiff  wa*' 
Iranapuiled  out  of  ihia  kingdom  to  Amcric«c 
in  an  illegal  and  iniqiiiluus  manner,  wben  h* 
was  about  14  years  old,  and  having  not  rca 
turneil  tilllalely,  be  must  be  ignorant  wba( 
wilneaaes  were  living  to  prove  bii  birth,  till  ba 
made  a  diligent  enquiry  ;  he  must  be  obliged 
tn  the  friendship  of  those  who  voluntarily 
offered  themselves;  and  now  he  does  all  ha 
can,  by  offering  theoi  here  iu  court   as  eti- 

Hy  lords,  it  lisa  not  been  attempted  lo  b* 
proved  bv  anv  of  the  delendant's  evidencM 
(except  lloliih)  that  any  iDipru|i«r  applicalian 
has  been  made  on  the  pUintitf'a  siila  for  «ii^ 
dence ;  hut  the  account  Rolph  givea  is  very 
incouaistenli  Is  it  probable,  my  lords,  ihd 
ftlr.  Mackercher,  at  the  tirsl  siglil,  would  olluA 
ttnlpb  a  lieuleiiancy  in  pre«euce  of  two  olfaev 
persons,  and  there*by  put  il  in  Ibe  power  <^ 
Itolph  lo  have  ruined  the  cause  of  the  plaintiff  t, 
or  that  wlieu  Itulph  refused  il,  as  he  sayii,  tlia( 
he  would  bnve  gone  tu  him  a  second  tunc,  Uf 
ask  him  auy  tjiicilious  in  --'-'—  ' — '—'  '^" 


1395] 


Efe^hneni  behueen  J^Anneskyt 


Unt  proposed  to  him,  wben  fbar  other  persons 
who  were  straoffers  were  present?  No,  my 
ords,  no  rationalroan  could  be  guilty  of  such 
s  piece  of  misconduct.  If  any  oflers  were  to 
be  made,  they  must  be  made  to  people  in  a 
lower  condition  than  Rolph  appears  to  be, 
from  his  own  declaration,  who  would  be  ready 
if  they  met  such  encouragement,  to  appear  here 
and  giro  their  testimony. 

Though  Mrs.  Heath  mentions  how  she  has 
been  applied  to,  yet  she  is  silent  as  to  any 
undue  means ;  so  that  in  fine,  Rolph  was  the 
only  person  pretended  to  be  tampered  with, 
which  shews,  that  this  part  of  his  testimony  is 
▼ery  incredible. 

The  producing  Mrs.  Bhike,  my  lords,  is  a 
great  arcfument  of  the  plaintiff's  sincerity, 
and  that  be  intended  to  gi?e  eridence  of  e? ery 
thing  that  could  gire  the  court  and  jury  some 
light  of  the  matter  now  in  controversy. 

1  shall  now,  my  lords,  endeavour  to  speak 
to  the  evidences  on  both  sides,  and  hope  to  be 
able  to  shew,  that  the  plaintiflf  has  very  clearly 
proved  his  title.  Eleanor  Murpliy,  and  Mary 
Doyle,  agree  as  to  a  positive  proot  of  the  birth 
and  christening ;  the  little  variations  of  time 
are  of  no  signincancy  ;  thej^  likewise  prove, 
that  Redmonds  was  sent  for  a  midwife ;  and 
Redmonds  proves,  that  he  went  for  one  to 
Rois ;  and  further  says,  that  he  was  spoken  to 
by  colonel  Palliser,  in  order  to  prevent  giving 
his  testimony ;  and  the  colonel  owns,  he  had 
some  discourse  with  him  to  this  purpose, 
previous  to  his  examination. 

Brown  says,  there  were  bonfires  and  re- 
joicings for  the  birth  of  the  child  ;  and  Scot 
swore  that  he  was  sent  several  times  with 
messages  fi^m  Mrs.  Pi{;got,  to  enauire  about 
the  child's  health,  and  that  it  was  tne  reputa- 
tion of  the  country,  that  lady  Altham  had  a 
child,  which  strengthens  the  testimony  of 
Murphy  and  Doyle. 

My  lords,  there  can  be  no  manner  of 
doubt,  but  that  there  was  a  coach -road  made, 
as  proved  by  the  plaintiff,  for  the  conveniency 
of  lady  Altham's  going  to  Landy's  house, 
where  the  child  was  nursed.  Elms  at  first 
denied  the  road  was  made,  and  afterwards 
ov«n*d  it,  as  Mr.  Serjeant  Marshall  has  fully 
observed:  But  I  must  remark  to  your  lord- 
ships, that  Rolph  says,  a  coach-road  was 
made  before  the  nurse's  cabbin  was  built ;  and 
that  the  cabbin  was  built  a  year  before  my  lady 
came  to  Duiirauine ;  and  he  further  says,  that 
the  road  was  made  on  purpose  for  visiting  Mrs. 
Giffard.  Surely,  my  lords,  this  must  be  false, 
in  regard  lady  Altham  was  not  in  the  country 
for  a  long  time  allcr  the  road  was  made,  ac- 
cording to  Rolph's  account,  and  there  was  no 
occasion  to  visit  Mi-s.  Giffiird  before  her  lady- 
ship came  to  Dunmaine,  and  consequently,  it 
could  not  be  made  for  tlie  conveniency  of 
▼isiting  Mrs.  Giffard.  Besides,  Mrs.  Giffard 
■•ys,  she  ahvays  came  over  the  bridge,  in 
contradiction  to  all  the  other  witnesses;  there- 
■ore  it  must  be  supposed,  that  the  road  was 
«»de  00  purpose  to  tisil  tile  cUUd  •,  «L\wi  the 


great  endeavoan  uied  by  the  defewiant  to 
overtom  the  plaintiff'ii  witnessa  iu  this  paiti- 
cular,  shew  hit  apprehentioo  of  the  canse- 
quences  of  this  drcamstance. 

My  lords,  the  defendant  cndciToors  to  ky 
great  stress  mi  the  meannas  of  the  drm 
and  appearance  of  some  of  the  phmtiff^ 
witnesses ;  but  this  canH  be  |ii  aiguomt 
against  the  plaintiff's  cause,  becanse  be  naU 
make*  use  of  what  proofs  the  nature  of  ibe 
thin^  will  admit,  and  of  such  witnenes  ai 
are  living,  that  conld  give  an  sccoonl  of  Ui 
birth  :  and  such  are  those  who  happened  to  k 
servants  that  time  in  the  house ;  and  thefildc 
variation  of  the  circainstanoe  of  tine  ui 
place,  ought  to  have  no  weight.  And  m  M 
Redmonds,  however  contemptible  his  apsor* 
ance  may  be,  he  was  a  person  fit  enoi^  lor 
the  errand  to  the  midwife. 

My  Iwnls,  I  shall  next  proceed  to  oar  wit- 
nesses, who  prove  lady  Altham's  piigiif} 
and  miscarriage.  *  Mrs.  Cole  gives  a  vcrr  cr>- 
dible  account  of  the  miscarriage ;  and  tbsgh 
the  counsel  on  the  other  side,  have  hboofcd 
very  hard  to  shew  that  a  child  of  her  age  csaU 
not  be  curious  enough  to  enquire  into  a  ikke 
of  this  nature,  yet  tne  contrary  may  very  ra 
be  supposed,  as  she  probably  never  saw  aiy 
such  thing  before ;  and  therefore  it  was  vtrj 
natural  it  might  make  an  impression  «n  her 
mind.  A  person  of  an  advanced  age  mf|k 
very  well  be  ima^ned  not  to  hare  a  canmtj 
on  such  an  occasion,  as  perhaps  having  Mfl 
a  thing  of  that  nature  Wore.  GooM  thi 
circumstance  of  Mrs.  Cole's  testimony  k 
intended  for  any  particular  purpose  ?  No,  m 
lords,  it  could  not;  because  she  could  aere 
dream,  nor  was  prophetic  enough  to  knos. 
that  she  should  ever  be  called  upon  here  to  gin 
her  evidence ;  and  though  she  and  Mrs.  Hath 
differ  in  their  testimony  about  lady  Altbas'i 
going  to  Vice's,  this  can  be  of  no  great  con- 
sequence; and  1  appeal  to  your  lordships,  isd 
the  jury,  from  the  rational  distinct  manner  Mn. 
Cole  gave  her  evidence,  whether  she  or  Mn. 
Heath  deserve  greater  credit.^ 

Alice  Bates,  my  lords,  swears  to  lady  Al- 
tham's pregnancy  and  miscarriage  at  Vics'ii 
and  as  to  the  obiection  of  the  freedom  used  by 
lord  Altham  with  her,  (as  she  related  ia  hk 
testimony)  we  see  that  gentlemen  and  laAn 
very  frequently  admit  their  servant  maiditp 
make  free  with  them,  and  particularly  on  sod 
occasions. 

My  lords,  Mr.  Turner  swears,  he  wot  H 
Dunmaine  immediately  aAer  his  manisfe, 
and  as  this  gentleman  resided  so  long  in  oc 
family,  he  could  not  mistake,  as  to  time  or 
fact.  He  says,  lady  Altham  was  then  pRC- 
nant ;  and  Mr.  Higgison  swears,  he  saw  mj 
Altham  with  child;  he  is  an  unimpeacbf^ 
witness,  and  by  the  circumstances  he  ooserrcd 
in  his  testimony,  that  he  was  bound  forkri 
Altham  for  the  sum  of  SO/. ;  and  furthOi 
that  he  was  receiver  for  his  hirdsbip  for  part  •■ 
his  estate ;  we  have  the  strongest  reason  to  k 
cQuvinoed  of  the  truth  of  his  testimony. 


\ 


»] 


and  Richard  Earl  ^  Anglruu. 


A.  D.  1743. 


'  '  Hv  \oti*,  1  tliall  DOW  contiiler  the  ntgalire 
■noU  or  Uiljr  Allhaii/o  [irv^nsiicy  i  nnd  6nt, 
I  ahtH  Iwf  in  with  MiHie  of  ihe  sefvanu  of  llie 
hdUM,  prudDcetl  iiy  ihe  dereailaDt  ti>r  this 
pviot.  Oweu  Cavenagli  owns,  titat  be  was 
■bVBt  for  Hume  time  fioco  Uunmaiiic,  tinJ 
llwl  he  lell  tito  serrit-e  t'ur  twme  time,  end 
nlurnnl  thilher  again;  llicrelore  W  he  iliil 
MH  ct»dUiiii«  caoMtiilly  iq  (he  houae,  there 
>  eonld  be  Du  certaiuty  in  his  etidence ;  because 
kdy  Alltitin  might  tie  bruugbl  lo  bed  when  be 
ma  klavut,  wlieilicr  be  wm  in  tiie  service  Of 


Botiifa,  by  ail  Ihe  pluotifT'i 
!•  kate  lord  Althain'ii  wnioe  beture  ibe  birtli 
•f  llwcbild  ;  and  u  hia lestimomr  with  rcsneot 
••  the  coach-road  appeare  |'>  betatae,  bis  whole 
•vidnce  <Hj|[bi  to  be  diacrcdittd. 

ADtboDv  Uwyei,  my  lurUx.  contrailicla  all 
thm  ^feniiBiU'^  wituBKir^i  i  for  he  Mys.  there 
w»>ii«chiM  at  the  buuM  el'  Duam sine  alter 
4a  •epamioii,  tlierefute  he  oueht  nut  to  be  l>e- 
Jiand. 

Hj  hitih,  ynur  lordsliitis,  Uid  thegeullemeii 
of  llie  jury  will  pleate  to  coniider,  that  tlie 
■anolii  UD  tbe  (ilainliff'a  side  are  poailite  eri- 
■muH.  Moriiliy,  lioyle,  Macorniick,  LaJTan, 
■ad  Kedoinudt,  who  were  servBDts  io  ihe 
bBIU«.  Mrs.  Cole,  and  Mrs.  Uriscoe,  Alice 
Dilai.  major  Fitagerald,  Mr.  Turuer,  anil  Mr. 
BlHtBOii,  SoM,  aud  Brooks,  these  are  all  eo- 
^MjF  opposite,  with  respect  tw  the  pregnancy 
aid  Bttcarfiage,  lo  Ibe  other  sercftDts  (the  de- 
te^Lal's  witnesses)  Heath,  Dwyef,  Ralph, 
IWfs,  and  Ca*ens(cli ;  but  as  ihe  evidence  in 
fcabalfofllieplninlifi'ig  pnaiiive,  it  iDiut  be  con- 
ddeml  io  a  stronger  light,  and  oulireigh  the 
4sCsadaul'i(  e«ideuce,  as  to  liie  piegoancy  aod 
;  llierelbre  (he  lUflorBtructure  which  the 
daiM  biiilds  on  such  a  rouodatioD,  musi 
•Msa^eally  tall. 

Mf  lords,  I  shall  now  lake  notice  ol'  those 
iWilaasstn  on  (he  part  oi'  Ihe  del'endant,  who 
■k«.  llial  il  was  Dol  reputed  Ju  Ihe  counliy  that 
My  Altliam  bad  a  child.  'Mie  first  person, 
,tmj  laid*,  rxamioed  (otitis  point  was  colonel 
I>*flus :  but  (bis  KontlemaB's  teslimany  is  no 
awn  tkan  that  he  litetl  about  leveo  or  eight 
SBsks  Irsm  Uunuaiue,  sod  bad  no  acquaiiil- 
■maot  wiib  lord  or  lady  Allham,  and  knew  no- 
ttmiK  of  the  msuer  iui|ueMion  ;  so  that  it  is 

SUd,lh«  iBleoliotiof  ptuduciug  bini  was  only 
att«  a  tort  «l' dignity  to  the  cause. 
CaUnel  Pslhser,  my  lords,  is  tbe  n«xl  eti- 
^MM  (or  tbe  defendant  iu  tliis  respect :  he 
tmym,he  neccr  was  absent  from  DuniDaine  above 
a  week  logetlier,  and  ullc  r  wards  own  i,  be  was 
absent  above  a  inoo(b  nt  one  time ;  1  fear  he  is 
toe  nwdy  and  forward  a  wduess.  In  one  par- 
licislar  hs  seemed  au  agenl  iu  the  cause,  by  de- 
.  ■ring  Rcdmsods  aot  to  appear,  on  pi'etence 
llial Ttis  evidenoo  oould  aigoity  notbing ;  and 
ai  Im  has  shewn  a  gooit  deal  of  incliiuitHin 
iMrOD  in  fsTDui  of  the  defeudant,  I  can't  help 


«4lb.MUNt  tbe  yaungtrf  mj  kinls,  said  !■« 


believed  his  father  visited  at  Dnnuiaio^  but 
■  hat  he  did  nolseelady  Altham  ullea  at  bis  fa- 
ther's baiise.  He  seems  to  bate  too  much  io- 
timncy  in  IbM  family  from  bis  ovin  account ; 
he  tells  you,  ihat  IdrcTAltbam  mcationed  to  him 
bis  iottiiiliun  of  turning  away  bis  lady,  yet  till 
that  time  bis  lordship  never  tpoke  lo  him  ot'bis 
family  aflairs.  Thisreally  appears  very  Strange 
and  improbable;  and  if  on°  Ihct  is  not  true,  it 
tanst  discredit  all  the  resi  of  his  testimony. 

My  lords,  be  is  conlradicled  by  Juan  Lofiaa, 
who  swears,  (hat  be  had  lord  Althnra's  cap  on 
tliBt  morning  of  the  separation ;  he  said,  (bat 
be  had  his  bat  and  wig  un  t  but  when  tb^ 
were  bolb  on  tbe  table  here  togetlier,  be  ci>ukl 
not  recollect  he  had  a  cap  ou,  or  if  he  changed 
bis  iiat  and  wig  for  a  cap.  ll  is  somewbsl 
strange  that  Sir.  Palliser  should  forget  tbe  most 
material  pnssageof  his  life  ;  for  from  tbeciiv. 
oumslanca  of  ihat  affair,  and  the  ti'ealnient  he 
met  wilh,  he  must  remember  the  particulars  of 
lhat  atfsir  lo  his  last  day.  Th«  very  parlieular 
breakfast  he  bad,  Joan  La0an  retnembered 
when  ahe  was  called  upoo;  and  be  acknow- 
ledged, as  she  said,  that  it  was  some  mulled 
wiue  i  BO  that  in  tbe 

please  lo  cods 

sentmeot  has  on  the  minds  of  a 
easily  removei!;  and  sometimes  a  strong  re- 
sentmenl  against  the  father  is  continued  to  the 
sun.  How  much  Mr.  Palli«er  has  been  in- 
censed against  lord  Allham,  has  plainly  ap- 

Mr.  Aamn  L«mberl,  my  lords,  gives  a  very 
loose  kiud  of  testimony,  and  when  a  cbaractor 
was  required  of  colonel  LoHus,  with  reipact  lo 
Mrs.  Ldmbert,  your  lordships  have  seen  how 
cautious  be  was  of  encouraging  any  credit  (o 
be  given  to  ber  oath. 

Ab  to  Airs.  Gifiaid,  ahe  pretends  to  remem- 
ber every  thing  that  happened  relative  to  tbe 
assizes  ai  Wrxibrd,  yet  ahe  forgot  ber  wster, 
who  went  in  cooipsoy  with  her  and  lady  Al- 
lham thilher,  as  is  evident  from  Mrs.  Ueatb's 
testimony.  And  as  lo  the  circumstance  of  the 
assizes,  Ibe  lestimony  of  Mr.  Colclongb,  Mr. 
Turner,  and  Mr.  Ui^ison,  for  the  plainliff, 
are  diaoielrically  opposite  to  the  testimony  of 
Mrs.  Gifiatd,  Hotph,  and  Heath  for  Ihe  de- 
fendant. 

Rolpb,  my  lords,  1  inusi  remark,  was  never 
at  lord  Allbam's  Indgian;  and  Mrs,  Heath 
adds  a  new  person  to  the  company  :  I  (oust 
submit  to  the  gentlemen  of  the  jury,  whether 
the  plaintiff's  or  the  defendant's  witneascs  are 
luust  consistent,  and  wiiiuh  of  them  give  tbe 
niost  probable  evidenoe. 

Tbe  next  Ihing  I  aball  trouble  your  lordabipa 
with,  is  0>  make  some  remarks  on  some  dccla> 
rations,  msde  by  Ihe  late  lord  Allbam,  thai  lie 
bad  no  legilimate  issue ;  whereon  the  (cnllc* 
men  of  tbe  other  side  strongly  relied. 

Colonel  Harman  was  produced  as  a  witness 
for  the  dcl'Eudanl  to  this  purpose ;  but  truly  be 
could  nut  tell  wbetbcr  Ihe  convcrsatiun  he  bad 
willi  lord  AUhaat  wa»  before  ut  alXw  Uwdotl* 


1S99]  17  GEORGE  II.    Trial  in  Ejectment  between  J.  Annedcy,  esy.   [1400 


ofqaeen  Anne;  therefore  he  is  not  certain  in 
his  evidence  herein,  and  could  not  fix  any  par- 
ll^iriar  time. 

Father  Downes,  another  of  the  defendant's 
evidence,  could  not  likeirise  fix  any  particular 
time  in  his  testimony. 

Colonel  Wall,  my  lords,  says,  that  it  was  in 
17S5  lord  Altham  wished  he  had  a  lawful  son  ; 
and  Mr.  Wall  said,  that  it  was  the  interest  of 
my  lord  to  have  a  son,  on  the  opinion  of  the 
wills  and  codicils ;  whereas  the  point  of  law  is 
quite  contrary. 

Colonel  Becket*s  testimony,  my  lords,  is 
manifestly  inconsistent :  he  says,  he  dined  with 
lord  Altham  in  the  summer-house  at  Mr.  Vice's, 
and  that  it  was  not  above  a  year  from  the  time 
hu  lontship  lodged  at  Mr.  Vice's  till  he  came 
to  live  at  Inchicore.  Now,  my  lords,  it  is  evi- 
dent in  proof,  that  Mr.  Beckett  must  have  mis- 
taken himself  for  several  years,  for  that  my  lord 
lived  in  Dunmaine,  Kiunay,  CarrickdufT,  in 
DaMin,  and  other  places  for  a  p^ood  many 
years  before  he  went  to  live  at  Inchicore. 

As  to  Mr.  Medlicott,  it  is  very  odd  that  lord 
Altham  should  make  the  declaration  which  he 
mentions,  That  as  he  had  no  son  of  his  own, 
be  did  not  care  if  the  estate  went  to  the  devil. 
However  this  declaration  may  ue  made  consis- 
tent, with  some  little  variation,  by  only  substi- 
totingf  the  word  if'  instead  of  as,  which  wonid 
make  it,  'If  he  had  no  son  of  his  own,'  then  it 
would  be  an  hypothetical  expression,  and  pro- 
bably Mr.  Medlicott  might  have  forgot  the 
identical  words  in  so  long  a  time.  These  last 
witnesses  were  all  that  were  examined  by  the 
defendant  as  to  the  point  of  the  declarations. 

Now,  my  lords,  I  shall  beg  leave  to  mention 
what*the  witnesses  in  behalf  of  the  lessor  of  the 
plaintiff  swear  as  to  this  point  Colonel  Pigott 
says,  it  was  generally  reported  that  lady  Al- 
tham was  broufi^ht  to  bed  of  a  son  about  28 
years  ago,  and  ^om  his  intimacy  with  that  fa- 
mily he  could  not  be  mistaken. 

Alderman  Banies,  my  lords,  said,  that  lord 
Altham  mentioned  to  him  that  lady  Altham 
had  a  son  about  the  time  of  the  birth  of  the 
lessor  of  the  plaintiff,  and  he  believes  he  was 
told  so  by  500  people  in  Boss.  Can  it  be  ima- 
gined that  his  lordship  would  make  such  de- 
clarations, with  a  view  of  imposing  a  child  on 
the  public  in  prejudice  to  his  brother,  and  the 
remainder-men  of  the  family,  if  he  had  not  a 
son.**  I^andy's  child  was  notoriously  known 
and  admitted  to  be  a  bastard,  and  it  was  not  in 
the  power  of  lord  Altham  to  make  him  bis  le- 
gitimate son. 

But,'my  lords,  nlderman  Barnes's  testimony 
is  eonfirmed  by  lord  Mount  Alexander,  from 
lord  Altham's  positive  declaration,  **  By  God, 
(jruve,  I  have  a  child  by  my  wife,  that  will 
make  my  brother's  nose  swell."  The  honour  of 
this  nobfe  lord  is  sufiicient  to  establish  this  as 
an  undeniable  truth.  It  is  true,  lord  Mount 
Alexander  does  not  fix  a  time  for  this  declara- 
tran,  but  the  natnre  of  the  thing  speaks  it,  that 
it  moat  be  after  the  birth  of  the  child ;  and  it 
Monot  be  suppoMd  loni  Altham  woaM  be  lo 


1717. 


absurd  to  declare  be  bad  a  child,  if  lie  hid  not 
a  son. 

But,  my  lords^  as  these  evidenoei  on  the 
part  of  the  plaintiff  are  positive,  and  all  the  de- 
fendant's proofs  are  negative,  the  mosit  favour- 
able construction  that  can  he  made  for  then, 
is,  that  they  are  ignoraot  of  a  fact  so  notorioas 
to  the  rest  of  the  country. 

My  lords,  that  there  mav  be  no  part  of  the 
chain  of  our  evidence  broken,  we  baveshewa 
what  care  has  been  taken  of  the  cfaiM ;  we 
have  proved  Joan  f^andy  to  be  hia  narse,  an4 
Joan  Laffan  his  dry-nurse.  Laffaii  was  calW 
up  and  narrowly  examined  three  or  fimr  dif- 
ferent times,  notwithstanding  which,  she  wm 
always  found  consistent  with  bemelf,  and  iH 
cirenmstancea  of  her  testioioDj  were  mini 
fully  by  her.  The  whole  force  of  the  <mM* 
ant's  witnesses  was  turned  to  dcatiojr  Ihecki- 
racter  of  this  woman,  hut  their  testunoDy  vai 
general,  and  there  waa  no  fact  proved  to  de- 
stroy her  evidence,  therefore  what  they  swsr 
did  not  affect  her  so  as  to  render  her  a  bad  wit- 
ness. She  said  she  came  to  DaDmaineia  hir- 
vest  1715,  and  lived  a  year  io  the  family  bsfcve 
the  child  was  put  under  her  care,  which  < 
harvest  1716,  six  noonths  before  the 
which  was  in  the  beginning  of  the  vear 
and  that  tallies  with  the  time  that  ane 

Sainted  to  take  care  of  the  child,  and 
Ir.  Prime  Herjeanl'soi^tion  aa  lo  that 
Doininick  Farrell,  my  lords, 
the  testimony  of  Liaffan.  He  ia  poaitiva  tlM 
he  saw  the  child  in  the  honse  of  Doomainr,  ii 
the  care  of  his  mother,  the  lady  Altham,  Wfac 
the  separation. 

My  lords,  the  counsel  for  the  defendant  fish- 
ing that  we  had  proved  the  lessor  of  the  plaa- 
tiff  to  be  the  son  of  lord  Altham  by  his  lidj, 
have  endeavoured  as  much  as  theyconUii 
overturn  this  evidence,  by  pretendii^  he  wm 
the  son  of  Joan  Landy  ;  but  I  hope  we  hive 
satisfied  your  lordships  and  the  gentleoMa  of 
the  jury,  that  their  testimony,  in  this  respcet, 
is  very  inconsistent.  William  Kims  has  bcfo 
produced,  who  swore,  that  Joan  Landy's  ckM 
was  brought  home  to  Dunmaine  after  the  le- 
paration.  Martin  Niefe,  and  William  Knowitt, 
swear  likewise,  that  the  child  was  braoght 
home  after  the  separation ;  but  Anthoov 
Dwyer  contradicts  these  witnesaes:  hesayit 
he  staid  three  quartera  of  a  year  after  the  «e- 
paratioii,  came  up  to  parliament  with  lord  Al- 
tham, and  never  saw  a  child  at  Dunmiiae. 
Aaron  Lambert  said,  he  never  aaw  a  child  in 
the  house  ;  and  when  aome  of  the  witaesMi 
were  asked,  was  there  a  child  in  the  house,  or 
was  there  not  ?  Then  comea  the  evaaioa ;  if 
there  was  a  child  in  the  house,  it  waa  impMd 
to  the  coachman,  a  circumstance  which  b^ 
spoke  perjury,  because  of  their  endeavoariaf 
to  ward  off  that  blow;  ao  that  these  wiluB— 
clashing  with  the  rest,  moat  throw  an  impola* 
tion  on  their  teatimooy. 

Elizabeth  Mulk>y,  my  lorda,  aaya,  ahtM 
applied  to,  in  order  to  dry-nane  .Iosb  LaaM 
chdd, bat  could  aot  fix  a  tint;  mi mif 


MOt]  and  Richard  Earl  ofAnglt 

niJ,  »fa«  would  drjr-Durw  cfailHreo  of  ten  years 
old,  wliicli  U  *  lliiri);  very  unnommon. 

Anue  Caulfield  uiiJ,  she  mw  Josd  Lsody's 
cbilil  at  nurse,  >nil  ihal  she  saw  lord  Alltiam 
atWr  the  sepsration  call  to  see  a  boy  nt  Fur- 
Iod^^'b  sclioiil  i  jtt  wlien  she  wai  crusN-exa- 
inio^ll,  nlietliEr  il  wa«  llie  Biiae  ubild  she  Sinv 
■f  ■ehool  liiDl  the  saw  at  nurse,  sbe  miiI,  sLe 
fltulil  Dot  take  (ipoaherBeirtosneai  tbatlor  tbc 
whole  wurM.  I  bdie  Iroubled  yuur  lunlsliips 
M  mcntioaiui;  those  wilnesses  wbbb  the  de- 
fendant produced  to  aliew  how  uncertain  they 
■rein  their  evidence,  and  therefore  that  there 
can  br  no  ile]ieiicli;iice  upon  them. 

Dut,  my  lords,  lei  the  gentlemen  of  llie 
athor  aiOe  say,  there  was  or  there  was  not  a 
ehtbl  at  the  bouM  of  Uunmaine ;  we  haie 
praired  thu  lady  Allham'^i  child  was  there; 
■Md  RedraoitilR  and  Bteen,  »bo  were  examined 
tbrthe  plaini iff,  ti wear  Joan  Laadj's  child  was 
dead  and  buritd  several  y^iars  ajro,  which  eniire- 
I*  ovtmunio  llie prelenee  nf  the  defeDdant,  that 
Am  iMwrof  the  plsinlilf  Is  Undv's  child. 

My  lords,  il  has  been  proved  to  yunr  lord- 
Rbi|t».  that  lord  Allham  treated  the  lessor  of  the 
riBiDlifFas  his  lawful  inn  and  heir.  The  lea - 
Bmwi^  of  Mr,  Uiiset,  and  the  conversation  be 
had  »itb  lord  Althaoi  at  Kinnav  in  the  cuunly 
•f  KiMare,  prove  Ibis  beyond  all  contradic  lion  ; 
Utd  H».  Anneiley  supports  his  texiimuny,  by 
lb«  acoount  she  gives  ot  her  and  her  brollier's 
Ainkiog  the  ohild's  health  in  lord  Altbam's 
'■mmue,  when  his  lordship  lited  at  Kinnay, 
Itavlv  sncli  conversation  would  not  be  intro- 
4mm  in  company  of  a  relation  of  Ihe  family, 
JTlhc  child  was  intended  lo  be  imposed  on  them : 
•Im  fortfact  says,  tlie  leKtIimicy  of  the  plaiulifT 
ira*  never  doubled  of  in  the  couolry  ;  and  as 
«ba  woa  allied  to  the  fumily,  her  etidence  mult 
4*  of  creat  weight  to  overium  the  evidence  of 
Mr.  Nedlicoti. 

■  Tb^  evidence  of  Mr,  Charles  Byrne  and 
Jatn«a  Cateaajrh  proves  to  demonstration, 
thai  Ihe  chdd  was  lonked  upon  at  Csrrickduff 
a*  tlw  leKiiiraale  son  of  lord  Altliam;  thcre- 


t,  my  lords,  how  con  your  lordships  or  the 

Ellemeii  of  the  jury  believe  Ihe  teal|—  - 
tin  Niefe,  who  said,  that  the  boy 


e  Ihe  tealimooy  o 


ymeil  a  basiard,  and  had  loo  much  or  Ihe  blood 
«f  the  Landys  in  him  i*  Consequently  Niefe's 
t«t>niany  must  be  rejecled.  80  Ihal,  I  say, 
hy  iddiuK  all  the  plaintiff's  proofs  to^eifaer, 
Une  cannot  he  the  least  colour  to  doubt  the 
Intimacy  of  the  plaintiff. 

Hv  lorda,  both  Mr.  Byrne  and  Plunketl  asy, 
(tet  tie  waa  lookal  upnn  in  Proper-lane  to  be 
the  legitimate  aon  ol  lord  Aitham  ;  and  the 
ioHaence  Miaa    Gregory   had  over    my  lord 

Cibcv  lie  lived  there)  is  likewise  proved  by 
•rJ,  and  it  is  natural  to  suppose,  ahe  sug- 
paled  things  10  lord  Altheia  10  bis  disadvan- 
~  [e.  Air.  Pluakttt  tells  your  lordships,  fae 
rcsded  with  lord  Aitham  for  him,  when 
plainta  were  made  a^nst  the  child  by 
I  Gregory  }  tharerare  it  ia  easy  t«  be  he- 
id,  Ihal  il  was  00  her  account  b«  after- 
tf  Wane  louUy  neglected. 


MF<i.  A.D.  17*3.  lliCtS 

Aa  to  the  testimony  of  Mrs.  Mullen,  who 
says,  thai  the  cliild  made  answer  lo  her  at  the 
funeral  uf  the  late  lord  Aitham,  that  he  was 
Joan  l^ody's  KOn,  there  cannot  be  the  laut 
reliance  on  her  credit,  because  ihe  child  al- 
ways asserted  his  le{>ilitnacy  :  and  Mr.  Haw- 
kins king-al- arms  refused  em  oiling  the  defen- 
dant, uu  account  nf  the  behaviour  of  the  child, 
ajid  his  crying  at  the  funeral ;  and  Mr.  Bush, 
and  Mr.  Tigb,  and  Purcell  say,  he  convinced 
ihein  of  bis  leKitituacy. 

As  to  Mrs.  Heath,  ahe  comes  from  a  dis- 
tant country ;  what  inducement  slie  might 
have  to  give  evidence  againat  Mr.  Aouesley, 
must  be  only  knowo  to  herself;  she  might 
have  imposed  oa  lady  Aitham,  as  it  appears 
that  it  was  from  her  only  that  lady  Aitham  re- 
oeived  iofurmulioD,  to  negliHit  the  diilj,  aud 
sbe  may  still  continue  averse  lo  him. 

My  liirds,  as  In  what  is  observed  by  the  gen- 
tlemen of  the  oilier  side,  lo  shew  the  inipro- 
bability  of  Reily  the  servant's  evidence,  from 
ttieshort  space  of  time  of  goiog  from  George'i 
Uuay  lo  inchicore  and  coming  back  to  the 
Quay,  that  was  an  affair  that  required  ezpc> 
diiion,  he  must  be  supposed  to  make  all  the 
dispatch  be  coul^ ;  and  as  to  what  Reilv  said, 
that  the  delinidant  was  od  the  Quay  wtaeo  he 
was  sent  lor  the  guinea,  and  afterward*  in  an 
hour  and  an  half  found  him  there  ai  his  relum, 
ipugoant  to  what  Byrn  says,  that 


be  vpry  well  presumed  that  the  itereodant 
mitrbt  be  gn  the  Uuay  when  he  sent  R«ily  lot 
the  guinea,  in  order  lo  lix  a  boat  lo  carry  the 
boy  lo  the  ship;  and  after  thai,  go  bock  toOr- 
iDond  market  lo  Jones's,  and  return  lo  the 
Quay  at    the  time    [teily   brought    him   the 

Bui,  I  believe,  the  geDllemen  of  Ihe  other 
side  vtill  nol  deny,  that  the  transportation  is 
proved  to  D  demonstration,  which  shews  Ihe 
t  lolent  resentment  the  defendant  conreised 
againal  Mr,  Amiesley,  the  lessor  of  the  plaioiift', 
and  the  evil  mind  of  Ihe  defendant,  still  impla- 
cable, so  as  even  in  lay  out  3001.  lo  prosecute 
him,  in  order  to  lake  awa^  bis  life,  10  prevent 
him  from  ever etijoying  his  birth-right,  which 
the  defendant  has  unjustly  possessed :  there- 
foni  I  say,  to  every  impsrtiul  man,  Ibis  muit 
be  the  ■irongesl  argument  of  the  defendant's 
consciousness  of  ihe  lessor  of  Ihe  plaintiff's 
unquestionable  ri^ht ;  and  I  makenodoubt  but 
the  gentlemen  ot  the  Jury  will  be  uf  Ihe  same 
opinion,  and  consider  Ibis  affair  without  any 
regard  lo  any  other  person  not  before  the  Court 
at  present,  and  give  a  verdict  for  Mr.  Anneilay 
the  lessor  of  the  plaintiff. 

Mr.  Walih,  of  counsel  (br  the  lessor  of  the 
Plaintiff. 

My  lords,  and  yon  gentlemen  of  the  junr, 
il  is  not  to  be  expected  that  the  lessor  of  the 

Claintiff,  from  the  many  disadiantagea  he 
ibiitirs  under,  can  lay  such  full  pmol*  of  his 
birih  before  the  jury,  or  fix  his  btle  a*  well  aa 


UOS] 


17  GEORGE  II.    Ttial  in  Ejectment  belwen  J.  Axnedetf, «;.  [14N 


if  be  hid  been  always  in  the  kingdom ;  (»n  the 
other  hand,  the  defendant  has  htul  fall  time  to 
prepare  his  witnesses,  as  he  was  alarmed  by 
the  account  of  my  client's  rctnrning  from  the 
West^ Indies,  and  intending  to  claim  tlie  An* 
gleMA  estate.  Mv  lords,  as  this  point  lias  been 
so  well  discussed  by  the  plaintiff's  counsel, 
who  spoke  before  me,  I  shaft  not  take  up  much 
of  your  lordships'  or  the  jury's  time. 

Your  lordships  will  please  to  consider,  that 
the  defendant,  as  admmistrator  to  Arthur  late 
lord  Altham,  has  got'all  the  papers  in  his  hands, 
which  could  give  farther  light  into  this  affair ; 
therefore  the  strongest  indalgence  is  to  be 
shewn  to  all  tlie  e?  idence  gircn  at  this  distaooe 
of  time  on  the  part  of  the  lessor  of  the  plaintiff. 

The  only  point  in  question  is,  the  legitimacy 
of  the  lessor  of  the  plaintiff;  which  he  has 
proved  by  positire  eridence,  and  thereby  wiped 
off  all  that  ckrad  of  infamy  that  the  defendant 
would  endearour  to  throw  on  him. 

I  shall  now,  my  lords,  beg  leare  to  make  a 
few  observations  on  some  of  the  defendant's 
evidenee,  and  on  the  declarations  of  the  de- 
fnidant,  which  shew  plainly  his  evil  disposition 
towards  the  lessor  of  the  plaintiff. 

VirsC,  I  would  remark  with  respect  to  Mrs. 
Heath,  because  she  is  the  defendant's  prhieipal 
witOiMB,  and  if  she  is  orertumed,  all  the  rest 
most  fall  to  the  ground. 

Mrs.  Heath  agrees  to  the  cause  of  the  mis- 
carriujo  (which  was  the  brsaking  of  the  sao- 
oers)  but  not  to  the  effect ;  she  likewise  con- 
firms M'Cormick's  testimony,  that  Lucas  the 
midwife  was  intended  to  be  sent  for:  she  says, 
»y  lady  Altham  never  kept  her  room  one  day ; 
which  IB  contradicted  by  Mr.  Lambert.  What 
she  and  Mrs.  Giffard  say,  as  to  Wexford  assizes, 
is  contradicted  by  Mr.  Colclough. 

Colonel  Palliser,  my  lords,  owns  he  was 
often  laid  np  with  the  gout,  and  often  absent 
from  his  house  in  the  Great  Island,  conse- 
quently could  not  be  certain  what  hapjiened  at 
Dunmaine. 

Mr.  Palliser,  his  son,  induces  a  suspicion  of 
bearing  a  resentment  in  his  mind,  irom  the 
marks  of  infamy  he  received,  which,  if  it  was 
in  a  judicial  way,  he  could  not  be  belieTcd  in 
an V  court  of  law. 

Herd's  testimony  in  relation  to  Proper-lane, 
is  outweighed  by  the  evidence  of  Plunkett  and 
both  the  Byrnes ;  he  tartlicr  swears,  that  lord 
Ahham  declared  he  would  not  for  500/.  the 
child  should  know,  that  Joan  Landy  was  his 
mother. 

Niefe  swears,  that  when  my  lord  corrected 
him,  he  always  told  him  of  bis  mother  Joan 
Landy  ;  he  also  swears  the  child  went  by  the 
name' of  James  Landy.  It  is  somewhat  ex- 
traontinary,  that  my  lord  should  upbraid  the 
boy  with  his  mother  Joan  Laudv,  aikd  vet  de- 
clare, that  he  would  not  fur  600/.  that  liie  hoy 
■houM  know  that  Joan  Landy  was  his  mother. 

FurfcNig  is  very  ridicokMU  in  his  testimony, 
and  Dowoes  is  discredited  by  Uyan. 

Beckett  is  a  meal  oneertaio  witoets,  m  bis 
Moooiil  obo«l  Tiot^  iMi  iMteoit, 


Colonel  Herman  is  likewise  unocrtM. 

Mr.  Medlicott'a  account,  my  lorii,  iinM. 
what  extraordinary ;  for  if  lord  AkUa  mk 
use  of  those  dedaraiions,  he  meDtioa(d,alii| 
time  ago;  yet  he  says,  he  never  rtAedBio 
them  till  the  last  Curragh  races. 

Napper,  m^  lords,  could  not  know  uyikai 
of  the  point  in  question,  becanie  betsoti 
late  lord  Anglesea  directed  him  oefcr  li|iii 
Dunmaine. 

In  regard,  my  birds,  the  ptaistiiTt  csml 
have  observed  so  fully  on  our  wilsoM}  I 
shall  beg  leave tooffer  a  few  tboBghniili 
consideration  of  the  jury. 

Mr.  Higgieon  wanted  nottbecraef  Ikw 
of  the  eclipse,  nor  of  the  time  of  the  PntoM 
men  bemg  tried  at  the  amima  of  WoM  Bi 
producm  his  book  to  put  that  mamrmd 
dispute. 

My  lords,  the  teatimony  of  eefoad  IM 
of  the  reputatioo  of  the  ooantry,  ibMUM 
very  great  weight,  and  ooDfinm  tbi  pniiM 
testimony  of  Scott,  of  hia  being  sntiiH^ 
sa^  from  Mra.  Piggottooneeraing  tiMcUi; 
it  isuoteommoD  to  send  how-da-yos'iii 
bastard  son. 

Lord  Mount  Alezaader  mentinslbcfi^ 
cnhur  aooount  of  Udy  Altham*8  havinf  icklL 
The  veracity  of  theae  witoeasm  is  ua^Mii* 
able. 

Uodgea's  testimony  is  coofinaei  kylh 
Heath,  which  must  have  wewht 

Lutwich  H  not  attacked  in  his  chsnolft 

On  the  whole,  your  lordsliips  will  fkwil 
consider,  the  testimony  of  the  pUinuTi* 
is  attended  witn  auch  oonsiilucjs 


c 

11.: 

i- 


in 

IS: 


time  and  place,  that  it  must  outweigh  the  *» 
dering  and  uncertain  evidence  of  the  tiefeitort 
witnesses. 

Is  it  reasonable  that  lord  Altham  ibMU^ 
np  a  bastard  son  for  his  legitimate  cfailiikv 
h&nfr  at  tlie  same  time  a  probability  rfli 
having  lawful  issue  ? 

My  lords  I  must  uow  beg  leave  lo  tike* 

tice  of  some  declarations  of  the  defciM 

which  plainly  point  out  his  malice  sod  Ntf^ 

ment  towanis  tlie  lessor  of  the  plaiutiC.  J^ 

Laffan  has  proved,  that  the  Cbhmmi^ 

ailer  the  separation,  the  defeodantiTais^f^ 

maine- bouse,  and  not  seeing  the  child,  w^  * 

tbe  witness,  Where  is  Jemmy,  or  where  is  ^ 

brother's  child  ?  how  did  his 'mother  befai>|^ 

parting  with  him?  And  Laffan  answered, IP 

lady  Altham  had  requested  very  esra(iilj|* 

I  have  the  child  with  her :  whereupoa  thiw 

^  fendant  made  use  of  an  eztraordiDsrjr  *>■> 

:  That  he  would  not  have  his  brodier  kerP  *! 

!  of  the  bree«l,  but  pack  them  both  lo  tbe  M 

'      Mv  lords,  the  late  lord  Altham's  dtfrt^ 

and  drcumstances  ar«  to  be  consideRdbTlki 

'■  jury,  and  Miss  Gregory's  indoenoe  sadi^ 

I  sort  of  a  sham  marriage  (if  1  am  rifb^ly*' 

'  stmcted)  may  aocoont  for  his  hwdihip'*  "* 

treatment  ot  the  child,  and  she  migbt  Pf*"' 

bim  imo  a  noiioo,  that  tboogb  tbe  cW  ^ 

the  aao  of  lady  Alihann,  yet  tint  he  wu  irt  *** 

gotlM  by  him.    Ttee  waa  a  tiithv  ^^ 


and  Richard  Eari  ofAn^eiea. 


A.  D.  I74S. 


[MM 


1  being  tenant  for  life,  miglit  give 
lid  noMD,  in  order  tke  more  easilv 
lont  bv  hb  brother's  joinmg  with 
might  DO  more  easily  effected,  as 
I  no  relations  or  friends,  but  those 
mingat  his  title  and  bonoor,  and 
id  that  if  he,  who  was  a  bar  to  their 
imbition,  was  removed,  they  then 
«  of  making  every  advantage  they 
after. 

though  the  plaintiff  was  young  at 
(lis  transportation,  it  has  appeved 
he  did  all  that  was  in  his  power  to 
knoiv  that  he  was  the  legitimate 
of  the  late  lord  Altham ;  did  he  not 
ither's  funeral  lament  his  death  in 
ioiis  manner,  and  assert  bis  title  ? 
Mr.  Hawkins,  the  king  at  arms, 
reby,  that  he  refused  enrolling  the 
kird  Altham  in  the  list  of  |>eers? 
I  the  defendant  to  shew  the  strong- 
nt,  which  he  did,  threatening  to 
1  as  an  impostor  and  a  vagabond, 
i  scandalous  pretence  of  his  having 
r  spoon ;  and  then,  in  an  unnatural 
lanner,  he  makes  an  attempt  on 
I  brother,  kidnaps  him  in  his  tender 
lonths  after  his  father's  death,  and 
ivith  a  most  unaccountable  indif- 
Mr.  Ash  bis  attorney  (as  Mr.  Ash 
lis  examination)  only  that  the  boy 
i  is  pretty  remarkable,  that  the 
Q  the  other  side  did  not  think  it 
ss- examine  Mr.  Ash  as  to  that  par- 
hips  will  please  to  consider,  that 
was  in  a  dead  palsy  before  she 
?hich  impaired  her  understanding, 
continued  so  till  death  ;  and  was 
ned  to  her  room.  From  this  un- 
ion she  mip^ht  not  know  when  lord 
;  and  if  she  did,  as  she  was  in  a 
ss  and  dependence,  she  was  in  no 
tssert  the  right  and  support  the  in* 
son. 

ny  lord 4,  be  glad  to  throw  a  veil 
Qdant's  misconduct  in  an  affair  of 
I ;  but  in  justice  to  my  client,  I 
pentioning  to  your  lordships,  and 
a  of  the  jury,  what  illegal  means 
t  made  use  of  to  cause  the  lessor 
fto  be  prosecuted  with  the  utmost 
to  aim  at  his  life  in  so  extraor- 
ner.  This  affair  has  been  opened 
Ir.  Giffard,  who  was  attorney  in 
It  appears,  that  the  defendant  was 
ed  with  the  qualms  of  a  troubled 
termined  to  surrender  to  the  lessor 
STbis  right  and  title,  if  he  was  al- 
,  a  year  to  live  on  in  France  ;  to 
or  tnis  scheme  of  life,  he  was  io- 
.  French  master  in  the  language 
'y.  This  disposition  to  do  justice 
long  continuance,  an  unfortunate 
ected  Mr.  Annesley  to  a  prosecu- 
ihsppy  chance  of  shooting  a  man ; 
remorse  is  dissipated,  the  late  kind 


intentions  vanish,  the  defendant  valoei  Mt  if  it 
cost  him  10,000/.  so  he  conld  have  the  plaintaff 
hanged ;  and  for  that  purpose  he  roakea  ne 
difficulty  to  expend  800?.  When  he  is  disap- 
pointed in  this,  another  expedient  maskne 
found ;  when  the  plaintiff's  life  is  out  of  his 
reach,  his  character,  his  birth  is  to  be  im« 
peached,  and  he  is  to  be  deemed  the  spurkras 
offspring  of  a  poor  kitchen- wench.  It  is  plain 
to  every  man  that  has  heard  any  thing  of^tbis 
affair,  that  nothing  but  the  strongest  conviction 
of  the  pUuntiff^s  right,  could  have  spirited  the 
defendant  up  to  such  a  complication  of  iniquity. 
My  lords,  it  is  true,  the  defendant's  counsel 
have  varnished  over  their  case  with  a  very 
glaring  shew,  with  a  view  of  influencing  the 
gentlemen  of  the  jury ;  but  they  are  or  that 
honour  and  integrity,  that  they  will  weigh  the 
affair  with  the  justest  nicety.  And  now  1  shaH 
conclude  with  the  words  in  the  gospel,  which 
the  defendant  has  adopted  to  himself,  **  This  is 
the  heir,  come  let  us  kill  him.  that  the  inhe- 
ritance may  be  ours ;"  but  thank  the  Almighty, 
the  over-mling  haml  of  Providence  has  pro- 
tected the  lessor  of  the  plaintiff,  and  I  hope  the 
jurors  will  think  he  is  entitled  to  a  verdict. 

Here  ended  the  arguments  of  counsel  for 
both  parties,  about  ten  o'clock  on  Wednesday 
night ;  and  the  Court  by  the  like  consent  as 
usual,  adjourned  to  12  o'clock  next  day. 


Frirf/fy,  Nov,  25. 

The  Court  being  met  ancording  to  adjourn  • 
ment,  and  the  jury  having  appeared  as  uaual, 
the  lord  chief  baron  Bowes  summed  up  the 
evidence  in  the  followiug  Ctiarge: 

L.  C.  Baron.  Gentlemen  of  the  Jury ;  We 
are  now  come  to  the  last  period  of  this  very 
important  trial,  and  after  having  attended  to  a 
longer  evidence  than  ever  was  known  u{)on  a 
trial  at  law,  you,  gentlemen,  by  your  verdict, 
must  determine  a  question  of  as  great  conse- 
quence both  as  to  property  and  title,  as  ever 
came  before  a  jury. 

I  did  apprehend  when  this  trial  began,  that 
it  would  run  out  to  %  great  length,  and  there* 
fore  apprized  you  or  What  1  thought  must  be 
the  consequence,  that  the  Court  would  not  be 
able  minutely  to  sum  up  the  evidence  upon 
this,  as  upon  like  occasions ;  and  therefore  re- 
commenoed  it  to  you  to  make  and  enter  your 
own  observations,  as  the  evidence  should  be 
laid  before  you :  but  when  1  consider  your  ex- 
emplary behaviour  during  the  course  of  this 
long  tnal,  the  attention  you  have  pven,  and 
the  desire  you  have  expressed  to  do,^lstice ;  I 
think  it  incumbent  upon  the  Court,  as  far  as 
they  can,  to  he  aidinff  and  assisting  to  you,  in 
this  your  search  after  truth.  To  this  end  I 
shall,  though  very  briefly  and  imperfectly,  lay 
before  you  what  bath  occurred  tu  me ;  wuich  I 
shall  do  in  this  method.  I  shall  endeavonr  by 
way  of  narrative,  to  collect  the  facts  that  have 
been  sworn  to  on  hoth  sides ;  I  sliall  next  mention 
the  objectiooK,  as  far  as  1  have  taken  them^il\al 


^r»     •■•«»    «»«»•■•■« 


\ 


dantllM  plftiutiff't  tUle  it  brooffbUoa  nogle 
qOMlloa,  wbetber  Um  lesfor,  Mr.  Jaoics  Ad- 
ncaley,  be  (be  If^timale  itsiie  of  Arlbur  late 
lord  Altbam  ?  It  is  admilted  on  bolb  sidet,  tbat 
tbe  plaiutiff  and  defendant  claim  I  be  lands  in 
question,  under  tbe  will  of  James  earl  of  An- 
gleaea;  and  tbat  by  sucb  will,  tbe  limitation  to 
tbe  beirs  male  of  the  body  of  Artliur  late  lord 
Altbam,  is  prior  to  the  remainder  limited  lo  the 
defendant ;  and  therefore  if  tbe  plaint  iff  can 

f»rof  e  tbat  be  is  the  legitimate  issue  of  Arthur 
ate  lord  Altbam,  a  ?erdict  must  be  found  for 
tbe  lessor  of  the  plaintiff;  but  if  he  fail,  then 
there  is  an  undoubted  title  in  the  defendant, 
being  tbe  person  next  in  remainder  uuder  tlie 
will  of  James  earl  of  Anglesea ;  aud  a  verdict 
must  be  found  for  biro. 

Gentlemen,  tbe  questioo  beinff  a  mere  matter 
of  fact,  tbe  plaintiff's  counsel  nave  proceeded 
to  lay  their  eridence  before  you  in  the  following 
manner :  they  have  q^iren  evidence  to  induce 
a  probability,  that  Mary  the  wife  of  Arthur, 
late  lord  Altbam,  might  have  had  a  child,  and 
that,  by  examining  Mrs.  Dorothy  Briscoe,  and 
Mrs.  Ilenrietta  Uole,  alias  Briscoe,  to  shew 
that  there  was  a  reconciliation  between  tbe  lord 
and  lady  Altham,  some  time  in  the  year  1713 ; 
that  they  came  together  and  cohabited  at  the 
house  of  their  father  in  Bride-street,  from 
whence  they  went  to  one  Mrs.  Vice's  in  Essex- 
•treet,  and  from  thence  to  Dimmaine ;  and 
there  another  circumstance  arises,  which  is, 
that  Mrs.  Cole  and  her  mother  being  invited  to 
Dunmaine,  went  thither,  and  while  they  were 
there,  upon  an  accident^  which  has  been  so 
oflen  repeated  tbat  I  shall  not  go  into  the 
particujars  of  it,  lady  Altham  was  frighted. 


appear  that^i 
house,  though  in  i 
think,  a  helper  id 
stables. 

Tlie  oezt  perio 
for  tbat,  tbe^  hav 
nesses ;  the  one  B 
family ;  the  oUia 
herself  cbaiuber-c 
were  in  tbe  room 
and  as  far  as  lh< 
positive  witnessea 
the  circumataooe 
livery,  that  were 
spoke  of  bj  Breei 
that  is,  tbe  reioicsii 
birth  of  this  heir, 
ing,  which  b  swoi 
mentioned  before 
Colclough  aod  Mi 
Pigot  go<lmotlier» 
clergyman  that  of 
this  child.  The 
who  was  a  senra 
Anthony  ClifT,  not 
father,  nut  au  invi 
tbe  being  there  at 
master  at  the  tabi 
was  made  on  the  o 
vant,  I  think,  of  ] 
subsequent  time  a 
that  af^  his  rel 
England,  he  was 
has  sworn,  to  tlii 
compliments  tbth< 
child  did. 

Gentlemen,  it  w 


] 


mnd  Richard  Earl  ofAngletea, 


A.  D.  174a. 


[1410 


Qotel  for  the  defeodant  made  way  use  of 
The  next  I  ■ball  lay  aiide,  is  major 
!f«ld,  wbote  eridence  was  to  the  declara- 
*  lord  AJtharo,  the  day  my  lady  was  in 
,  and  the  inyitatioD  he  had  to  go  and  tap 
roaDiDg- drink,  and  his  excuse  for  not 
,  as  it  was  an  improper  time ;  the  invi- 
be  had  to  go  the  next  day ;  that  he  went, 
there,  but  did  not  lie  there ;  tliat  the 
wu  brought  down  to  him,  and  that  he 
the  nurse  half  a  guinea ;  but  then  he 
his  in  harrest,  and  therefore  no  adf  an- 
las  been  taken  of  that  examination  by  the 
ff ;  the  defendant  indeed  has  made  use 
which  I  shall  take  notice  of  in  the  ob- 
II. 

)  next  evidence,  gentlemen,  has  been  to 
the  dispositions  that  were  made  relating 
child  thus  brought  into  the  world  ;  and, 
I,  I  should  liaTe  mentioned  before,  the 
loe  of  Matthew  Furlong,  who  applied  for 
If  his  wife  employed  as  nurse  to  that  child ; 
gentlemen,  the  same  evidence  for  the 
ff  that  swore  to  the  christening,  the  same 
ce  that  were  about  the  house,  and  pi-e- 
the  birth,  have  gone  farther,  and  told  you 
DC  Joan  Landy  was  appointed  the  nurse 
I  child  ;  and  they  bare  all  of  them  given 
scoant  of  Joan  Landy,  that  she  was  a 

unmarried,  that  was  with  child,  and 
^  to  be  so  by  lord  Altham,  that  was 

away,  as  some  say,  upon  my  lady's 
^  down ;  as  others  saj,  before  my  lady 
into  that  country :  this  person  was  chose 
he  nnrse.  8he  had  a  place  of  residence, 
ibbiD  that  was  built  for  her  father,  a 
r  of  a  mile  from  the  house  of  Dunmaine ; 
,  as  the  witnesses  for  the  plaintiff  tell 
yas  fitted  up  upon  the  occasion  of  re- 
l  her  and  this  child.  Laffan  has  told 
mt  a  room  was  added ;  others,  that  the 

was  white-washed  and  beautified,  but 
not  of  the  room ;  but  all  agree  that  this 
had  the  child  there,  and  that  for  the  con* 
cy  of  visiting  this  child,  a  road  for  the 
was  made  from  Dunmaine-honse  to  this 

They  tell  you  that  the  child  remained 
>er  till  Joan  Laffan  comes  into  pUy  as  dry 
:  And  Joan  Laffan  says,  she  came  into 
nily  when  the  child  was  three  or  four 
m  Old,  and  she  has  ffxed  her  coming  to 
t  afWr  the  king  came  to  the  crown ;  and 
waa  put  into  her  care  about  three  months 
the  separation  of  lord  and  lady  Altham, 
Nitinned  in  her  care  so  long  as  it  con- 

at  Dunmaine;  and  that  the  child  was 

from  her  to  Kinnea  in  the  county  of 
B  ;  and  that  it  was  about  three  or  four 
4d  at  the  time  it  went  to  Kinnea.  They 
B traduced  as  evidence  the  declarations 
and^  lady  Altham,  in  resjiect  to  lady  Al- 
tisviDg  a  child,  and  in  respect  to  lord 
'*    Mknowled^ng   that    child.     The 

'B  DoiDt  of  time  is  that  of  alderman 
^^  Bjlkaony,  who  says,  that  it  was  in 
*uriaf  of  the  aommer.  and  by  his  ac- 
M  ing  aftar  the  birtn ;  he  tellt  you 


the  occasion  of  hia  going'to  Ross,  ami  that  thera 
he  met  with  lord  Altham  ;  that  my  lord  took 
him  into  an  upper  room,  and  disclosed  hia 
mind,  by  telling  him,  "  Tom,  I  will  tell  you 
good  news,  1  have  a  son  by  Moll  Sheffield  ;" 
Uiat  he  went  next  day  to  my  lord's  house,  Imt 
that  he  did  not  see  the  cliilif,  nor  did  he  hear 
either  my  lord  or  lady  s|)eak  of  it  whilst  he  was 
there  ;  but  at  last  did  say,  that  he  believed  the 
child's  health  might  be  drank  at  the  table.  Ilia 
next  witness  that  1  shall  mention  upon  this 
head,  was  Edward  Lutwych,  and  he  speaks  to 
the  seeing  of  a  child  at  Uoss,  for  whom  my 
lady  Altham  had  bespoke  two  pair  of  shoes, 
which  he  was  to  make,  and  when  he  brought 
them  home,  he  inquired  for  the  young  lord, 
and  they  told  him  he  was  gone  back  to  Dun- 
maine; upon  which  lady  Altham  broke  out 
into  this  exclamation,  "  It  had  been  better  for 
me  to  have  been  the  wife  of  the  poorest  trades* 
man  in  Ross  than  my  lord  Altham's;  for  then 
I  could  see  my  child  every  day,  but  now  I  caa 
see  him  but  by  stealth."  Gentlemen,  the  wit-< 
nesses  for  the  plaintiff  that  were  in  the  house, 
and  conversant  in  the  family,  tell  you,  that  my 
lord  did  always  acknowledfife  this  child  to  l>a 
his  lawful  son ;  that  this  child  was  shewn  as 
such  to  the  persons  that  came  to  the  house  to 
visit,  and  some  tell  you,  that  they  often  saw 
the  child  in  or  about  the  house. 

I  mentioned,  gentlemen,  the  child's  being 
removed  to  Kinnea,  in  the  county  of  Kildare, 
and  this  was  afWr  the  separation  of  lady  Altham 
from  my  lord.  When  the  child  waa  brought 
to  Kinnea,  they  have  gone  on  by  evidence,  to 
shew  you,  that  there  he  waa  treated  as  the  sou 
of  my  lord  by  lady  Altham.  For  this,  they 
have  produced  Mr.  Misset ;  who  tells  yon, 
that  there  was  a  child  that  he  took  to  be  about 
six  years  old  ;  that  he  went  to  a  school '  in  th* 
neighbourhood,  and  was  considered  as  the  child 
of  lord  Altham ;  that  it  was  called  the  young 
lord  ;  that  it  was  sent  to  school  with  a  servant, 
and  that  he  remembers  it  particularly  by  an 
open  lace  upon  his  hat,  which  he  believes  waa 
the  first  and  last  that  had  ever  been  at  that 
school.  Whilst  he  was  at  Kinnea,  as  that  wit- 
ness says,  the  child  was  treated  by  my  lord  as 
his  son  ;  and  Mrs.  Annesley,  a  relation  of  the 
family,  who  lives  in  the  neighbourhood  of  Kin- 
nea, tells  you,  that  her  brother  colonel  Geoffrjr 
Paul,  a  gentleman  well  known  to  most  persons 
here,  used  to  visit  my  lord,  and  my  lorcl  to  visit 
him,  and  that  her  brother  used  at  table  to  drink 
the  boy's  health  as  my  lord's  son ;  and  says, 
that  she  was  sure,  from  the  knowledge  she  had 
of  her  brother,  that  if  he  had  suspected  that  h« 
was  the  illegitimate  son  of  lord  Altbam,  ha 
would  not  have  done  him  the  honour  to  have 
drank  his  health  ;  and  that  she  never  heard  be 
was  the  illegitimate  son,  till  of  late  that  he  has 
been  caljed  so,  on  account  of  this  present  dis- 
pute. 

The  next  place  the  child  was  carried  to  waa 
Carrickduff,  in  the  county  of  Carlow ;  and 
there  you  have  had  several  witnesses  to  prove 
him  the  legitimate  aoa,  vii.  Two  Gavcna^hs 

4X 


HU^ 


ka  intaoM  to  piU  Uia  fUatUToiioriliaMvi 
•DdgifCf  eredit  to  the  witPMi(n»  wIm  l«r  nii 
lorahip  Mccutod  moh  iatantioo,  m  Mmts  w- 
lAtod. 

The  pkintiff  wMt  furtber*  to  thew  that  the 
defifndut  ool  ooly  ocoMJoped  this  penoo's  b«* 
luff  taken  awij,  bat  upon  the  plamtlff^  retm 
into  Eoffbnd,  a  miilortiiiia  bdalHoi^  Un,  bf 
tiwaeduMital  killtDg<  a  man  at8taiii6is  tbaik 
oppofftanity  was  laid  hold  of  to  praaeeato  binit 
•ad  under  that  oblonr  to  take  awav  bia  life  s 
fcr  wbfob  pomae  one  John  Gifiara  hat  ben 
ycoduoed.  Ha  appean  to  hafe  bean  an  at- 
loraey  of  the  Coorl  of  Coaunon  Plena  m  EvM^ 
land,  and  agent  for  the  defendant.  Sonedtii* 
tfohj  waa  made  whether  hie  erUence  aboaM 
be  leceifed ;  bat  the  Coort  baviag  admitted 
Um  to  be  oamined,  wicb  liberty  to  diadeee 
what  did  not  oame  to  bia  knoyrkSign  aa  agent 
ftrtbe  defendant;  Yon,  gantleaMa»  wiB  not 
newider  whether  the  dWniyng  Ounreiaation  be 
irbat  IB  called  bonoaraUe  between  man  and 
Man,  or  whether  tiie  ill  treatment  thia  pevaon 
TCceif  ed  from  the  deftadant  baa  indnoed  bim 
m  appear  to  giro  teetimonym  thia  oanaa^bot 
vbciner  what  ne  baa'awom  be  troo. 

Thia  witoeat  apeakato  the  deehiraliona  nande 
by  my  lord  Angiaaca,  at  the  time  an  appeal 
iraa  denendfaig  b^ween  hhn  and  oaptain  Annei- 
ky,bmetbeLordainEariand;  apon  which 
«ccaaien,  the  defendant  aaid,  that  it  waa  better 
lor  bim  to  throw  op  bhi  titlea,  wbieh  bedidnot 
Talne^  and  to  give  op  them  and  Ibe  cetate,  upon 
torma,  to  Jamea  Annealey  the  phdntiff,  wboae 
right  they  were;  that  be  would  go  over  to 
Fraooe,  and  lire  there,  where  be  alioakl  be 
much  easier  and  happier  than  be  waa  at  that 
time.  He  tella  you,  that  thii  was  repeated" 
more  than  once ;  that  it  waa  not  a  sadden  re- 
act ntion,  but  the  result  of  deliberate  ooitoidera- 
tion,  accompanied  with  another  act,  which  was 
that  of  taking  a  person  into  bis  liouse,  to  teach 
him  the  Frepcb  tongue,  to  qoalify  him  to  lire 
in  that  kingdom.  And  the  witneaa  lella  you 
lartber,  that  the  reason  why  this  project  was 
dropt,  was  the  accidental  homidde  committed 

Sthe  plaintiff;  upon  which  lord  Anglesea 
anged  his  purpose,  and  reaoWed  to  nrosecote 
bim  ;  and  frequently  declared,  that  be  would 
gi?e  10,000/.  if  he  could  get  bim  hanged,  for 
then  he  should  be  easy  in  bis  titles  and  eatato ; 
and  that  this  proeecution  coat  lord  Angleaea 
WOL  As  I  shall  not  touch  this  part  of  the 
evidence  again,  I  must  desire  you,  gentlemen, 
to  consider,  whether  the  words  sworn  to  be 
apoke  by  lord  Anglesea,  as  to  giving  op  his 
estate,  may  not  be  accounted  for  as  the  rash 
expressions  of  a  man  distressed  in  his  circum- 
stances; but,  gentlemen,  if  vou  believe  the 
other  two  facts,  that  is,  that  lord  Altham  did 
apirit  away  this  youtb,  and  that  he  did  carry  on 
this  prosecution  aicainat  him,  the  question  will 
then  be,  what  influence  they  ought  to  have 
upon  this  cauae  ?  And  how  far  they  ought  to 
conclude  againat  the  defendant  aa  to  the  feet 
in  qneation.  will  deserve  your  consid«ntton. 
t^  Ibt  jpfauntiffmaynotmiArbytliaiUi^ 


aota  of  tbo^afeadMl^Aor'tkn 
jnrad  by  yoor  relying  ton 
tivn  ortdanoa.     If  dw 
awny  tbnjdaintifl;  tlml 
pntnd  to  dW  Mhndant 
thn  daatrayar  of  •vidoBH 
mthnanme  light  tbnkw 
na  having  daalrayad  thn  pwpar  nawa ; 
^punat  bim  dafeetlv»praor,  no  te  no  ba  basal 

■  "  be  vtmmL  mi 


am  In  bo 


ovary  tUng  pvaaoBad  In 


if  tbo 

bia  being' tbo  lafiAsnto  ban  iiT  lati 
thopvoot  BaaybatamadaB'lbe  ~ 
yo«  may  aspaot  anliiflnniisa  I 
M  Altham  bia  bvalhar  died  milbaat 
and  tiria  on  nooaonft'^  Ibnt 
ptamtiff  moat  bo  nnppaand  to  bMO  kid,  ly  if 
acfcndant%  having  an  nmny  yanw  pt  ite^ 
tbo  pbdntiffa  powortoMaavt  Unv^hl.  M 
yoawillnlao  nnridar  whathnrtbnna  aBbol 
not  ovidenco  to  amiBlJf  yna,  that  thn  Maiil 
in  h«  own  thooghto  nad  wny  nrnoariH 
oonaiderad  the  atayin{g  of  the  bav  baN^aatfg 
might  aomo  wny  pwjndion  bto  tiun*  Bntiib  , 
thor,  nainaiatod  apon  by  tbo  plnJaamoM^ 
yoaonghttotakntbia  aanBndmimisnmil 
part  of  the  defendant,  that  tbn  plMHifnafdl 
tawfal  oon  of  lard  ANhnna,  oSTteMal* 
thar  ooMidoraiioB.     Undiubtodly,  ihaMbt 
viidenl  piaaaitipUon, .boonoan nomm b tm 

do^  in  thia  netaraat  bonomnwayw* 
ralaUvo  to  tbo  title;  bat  whether  ir«l 
was  the  opinkMi  of  thetronUo  boa^flitlBa 
from  thia  lad,  that  indoeod  bim  todsiWial 
or  a  oonsciooaneaa  that  tbo  lad  wm  tto  mfl 
lord  Altham,  must  bo  left  to  vonr  dutoato 
tion;  keeping  in  your  mind,  that  it)  iM 
violent,  is  but  a  preaumption,  and  that  lk» 
fendant  baa  an  nndoulited  title,  natoiiji 
proved  thattherobeaaonofbiatklcrbdto 

now  living. 

Taking  the  influence  of  these  wiM  i* 
with  you,  I  shall  now  briefly  meotioa  tie* 
tore  of  thedefenee;  which  has  bees,  tol" 
all,  by  many  witnesaea  to  ahew  that  thi  nf* 
tation  of  the  country  wna  againat  tbtfa^J 
anch  a  child.  Cokmel  Loana,  who  livd  aiito 
eight  miles  of  Dunmaine,  who  was  apcini* 
that  rank  and  distinction  in  the  eooaOy  i*  ^ 
likely  to  bear  it,  saya,  be  never  bm  *^ 
Col.  Palliser,  Mr.  and  Mn.  Lambsit,llr:rd; 
User,  Mrs.  Giffard,  have  aU  gone  liktaaib 
the  same  point,  and  aay,  that  uejr  aef^  >^ 
of  a  miscarriaire.    But  their  not  bssriafdi 


report 
next  phice,  they  have  prodooed  the  r.  ^ 
who,  they  aay,  were  theaervantaof  lbs  "^ 
at  the  time  that  thia  birth  must bsv**^ 
Mrs.  Heath,  my  hidy'a  woman,  Bdj^^ 
butler,  who  waa  there  during  that  fStf^Jf 
thony  Dyer,  who  waa  a  gnnuamMi  tiiff g 
Martin  Nior  and  Oiran  Obratogh^ 


ofAf^esei 


A.  D.  174S. 


[1418 


OentlMMD,  Mra.  Heath,  Rolph 
are  all  poeili?e  that  there  was  no 
lai  there  could  be  no  child  withont 
edge;  and  Mrs.  Heath  goes  so  far 
bere  nerer  was  so  much  as  a  preg- 
Bse  are  positi? e  evidence,  that  stand 
>ntradiction  to  the  nlaintifTs  wit- 
bey  hare  also  proouoed  William 
d  William  Elmesto  the  same  point, 
lant  atDnnmaine:  William  Knap- 
iular  tells  you,  he  was  employed  by 
of  Anij^iesea  to  sell  the  Ross  estate, 
!  to  him  upon  lord  Altham's  death 
e,  and  that  though  be  made  a  hun- 
I  for  leases  of  the  Ross  estate  to  the 
lerer  heard  one  objection  made  that 
son.  They  then  went  into  another 
lence,  which,  if  true,  stands  in  the 
ttive  eridenee,  because  inconsistent 
Itham's  being  delirered  of  a  child  at 
)osed  ;  and  that  was,  my  lord  and 
I's  going  to  Wexford  at  the  spring 
I  the  16th  of  April,  1715,  and  re- 
(I  thence  to  Dunmaine,  and  going 
DaUin :  Mrs.  Gifiard's  account  is 
?re  being  some  men  to  be  tried  as 
men,  the  curiosity  of  lady  Altham 
joarnev  to  Wexford ;  that  she  ac- 
my  lady  in  the  chariot ;  that  my 
3eatb,  and  Rolph,  rode ;  she  savs, 
came  to  Wextbrd,  they  lodged  at 
»f  one  Sweeney ;  that  they  went 
md  stayed  there  during  the  trial, 
r.  Caesar  Colclongh  sat  by  them 
lime ;  that  they  stayed  a  week  in 
id  then  >went  home  ;  and,  as  ap- 
examinations  of  Heath  and  Rolph, 
>  Dublin  in  a  rery  short  time  afler, 

there  all  the  summer;  Heath 
litirely,  and  Rolph  that  they  stayed 
went  away.  Now,  gentlemen,  if 
)uld  be  established,  it  would  un- 
Dt  an  end  to  thecontrorersy  of  this 
ise,  if  lady  Altham  was  at  the  as-» 
cford,  which  appears  to  be  the  16th 
tat  she  continued  there  a  week,  and 
nd  stayed  but  two  or  three  weeks 
e,  and  tnence  went  to  Dublin,  where 
e  remainder  of  the  summer ;  and 
the  time  when  she  was  supposed  to 
>lif  ered  of  theplaintiir;yon  will  con- 
can  be  true.  But  this  ract  has  been 
id  in  this  manner ;  first  of  all,  Ker, 
vtk  to  my  lord  chief  jostice  Foster, 
lat  circuit,  tells  you,  that  he  does 
ler  to  hare  seen  any  ladies  there  ; 
ft  positire  proof,  hut  it  is  a  circuro- 
r  the  next  is  Cnsar  Colclough,  who 
he  does  not  remember  to  have  seen 
from  the  business  he  was  engaged 
leman  on  trial  being  his  relation,  he 
iere  he  sat  by  any  woman  that  day. 
also  two  positive  witne&ses  pro- 
rove  lady  Altham  was  not  there, 
» Turner  and  Higglnson.  Turner 
bat  he  waa  at  the  houae  of  Dun- 

a  By  bnd  went  to  that  asshEcs; 


that  he  saw  him  get  into  the  ooacb,  and  that 
be  saw  my  lady  in  the  house  after  my  lord  waa 
gone.  Higfginson  telle  you  likewise,  that  oa 
the  Tuesday  of  this  assizes,  he  was  at  Dnn* 
maine,  and  the  occasion  that  brought  him 
thither  (which  makes  him  certain  to  the  time) 
was,  to  desire  lord  Altham  to  send  somebody  to 
Innisoorthy  for  the  S8  pounds  arrear  of  rent, 
which  his  son  was  to  oring  there.  He  tells 
you,  that  he  saw  my  lady,  that  she  was  un- 
drened,  and  that  he  believes  she  waa  with 
child,  and  drank  to  her  safe  delivery.  And 
there  is  one  circumstance  further,  which  yoa 
should  take  with  you,  that  Mrs.  Heath  says  in 
her  account,  the  sister  of  Mrs.  GiflEard  went 
with  them  ;  though  Mrs.  Giffard  said,  No  one 
went  with  them  bnt  the  persons  she  named, 
but  did  not  name  her  sister. 

The  defendant  has  also,  in  order  to  account 
for  what  has  been  said  by  the  plaintiflfs  wit- 
nesses, as  to  the  child  taken  in  by  lord  Altham 
after  the  separation,  and  who  was  carried  bj 
him  from  place  to  place,  and  treated  aa  bis  son, 
examined  the  seyeral  witnesses  produced  by 
them,  who  were  aa|uain|ed  with  tord  Altbaoa 
and  his  family,  during  the  time  the  boy  waa 
with  him,  to  prove  that  the  boy  kept  by  lor4 
Altham  was  the  son  of  Joan  Landy  by  lord  Al* 
tham,  as  waa  supposed  ;  and  that  be  waa  al* 
ways  considered  and  treated  by  that  lord  as  hia 
bastard.  And  thus,  gentlemen,  yoa  see  bow 
the  witnesses  product  in  this  cause  stand,  aa  t* 
the  most  material  circumstances,  in  direct  op* 
position  to  each  other ;  so  that  the  one  or  tM 
other  must  speak  fahie;  which  of  them  bay* 
done  so,  God  only  knows.  You,  gentlemen, 
most,  after  taking  the  whole  into  your  eonsi* 
deration,  say  which,  in  your  opinion,  deservaa 
credit.  I  shall  now  take  notice  of  the  objee- 
tions  to  the  witnesses  on  each  side. 

The  objections  that  have  been  made  to  the 
plaintiflPs  witnesses,  as  to  their  nncerUinty  with 
regard  to  time  and  place,  and  other  drcum- 
stances  to  which  they  were  examined,  wera 
also  made  to  the  witnesses  for  the  defendant ; 
and  if  an  imputation  arises  from  thence,  yoa 
will  consider  whether  it  be  not  equal  on  both 
sides.  In  the  next  place,  an  objection  is  made 
to  the  condition  of  the  evidence  tor  the  plaintifl^ 
that  they  are  servants  of  the  lowest  stations, 
and  meanest  condition.  You  will  consider  bow 
far  that  objection  ought  to  lessen,  much  less 
take  away  the  credit  of  their  testimony :  ser. 
yants  about  the  family,  though  in  the  meanest 
stations,  were  likely  to  know  such  particular 
facts  as  they  have  given  evidence  of.  But  oa 
the  other  side,  you  will  consider  that  the  fact 
in  question,  is  a  single  fact,  which  mi^ht  be 
put  in  the  mouth  of  any  body,  and  which  baa 
been  affirmed  and  denied  on  oath  by  the  re- 
spective witnesses.  Yoa  will,  therefore,  I 
think,  find  it  necessary,  with  caution,  to  at- 
tend to  the  objections  made  te  the  credit  of  the 
several  witnesses  that  sUnd  in  opposition  to  each 
other :  for  insUnce,  if  the  credit  of  Mrs.  Cole 
can  engage  your  belief  as  to  the  circumstauoe 
of  the  miacarriagei  tbealln^  HetiUL  baa  «a^ 


i 


H19J 


17  GE.ORG E  II.     Trial  in  FJeclnient  between  J.  Anneslcy^  extj.    [142(1 

.siioiild  senti  victuals  liefore  him,  ami  ctmt  »ti 
uii'tfr  to  a  straiifrcr  uliat  was  nut  iu  U\s  po«er  \i 
yivc,  and  that  iu  siicli  an  0|iea  ii.tiiiner. 


sworn  true;  bf ciusr  she  has  sworn  the  con- 
trary, and  that  Ut  a  fart  uhich  must  have  U-vn 
nhservrd  by  her.  Asritii),  ii  IMrs.  Cole  obi:iitis 
cre<lit,  Mrs.  Heath  iitustbemisiukeu  iu  aooiiicr 
fact,  thout»h  i.ut  ol'that  cons€'quenco,  and  that 
is,  the  reinorul  to  iJunmaiiie :  xA]rs.  Cole  sa^s, 
ard  ^Irs.  iSriscoe  too,  that  my  hird  and  My 
yVUhnin  wt-nt  to  l<Hii;in)^s  iu  Kssex-street ; 
Mrs.  f loath,  that  they  went  directly  from  ca|it. 
i^risroe's  to  DuniiKiine.  Now,  <;entlemen,  as 
to  Mrs.  Cole's  and  Mrs.  I*iiscoe'8  testimony, 
thi're  is  no  inijaitalion,  other  than  what  arises 
from  titeir  n^e,  at  the  time  to  which  their  tes- 
timony relates,  when  the  ehlcst  of  lliem  rem  Id 
not  be  above  IS  by  her  own  accoiuit,  and  she 
S|;r:iks  to  a  fact,  which  Mr.  Prime  Serjeant 
thiolvs  was  not  likely  to  enf^nufc  the  attention  of 
&o  young  a  person,  I  mean  the  place  to  which 
they  reiuoved  ;  but  you  will  consider,  uhctlier 
the  removal  of  my  lord  and  his  lady  from  tlieir 
family  to  another  place  in  Dublin,  espcciall\  as 
an  intimacy  was  kept  up  between  them,  be  not 
sufficient  to  answer  that  objection.  As  tf>  the 
circumstance  of  the  miscarria;>[-e,  there  she  is 
extremely  positive,  and  probably  the  curiosity  of 
g'irls  of  her  age,  in  these  matters,  exceeds  that  of 
grown  persons.  There  was  an  observation  made 
as  to  the  word  Abortion,  but  I  think  there  can  be 
no  great  weight  laid  uptm  that,  the  term  may 
have  been  learnt  since.  There  has  been  also  a 
witness  proiluc^d  to  discredit  Mrs.  llealh,nsto 
the  very  substance  of  her  testimony  ;  what  he 
has  said  must  be  fresh  in  your  memory,  but 
3*iiu  will  remember  the  seeming  art  made  use 
of  by  him,  to  shew  he  was  compelh'd  to  give 
his  testimony.  liosides,  his  testimony  is  not 
suppoilcd  by  circnmslanccs,  but  is  auoliicr  iu- 
b;u!UH' of  oalli  u<r;unst  oalh. 

GrMli'iiif^n,  tlie  nrxt  uiincss  1  shall  take  no- 
tice o.',  is  n-ilph:    (I  don't  speak  rrgniarly  to 
tiiriii,  -i:i:i?i.(!in(^  oi:ly  to  tak(?  up  th(>  most  mite- 
rial)  iic  ti  u.'i;:ly  delivortd  liis  te:»timony  in  a 
very  i'Ii..u'  iii.iiiru  r  ;   he  :;.ive  an  uccoont  of  his 
couii:::;  U)  ;ind  li\iug  in  I  he  family,  and  nf  his 
coutiiiiKuice  in  it,  an«l    manner  of  leavir:^  it ; 
and  ill;  re  is  owe  circuT.str.r.cc  that  gives  cifdit 
to  i{oI|ih,  as  he  i^  thiMudy  oneth:it  c\tn  he  said 
to  rocii\ec'if(iii  (Voin  Hie  uitnes^^es  on  li»coi!»«^r 
side.     Tin'  i»Ii:iniiif  \s  uiturss,  John  S/ult,  h:,s 
said,  that   Ki)!{di  \>as  butler  hcf'ure.  and  cunti- 
nued  alWr  my  lady^s  di  lively;  "liich  :igr«'es 
with  Hwipii's  cidiuce,  but  vaiies  iVom  all  \»ho 
have  spiike  t.>  l!ie  birtii  ;  who  say,  tliat  Holph 
wusgO[K>  ;  tiui!  Mather  ti\ir|  thi  re  at  tlie  lime 
of  Do\  Il''s  and  Murphy's  beingiiiere.     l)t  r.nis 
Uedmoiid  <loi'S  say,  there  was  s«irh  a  servant 
as  Ralph,  hul  that  he  was  gone  htfore  the  drli- 
very.     IJut  ihtii  ^ou  will  ronsider  \»h:il  fi-ruie 
this   liidph    made  on   his  cross-examination  ; 
such  an  absolute   uncertainty  as  to  e»ery  thing 
hut  what  he  was  brMunht  to*  disclose,  and    his 
incss  to  give  tvidence  on  one  side  of  the 
queslu)n,    uect-ssaiily   induce   suspicion  ;    and 
you  will  consider  his*altem|»t  to  throw  a  riflec- 
tion  on  the  plaintiff,  as  if  those  concerned  for 
«•""  **^"'«J  have  tam|ieretl  with  Kolph  :  but  the 
■  '*'»•¥  carries  an  improbability  iu  it,  that  a  mao 


[I1<TC  Mr.  Baron  Mounteney  s^mke  to  tL 
I  Lord  Chief  Baron.] 

I      Gentlemen,  my  brother  Mounteney  men 
I  tiou.><  one  thing,  which  1  am  mi'*tjken  m.  it  li 
is  right;  he  say«,  tliat  when  Mi*.  M'Kerclu 
made  the  olll-r  of  a  lieutenancy  to  U«lpli,  b 
own  company  were  only  preseut ;   i  ilo  a|inrc 
bend    there   was  not   only    the    com  pan}  < 
M'Kercher,  but  the  company  that  wjs  uti 
Uolpli.     CieiitlcmLii,  if  1  mistake  the  cvi'leiu 
on  either  side,  intpute  it  to  my  uicii^ory,  U*r 
have  no  intention  to  inisrepn:sent,  and'  klioul 
be  extremely  glad  if  any   body  would  »et  m 
right:    when   you   come   to   look  upon  }ou 
uotis,  you  will  see  how  this  fact  staniis.*    lia 
there  is  one  thing  1  would  ol)>eiwe  avt-jtiN 
testimony  oi  Uolpli,  and  that  is,  that  Mm.  G.I* 
fard  and  he  differ :    Kulj*h   has  saui,  tiiut  tiif 
uew  roatl  leading  from  the  house  of  i)ii:)u:«a3e 
to  the  cabhin,  was  iiiaile  for  tiie  beiietil  ot  '^-n^f 
to  3Irs.   Gitt'ird's  and  colonel   Palliser's.  4o4 
that  Mrs.  Giflanl  always  weut  that  way  :  Mn, 
Giffard  says,  that  she  oevi-r  weui  that  uav.ka 
always  by  tJse  bridge,     These  are  slciiior* 
curiistancos ;    but  however,    where  uiioMtf 
staud  iu  such  direct  opposition  to  eacb  bikr, 
they  deserve  some  attention. 

Anthony  Dyer,  gentlemen,  is  anolke^mlI^ 
rial  evidence  for  the  defendant.     I>ut  vou  tilt 

■ 

consider  how  far  his  credit  is  afftcird  i*\  viut 
1  am  going  to  mention.  The  u:tnf>us  «i 
both  sides  ha>e  saiti,  that  af\er  the  >eiiaruiii;fl  tit 
lord  a:id  lady  Alt!:am,  the  cliild,  be  K  lu'^^- 
maio  or  illegitimate,  came  into  ilic  li'in**- 1*' 
Diciniaine.  William  Klines  fi\« s  it  i>' ti :« 
weeks  after,  and  another  to  a  munili ;  t-ui  iii>» 
man  says,  that  he  was  there  at  the  s('iui^-(-v(< 
and  three  quarters  of  a  year  after ;  ami  s*(.:y.. 
tliere  was  no  chdd  in  the  iiou>e  (iuii:i^'>»^ 
lime.'  As  to  the  positive  evideiioe  •■»  "' 
p-irt  of  the  plaint.if,  Doyle  vnd  Murjiliv.l'' 
ohsei'vations  ou  tlieiu  as  to  their  cet:i:i ;  >■"*' 
llu!  s"i»ice,  have  been  made,  auil  ai«  '** 
iie.i.tly  strong.  Murphy  did  say.  tliai  I'  >* 
cdiuo  voeie  first  ;  she  afterwar.is  i'l"»'V* 
<  d,  and  said,  she  came  there  bel'u;c  U'}'<^ 
\<iii  will  coiibider  also  the  mai.iu-r  in  ^^  '*^ 
iii«y  iii\e  their  e\id.'u«e.  And  iii  rt,-"  •  \ 
All!  i'.illiscr,  .\Iis.  Laiiihert,  aiid  iii'»  I"'-' 
thai  spoke  It)  the  pregnancy  on  ilie  |»-iii  ^'  '"^ 
detendant,  they  h;;vc  gone  so  far,  liiit''}"* 
iH'heve  tiiem,  there  could  not  have  btrua;*'** 
cairiagc.  'J  here  is  oi\c  iliinj^  i  furu'"t  '•"  ""** 
tion,  to  strcr.glheii  the  ivitlence  ol  M:>-^' *' 

*  It  has  been  said  that  chief  justiif  1*"** 
never  to«»k  notes  of  the  evidence  ;;i*«»  ^f^f 
trials  btfoie  hiui.  From  very  mduy  bailsi>ll^'* 
Work  it  appears  that  formerly  juilgt*  miiiltw' 
minute  dow  n  the  evidence.  Among  otlierii ff^ 
vol.  8,  p.  712  ;  vol.  11,  p.l37  ;  \ol.  l-2,pp.4'**' 
740;  vol.  l."»,  p.  1^6;  and  Layer's  ohjec.M** 
C.  J.  Pratt's  suinmiiig  iijs  vol.  16,  p.  mJ^' 

«5 


and  Richard  Earl  ofAnglesea* 


A.  D.  1749^ 


[14« 


it  of  Mrs.  Heftth,  which  is,  that 
that  Sutton  the  suri^eon  was 
>ss,  ami  stayed  at  Duninaine 
)w  when  you  come  to  compare 
s  being  sent  for,  and  the  mis* 
•'ill  consider,  whether  it  does  not 
ir  with  the  time  when  Mrs.  Cole 
It  at'  the  Ibiscarriage ;  and  yet 
^s,  he  never  did  attend  my  lady. 
!  general  obserFation  to  lie  made 
ence  ;  and,  that  is,  that  there  is 
an  inclination  to  go  on  to  serve 
in  botii  sides,  and  that  they 
lidues<t  which  gives  a  credit  to 
ay  not  this  on  either  side,  but 
er  whether  it  is  not  an  observa- 
liroiiirh  the  whole.  I  shall  not 
li  respect  to  the  surgeon.  The 
1  arises  from  the  improbability 
.>stimuiiy.  As  to  Christopher 
as  one  of  the  servants  attending 
christening,  supposing  what  he 
credited,  you  will  consider  how 
listaken  in  the  description  of  the 
ou  will  permit  me  to  observe, 
;reat  di^rerence  between  not  re- 
uistanccs,  and  a  witness  swear- 
it  are  false ;  the  not  recollecting 
ih  integrity,  the  swearing  to  a 
can,  nor  can  you  give  any  ere- 
tness  ;  because  you  cannot  say 
q:  as  to  this,  and  right  as  to  that 
lence.  With  regard  to  the  se- 
who  say  the  child,  from  first  to 
ly  reputeil,  but  called  a  bastard, 
V  's  child ;  and  that  the  boy  knew 
duty  to  her  as  his  mother ;  you 
ow  consistent  that  is  with  what 
aud  others  have  said,  who  would 
t)od  that  my  lord  would  not  for 
lild  should  know  his  mother;  and 
dered  them  to  set  the  dogs  upon 
:  near  the  house;  and  yet  those 
!iim  at  Kinnea  and  Carrickduff 
ord  has  often  cursed  him,  for 
:h  of  his  mother's  blood  in  him. 
-rent  accounts  can  be  reconciled, 
(ler.  There  is  one  witness  more 
i:it  1  must  take  notice  of,  and 
Mh  Ms^lullen;  and  she  ivould 
)od,  that  out  of  the  mouth  of  the 
the  fuiirrnl  of  his  father,  ujHin 
her,  uho  was  his  mother,  he 
y.  Geutlemen,  you  will  cum- 
lie  testimony  of  Mr.  Rushe  and 
le  boy,  when  be  lived  with  Mr. 
i^d  that  he  was  my  lord's  own 
me  at  Mr.  Tiu;lu?'s  :  now,  if  the 
( I'cived  the  notion  of  his  being 
i)t  lord  Aliham,  you  will  observe 
ity  there  is  of  his  saying  to  her, 
u  the  son  of  Joan  Landy.  1 
I  a  little  farther,  and  that  with 
letter,  she  says,  was  wrote  by 
account  of  lord  Altham's  death ; 
stance  be  false,  that  letter  muit 
ious,  and  of  later  date. 


I  have  now  mentioned  the  evidence  on  both" 
sides  ;  and  from  what  1  have  observed  to  you, 
it  does  appear  that  here  is  such  a  flashing  of 
witnesses,  such  contrary  evidence,  that  though 
some  circumstances  might  be  reconciled,  yet 
others  will  remain  irreconcilable ;  and  there- 
fore I  must,  and  I  think,  you  gentlemen  will 
be  obliged  to  consider  the  circumstances  that 
will  throw  a  probability  or  improbability  upon 
the  testimony  you  have  heard.  The  strong 
circumstances  which  induce  probability  in  fa- 
vour of  the  plaintiff  are  those  1  have  mentioned, 
of  spiriting  him  away,  and  afterwards  attempt- 
in?i  by  an  unjust  prosecution  to  take  away  hii 
life ;  to  which  1  have  before  spoke  at  lfirge,and 
need  not  repeat.  On  the  part  of  the  defendant, 
the  circumstances  are  of  a  different  kind ;  and 
those  are  such  as  relate  to  this  family,  from  the 
beginning  of  the  transaction  to  the  end,  and 
arise  from  the  quality  and  circumstances  of  the 
persons,  which,  as  has  been  urged,  must  ba?*^ 
rendered  a  fact  of  this  kind  too  notorious  ever 
to  have  been  doubted,  especially  in  this  king* 
dom :  that  it  must  have  been  known  to  the  re- 
lations of  this  family  in  England,  whose  estate 
and  honours  were  to  be  enjoyed  by  that  son ; 
that  ray  lord  Aliham  himself  ought  to  have 
made  it  public ;  and  that  it  was  the  interest  of 
lady  Altbam  that  thedukeof  Buckingham*  her 
father,  should  know  that  she  was  with  child. 
Again,  you  will  consider  the  improbability 
arising  from  the  place  where  he  was  born  ;  at 
Duumaine,  in  a  remote  part  of  the  country,  at- 
tended by  a  country  midwife  and  the  surgeon 
you  have  seen.  Ladies,  say  they,  of  her  rank 
would  not  submit  to  it,  and  are  usually  placed, 
on  such  occasions,  iiliere  they  can  have  the 
best  assistance ;  and  the  consequence  of  a 
child  to  this  family  particularly  required  it.  In 
the  next  place,  you  will  consider,  whether 
there  be  Hot  a  fartficr  improbability  arising  from 
the  nurse  ;  that  a  poor  body  should  be  eiuploy- 
ed  is  no  wonder,  but  that  an  infamous  poor 
body,  rendered  infamous,  as  was  supposed^  by 
my  lord,  and  in  that  very  place,  should  lie 
taken  by  my  lady  to  nurse  her  legitinmte  cbild^ 
is  scarce  to  be  accounted  for.  There  is  nothing 
said  to  reconcile  this,  but  the  testimony  given 
byLaffan;  and  she  tells  you,  that  this  Mas  a 
secret  not  disclosed  to  my  lady,  till  after  the  se- 
paration :  indeed,  if  you  believe  this,  the  im- 
probability will  decrease ;  but  you  will  find  it 
difficult  to  suppose  my  lady  the  only  person  in 
the  family  to  whom  this  was  a  secret.  The 
place  where  the  chilil  was  nursed  has  been  alve 
urged  ;  but  the  difficulty  is  not  that  a  nobie- 
mau's  child  was  nursed  at  a  poor  man's  house, 
but  whether  that  house  was  fit  to  receive  a 
child  intended  to  be  prr:&crved  ;  and  therefore 
the  probability  or  hnprobability  in  this  instance, 
will  tlepend  upon  the  cicdit  you  sIihII  give  to 
the  diflerent  aceoimts  of  the  cabbm  inhere  this 
nurse  livrd.  It  has  been  further  said,  that  the 
sponsors  nt  the  christening  of  this  child,  ouglit 
to  have  bren  of  high  rank,  and  from  anionic  the 
relations  of  this  noble  family.  Again  thisrhild, 
after  the  separation,  wasrrtiiiio^'ed  from  place  te 


1483]  irGEORGE  IL    Trial  in  Ejectment  between  J.  Annetley,  e^q. 


place,  and  we  have  not  heard  that  lady  Altham, 
either  hy  herself  or  friends,  took  any  care  or 
Botice  of  him,  except  the  single  instance  at 
Boaa.  Was  it  not  lady  Ahham's  interest  to 
ba?e  acquainted  the  duke  t>f  Buckingham  that 
the  had  a  son  hy  her  lord  ;  that  he  had  sent 
him  away,  and  put  this  child  into  the  care  of 
his  whore  ?  And  was  it  not  probable  if  this  no- 
tice bad  been  given,  that  care  would  ha?e  been 
teken  of  this  child  by  some  of  the  family  ?  The 
little  care  taken  of  his  education  by  my  lord, 
has  also  been  urged.  In  answer  to  which  you 
have  been  reminded  of  the  character  and  cir- 
cumstances of  lord  Altham.  Again,  my  lord's 
parting  with  this  child,  or  rather  exposing  him, 
ID  the  manner  you  have  heard,  cannot,  as  it  is 
•aid,  he  accounted  for,  supposing  him  to  be  the 
real  son  of  lord  Altham :  out  this  is  also  at- 
tempted to  be  answered,  by  the  influence  of 
Miss  Gregory,  and  her  representing  him  as  a 
bastard,  in  respect  to  my  lord,  though  bom  in 
wedlock:  but,  say  the  counsel  for  the  de- 
fendant, aupposmg  the  piKintiff  to  be,  what 
they  have  endeavoured  to  prove,  a  bastard,  the 
whole  may  be  reconcileil.  But  if  the  inhu- 
manity of  exposing  this  child  raises  the  ob- 
jection,  you,  gentlemen,  will  consider,  whether 
a  person  capable  of  treating  his  own  bastard  in 
that  manner,  nmy  not  he  supposed  capable  of 
beinff  worked  up,  by  a  bad  woman,  to  turn  his 
legitimate  child  out  of  doors.  The  inhumanity 
seems  equal  in  both  cases,  as  both  are  entitled 
to  the  care  and  protection  of  the  father.  1  had 
almost  given  the  preference  to  the  natural  child, 
as  the  legitimate  does  nut  stand  in  equal  want 
of  it ;  the  mother,  the  family  may  take  care  of 
liim,  but  the  other  is  a  cast-off.  But,  gentle- 
men,  though  this  objection  may  be  removed, 
with  respect  to  the  father,  it  makes  the  ohjec- 
tton  very  strong  when  applied  to  the  mother ; 
the  sufferings  of  the  child  in  this  manner,  were 
what  one  would  expect  should  havecxeited  and 
called  for  the  mother's  peculiar  care :  that  she 
ivas  not  ignorant  of  it,  you  will  ((ather  from 
the  testimony  of  Catherine  O'Neile ;  and  ynu 
will  consider  the  manner  in  which  the  mother 
is  supposed  to  treat  that  child  :  *<  I  should  be 
glad  to  see  my  son,  but  I  know  it  would  cost 
the  servant  that  brought  him  his  bread."  It 
must  be  a  weak  affection  that  could,  for  that 
reason,  be  prevailed  on  not  to  see  the  child. 
This  lady  lived  two  years  after  the  death  of  her 
husband,  and  we  do  not  find  any  evidence  of 
lier  care  for  this  son ;  which  has  been  urged 
also  to  shew,  that  he  was  not  her  son.  Ag^aiu, 
it  was  her  interest  to  take  notice  of  this  child  ; 
it  has  been  mentioned,  and  not  denieil,  that 
there  was  an  estate  of  1,200/.  a  3  car  that  went 
away  on  the  death  of  lord  Altham,  and  would 
have  gojie  to  this  son,  if  legitimate.  It  was  in- 
sisted upon,  that  lady  Altham  mi^ht  have  ap- 
plied for  the  guardianship  of  her  son,  and  have 
oad  a  good  allowance  made  by  the  lord  chan- 
cellor, for  the  discharge  of  that  trust,  which  she 
ivanted.  1  must  also  oliserve  the  additional 
weight  they  gave  to  this  objection,  from  the 
testimoDy  that  Welsh  gave,  of  her  declaring 


that  her  heart  would  break,  were  it  bo 
had  a  promising  young  son,  who  wc 
support  to  her  in  ber  old  age.  Aldcnr 
at  whose  house  she  resided  14  monti 
of  integrity  and  truth,  whose  credit  < 
controverted,  says,  he  nerer  beard  be 
her  having  a  son,  though  the  intimat 
ing  at  one  table  for  fhat  lime,  must 
have  afforded  frequent  opportuuitiesoi 
And  whether  a  womau,  under  the  ai 
a  separation,  and  her  unhappy  circu 
could  have  concealed  audi  a  fact, 
your  attention. 

There  was  another  matter  urged, 
probability,  from  the  testimony  < 
Wall.  I  shall  state  to  you  bow  that  fi 
Colonel  Wall  said,  he  had  takeu  an  c 
lord  Altham,  as  to  the  power  be  hat 
Anglesea  estate:  that,  according  to 
nion,  lord  Altliam  was  tenant  in  tail,  ] 
have  barred  his  issue,  and  by  that  mi 
bad  it  in  his  power  to  raise  more  by  1 
his  reversionary  interest,  snpposuig 
only  tenant  for  life,  expectant  on  tlu 
the  then  earl.  But  the  same  witness 
that  he  would  not,  upon  the  credit  of 
nion,  carry  the  title  to  market,  and 
withstanding  this  opinion,  he  was  vi 
with  his  brother,  the  now  defendan 
fusing  to  join  with  him  in  selling  th 
sions.  80  that  lord  Altham^s  reversi 
terest,  being  certain,  and  his  other  c 
on  an  undecided  question  in  law  ; 
consider,  whether,  upon  these  views 
more  likely  to  have  made  public,  or  ' 
his  having  a  son. 

Having  now  gone  through  with  wl 
posed  to  say  upon  the  eviilenre.  1  sha 
gtuieral  take  notice,  tiiat  it  will  he  ]) 
you,  gentlemen,  while  yoii  are  consid 
case,  to  take  with  you  the  characte 
persons  actors  in  it  ;'and  thence  to  jii' 
was,  or  was  not  to  he  expecteil  tro 
Again,  if  there  are,  as  1  suppose  thiT 
some  of  the  plaintifTs  wiiness(*s  to  w  Ijoi; 
not  give  credit,  you  v.  ill  consider,  *v|j 
■piuintifi'in  justice  ouulitto  be  nnW'tnl 
you  will  consider  hiiu  as  reduceil,  hs 
tenduit:,  to  the  necessity  of  makinsr  use 
evidence  as  oiUred  ;  and  in  surb  ( 
witnesses  may  have  obtruded  themsi 
art  may  have  been  used  to  put  thei 
way  ;  so  that  unless  it  appeared  that  t 
titf  made  use  of  them,  knowing  them  ti 
they  oui'Ut  not  to  he  placed  to  his 
You  will  also  consider,  that  though  } 
ouly  the  diriendant  before  you,  yet  the 
der-men,  w  ho  do  not  derive  under  the  d« 
are  to  he  affected  hy  your  venlict,  ao' 
not  to  be  postponed,  unless  you  are 
that  the  plaintiff  is  the  legitimate  ioo 
Altham:  therefore  you  must  coDsider, 
the  proofs,  the  probability  and  tbe 
things  together)  whether  the  pUintifl 
lawful  son  or  not  P  If  he  be,  yuu  mMl 
the  plaintiff ;  if  not,  for  the  detendant 

Gentlcmeui  I  forgot  la  neutioa  lht< 


«ffNf  lUehmrd  EdrfofAn^sea. 


A.  D.  mi. 


t\m 


4  Moaol-Alextndcr,  and  of  Mr.  Med- 
QoertiNig  Iwtl  Altham't  dcclaratioiis, 
having  a  too.  Lurd  Moont-Alezao- 
^oa  of  an  ezfireoiiioo  of  lord  Altham's 
r.  Crow,  an  eirpnsBtion  not  very  easy 
lentood  :  **  My  wife  has  got  a  son, 
il  make  that  rake  my  brother's  nose 
Fbich  has  been  applied  to  the  son  now 
n :  yon  will  consiuer,  whether  it  con- 
ioesaarilv  to  that,  or  whether  lord  Al- 
ight not  bare,  in  his  imagination,  some 
ild  be^  on  the  body  -of  my  lady, 
s  an  intimation  of  a  son  by  one  Se- 

10  might  be  then  living ;  how  far  this 
^as  in  my  lord's  mind,  is  hard  to  soy ; 
I  was  not  in  bis  thoughts,  tlie  expres- 
Iraordinary :  '<  My  wife  has  got  a 
liis  might  be  said  of  such  a  son  ;  but 
x>nsider  whether  it  was  a  manner  of 

11  for  a  son  of  bis  own,  born  in  his 
e.  As  to  Mr.  Medlioott,  the  words 
bim  were,  that  my  lord  should  say, 

no  child,  nor  know  not  that  1  ever 
>  not  care  if  ftt  devil  had  the  estate." 
d  looked  upon  the  son  by  his  lady  to 
1  begot  by  another  man,  consider,  if 

import  more  than  this :  J  have  ^no 
« that  I  ooppose  to  be  my  own,  I  do 
rthe  devil  had  the  estate, 
kinff  each  set  of  words  as  contended 
h  sHie,  all  that  can  be  said  is,  that  my 
t  different  times  varied4ii8  manner  of 
[>n  this  sotgect ;  whether  you  can  find 
otives  inducing  him  so  to  do,  or  can 
conclusion  thmfrom,  must  be  left  to 
ideration.  I  shall  think  myself  happy, 
Dg  collected  by  me  can  assist  you  m 
ery  of  troth. 

iron  Mfmnteney.  tsentlemen  of  the 
lord  chief  baron  hath  summed  up  this 
D  so  full,  so  judicious,  and  so  masteriy 
,  that  it  would  be  a  very  improper 
le  to  attempt  to  go  again  with  you 
ridcnce  at  large. 

therefore  conliDe  myself  to  some  of 

capital  parts  of  the  case:  and  (a1- 

am  extremely  sensible  in  how  inac- 

I  disjointed  a  'manner  I  shall  lay  my 

before  you,  yet)  with  the  hope  of 

'ut  even  the  smallest  spark  of  light, 

y  help  to  guide  3^00  through  this  dark 

halt  endeavour  to  recollect  a  few  re« 

those  parts  of  the  evidence  which 

un<lerstanding  in  tho  luost  forcible 

enU«>meo,  I  shall  take  np  the  case 
i  evidence  for  the  plaintiff*,  and  the 
na  of  the  defendant's  counsel,  closed  ; 
i  kidnapping  of  the  lessor  of  the  plain- 
le  proserntion  for  murder  carried  on 
m  by  the  defendant. 
:or  of  these  two  facts  I  shall  consider 
i  proved  by  John  Giffard,  tho  atlor- 1 
ived  ti)  carrv  it  on  ;  and  in  the  course 
lence,  gentlemen,  several  things  oc- 
1  tboogh  not  relative  to  that  prusecu- 


tioD,  are  yet  eitrenwlly  material  fbr  your  mih 
sideration. 

In  the  first  place,  gentlemen,  he  relates  to 
von  a  conversation  between  the  defendant  and 
himself  so  long  ago  as  the  month  of  Biarch  1T41» 
and  the  sccasion  »|»on  which  that  conversatimi 
happened.  He  tells  you,  that  at  that  time,  il 
was  the  common  topic  of  diso^iurse,  that  Mr. 
Anneslcy  was  returned  from  the  West-Indiei 
to  assert  his  right ;  and  that  the  defendant  my 
lord  Anglesea  was  at  that  time  embarrassed 
with  a  variety  of  law  suits ;  that  my  lord  ex* 
pressed  great  uneasiness  upon  both  acconntp, 
and  thereupon  told  bim,  that  *^  ha  should  be 
very  glad  to  send  to  Mr.  Aonesley  ;  and  if  he 
would  aHuw  him  3  or  3,000/.  a-year,  he  would 
surrender  np  to  him  his  titles  aiid  estates,  and 
go  live  in  France;  fbr  he  should  be  mudh 
happier  than  to  be  so  tormented,  and  had  rft- 
ther  his  brother's  son  should  have  it  than  any 
body  else ;  for  if  Jemmy  had  the  estate,  ha 
should  live  easy  in  France,  fbr  it  was  his  right* 
and  he  would  surrender  it  to  him ;  that  be  (Al 
not  value  the  title,  be  would  go  live  in  France  v 
and  that  he  might  live  the  easier  there,  woukf 
send  for  a  French  master  to  converse  with  him 
in  that  kinguagc." 

The  counsel  for  the  defendant,  gentlemeoi 
with  great  art  and  ingenuity  endeavoor  to 
avoid  the  force  of  this  evidence :  and  in  the 
first  place,  they  repnesent  this  declaration  of 
my  lord  with  regard  to  a  compromise  and  his 
going  to  France,  as  an  hasty,  passionate  ex- 
pression, fl<»wing  from  his  uneasiness  of  mind, 
on  account  of  the  ill  situation  of  his  affairs,  ami 
his  resentment  against  the  Annesleys. 

But«  gentlemen,  upon  Giffard's'  evidencOi 
this  could  not  pos$tl>ly  lie  the  case ;  for  he  tells 
jroo,  it  was  my  lord's  resolution,  that  he  con- 
tinued in  that  resolution  from  the  time  of  the 
firat  conventation,  which  was  before  the  10th  of 
March  1741,  to  May  1743,  that  in  pursuance 
of  that  resolution,  he  actually  did  (as  be  had 
declared  he  would)  send  for  a  person,  one  Ste* 
phen  Hayes,  and  had  him  in  the  house,  to 
converse  with  him  in  French ;  and  that  he,  the 
witness,  was  present  forty  tiroes. 

The  nej(t  thing,  gentlemen,  suggested  by 
the  defendant's  counsel  was,  that  my  lord  An- 
glcsea  (in  his  then  uneasy  situation,  and  so 
angry  with  the  ^i^uesleys  as  Giffard  said  he 
was)  miglit  possibly  be  induce«l  to  wish  for 
such  an  accommodation  as  was  mentioned  with 
the  lessor  of  the  plaintiff,  nOt  through  a  con-' 
scionsni*i»  of  his  being  the  legitimate  son  of 
the  late  lord  Altham,  bnt  with  a  view  of  gra- 
tifying his  resentment  by  disnppointiog  the  An- 
nesleys, and  at  the  same  time  of  promoting 
his  own  interest  by  securing  to  himself  a  larger 
share  of  the  estate  than  would  otherwise  re- 
main to  him. 

Bitt,  gentlemeuv  when  you  consider  the  fol- 
lowing part  of  GiiRml's  evidence,  you  wilt 
find,  that  neither  cnn  this  interpretation  hold ; 
because,  if  this  had  been  the  scheme,  my  lord 
must  certainly  have  perMsvc'r«-d  in  it.  Wliereas, 
upon  the  aabappy  accident  of  Mr.  Anoesley't 

4y 


hklj 


HM^  ITOEOKOB  U.    TriaiM 

Ufaft  «  wu,  tUa  wgpMsd  mhtma  h  tbu. 
dMeCMduoUwr  fauwh  norabeiMdaU,  m 
qi4M  UU  jrou,  Ardw  dafondttt,  ud  ^- 
'  caTthiMMr)  blBMduilalj 
k  vu,  to  cany  m  >  pnawa- 

iiMMlty  tat  tto  fiwt,  aaJ  if 

itogMUnhwfvd. 

lar  now,  gurtiBwi,  ft*  ataweicoii 

thit  pmMnrtiMi  Md  tb«  arcm. 


:'^b»lnt.ar1hyN  ibe  <nrM  wUdi  te 
MMte  ii  i«  dw  IpdiWi—ttt  bU  to  be  ODia> 

GliM  toga  dmnto.iWMi  to  coSiet  «ri- 
im^t  —J  to  wwy  oa  Uw  prwaBilwB.  OndM 
4tortb.  ilif  oanoH's  bqaat  flndc  b  wilfiil 


nj  lord  gtH  dMn  to  Hantliw  M  obnI  Umi 
iBMtetaiMnlwwilHi^wMtoB;  wai  im- 
dwM  to  k«K  Ibu  Iw  did  M»  can  If  ftflOM  UiD 
^OOOH  if  be  MuM  gtt  Ur.  AmnIc7  ha^ad. 
<  Qaa  auM!  an  tbaae  thingi  nid  aad  draa 
lUU)eddbii4ant*  Djmm  what  granndawa*  it 
tfatiba  noUalord  tiiwogctoadt  infuaaad 


is  oMer  to  Braid  the  force  of  it,  Uii  eonn^  h 
tba  defendant  hate  ■tronglj'  JuiMd  opwin 
otnactiona  to  bis  credit. 

Tlie  first  it,  that  Daderttindin|;,uUt*M 
bedi)j,that  ray  loril  Aoglereiby  hiiMiii- 
tion  at  to  the  10,000/.  meant,  ibai  b(  iHaM 
M  destroy  Hlr.  Anaesley  it'  he  cotiM,  ind  ikl 
be»oukI  expend  tliBlmiio  id  mnuUbui 
Uas  bangei),  be  ilid  not  decline  li«lgg  hnhr 
■■gageil,  but  still  eoDiinued  to  anj  n  ik 
pWBecullon. 

Afid  iadeed,  -^Dtleraen,  it  <1d«  lo  mt  nn 
wUh  it  an  impulalion  uiidd  tiiffartl.Uutbid 
not  immedifltely  fling'  u|>  any  luanraJgltiK 
oraay  oilier  busiiieisol  luy  lunl't,  tol  |«M 
thia  iledaratioD  to  all  maitkiud.  S^Kf^ 
■IV,  joii  will  conaicler,  dh  the  olbn  W, 
«bu  Gift^rd  liatli  laiJ  in  excusp  uf  binaK 
HalelNfou,  ■•  ir  there  vasanydiny Mt, 
ba  bail  no  hand  in  it."     Iledialiiiguubabl» 


apaathbocoaaioDF  lltat  be  aboNwd  »  ai 
jfHHiaBnatplaain  bMrtbiaMweotmiF  T 
lie  Mtoaltj  esueadad  aoen  laige  aoma  „ 
tonaay  aa  Oiliua  anrcaalT  trie  van  be  did  (I 
lUnkBalaaathaBaooi:}  Md  dt^rad  bimadf 
nad;  lo  attend  aiodi  hmr,  la  eanyioa  oa 
dtfapnaacBliaDr  WaablSr  the  aakaarjoa- 


ticar  If  M,  why  all  t^oae  fTMaadaoa,  that 
oaattitai^c  whuk  y«a  wan  tdd  af,  that  my 
lard  n^ght  iwt  appear  to  ba  cooeetaad  in  it  T 
If  set  for  tba  nke  af  joatiea,  tbcn,  geethmen, 
yea  are  to  oonaider  t^on  wbu  Mbcr  priodpta 
aod  BMliTca  ihia  cslnordiiMry  oondtict  cao  be 
iceoanled  for.  Atid  ihi*  will  be  ibe  lea*  diffi- 
cult for  yOB  lo  do,  nhea  you  shall  compare 
Ihate  facta  and  circumataoce*  wilh  the  rrssoo 
ffirea  by  my  lord  for  that  retDarkable  declara- 
un  of  Ilia  aa  to  Ibe  10,00OJ.  which  Giflard 
awaaTa  poaitiiely  my  lord  racntiooed  to  bim, 
TiE.  He  did  not  care  if  ii  coat  bim  10,000/.  if 
lie  could  get  bim  hanged ;  "  rorthenherbonld 
be  eaay  in  hia  titlea  and  eatalM." 

Time  i«  aBotber  part  of  Gifiard's  eiiileDCe, 
trbiefa,  aa  it  alrikea  me  ttrangly,  1  ahall  iimd- 
tioa  for  your  conaideratioii ;  and  that  i*,  that 
ipy  lord  taU  him  (ASv  timet,  1  think  he  aaiJ, 
bettreen  the  7tb  of  December  1T4I,  and  the 
I4tb  of  July  1743,  which  wki  the  day  of  Ibe 
trial}  that  Ifaia  pretender,  as  he  called  him, 
waa  tranaported  IbriteallnEaiilref  tpnon. 

You  nJI  coittider,  geDUemen,  what  wdgbt 
Ihii  drcumalance  may  faaie  when  coupled 
with  Ibe  complainU  made  againit  him  by  Mba 
Gregory  oTuiierbg,  with  what  the  witneaaea, 
wbo  proTc  the  aarend  attempt!  upon  Ibe  boy, 
aitd  at  laat  the  actual  traatptirtatioD  of  bim, 
Jiave  teU  yoa  of  my  lord'a  repeatedly  calling 
bim  a  tfaining  ana  of  ft  wbore ;  and  with  the 
partiie^  dnna  whkh  aaeof lba»awaan  my ' 


[ 


baJ  nurpote  and  the  cirryitii  <a  t 
■ecutioo;  andltelEllayou,  "iwdi 
COrODer'a  inquest  baring  luundtbe  MrW 


mnnler,  he  ihni^ht  ibat  a  iiilficieat  I 
ftrhim  to  proceed." 

■Rie  other  objection  to  hit  eitdilii.i> 
betag  an  allorney  relained  by  tord  inglwa 
cany  OB  ibit  proieculion  (in  any  tuiitmoi 
Hr.  Anncsley  and  my  Iwd,  he  men  f 
tltaly  he  never  vrM,  nor  erer  MpfOtJot' 
retained),  he  comes  here  roluotirilj  niM* 
the  secrets  oC  kis  client. 

Now,  gentlemen,  as  lo  the  proseMPM,^ 
will  ubterve,  tliai  the  on^nal  ditMttfjita; 
lord's  beinif  concenieil  in  it  was  not  tt\ti>iitl 
made  by  the  witnest ;  fnr  be  tells  yoo,  lUb 
firabi}  himself  under  the  necetehyolMi^^ 
lord  for  a  large  sum  of  money,  which  Hao" 
due  10  him  iipou  his  bill  <rl  CMt*;U(liU 
upOD  ilia  ao  doin^,  my  lord  filed  t  kU  i^ 
him  in  the  Court  of  Esicbequer  in  Eii|I>m> 
bit  aniwer  an  J  schedule  to  whicb  k* 
obliged  lo  set  forth  Ibe  particular  ilriud  I 
hill  uf  coEts  ;  that  by  ihta  meant  (li  ^  '. 
poaethl  Mr.  Wac  Kercher  got  knowWr* 
It,  and  thereupon  applied  to  him  loji'cw 


of  it  should  be  admitted  or  oot,  thMi^ 
trouble  you    with  a  rery  few  wordi  wlj  ■!* 

Genilemen,  Icanby  nomeaii*aUMil>|^ 
any  ulijection  to  the  credit  of  lb*  wiUtA*: 
he  rolunlarily  ditcloscth  tlmt  which  thr  ^^ 
bath  tioaniuiously  deiermined  lie  «h  '^ 
peBabte  to  disclose.  And  I  must  n;  iH^ 
Iber,  that,  in  my  ipprclieniian,  GiSat^ 
not'  hare  ju!iti  lied  himsett',  cillier  Itti''' 
man,  if  he  bad  nol  ilisclosed  ii  i  <^\*°^l' 
aa  it  »»s  a  declaraiJon  " 
Mt'uiider  tb^eeal  nf  ti 
OMflANMewbieb  b  Mtanaiji 


and  Richard  Earl  of  AngUiei 


A.  D.  17+3. 


t  uil  errry  olbei  viln«n  who  lialh 
iM«d  upon  Ihii  ocosion  ;  *nd  Gud 
A  tny  pirt  of  tlie  eTiilence,  di^  ar- 

IV'Or  any  observalioo,  shuuld  hare  mare, 

«ieig;lil  wilb  you  thau  il  will  beir. 
au  beliete  (he  ctideiice  of  GilTard,  you 
BA  consider,  that  ynu  hare  an  espreaa 
vlei^nuut  or  right  in  tlie  lesaor  of  the 
F  from  the  moulh  of  the  defendant ; 
kd«p«*deiiilv  of  tliii,  you  haie  declata- 
Md  Acta  which  xtron^ty  iniporl  a  con- 
i«N  of  that  right  An(I  Uilly,  you 
iUiiler  what  alreaglh  Uiia  etiilence  of 
I  adda  (if  any  alreoglh  ia  nantiag)  to  the 
at  of  the  kiJoapping  in  17^6. 
H  bet,  eeutlemen,  slanrls  |M)«ilif  ely  and 
iTMcd  hv  a  tnaltitude  of  •vitiietEes,  nei- 
MCraditea,  nor,  ai  it  was  promited  hy 
ifendant'i  ciiuosel,  coatradicled.  AoA, 
t  if  that  fkct  was  not  so  clearly  proveii, 
LtJetMeof  Mr.  Shclcrost  Aibe  la,  in  my 
icDaiun,  auflicieiit  in  sileuce  the  least 
idKnitit. 

k  will  then  coTiaidcr,  gentlenieo,  if  you 
I  lliat  eridetiee,  whether  there  doei  not 
tteoCflBriM  the  most  Tioleot  preauinptian 
iklendaoi'i  kuuwleJge  of  title  iu  th" 
of  the  plaintiir. 

>  rrpreteoteiJ  lo  you  hy  llie  deftnce,  Ihi 
I  notoiioiM  to  every  body  caovenani  ii 
>ble  family,  that  taiJy  Allham  never  bai 
HI  Ireland  :  that  ihe  never  niiacatried 
le  orver  waa  wiih  child.  On  the  oibe 
Ibaiit  waa  etiually  uoloriaua,  that  my 
id  a  ion  by  Joan  Landy  ;  and  lltat  the 
»f  the  plaintiff  was  thai  ann.  Now,  ii" 
'aa  ihe  case,  fur  heaven'i  take,  gentle' 
That  apprehensions  could  Ihe  defendant 
y  be  under  frnm  a  boy,  who,  if  he  had 

any  claim  to  the  title  and  estate,  musi 
bly  have  been  detected  as  a  inoii  nolo- 
mpoator^ 

if,  on  the  other  hand,  this  boy  wai  the 
lale  eon  of  lord  Allham  (and  whether  he 
'  not,  must  certainly  lie  in  the  know- 
)f  the  defendant)  iheo,  gentlemen,  yon 
uider  whrlher  Ihiii  kidnap|>ing  and  this 
jlioo  will  not  be  easily  and  naturally  ac- 
dfor;  and  h  hither  any  other  adequate 
.ban  a  lioowledgeof  his  bring  so,  can, 
ly  decree  of  prulMbiliiy,  be  assigned  liir 
Iraardiuary,  ibis  iuiquilous  behaviour  of 
tadanl. 

g«Dtlen»en.  the  couniet  fnr  the  defeo* 
mloMyou,  ihat  the  tnuerial  fact  in 
•eialhebirlb  ;  and  unless  Ihat  is  incon- 
r  proTCi),  tlial  Ibe  plaiatilfcMinut  poiaihiy 
limaclf  of  any  presumptiona  (sn  inge- 
[tolleinao  cliose  generally  to  cull  them 
on)  which  ariie  in  llili  caie. 
tloDca,  I  difier  eniiidy  from  them  upon 
•A.  ir  tbal,  which  to  be  sure  ii  Ibe 
kl  tui,  were  proied  to  you  iocQiiles- 
'  UilT  would  than  have  no  uocaaien 
IVnomjitiona  then  ouly 
sc,  nhvn  the  fact  iu  diapute 
abe,prutcd  iacoutulably. 


Gentleinen,  as  this  atvartion  balb  been  aoj 
itroDgly  iusifled  on,  and  halh  had  so  rai 
stress  laid  upon  it,  by  every  une  of  the  Ivar 
counsel,  let  uie  iletain  you  a  little  to  make  a 
observationa  apon  Ihe  subject  of  presampiioni  J 
Preauinpiioua,  geulleroen,  have  at  all  time~ 
and  in  all  laws  which  I  have  ever  heard  a 
particularly  in  our  own,  been  allowed  to 
great  weig'ht  in  donhlful  cases.  Some  i 
to  high  a  nature,  that  the  law  will  not  aomti 
of  any  proof  to  the  contrary  :  and  these  an 
called  presumptions  ^urii  «(  dt  jure.  Again, 
there  are  presumplioni  of  law;  na  likewise  what 
Ibe  writer*  upon  this  subject  call  presumplioD^ 
of  man  (such  as  nre  collected  occasiona''-  ' — 
mao'a  underatanding  from  given  facts),  wiiicDa 
though  tbey  (all  tbort  of  that  «lrengtb  anQ 
cuncluKive  force  which  the  olbers  have,  ars 
yet  to  iianil  in  the  place  of  fall  proof  till  thft 
coutrary  is  proved. 

"  V'ioltnta  preiumplio  is  many  limes  jiltrMr 
probalio,"  are  ibe  express  words  of  my  lor4 
Coke  j  and  the  case  which  that  gpreat  oracle  of 
tlie  law  puts  upon  It,  Is  Ibis :  "  A  man  is  ru^ 
through  the  body  with  a  sword,  in  an  bouM^ 

whereof  he  instantly  died A  man  is  teen  tot 

come  out  of  that  house  with  a  bloody  sword^ 
Budneotherman  was  at  that  limt  in  Ibe  bouse.'*, 
Upon  thetecircnmslaoces,  gentlemen,  a  violent 
presumption  arises,  and  shall  stanil  for  fulC 
proof,  unless  the  contrary  can  he  proved,  Ihat 
that  (nao  wtstbe  murderer.  , 

Now,  (^eutleinen,  yuu  will  observe,  that  Ik, 
the  case  pul  (and  many  others  of  a  like,  or, 
even  inferior  kind  may  be  put,  in  which  gremt^ 
numl>ert  uf  the  king's  Huhjects  daily  auftex, 
caiiilally),  the  jury  from  circumttaiices  inter  • 
criminal  fact  commitled  by  Ihe  person  accused. ; 
A  fortiori  it  should  seem  reasonable, from  ft, 
criminal  (act  proved  lo  inter  the  circuiustaocoi . 
and  motives  leading  to  thai  fad.  ,, 

Mr.  Serjeant  Uanhall  very  properly  men*, 
lioned  to  you  tbe  case  of  the  spoliation  of  a  deed*, 
111  Ibst  case, geutlemen,  il  is  an  estsblitbed. 
maxim,  "  ihal  ail  tbiiii^  are  tu  be  presmucd  in 
diilavour  of  tlie  ipohatur."  And  ynu  will, 
consider,  whether  a  parity  of  reason  will  not' 
operale  strongly  in  the  present  case.  Mr. , 
^rjeaiit'i  reasoning  on  this  head  was  entirelv, 
agreeable  to  what  I  remember  to  hate  heara 
laid  dawn  hy  oae  of  ilie  greatest  men  whoetec, 
sst  in  a  court  of  judicature,  viz.  That  circuni* 
stances  were,  in  many  case*,  of  greater  force^ , 
and  more  to  bedepeiiiJed  upon,  than  the  lesli* 


Witnesses,  geutlemen,  may  either  lie  mi*-  , 
taken  Ihemaelves,  or  wickedly  intend  to  d^  . 
others.  God  knows,  we  have  seen  !••  , 
much  of  this  in  ihe  present  cause  on  both  sidetl  , 
ui  circumstances,  gentlemen,  and  presump-  . 
)DJ,  naturally  and  neceiaatily  ariaiui;  out  of  ' 
givbii  tact,  caouol  lie.  And  gentlemen,  il , 
Ue  left  to  your  caniidernlion,  n  hi-lhrr  ia  , 


[   from  Iba  . 


1431]  17  GEOUUE  U.    TruU  in  Ejedment  beiwen  J.  Amttdey,  esq.  [USi 


The  next  obaervatKHi,  gfeuileinni,  which  ai- 
tnrally  ariselh  Irum  the  kidnappincr,  it,  tluit 
Ihe  lemur  of  the  pUintiif  is  thereby  thrown  M- 
teen  years  back  io  his  evidence.  If  his  case 
hail  come  under  your  consideration,  or  that  of 
any  other  jury,  soon  after  tiie  death  of  the  Ihu? 
lord  Althunfi,'  it  uuuhl  not  have  been  attended 
with  the  difficuUiea  it  now  is,  but  n)ust  have 
receirnl  a  ?ery  easy  and  clear  determinatieu. 
Mrs  8hiells,  wlm  is  sworn  to  have  broagfiit  hiii» 
tnte  the  world, — the  clergyman,  who  is  swurn 
to  have  christened  him— the  persons,  who  are 
tfwoni  to  have  been  s|»onsor8  (with  many  other 
material  witnesses)  were  probably  aH,  or  mosl 
of  them  then  livingf,  and  mi|;^lit  have  home  their 
ttstimoov.  The  account  which  you  now  hove 
•f  them  18,  tliat  they  are  all  dead. 

In  the  next  place,  gentlemen,  you  are  to  con- 
sider the  dangers  to  wliieh  this  gentleman  lies 
open  in  asserting  his  supposed  right ;  on  the 
one  band,  from  witnesses  officionsly  obtruding 
themselves,  and  on  the  other,  from  u  itnesses 
who  may  have  been  industriously  obtm.de<> 
upon  him.  And  ii'you  believe  that  these  diffi- 
culties have  been  occasioned  by  the  wicked  act 
of  the  defendant,  you  are  then  to  consider  whe- 
ther a  mticb  slighter  evidence,  than  might 
otherwise  have  been  required,  will  not  satisfy 
you,  in  a  case  thus  eircumstanoed,  of  the  troth 
and  justice  of  his  claim. 

But,  gentlemen,  the  counsel  for  the  defen- 
dant farther  tell  yon,  <*that  although  you 
iHight  possibly  be  induced  to  think  the  defen- 
dant capable  of  committing  a  wicked  act,  yet 
that  ought  not  to  influence  your  judgment  as  to 
the  determination  of  his  property." 

And,  gentlemen,  I  must  sgree  that  a  wicked 
act,  nay  repented  wicked  acts,  in  general, 
otigfit  not  to  influence  your  jndgtiient.  l-Jut  if 
the  defendant  hath  committed  a  most  wicktd 
act  against  the  person,  who  then  asserted  him- 
self to  be  the  son  of  lord  and  lady  Aitharo,  and 
who  is  now  contesting  with  him  his  title  and 
estate ;  if  he  hath  done  another  yery  extraor- 
dinary, though  legal,  act  against  him",  in  a  clan- 
destine manner,  and  coupled  with  a  declaration 
highly  criminal,  this,  in  my  opinion,  may,  and 
ought  to  have  great  weight  with  you  upon  this 
occasion. 

Another  thing,  gentlemen,  insisted  upon  by 
the  defendant's  counsel  was,  that  if  the  case  he 
doubtful,  the  present  possession  ought  to  turn 
the  scale  in  favour  of  the  defendant. 

Now  here  I  must  sigain  difler  from  the 
learned  gentlemen.  Jf  indeed  ti{)on  the  whole 
evidence  the  cnse  stands  doubtful,  they  say 
well ;  But  if  upon  the  direct  positive  evidence 
the  case  is  balanced,  then,  gentlemen,  the  kid- 
napping and  the  prosecution  will,  in  my  ap- 
prehension, turn  the  scale  in  favour  of  the 
plaiotifT.  For  a  violent  presumption  is  to  stand 
t'lr  tralh  till  the  contrary  is  proved.  Now,  if 
upon  the  positive  testimony  on  both  sides,  the 
nnnd  remaims  in  eguilibrio,  then,  gentlemen, 
the  contrary  is  not  proved,  and  consequently 
the  presumption  stands. 

1  caaiiot  help  saying,  that  1  think  it  pratty 


C 


n 
w. 

V 
pi 

P 


F 
1 

K 


cxtraonliwary  in  thb  ciAe,  that  s»  may  ili» 
tious  siioiihl  be  raised,  and  so  mneb  nnm  Mi 
upon  them,  agaiosi  yuur  beiag  isiooMri  ii 
vour  judgment  by  presuuiptMUis,  hy  MipiMii^ 
by  pnibahiblies. 

Cientlcmeii,  their  whole  dcfenecb  boMipw 
proliabUiiy  and  im probability. 

They  nrbt  tell  you,  yoa  aietsi^jcsit^ 
probabilities,  but  upon  positive  prssi  of  lbi» 
terial  facta ;  and  Io  thai  positive  fntS,  wtai 
given*  they  tell  you,  you  ought  Io  gin  ■ 
credit^  for  it  is«improbahlc. 

There  was  one  objection  of  thiisoitwiidi  1 
forgot  to  meiitioB,  and  that  was  ai  Is  tiie  pirf 
of  the  kiduapping ;  they  tohl  yss,  gari^ 
Boen,  tliat  altlmugb  the  dcfendaal  eosU  h 
supposed  wicked  tnough  to  oonoit  mA  i 
fact,  yet  it  was  inconceivaUe  thai  beiMUh 
so  weak  as  to  do  it  at  noon-day,  that  he  Ml 
carry  the  hoy  through  a  ptiblic  nsrto:  wift 
by  the  very  stall  of  Poroelt,  whs  bi  hfai 
protected  him,  (by  the  bye ,  geatlewi,  jm 
will  remember  that  the  boy  was.  cbsifei  m 
liplony,  and  carried  off  by  known  coMUMft) 
and  tiie  same  objection,  f  |  think,  VM  Mm 
Doade  to  Giflfard's  testimony,  thai  it  wanMily 
incredible,  that  any  maa  liviag  shooU  ki* 
weak  as  to  put  himself  into  the  fiowirif  My 
otiier  man,  by  making  such  dcetsntiiH  * 
Giflard  swore  my  lord  made  to  him. 

1  must  own,  .gentlemen,  that  this  dbjatin 
does  not  to  my  underslaadmg  carry  wj  gtit 
weight  with  it. 

Wickedness    and    weakness   ^enenUv  f 
hand-in-hand  together  ;  and  upon  the  rfgcM^  i 
observation  of  their  doing  so,  m  foundn  thi 
welt  known  saying, 

*^  duos  Deus  vult  perdere  prius  dcmcDUt.'* 

The  next  partof  the  case  which  I  shaU  ipdk 
to,  is  the  evidence  of  IVIrs.  Heath,  as  it  tush 
opposed  to  that  of  Mrs.  Colo  ;  an«l  theevidesti 
of  liolph,  opposed  to  that  of  Mrs.  Coldeagh, 
Turner,  and  Higcrinson. 

It  was  my  desire  that  Mrs.  Cole  and  Hn. 
death  mis|;ht  be  confronted,  because  I  did  tkcs, 
and  do  still  think,  that  this  case  may  reeeivi 
great  li^hr,  and  may  be  greatly  narrowed  fa 
your  determination,  by  a  careful  coosidentiH 
of  Cole*s  evidence,  as  it  stands  io  direct  cot 
tradiction  to  the  testimony  of  Heath,  wboail 
look  upon  as  a  capital  witness,  and  one  of  Ibi 
main  pillars  of  the  defence. 

In  other  parts  of  the  case,  gentlemen,  yii 
meet  with  many  variations  between  the  ^ 
nesses,  as  to  periods  of  time,  and  other  roiart 
circumstanci*9,  which  will  not  be  of  aori 
cofiNcquencc  in  the  cause,  or  tend  to  impsael 
the  credit  of  those  witnesses  oo  tlie  oos  wk 
or  the  other: — But  when  once  ymi  come  Isi 
fact  in  which  two  positive  viitoesses  Mlj 
contradict  each  other-— a  fact,  the  iriilb  • 
falshood  of  which  the  witnesses  on  each  adi 
must  with  as  much  certainty  and  exaciMi 
know  at  the  time  she  gives  lier  tesliniooy,  a 
she  did  at  the  time  that  feet  is  »id  tt  kif^ 
happeued^  let  it  be  at «r  ao  hmg 


and  Richard  Earl  ofAn^csM. 
('is,  la  itemninlnlion^  perjund; 
mi,  it  bAcomcs  «xe*iHlini{ly  ma- 
la eoaaklrr  wtiielt  of  two  wwK 
will  K'*"  cttiHl  ID ;  uul  yoat 
uf  iliat  {MHiii  mjy  fo  u  i^ieal 
MaMin^  juu  10  toru  a  jiit'jfnieiit 

rtsrial  nrcuinftaiieB  wbirh  co* 
<iueh  CuUuil  Hrsili  diner,  ii 
r  ar  sat  fnoK  away  of  binl  aod 
Emit  captain  Briwoe's  (ai  wtuwe 
Kciliatiaa.  was  bmugirt  abootj  la 
IngtatVieny  in  £«vz>itriiet. 
I  airean  poailineljr,  lb«l  duritig 

Dublin,  ihejr  never  ludged  one 
ntitt'  (be  house  of  capUiD  Bdii- 
l6  (sapported  by  hmifiicr,  Mr». 
AliCK  Balei,  a  aerTant  in  ber 
f — md  by  Callisriiie  Mac  Cor- 
rvatil)  aoean  a«  poiilirely,  tbal 
Itiir  or  liie  ilay*  at  ber  lather's, 
id^iiet  in  EsBtm-strect  (as  to  iba 
I  she  ii  nutposilive,  boUbe  lakes 
^  and  tbere  caatinued  a  coiisi- 
1  iliink  about  tvvo  muDibs,  before 

)lin,   «nd    went  lo   Dunmnine. 

a,  yott  will  reiBPLuber  ibal  Mn. 

«  WM  a  lecond  lime  prodiiued, 

irticaUr  reason  why  abe  could 
»   as  to   that   lact,  wbich   was, 

icUnitini;  Ihe  rpcouciUation  lie- 
and  lady,  her  lather  siill  cou- 
about  ibe  matter ;  and  was 
tnd  fircMin^,  that  they  would 
^pe,  and  go  to  uiher  biddings, 
Mght  it  would  ha*e  a  belter  air 
well  together;"  which  tlie:):- 

ird^t  by  saytui;,  that  it  would 

public  and  notoriuoi  to  maakind, 

*— id  Inily  were  in  liiet  reconciled. 


A.  D.  174  J. 


ruM 


;lil,  ttruirk  sonie  lii^bt  iolo  tliis 
0  Rte  explain  clearly  two  otlitr 
CM,  which  I  aball  mention  w 

!t,  eoneemtnir  wliiefa  Mra.  Cole 
h  stand  in  direct  o|>pD>tlian,  \b 
Riacatriiip  at  Dnitniiine.     Mn. 

Ktively,  that  about  Iha  middle 
theawidtnlot'luTil  Allhain't 
Muccrs,  Mrs.  Henth  came  into 
er  of  her  mnlber,  Mrs.  Briscoe, 
B  iny,  nlarnial  lier  with  auenimt 
tint;  exlreoiely  ill,  and  lie^^ed 
iniinedbilelv  rise  sml  ^n  in  her, 
Iber  accurdiuK'ty  did;  that  the 
■he  (the  witncva)  wui  in  my 
_Bber,  where  were  present  her 
Butli,  abd  several  of  tlie  ser- 
nother  there  told  her,  that 
asd  shewed  her  the 


mornin?— and  she  « 


«a  th«  contrary,  sweara  aa 
she  did  nol,  eillier  >i|<nn  llwtl 
[hi,  call  up  yln.  BriKOe— that 


(h»  All 
ITM  ia  aty  htdy'a 


po^lJTely  that  mr 
lady  did  not  then  miscarry,  uay,  ilmt  sbv  was 
not,  either  then,  or  at  a^iv  mlier  tiao,  with 
child. 

Il  wnsiiiBisled  ooslron;;ly  by  Uie  dcrendant's 
comiiel,  ibailhiHevidenceol'Coie  waiaiiakdcd 
with  greBI  improbability — that  it  was  incredibly 
uran^u.  tb*t  a  mellier  Bhoulil  sbcw  «u  ahar^a 
10  her  leonile  child  ut'  eucb  lender  yeank, 
And,inil«ed,  KentbiDto,  I  think  tliat  fact  doei^ 
prima  Jadiy  appear  to  be  exiteiaelr  udil,  and 
to  carry  with  it  n  itron^  air  M  impiubability. 

Ttwre  waa  another  taci,  prored  iu  ibe  (err 
iHilset  «F  the  oauae,  wind)  (lhoiJ)(b  it  kail  not 
the  Hiiine  remark  made  uniin  il  by  Ibe  couuael) 
■truck  ma  ia  a  rery  odd  li);ht ;  and  that  was, 
ibii  u]KMi  the  recunuiluUiou  of  lind  anil  ladf 
Allhuni,  at  captuiu  Briscoe's,  Mrs.  Uornthy 
Briscoe,  the*  not  alwre  ten,  aiul  her  aisler, 
Mrs.  Cole,  not  theu  ahnvt;  twelre  yean  of  «f{e, 
were,  with  the  reM  of  the  fnmily,  called  in  In 
the  renen,  to  eee  my  bird  and  lady  in  bed 
tutfetbcr. 

iJul  uvnlletnen,  you  will  consider,  wlielhiv 
the  renwin  which  Itlrs.  Cole  leUs  you  lier  fiibsr 
bad  fur  pifsaina;  lord  and  Udy  Altbum  to  leaic 
his  bouse,  mid  lodi^  elsewhere  in  Uuhba,  via. 
that  tbetr  reooocilialjon  mi^bi  became  mure 
Bolorious  lo  maakind,  does  not  fully  eipbda, 
and  siraQfjIy  corroborate  the  jiroof  ol',  tboK 
two  odd,  Bud  otiierwise  anaceouolaUc  J'acl*. 

Genllemen,  you  will  consider  fnrlher, 
whetber  I'mm  theie  tbree  eircumslaoees  con> 
necteit  and  compared  tngellier,  lliere  does  not 
arise  a  strong-  probability,  ibat  captain  Briscue 
{who  I  ibmk  appears  to  bare  been  the  penuu 
em|duyed  by  ibe  duke  of  BDckinghaiu  lo  bring; 
about  ihe  reconeiliatiDn)  bad  soma  appreben- 
sinns,  thalslibnuKh  Ibe  jYiconciliatioa  was  et- 
fei:led,an<l  ullbough.in  cunieiguence  of  il,  lady 
Altbam  should  bate  issue  by  my  lord — yei, 
thai  III  tiMne  future  lime,  and  lor  MToe  rejsonit 
or  ntbur,  loni  Allham  (nbase  character  and 
conduct  appear  jireiiy  extraordinary  upon  the 
eriilenea  in  llin  cauiie)  might  be  induced  !• 
bastardise  that  issue. 

And,  ^enttoneii,  you  will  consider  fiirllier, 
whether  such  an  ap|ireheiis»on  in  Briscoe,  ■«  I 
have  supposed,  woulil  have  been  unnatarol  or 
ill  feuoiled,  wlten  yno  hare  compared  Ibcsa 
circumilaiices  {which,  u  1  have  mentioned, 
■ccm  to  render  it  pmbahle,  that  he  hod  suck 
an  appreheniiun)  nitb  the  eiiilence  of  I'bU 
liter  Ilia  youu^cr.  lie  relates  to  you  a  very 
extraordinnry  ciintentalion  which  passed  be- 
tween my  loni  and  biin,  about  Ave  days  bolbra 
the  separation,  as  they  were  reinrutDtf  I'rtim 
Bourkitawn  to  Dunmaine.  He  tetU  ynu,  that 
my  lord  colled  to  him  in  a  likiniliar  niiutner, 
and  said,  "  Tent,  I  wiH  lell  you  ■  lecret,  ■«  I 
have  nn  son  by  my  wife,  unr  ever  expect  to 
linve  auy,  and  as  my  lord  Anglesea  is  very 
angary  with  me  for  kuepiuu  this  woman — I  am 
deltrmined  to  put  her  away,  not  to  disoblige 
my  lord  An);liwia."  The  snnie  wilnns  had 
before  sworn  (msitivcly  that  he  never  had — • 
that  lit  Mvw  MiOTtptwl  t»  havv— thai  Iw  b» 


1 


\ 


wiB,  I 

•  VIMfVOollHt 

how  MiM  Oifigurj^  bihsrioar  to  tbo  hty 
M^  vpM  tbo  tHtisHBT  of  mmOmp  wilocoi 
HmSmmM:  Imoob  Herd (wbo^ to  Ui 
^oT  tiM  biv|^itraottat  by  wjT  tent  k^ 
Aoi  BMV  osno  to  IMMioy  4iffnv  toteflyy  oo  wtff 
IjKi  Guf  Borao  both  olraiidy  oboaffoij  Hmo 
oB  tho  fUlwoa  of  thot  jwit  of  tho  oiiolij 

woo  IMVO  MOB  pVOdOOOd  iMAfO  yOlL) 

flopo  loHi  yoQf  not  wImb  b^  lotd  fifoo>iB 

My  lOIB  OfllBOt-tbO  OBBfO|  Bjf  If IM  QlCBOtyy  of 

hio  tlilovtiM-.-tbol  bo  omooI  toll  wboOicr  tbo 
boy  WM  rooBy  goiky  or  nor^t  tbot  be  coBfcoood 
JriaooifM  ood  tbtt  opoa  tbit  my  lord  fwboni 
Ibo  witoeoi  bod  never  ooce  oeeo  strifco  tbo 
child  upon  ooy  oecosioo  io  tbo  oountry)  eor- 
rectod  liim  more  oer erely  tboo  eter  bo  bad  seea 
ooy  cbild  corrected  in  bio  life. 

Wbcn  tbo  tritneot  was  asked  by  my  Lord 
Cbief  Baron,  what  thoM  things  were,  witb  tbo 
tfaierinff  of  which  this  boy  (who  is  odroitled  on 
oil  boBos  to  bo  the  son  or  my  lord,  thoogb  bis 
legHimooy  is  dismited)  was  cbarffcd  by  this 
lady^  and  for  whicn  be  was  so  crnelly  corrected 
by  bis  Ibtbor,  be  tdls  yea  they  woro  **  a  jodtey- 
bolt  aod  a  pair  of  pigeoM." 

TbcMore  cireumstances  which,  I  most  owb, 
otrike  my  onderstanding  strongly :  Yoo,  geo- 
tlomeoi  one  the  jodges,  and  you  will  well  con- 
oider,  what  weiffiit  thojr  oarry,  when  conneeted 
witb  the  rest  of  the  e? idence ;  and  what  light 
nay  be  ooHocted  from  them  to  guide  year 
jnmnenta  od  this  occasion. 
•  IfiHrgot to Bientkm to yoa one  thing,  which 
I  tUnklo  rery  remarkable,  upon  Heath's  ori- 
doneo  $  aod  that  is,  that  she  accompaniM  soom 
of  tho  plaintiff's  witnesses  in  all  the  preparatory 
Steps,  and  separates  from  them  only,  wImSd 
Ibey  come  to  tbo  critical  and  material  fiwts 
tbomoolfeo. 

8bo  roeolloeto  distinctly  witb  M'Gormick, 
Vieo'o  Mnrant,  "  Tbai  my  lord  came  boBio  lato 
OBO  Bight  disordeied  witb  llqaor'-4bot  ho  IMdo 
1  giMtDOiM  witb  tbo  choir— >tbat  ho  ^BorroMod 
«iib  hor-lhai  ho  JonH^  oat  of  hod  iroM  My 


OBt  of  bis  boBoe^  ob  BOOOootBf 
bavioor  whicb  ho  hod  boM  niky  of  ib  tU  fc- 
nuly,  WM  twice  oeBt  for  to  DbbmoIbo  t 
twite  refused  Io  go,  bewgpioqBodot 
been  turned  not  of  tbo  faonly  ;  thot  I 
for  a  third  time,  and  my  hira*o  cfaoriol 
for  bim,  be  went,  and  coBtionod  ottM  ' 
lady  at  Doomoine,  10  tbo  best  of  tho 
remembrance,  for  a  fortnight.  This 
WM  produced  to  order  to  dtsorodic  BioobsbAs 
piece  of  a  sui|^n/as  bo  oallcd  himorilX  fit- 
ducod  on  the  ported  the  phuotiff;  who,  way 
opinion,  suflioootiy  discroditod  hiwoolf.  Yts 
will  conaider,  gentteroen,  .whether  it  dsei oit 
go  strongly  in  support  of  tho  tosthoMytf 
Mrs.  Colo,  in  oootrodiotioB  and  dneosdo  if 
Heotb;  with  regard  lo  whoo^  ob  obsavoia 
wMmade  by  tbo  detodoBt'aooBBool,  whicb  1 
WM  oiceedwgly  sarprisod  to  hoM  frsai  AiO 
side  of  tho  table.  They  took  BOtiM  of  Ihop 
coHar  ezcolleocy  of  oar  low*  espoeialiy  «M 
rcjprd  to  trials  by  jury,  ob  which  umaaiiMlbs 
wimessM  aroenmmod  «lod  ooco;  thot  fiwo 
ooafiooting  witoeosM  who '  eoatnidiot  sisb 
other,  and  careftdlyobotrfing  their  opaeoioot^ 
and  the  moBBor  in  which  they  giro  ihsii  aai 
mony,  Mmo  light  is  to  bo  collected  ;  oodlbo 
oonrt  aod  jjoiy  moy  IB  oooM  BMooaro  bo  CBsM 
to  form  a  judgmoBt  opoa  a  doahtfiil  oooo. 

Tbo  obofrTotioBy  goatioflOMi  loaaaoaltMlf 
joit,  but  what  I  litdo  mpastsd  to  hofo  h«i 
from  that  ^aaMr.  For^  gtMioMio,  wbta  yM 
McoMoBtaad  Motpoio^i^pahM  thowBti^gM» 
boharioar    oad'  oooifaoaa  «OBMMNfino  m 


1 


i  Richard  Earl  ofAnglese£, 


A.D.  1743. 


I,  with  Ihecatm,  sedMr,  and  tnodnl  ■!«• 
rar  nf  Cnlc,  yon  will  cotisiiter  ivbcther  all 
tight  whicb  eta  be  Uid  upon  sd  uWrra- 
r  IliU  Mrt  iloe«  nut  lie  eolirel;  ou  the 

Hber  poial  which  liiib  bna  Birooglyi 
idveil  very  properly  insisted  iip«n  by  th« 
lanl'«  CDuniel,  ii  ihii :  ibey  a&y  it  ii  ex- 
Ij  imptobable,  if  ttiiB  pencil  neie  really 
HI  of  laily  Allhaio,  tbal  n>y  lady,  who  is 
d  to  have  li?ed  two  years  Ulet  ihe  Jetib 
■  hiiil,  iboulil  mike  naeiujiiiry  aboul  him. 
t,  eentlenien,  if  you  will  compare  Ibe 
tr  lord  Alibam's  death  with  Ibe  lime  of 

King  Ihe  boy,  you  will  tiiiil,  I  ibiok, 
rs  t«  lery  liule,  if  any,  weight  In  this 

;  lh« 


e  cumniUDicaled  to  my  lady) 
dale  Ibe  laili  of  that  month  ;  that  letter 
tMfomedaytMleaMgoiD^to  BDgliDd.Oa 
»h  of  ihe  Slarcb  followiog,  the  boy  ap- 

Irom  Ihe  Thuliel  book  to  be  iadeiitured 
wmaa  Hendry  by  the  name  of  J«met 
Ijf,  and  on  the  30th  of  April, .the  neit 
h)  it  appeara  from  SteTcnaon's  bonk,  that 
■edorer  the  bar  of  Dublin;  aolbattak- 
rat  M  be  truth,  (wbicb,  1  ibink,  i»  liable  to 
J  oUcGiioDs  of  improbability,  that  M'Mul- 
■ttuat letter)  there  will  be*ery  little  more 
If  •  monlbs  between  loril  AlthRtn'a  death, 
n  tran«portaiion  of  the  Imy. 
km  Alice  italea  appears,  and  gives  yuu  an 
nl  of  her  joking  Hitb  lady  ATlham  about 
amg  wilb  child,  you  are  lold  by  the  de- 
Bt'i  couoael,  that  ihii  is  highly  ImiinK 
;  that  lady  Allbaui  was  a  very  haughty 
is;  Ibaliiiaiucredible  aheibould  cooda- 

M  auch  familiarity  nitli  a  person  so  much 
ifcmr. 

Jl  it  not  appear  to  you  equally  iui|irobabla 
■t,  ibattbiM  haughty  ludy  sbnubl  conde- 

to  reveive  visits  oiicea  wevk,  aa  BI'Mnl- 
tta  jou  abe  dill,  from  her — the  daughter 
kte-houae  k»>epeTF  • 

niMt  be  allow«t  (bal  my  lady'i  living  with 
wut  King  lor  thlrteeii  ur  Itturleen  months, 
niug  with  him  about  lier  family  atfuira, 
d  never  meiitiuning  to  him  her  sou,  doe* 

£»>  carry  with  it  a  great  iiii probability 
Vint;  at  that  lime  a  lawful  aou. 
t  amiideriotf  that  my  lord  had  put  her 
npon  a  aunpiciun  (eillier  teal  or  pretend- 
riier  virtue, and  had  aspersed  htr  chiirao- 
I  ddght  not  be  so  prudeut,  nor  perliaua  lO 
UCi  thai  she  atiould  discourse  with  hiiu, 
Y  tuber  pemou,  upon  Ihe  subject  of  ohikl- 
V- 

iwner,  allowing  thi*  lo  be  improbable — 
1  DM  be  e«|ually  improbable,  Ihal  the  care 
Ulnatii eating  ao  nuUonal  inlelligriice  u 
rttll  of  lord  Allham,  should  be  mlruiiieil. 
I  ibii  alderman  King,  ur  any  other  p 

re  in  Ihi 

ultanr 


[143! 


These,  gmtlemen,  are  ciienmslancri  which 
in  my  a  li  [ire  hens  ion  weigh  strongly  againat  the 
ei'cdil  ttf  Itl'Mullen's  ciitlence.  Uui  iakiD|> 
that  eiidence  to  be  true,  you  will  eoDiider, 
whether  the  small  distance  of  time  belween 
lord  Ahham's  death  and  the  transportation, 
does  niii  grraity  lessen  Ihe  force  of  this  argu> 
ment.  winch  has  been  so  strongly  insisted  upoa 
by  the  defendant's  counsL-l,  especially  if  yoM 
add  lo  it,  the  circumslancrs  both  of  heallh  and 
furtuoe,  in  which  lady  Altham  appears  lo  bavn 
been  al  this  time. 

And  here,  gentlemen,  will  come  in  very  nw- 
lerially  for  your  consideration  the  evidence  of 
Mrs.  Ueborsh  Annesley,  a  near  relation  of  this 
noble  family. 

She,  who  bad  before  luld  you  that  her  brotlMT  J 
frequently    visiled    my   lord  at  Kinnea — lfai~ 
whenever  he  returned  from  thence,  and  when 
ever  my  lord  visited  at  their  house,  i 
common  practice  to  drink  Ibe  health  of  i 
lord's  son  ;  that  they  all  considered  thai  b 
my  lord's  lawful  sod,  and  the  future  ei 
Anglesea  (su  that  ii  is  not  fact,  as  you  havt 
told,  (hat  none  of  the  relations  nf  Ihe  Ii 
ever  heard  of  lady  Allham's  having  a  son ;)  tl 
lady,  I  say,  tells  you.  that  upon  the  d  "' 
lord  Altham  she  and  her  sister  made  t 
CD^uiriea  af\er  this  boy ;   that  lor  Mime  li 
(hey  could  learn  no  iciMiunt  of  him,  and  at  lirti 
they  concluded  thai  he  was  dead.     Now  ifil  ] 
became  a  general  reputation  tbat  he  was  ao 
then,  genilcincn,  though  lady  Altham  hbewia 
■night  have  made  frequent  enquiries  attrr  ihi*.  J 
boy  (nun  conttal  upon  ihe  evidence  wlieihlfV 
she  did  ur  not,  and  she  loight  have  made  kcvss  ■ 
ral,  nut  at  Ibis  day  capuble  of  proof,}  and  mighvf 
rL-ceive  an  accouni,  and  give  credit  to  it,  that  b ' 
was  (lead ;  and  this  might  put  a  stoo  u  any  f 
furlher  enquiry,  cunsistenlly    with   lady    AU.  | 
Iham's  knowledge  uf  this  boy's  being  her  legN 

These  parts  of  the  case,  independent  of  lb* 
other,  which  have  all  been  fully  laid  before  you    ' 
by  my  L'lrd  Chief  Baron,  seem  to  me  lo  haac    | 
great  weight  in  them. 

You,  gentlemen,  will  consider  t 
you  will  lay  upon  the  observatjoiia '  I  hav*  \ 
thrown  out  to  you,  and  what  hght  may  b*  coU  I 
lectedfrom  them. 

There  were  several  other  things,  geutlema^ 
whicli  I  designed  lo  hai«  meniiooed  to  yon  |    I 
but  the  fatigue  which  wc  have  all  undergon*  i 
baih   been  so  very  great,  and  the  tima  t  bav*  ] 
had  for  rei^ollKiiuu  so  tcry    sburi,  that  t 
tbnushiB  are  too  iiiilch  dissipated  lo  procM 
and  indeed  I  have  already  Ireapuaed  too  mat 
upon  your  patience ;  considering  the  great  al 
tcnlion  which  yuu  have  all  along  given,  and  tt^ 
careful  notes  you  have  taken  of  the  (vid«DCet~l 
1  ahull  ihbrelore  now  conclude  with  that  which  j 
1  at  Drat  set  out  with,  the  knlnappiiig  and  l' 
prowculion.     If  ihueote  beduuhtful,  upon  tba   I 
other  pnriaof  the CTidEiice (whether  it  hem      " 
yuu  are  ihe  priiper  jud|:ea,)  I  tniul  then   I 
It  to  your  considvralinn,  whelb^T  the  oid     __ 
uf  those  wu  fatiawnliu.i[y  kcu  lusy  nut  te  J 


liSETI  17  GEOEG£  11.    Trial  in  EJeOnu^t  between  J.  Afmedey^  etq.   [1UI 

•nfficiant  to  determine  you  what  fcrdict  to  give 
upon  Uiii  eooasioo. 


Ifr.  Baron  Damton,  Gentloraen  of  the  jorj, 
my  Lord  Chief  Baron  and  my  hroifaer  Mouii- 
leney  have  auonned  op  the  evidence,  and  eb- 
•erved  upon  it  b  so  jiidacioua  and  clear  a  man- 
fier,  aa  makes  any  farther  observations  from 
ne  uaneeeantry  ;  I  shall  tlierdbre  only  require 
your  patience  ibr  a  few  minutes,  to  siiew  you 
how  t  would  ooasider  this  case  if  I  was  upou 
the  jury,  and  my  reasons  for  so  doinff.  There 
ac«  such  ooatradictions  on  both  sides  of  the 
■nestloo,  that  it  woiiid  not  be  hard  to  shew, 
that  several  witnesses  on  each  side  are  not  en- 
tirely to  be  credited.  Several  of  the  witnesses 
on  csch  side,  not  only  contradict  the  witnesses 
on  the  other  side,  but  also,  in  some  insrances, 
themselves,  and  therefore,  imiepeodentol' other 
things  proper  to  be  considered,  one  could  not 
tell  where  to  settle.  If  i  was  upon  the  jury, 
and  to  determine  this  question,  I  should  lay 
fcefoce  me  and  consider  the  story  as  told  ou  each 
side;  1  ahnuld consider  how  far  the  story  on 
one  hand,  independent  of  the  witnesses,  ex- 
ceeded the  other  in  point  of  probability :  if  on 
either  hand  the  story  toid  appeared  extremely 
improbable,  I  should  tlien  require  from  tJiat 
aiile,  the  strongest  proof  imaginable;  and  that 
because  prolmbiliiy  ou^rht  to  weififh,,exoept  it 
be  contradict od  by  tesiiinooy  not  to  be  doubted 
of:  and  therefore,  if  on  eitiier  side  tlie  story 
aboald  be  extremely  improlmbie,  anil  probable 
on  the  otiier  side,  1  should  i(\\e  my  opinion  on 
the  side  of  probgliilily.  How  far  any  thing  of 
this  kind  ap|iears  iu  this  case,  will  come  uuder 
your  consideration. 

This  is  the  lou«^st  trial  ever  known  at  the 
bar,  this  i«  the  l&tb  day  since  the  trial  be^an  ; 
triaU  at  bar  are  usually  detemiioed  in  one  da}', 
and  the  policy  of  the  law  hath  taken  care  that 
no  poi-son  shuuld  speak  to  the  jury  after  any 
evidence  given  in  court;  there  is  no  occasion, 
I  am  persuaded,  gentlemen,  to  remind  you  that 
any  thing  heard  out  of  court  is  not  to  \^sem 
you,  you  are  to  be  governed  by  nothing  but  the 
evidence  laid  betore  3'ou. 

In  the  first  place,  the  first  stage  is  the  time 
of  the  birth.  \uu  will  take  into  your  consi- 
deration the  number  of  witnesses  and  their  sta- 
tions that  swear  to  that  birth,  and  also  the  num- 
ber and  station  of  the  witnesses  that  swear  in 
direct  contradiction  to  them  ;  if  you  cnnivot  de- 
termine that  question  bv  comp:i.'ini>  Ihrm  to;;e- 
tlier,  you  will  thcu  have  r«-coarse  to  tiie  other 
part  of  the  testimony,  wiiich  is,  the  reputation 
of  tlie  country,  and  the  persons  that  visiied 
constantly  at  that  house ;  you  will  consider  the 
probability  or  improhnbiiity  tliat  a  fact  of  this 
kind  could  have  hapjicned,  and  the  {^eopie  visit- 
ing not  know  of  it.  'V\\\^  could  hardly  he  in  a 
family  of  less  cdnsequrnce  llian  rny  lord  Al- 
tham's,  but  when  you  confiifior  tbisVamily  and 
the  estate  that  was  to  fal!  to  it,  yo;i  will  consi- 
der if  there  could  be  a  birth,  and  persons  visit- 
ing the  family  not  knowing  of  it.  There  have 
been  proofs  oa  the  one  hand,  laid  before  you  of 


my  UAffH  btiBg  with  cluU,  Md  on  Ibf  tte 
hand  ot  her  oot  being  with  cbild ;  other  4 
these  parlies  may  awear  false ;  liut  thm  vn 
must  take  into  y<riir  coosideiatioa,  if  ib^  ita 
swear  she  had  a  cliikJ  swear  truth,  wbetfaw  il 
conM  be  pomible  that  that  could  be  kept  1 
secret.  There  was  not  any  interest  or  nesa 
thatitsbottid  be  kept  a  cecrec  IfHwusil 
indubtriously  kept  secret,  how  comes  it  ibstdl 
those  persons  that  visited  there  should  wtm 
bare  heanl  of  m  child  ? 

To  go  to  positive  testimony,  Lafian  swim 
poBtiray  the  child  waa  presented  to  kvoiI 
gentlemen  and  ladies,  and  often  to  MrL  Laa> 
bert.  Hra.  LAmbert swears  positively  theddi 
never  waa  shewn  to  her.  Which  is  to  be  a^ 
dited  ?  There  are  several  circurasfaacn  jm 
Will  take  Into  your  oonaidcfmtioD,  concenar 
the  probability  ar  im|«robability  of  tbekinba 
this  eliild,  whetiier  the  preimmtiont  fiir  m 
lady's  lying-in  were  anitobw  to  her  nskr 
whether  Donmaine,  m  amall  village^  dimn 
firom  any  amialanoe  necseeaary  on  each  m  » 
casion,  waa  a  proper  place  ?  whether  ny  Uf 
Altham  wonkl  be  easily  brought  to  ly^i  a 
liie  country,  eapeciatly  of  iMr  first  dUUf 
These  are  considerationa  worthy  year  iMs- 
tion.  There  have  been  many  gentlemei  abi 
gave  evidence  to  there  not  having  been  a  cfcW; 
they  awear  not  only  that  tiiey  never  mv,  hi 
that  they  never  beard  of  a  chiul.  I  won't  criir 
critically  into  every  particfilar  fieriod  of  lim 
sworn  to  by  them ;  but  if  in  tlwee  yean  Ibnt 
persons  were  three  or  fbnr  times  a-piecc  it 
Danmaine,  and  Ihey  tn'ear  truth,  it  will  be  rf 
weight  in  the  question  whether  there  wai  1 
chiki  or  not.  For  admitting  colonel  VAhtt 
and  the  other  ivitnesaes  to  be  there  foar  tioei 
u-year,  you  are  the  judges  whether  it  is  prah- 
hie  tliat  there  was  a  child  there,  and  unkcovB 
to  them.  The  separation  is  agreed  on  all  beadi 
to  have  been  in  the  year  17 16,  and  some  bile 
time  after  that,  the  child  waa  brought  boaie  it 
my  lord  Altliam*s  house.  Dyer  swean  d« 
child  was  not  brought  to  Duunnine  ia  ba 
time;  butthe  witiies<4es  for  tlie  plaintiff  wy. 
either  from  the  separation,  or  soon  after;  vai 
that  the  child  continueil  in  the  house  with  Vxi 
Altbani  till  about  the  year  1724.  Yon  ait  t« 
observe,  that  my  lord  lel\  Dunmaine  sbost 
summer  1717  ;  the  se|iaration<wa8  in  Febmarv 
1716-17,  and  lord  Allham  canto  up  to  pariu- 
ment,  and  af^cr  that  went  to  Kinnea ;  the  pv- 
liament  sat  down  the  27th  of  A>igRst  \'\'\ 
theu  yfMi  will  consider  what  has  been  svonitv 
1)1*  my  lord's  behaviour  to  this  child  sll  ihil 
time.  Dming  this  period  of  tlnne  at  Kisais. 
Currickduffe,  Cross-lane  and  Frapper-hse. 
there  are  many  witnesses  on  both  std«s  tbil 
^;ive  a  most  contrary  testimony  to  one  anothfr; 
there  are  witnesses  on  both  side*!,  that  I  fV- 
not  say  how  to  difthelieve,  there  are  many  ^ 
them  that  I  cannot  dislN>lieve,  who  swear  10  bi 
lieing  treated  as  a  legitimate  son  ;  there  v* 
many  of  them  whom  i  al^  cannot  di»believe, 
who  giva  a  contrary  testimony,  and  ssy  thtl  ba 
was  treated  aa  ao  iilcgit  nato'  son ;  anil  cttW 


I,  Dr.  Medltcoti  Mtd  colonel  VV>1I  gate 
n  accimnt  ul'mj'  lord's  munoer  orcatliag  liini 
M  tiuMril  lan.  Anil  in  my  ipiirelieiision,  it' 
bv  wiiuctst^  draerve  credit,  my  lord  Attliacn 
id  duiin)^  ihat  tiDiclreBl  [lim  to  some  penous 
■  bii  Uwfut  (On,  nnil  lu  olhera,  us  liU  illeKili- 
Mite  son.  Vuu  will  conwd«r  iliu  lem[>«r  and 
iapMitiou  of  lord  Allliaiu,  and  the  t'ircum- 
bUGCi  lie  wu  in  ;  he  wbb  a  innn  not  of  pru- 
tnc I  oillirr  na  lo  the  mouagemeDt  of  his  for- 
BBsar  fiimily  ;  you  will  jileose  to  consider  in 
that  Diaoner  lu  bccouuI  lor  ihis  iMhaviour  of 
Ati  trhetlier  ih«re  laay,  or  may  doi  tie  any 
'MMn  ibr  Ireatiag  an  illegitimale  »on  in  souie 
ptvqiuues  a>  a  tegilioiate  Eon,  and  whelbvr 
kifc  mmy  tie,  at  any  lime,  any  reason  bt 
[ill inn,  *  leci'inuite  as  an  ill«|filiiuale  one,  A 
BftB  COmM  into  the  country  wliere  he  was  not 
H^HD  bffurE,  and  has  a  child  that   he  liBil 

ebyhiawife;  perhapa  he  may  liaie  reason 
IwatiDg  lum  as  a  legitiroaio  ton.  A  man 
Bearrj  an  iiletfilimale  child  abroad,  and 
with  him  in  (he  ueii(bbourbood,  and  pass 
ifm  for  hia  Icttilimate  child;  for  |ierbaj>s  lie 
■igbt  be  glnd  mat  that  person  nhooi  he  iisited, 
llHHiU  not  know  him  tu  be  a  bastard  ;  but  a 
BID  can  have  no  reason  in  my  npprelieticion, 
at  tmtii^  a  lawfnl  sod  as  so  unlawful  ooe. 
nMB  you  Tvill  consider  the  several  schools  the 
iUU  was  put  to  by  lord  Altham ;  you  will  con- 
Utx  wltetliar  these  schools  weie  fit  sctiools 
br  my  lord,  even  iti  indigent  circuniitanoes, 
Ift  put  bis  ianfiil  SOD  lo.  Vou  will  cooiidur 
Ab  GOn*«|uciwe  of  my  lord's  being  under 
nviDfiucDceodUiss  Gregory  ;  ihe conseijueoce 
Hi^ltial  this  uuliappy  child  was  ihrown  aban- 
frr^ '"'*•"  world  at  not  ten  years  old:  here 
KUI  will  consider  wbellier  a  trealmi?nt  of  that 
nsil  liuptaLs  him  to  be  his  U-glilmale  or  ille- 
ptinulc  SOD  :  had  he  beeu  a  legitinmle  aon, 
■oraly  my  lord  Althara  must  havu  had  refiec- 
lloii  enough  to  hare  cousiilered  what  a  disho- 
Uunble  action  he  waa  doing  publicly.  On 
Ow  Other  haud,  you  will  couiider  that  the  iu- 
lotooeof  Misis  Oregory  Diight  well  be  catrird 
la  luako  him  doubt  '\vhelhcr  ihia  child  was 
fail  or  uut.  if  the  child  was  by  ao  improper  wu- 
maa.  In  tlie  ucxl  place  you  will  consider  the 
riUalion  and  behaviour  of  the  moibtr,  Ibat  is 
^  tondrr  sex,  aud  llieir  teDdcrueas  lu  llirir 
lUdrrn  is  burtlly  to  be  got  Ibe  better  of  al  any 
nt«-  l«d^  Aluiam  was  tliree  years  in  Ross, 
UhI  ibwe  IS  but  one  teelimooy  of  her  seeiug 
tam  tben,  and  Ibat  ia  ilie  dmu  thai  swear*  be 
■■4c  him  alkoes.  From  this  sbe  comes  to 
^wliOt  Old  lives  near  my  lord  at  the  lime  Ibis 
ll^d  is  wilh  bim  ;  it  wetu*  n  htile  odd  thai 
iba  made  no  alleiupt  lo  hav«  tliis  child  bruiigbl 

rbw  bul  bv  Catlierine  O  Neile  ;  and  1  submil 
ttt  ;iiu,  hnw  fat  whal  ahe  says  cau  huTc 
IMiffM ;  fat  ahe  says,  that  tnj  ludy  declared 
|(m  would  be  ((lad  losee  the  child,  bul  she  was 
ijinii  ibe  WMSUl  thai  brought  him  wuuld  lose 
nibiead.  Can  nucfa  a  tblug  as  ihat  be  put  in 
BOVfwtition  with  the  lendrtness  of  a  raolher  fur 
achdd?  That,  iicutiemcn,  is  for  your  coruidcra- 

kWby  llMii,  ntttloMU,  tuy  lady  cvioe* 
.xm. 


'.rd  Earl  of  Aag/fsea.  A.  D.  17W-  [M 

tu  Uie  house  of  abterman  bJng,  and  he  tells  yov, 
that  fur  13  or  11  mnntlio  tba  fteqiieiilly  B[iok« 
lo  him  of  licr  fuinily  alTairs,  yet  ncrer  meutioni 
she  had  a  child.  It  seems  «ery  strange ;  a 
wnmoo,  where  the  lancies  bersell'  ii^jured,  \i 
micbly  aiil  to  tell  the  injurin  done  her  to  every 
livily,  and  to  agn'^'Bt^  l'*^  disireu  by  anymg 
the  was  d«priveil  of  ihe  comtbri  of  seeing  her 
child.  Tins  was  not  to  be  cntnKted  In  alder- 
man King,tnncuinniuntcatc(l  tu  Mrs.  Hivtgera, 
wbom  she  had  neier  s«en  hot  once  i  y*<l  wilt 
cMiBider  this,  geniltmeii.  (n  Ihe  year  1737 
my  lord  died,  an<l  Ibere  can  be  no  doubt  but 
my  lady  knew  it ;  Ihero  is  not  any  proof  uf  tier 
having  made  any  euquiry  alter  ibe  child :  it  it 
true,  my  Indv  miehl  h«ve  made  tlie  eniguii'jr 
an?r  the  etiild,  and  it  ta'i^t  bate  proved  m«t- 
feclual,  becauseof  hit  beingiraiisportedmsoon 
aft«rj  bulof  this  there  is  no  evidence;  bnlhuw 
comes  it  she  did  aat  make  Ihe  enquiry,  etoe- 
cially  where  her  own  iutereit  waalo  guide  her 
in  that  case  ?  And  yet  here  is  the  force  of  tlie 
mother  and  iateresi  joined  tOEether,  and  Ihey 
WM-k  nothing  on  my  lad^  Alwam.  Vou  irill 
consider  thai  the  estate  ot  ihis  family,  on  failure 
of  issue,  being  to  go  tu  Arthur,  late  lord  Angle- 
sea,  it  WSJ  the  interest  of  tbe  mnlbrr  to  have 
made  a  strict  emiuiry  afW  him  ;  sod  yet  iliera 
ia  a  wilness  for  Ibe  delendanl,  Williain  Napp«r, 
who  tells  you,  that  he  had  a  letter  of  alter - 
ney  from  lard  Aiigiet^ea  to  lake  possession  of 
the  Rubs  estate  ;  and  by  virtue  Ihvreiif  made 
numbers  of  minutes  to  sereral  tenants,  and  u« 
ohjeclion  he  ever  heard  made,  thai  loi  d  Althsm 
ever  had  a  son.  That,  gentlemen,  seems  a  liltlo 
OKlraordinary. 

The  next  thing  thai  olTers,  and  the  tlrenglli 
of  tbe  case  for  the  plaintilTis,  Ihe  Irons  no  rtation 
of  him,  and  the  directions  Ibe  defendant  gate 
10  Mr.  Giffird  for  the  prosecution  of  bim  after 
Ills  return  hito  England.  You  will  lonsider,  as 
lo  the  transportaiion,  wbelber  the  delisndant 
was  tbe  occasion  of  it,  or  notf  If  you  should 
be  of  opinion  \\e  Mas,  you  will  consider  how  far 
lliat  will  hate  an  eHecl  upon  you.  He  claimed 
to  be  the  lawful  son  of  lord  Althsm ;  you  will 
cnnaider  wbeiher  lliai  might  bate  been  an  in- 
ducement. If  vou  should  he  of  opinion  that 
tbe  story  on  eacn  hand  carries  on  ei|ual  degree 
of  prohablKly ;  this  oTlhe  trans  portal  ion  should, 
iu  my  apiwebeusion,  Mid  great  weight  lo  the 
case  of  ibe  plaintifl' :  If,  on  the  other  hand,  you 
sliould  not  think  ihcm  equally  probable,  you 
will  consider  how  far  Ibe  irons  porta  tion  will 
make  you  give  crrdit  tu  a  fact  you  ihould 
otherwise  think  imyrvbable.  The  same  may 
be  said  in  rM|iect  of  ihe  atlvrnpl  in  Euglaud,  in 
relation  to  the  pioseculiou  of  him  there.  I  bare 
mentioned  before,  thatieveral  ufthe  witnettes 
on  lioth  sidrs  caonol  be  verv  wvll  depeodeil 
upon ;  and  thrrefure  i  ibmb  the  piohabiliiy  or 
iiaprobabiliiy  of  tbe  thing  may  lie  of  ^real 
treigbl  in  dctermioiug  tbe  present  i|ue>tioo. 


The. 


Mr.Caldwell.atiomey  fur  the  plaiutiir, 
d  10  III*  jury  tliP  issue  wludi  ihey  were 
Afterward*  lite  jury  wiilidrew  iuM  tl» 


I41J 1  17  GEORGE  U.     Trial  in  Ejectment  belKcen  J.  Anne^eij,  esq.    [1114 

jury- room,  and  in  about  two  hours  time  they         «•  On  hit  father's  ceasinpr  to  par  for  hiibosrd 
brought  in  their  verdict.  at  school,  this  youngs  nohlemun  bectn  to  ffH 

Cluk  of  tht  Pleas.    Cryer,  make  procla-  *'*'  misfortunes.     His  clothes  ffrew  rsg^Mi  sod 

iQ2(iflu.  '^  too  httle  for  biin,  his  fsrc  coarse  and  scsniy,  do 

Oyer.     Hear  ye  hear  ve  &c  recreations  aliuired,  nerir  looked  ufion  bui  vith 

Clerk  cf  the  FleL    Gentlemen,  which  do  ^r^'^l?'  "^''  ^^?^^  *?  ^^  V^^  reproaches,  coo- 

you  find,  tor  the  plaiDliflf  or  the  defendant?  linually    reprimamled,   oficn   crnt-lly   bettn, 

Sir  Thomas  Taylor,  Foreman.     We  find  for  ^^^^'^^  barely  for  not  doing  what  none  took 
the  plainUff,  with  6rf.  damages,  and  6d,  costs.     '  I*!*"  P"'°*  ***  instruct  him  in.     While  otiiers  cf 

Counsel  for  the  Plaintiff:   My  lords,  I  pray  *"*  "^  "^^^^  «^  ^*'«'''  •^''•*«*  exercises,  he 
judgment  un  behalf  of  the  plaiutifT,  on  reading 
this  verdict,  and  that  it  may  l>e  recorded. 

Clerk  of  the  Pleas  reads  the  ferdict. 

31r.  Lee,  of  Counulfor  the  Defendant.  My 
lords,  I  hope  your  lordships  will  not  now  ^ve 
judgment,  for  1  humbly  conceive  the  plaintifTs 
declaration  is  bad,  and  that  he  can't  have  judg- 
ment [and  he  offered  some  matter  in  law  in  ar- 
rest ot  the  judgment] 

Court.  Gentlemen,  we  will  adjourn  to  nine 
o'clock  to-morrow  morning. 

The  Grycr  accordingly  adjourns  the  Court. 

Saturday  Morning. 

Counsel  for  the  Plaintiff.  My  lords,  wc 
pray  judgment  iu  behalf  ot  the  plaintiff  on  this 
verdict. 

Court .    Take  judgment. 

Counsel  for  the  Defendant.  1  pray  tbilt 
Writ  of  Error  may  be  received. 

Court.    Allow  the  Writ  of  Error. 


.\  Report  of  lliis  Trial  is  inserted  in  vol.  ll, 
I'P  '::>.  87.  Ml.  'J06  2:)5.  316.  373.  431.  537. 
y>[K  of  the  (rcntlcmairs  Ma<;aziiic ;  and  in  vol. 
J:*»,  |h».  o:i.  'joi.  i\06.  CuQ.  of  the  same  work  I 
fiiul  tlie  i'oUuwiijg  pariicuiurs  relating  to  Mr. 
AnnciJliy : 

''  Trom   the  Memoiiis   of  an  unfortl- 
MTE   YOL'N(;    Nobleman    rf.tukned 

F;ROM    \  TIIIRTEEN   YeaRS   SlaVERY  IN 

America,  where  he  had  been  sent 
BY  THE  wicKhi)  Contrivances  or  his 
••RILL  L'sci:;, 

'■  Tiic  first  41'  pajjes  relate  to  the  noble  pa- 
>cnTs  of  lliis  ar.uidoned  child,  whose  life,  it 
soeuiS,  was  an  obstruct  ton  to  1  be  grant  of  some 
!( .'^sic'S,  \f  hich  the  extravagance  of  tlie  baron  bis 
fi.il.er  n:r.de  necessary.  He  was  therefore  re- 
niuvtv*  from  h  pnl  'ic,*to  a  ver^  obscure  school, 
and  letters  were  wilueu  to  corroborate  a  report 
of  his  dentil,  auil  of  that  of  the  baroness,  who 
had  been  forced  to  rttire  for  subsistence, 
10  the  duke  her  fitber  in  another  kingdom, 
ill^c-r  wbich,  tbe  ri'lation  says,  that  the  baron 
her  husband  married  a  woman  who  happened, 
amidst  the  variety  he  had  tried^  to  please  and 
^x  him. 


employed  either  in  drawing  water,  cleaonff 
knives,  or  some  servile  office.  Thus  lie  conti- 
nued for  more  than  two  yearf,  when  grawin; 
more  sensible  of  his  ill  usage,  he  begao  to  imn^ 
mur,  but  was  told  that  he  waa  kept  only  on  cbi- 
rity,  and  if  he  liked  not  that  way  of  life,  k 
miVht  seek  a  better :  the  poor  innoceDt,  thisk- 
ing  he  con  Id  not  fare  worse,  without  dotha, 
mone^ ,  or  the  least  hint  given  him  where  to 
tiiid  his  father,  turned  bis  back  upoa  tbtl  wcem 
of  woe,  trarelled  without  knowiDg  where  teia 
till  he  came  to  a  small  Tillage.  Hb  tenser 
limbs  being  ranch  fatigued,  Ibr  be  wit  btf 
turned  of  ten  Tears  old,  he  eat  down  at  a  ter 
and  wept  bitterly  for  want  of  food ;  m  getoAdi 
woman  relieved  him  with  some  bread,  meat  vd 
butter-milk,  which  enabled  him  to  pnrsiie  Ui 
journey,  till  he  arrived  at  the  capital.  Hoc 
friendless  and  hungry  he  fell  again  into  tMBi 
which  not  availing  him,  he  war  obliged  tokf, 
and  by  his  modest  deportment  obtained  sonc 
relief,  and  at  niffht  took  op  hia  lodging  ia  t 
church  porch,  fiext  morning,  recollectin|^ tlMI 
his  school -master  talked  of  writing  to  his  &• 
tlier  in  this  city,  he  went  from  one  street  to 
another,  enquiring  for  the  harori.  At  length 
was  informed  that  his  lordship  had  retired  fron 
town  some  time,  none  knew  whither,  oo  le- 
count  of  his  debts.  Our  noble  wanderer,  dov 
\y  ithout  hope,  hunger  pressing,  and  some  char- 
libh  people  threatening  him  with  the  honse  of 
correction  for  asking  relief,  he  took  to  runDing 
of  errands,  and  procured  a  mean  subsistancr, 
after  the  manner  of  other  poor  boys,  it  bip- 
nened  one  day,  some  boys  fell  upon  him  sn 
oeat  him  severely,  calling  him  dog  and  sooon- 
drel,  words  he  could  less  bear  than  the  bloin; 
he  ansuored,  They  lied, — he  was  better  tfaio 
the  best  of  them, — his  father  was  a  lord,  lod 
he  should  be  a  lord  when  a  man. — Af\er  thif 
he  was  in  derision  called  my  lord,  which  the 
mistress  of  a  house  hearing,  called  him,  and 
seeing  he  had  no  deformity  to  deserve  the  tidf, 
as  vulgarly  given.  Tell  me,  says  she,  wbv  tb«r 
call  you  my  lord.  Madam,  replied  he,  I  shall  k 
a  lord  when  my  father  dies.  Ay  !  said  she,  vbo 

is  your  father  ? — The  baron  of  A and  my 

moiher  is  the  baroness  of  A ,  but  she  bit 

\ei\  the  kingdom,  and  they  aay  I  shall  nertf 
see  her  again. — Who  tells  3'ou  all  this?— I 
know  it  very  well,  I  lived  in  a  great  house  oeee, 
and  had  a  footman,  and  then  was  carried  lot 
great  school  and  was  reckoned  the  brad  b«r 
there,  and  had  the  finest  cloatha ;  afterwards  1 
was  carried  to  another  school,  and  there  tbej 
abuse<l  me  ndly,  becaoee  they  aaid,  my  faihir 
would  not  pay  rar  me.— Why  do  joo  not  gets 


1443] 


and  Richard  Earl  ofAnglesea, 


A.  D.  17i3. 


[UtG 


y«iir  father  ?— I  dooH  know  where  to  find  him, 
Miiwered  the  |K>or  ioaocent,  and  burst  into 
tearfl.-— Do  you  think  you  should  know  him  ? 
>-- Yes,  very  well,  tliough  it  is  a  great  while 
since  1  saw  him,  but  1  remember  he  used  to 
come  in  a  coach  and  six  to  see  me,  when  1 
lived  at  the  forest  sciKMl.  Moved  at  this  ac- 
oount,  hut  willing  to  examine  him  more  strict- 
Ij,  she  said.  You  are  a  lying  lioy,  for  that  lord's 
■OD  is  dead.  He  replied,  Indeed  i  lell  the 
IruUi,  I  never  was  sick,  but  ouce  when  1  had  a 
fiUI  and  cut  my  head,  and  here  is  the  mark, 
puttiog  his  hair  aside,  and  my  fath%r  was  very 
angry  with  those  who  hud  the  care  of  niP. 
Tnt  woman,  wlio  kept,  an  eating-house,  to 
which  his  father,  sometimes  came,  having 
heard  that  his  son  and  heir  was  dead,  felt  no 
little  surprize  to  see  the  child  reduced  to  so 
niserahle  a  condition.  She  knew  enough  of 
tbn  extravagance  and  necessities  of  the  father, 
nnd  that  certain  leases  on  which  money  was 
laiacd,  could  not  be  granted  while  this  son  was 
rafalidy  known  to  be  alive :  and  not  doubtuig 
nis  ioBOceot  assertions,  gave  him  not  (inly  food 
but  clothes,  and  promised  to  write  to  his  father. 

**  In  the  mean  time  his  uncle  can)c  to  the 
hmise,  and  the  good  woman  tuhl  him  what  she 
had  heard  and  done.  IJe  said,  it  was  un  im- 
paction :  for  his  nephew  was  deail :  1  mean 
the  boy  that  was  called  my  brother's  son  ;  for 
though  his  lady  had  a  child,  he  was  not  the 
father.  1  can  say  nothing  to  such  a  distinc- 
tian,  replied  tlie  woman,  but  as  he  was  born  in 
wedlock  he  must  be  the  heir,  and  ought  to  be 
eincateil  in  an  agreeable  manner. 

"  The  uncle  desired  to  see  him,  who,  being 
new  clothed,  and  having  beautiful  hair,  came 
in  with  an  cogging  mien,  and  most  respectful 
behaTionr  to  his  oenelactress,  as  well  as  to  the 
gentleman,  as  he  appeared  to' be  of  distinction, 
who  instead  of  bemg  moved  with  com|>assk>n, 
Memly  cried  out.  What  name  is  this  you  take 
■poa  vou?'— I  take  none  upon  roe,  Sir,  but 
irhat  I  brought  into  the  world  with  me,  and 
van  always  called  by.  Nobody  will  say  but  I 
im  the  sou  of  the  baron  of  A^— ,  By  whom? 
lemanded  the  gentleman. — By  bis  wife  the 

mroness  of  A ,  replied  the  other  with  more 

enolution  than  oouki  be  expected. — Then  you 
kte  a  bastard,  cried  the  uncle,  for  your  mother 

ran  a .  If  I  was  a  man,  you  should  not  use 

ny  mother  or  me  thus,  whoever  you  are,  said 
he  cbihl  with  tears  m  his  eyes^  which  moved 
be  woman  of  the  house  to  intercede  for  milder 
reaUnent. 

•«  The  child  said  at  last  he  knew  the  gentle - 
oan  was  his  uncle,  for  he  came  once  with  his 
ether  to  see  him  at  school,  but  the  go(M|  uncle 
epiieil,  he  knew  nothing  of  it,  and  \irnt  out  of 
be  room,  the  woman  followed,  ami  entreated 
lim  to  consider  his  nephew,  and  not  reiiisr  him 
i  proper  education.  He  promis«;d  to  spc.ik  to 
lia  brotlier,  but  desired  her  to  keep  the  atiuir 
irivate.  He  was  indeed  as  good  as  his^i^oni, 
ofbrmed  his  lirother  of  the  condition  his  m^phcw 
(ran  in,  but  observed  further,  that  aitl)oii(;li 
leme  care  should  be  taken  of  bis  cuucatiou.  it 


wonkl  be  of  ill  consequence,  on  account  of  the 
leases,  were  he  known  to  be  alive,  befure  the 
baron's  decease.  He  therefore  advised  Hr. 
Omers,  or  some  place  beyond  soa,  where  he 
might  be  traineil  np  at  a  small  expencc.  The 
baron  readily  approved  this  advice,  and  gave 
his  brother  monf>y  to  reimburse  the  woman, 
and  for  further  exigences.  The  uncle  took  the 
conduct  of  I  he  whole  aflfair  upon  himself.  The 
iirst  step  he  made  wan  to  agree  with  the  master 
of  a  ship  bound  for  Pcnsylvania,  tor  a  sum  of 
money  paid  down  to  transport  a  boy  thither, 
and  sell  iiim  to  the  fairest  bidder.  To  palliaiv 
the  villainy  he  told  tlu^  o:iptain,  the  hoy  was 
the  natural  son  of  a  person  of  cundittun,  but 
had  vilely  l>ehaved,  and  as  he  deserved  no  re  - 
gard  on  that  score,  his  frientls  were  loth  to 
suffer  disgrace  by  him,  therefure  chose  to  send 
him  out  of  the  way  of  temptation.  I'hen  tie 
returns  to  the  wonian,  tells  her  the  boy  was  to 
embark  forthwith  for  St.  Omers,  and  takes  him 
away  with  him :  mean  time  the  vessel  not 
being  ready  to  sail,  he  lodges  him  in  a  private 
house,  at  his  devotion,  where  the  boy  w^s  kept 
concealed  till  things  were  ready  for  his  em* 
barkation.  Soon  after  the  bamn  was  taken  ill 
and  died.  The  worthy  uncte  immeilintely  took 
upon  him  the  title  of  baron,  Hitli  the  estate  ap- 
ptndant  on  it :  the  baron's  sudden  death  is 
supposed  to  l>e  the  cause  why  he  made  no  de- 
claration in  behalf  of  his  son,  on  his  dcath*bed. 
Meanwhile  the  unhappy  youth,  now  real  baron, 
was  kept  too  close  a  prisoner  to  hear  one  word 
about  it.  Being  told  by  his  uncle  that  nothing 
should  Ije  wanting  to  retrieve  the  time  he  had 
lost,  the  ho|>eK  of  future  accomplishments  gave 
him  new  life,  he  went  on  board  the  ship,  and 
was  easy  and  gay,  tdl  a  storm  arising,  ruiflcil 
the  pleasing  prospect  and  filled  his  head  with 
all  the  usual  terrors  that  attend  it. 

**  The  fears  of  death  no  doubt  had  such  an  ef- 
fect on  our  young  voyager,  that  though  ig- 
norant as  yet  of  his  misfortunes,  he  heartily 
wished  himself  on  land.  Alas,  he  little  ima- 
gined the  severity  of  his  fate  was  yet  to  come  ! 

**  The  violence  of  the  storm,  which  had  lasteil 
three  hours,  being  abated,  a  ckith  was  spread 
in  the  captain's  caldiin,  our  young  baron  was 
going  to  place  himself  at  the  table,  when  ona 
of  the  sailors  checked  him  with — "  Hold, 
youngster,  do  you  think  you  are  to  be  mesv 
mate  uith  the  captain?"  This  sea  jt^st,  se- 
conded by  the  loud  mirth  of  two  cabbiu  boys 
who  attended,  a  little  disconcerted  our  un- 
happy young  nobleman.  The  captain  saved 
him  the  trouble  of  a  reply  by  saying  :  **  The 
boy  will  not  chuse  the  worst  company  1  find, 
were  he  left  to  himself,  but  he  \u\{  know 
his  distance  belter  hereafter ;"  This  sarcasm 
phmged  him  intd  a  silent  confuVion,  during; 
which  he  had  the  mortiticutitm  to  see  the  ca[*- 
tain  dine  elegantU  ;  ofurr  which  he  had  his  al- 
lowance of  salt  beef  and  pease,  given  him  in  sa 
coarse  a  manner,  asmi;:ht  have  ac(|uaiiiied  i:iui 
what  he  had  to  apprehend.  lie  iM-gau  to 
mutter,  tiiat  he  thou£;ht  hliiiselt'  ill  used,  nnl 
would  acquaint  the  Luicu   his  fuiiiei  Mitb  )*,-, 


1447]  17  GEORGE  II.    Trial  m  E/edmeni  himeen  J.  Annesley,  esq.    [144S 

which  naturally  ndmnz  the  curiosity  of  the 
•ailors,  the  captain  in  his  own  vinilicatioo  re* 
lated  the  story  as  be  had  it  from  the  kind  uncle, 
by  which  the  young  baron  beings  fully  apprised 
of  his  cruel  destiny,  it  produced  so  nsibie  a 
despair,  that  the  captain  thongrht  himself  obliged 
to  con6ne  him  to  the  hold.  But  he  mistook 
the  remedy ;  the  vonngstcr's  generous  spirit 
was  not  to  be  tamed  by  ill  usage.  A  disdainful 
sullenness  succceiled :  he  obstinately  refused  ail 
sustenance  though  ^iressed  to  receive  it  by 
beating,  or  swallow  it  by  force.  Arguments, 
menaces,  and  stripes  were  equally  vain.  The 
captain  saw  a  necessity  of  changing  his  me- 
thod, for  liis  oivn  interest.  He  sent  for  him 
into  hiscabbin,  apologiEeU  for  the  ill  treatment 
lie  had  receiveil,  as  done  without  his  warrant 
or  privity,  and  assured  him,  when  they  reached 
tbe  Inchan  continent,  he  would  employ  his 
good  ofiBces  to  place  him  to  his  liking,  with 
other  arguments  to  reconcile  him  to  his  cap- 
tivity. But  all  that  was  urged  had  no  effect 
on  the  young  baron,  till  promised  his  case 
should  be  represented  to  his  (Hther.  This  as- 
surance reconciled  him  to  life,  and  the  captain 
using  him  kindly,  to  fit  him  for  the  market  he 
designed,  our  young  exile  landed  well  in 
Pennsylvania. 

'*  Here  the  captain  repeating  his  former  as- 
surances, he  was  sold  to  a  rich  planter  in  New- 
castle county,  called  Drummond,  who  imme- 
diately took  him  home,  and  entered  him  in  the 
numlier  of  his  slaves. 

"  A  new  world  now  opened  to  him,  and  being 
set  to  the  felling  of  timber,  a  work  no  way  pro- 
portioned to' his  strength,  hediditsoaukwardly, 
that  he  was  severely  corrected.  Drummond  was 
a  hard  inexorable  master  who,  like  too  many  of 
the  planter,  consiiier  their  slaves  or  servants 
as  a  diflfercut  species  and  use  them  accordingly. 
Our  American  planters  are  not  famous  for  hu- 
manity, being  often  persons  of  no  e<lucatiun, 
and  having  been  formerly  slaves  themselves, 
they  revenge  the  ill  usage  they  received,  on 
those  u  ho  tall  irilQ  their  hands.  The  condition 
of  KnrG|iean  servants  in  that  climate  is  very 
wrcichetl,  their  work  is  hard,  and  fur  the  most 
part  abrn:i(I,  ex[>o^e(l  to  an  unwholesome  air, 
their  diet  coarse,  being  either  Poul  or  bread 
made  of  In-.lian  corn,  or  hominc  or  mush, 
which  is  meul  of  the  same  kind  moistened  with 
the  fat  of  bacon  ;^and  their  drink,  water 
sweetened  with  a  little  ginger  and  molasses. 
Our  young  captive  began  to  sink  under  his  ca- 
lamity, when  he  met  with  a  comfortress  in  a 
female  slave  of  near  sixty,  who  had  been  per- 
fidiously trepanned  hy  a  wicked  husband,  and 
sold  10  Pennsylvania.  As  she  dressed  the  fond 
for  the  slaves  and  carried  it  out  to  the  field  to 
tbeni,  she  soon  took  notice  of  him,  and  her  pity 
increased  on  hearing  a  story  that  so  nearly  re- 
sembled her  own.  8he  had  a  good  education 
and  uas  not  unacquainted  %iith  history,  so  that 
her  c<in«ersaiiou  utfonled  the  young  baron 
hotii  consolation  anil  instructiiui.  She  some 
timrs  wrote  short  pieces  of  instructive  history, 
on  bits  of  pa[K!r  which  bhe  left  with  him  in  the 


field,  and  to  look  over  Acw  he  oftea  eggkclni 
hit  laboar,  regardlesi  of  tbe  Mown,  he  knew  k 
waa  to  sailer,  so  eager  he  wee  to  iaiprove  kii 
mind.  HeregatdeB  this  sieve  ethisaNdNr, 
and  was  treated  by  her  es  m  fevonrite  chiU,  Wl 
in  four  yeers  she'  died,  end  left  him  m  Ik 
deepest  efllictioo  for  her  lose.  His  nnsM 
continued  ill  usage,  end  the  innete  evcniae  k 
had  to  slavery,  at  last  determined  him  tt  » 
deavour  to  make  his  escape.  Yet  he  ke|A  lUi 
resolution  to  himself,  having  little  inclmatiBiti 
converse  with  his  fellow  slaves,  whoee  mman 
were  no  way  conformable  to  hie  own.  Hsv> 
ever  one  of  them  who  entertained  tbe  same  4t> 
sign,  observing  his  melancholT,  broke  hit » 
tention  to  him,  and  inforaied  him  tliet  hesnf 
e  ship  was  ready  to  sail  iVom  Dover  (a  aosk- 
bouring  port)  to  Eufflend,  he  reeolved  la  ikt 
that  opportunity  and  invited  him  to  peilake  Ui 
flight.  The  yonng  baron,  after  aome  ^amf^mit 
agreed  to  tbe  proposal,  end  went  early  to  U,m 
onicr  by  day-oreak  to  put  their  prcgeet  ie  en- 
cution.  But  what  was  his  sarprke  on  awA- 
ing,  contrary  to  custom,  to  find  the  day  a^ 
vanced,  and  the  family  in  confusion.  Ik 
other  slave,  Jacob,  had  robbed  hia  mutnmi 
fled  with  the  booty.  Messengers  were  dii- 
patched  in  pursuit  of  him  every  way.  Hoe  ii 
the  young  Mron  bless  hk  good  fortune,  thukl 
saved  him  from  such  a  danger,  as  being  asB- 
nocent  accomplice  in  Jacob's  villainy !  IlesliB^ 
dered  at  tlie  guilt  he  might  have  eontraded  \j 
partaking  his  flight.  Jacob  had  not  goee  tf 
miles  when  he  was  retaken  with  his  niasler*i 
effects,  and  brought  back  to  receive  the  pnaiib- 
ment  he  deserved,  after  which  Dramroood  mU 
him  to  a  planter  at  Philadelphia,  as  fearing  k 
might  take  his  revenge  for  what  he  had  sof- 
fercd. 

**  The  young  baron  was  now  seventeen,  ni 
had  passed  five  years  of  the  servitude,  for 
which  he  was  sold,  when  weary  of  the  scver^ 
of  his  condition,  in  a  sullen  tit  of  despair  he  left 
the  house  of  Drummond,  resolved  to  safer 
death,  rather  than  be  brought  back.  Thai 
armed  with  a  hedging  bill,  he  set  out  withoot 
knowing  his  course,  and  as  he  was  active  ni 
nimble,  had  got  some  miles  before  he  wsi 
missed.  Immediate  pursuit  was  made  after 
him,  but  to  no  purpose.  Three  days  be  wia- 
dered  in  the  woods,  and  having  but  little  nno- 
rishmeut,  grew  faint,  when  he  spied  a  rir«r 
which  be  took  for  the  Delawar,  but  was  iodeed 
IheSasquahana,  which  partsPennsylvaniarrom 
the  Iroquois  nations.  He  also  saw  a  town  at 
some  distance,  but  not  caring  to  venture  neu 
the  shore,  he  lay  down  at  the  foot  of  a  tree, 
when  fortune  bronght  him  a  present  rthef  te 
plunge  him  in  new  distresses. 

**  it  was  now  twilight,  when  he  heard  tk 
trampling  of  horses  on  ftitl  gallop,  adTanoin^ 
towards  him,  and  lifting  up  his  eyes  from  hii 
covert,  (lerceived  two  men  well  mminted  ;  oM 
of  whom  had  a  woman  behind  and  the  other  s 
portmanteau.  As  tliese  did  nut  seem  to  be  par^ 
suers,  his  courage  re vi veil  ou  hearing  tiK*  tore* 
most  say  to  the  woman  behind  him,  "  Csa^ 


1440] 


nnd  Rkkard  EaH  ofAiigktea. 


A.  D.  1743. 


[1450 


By  dear,  it  ii  time  to  take  some  refresh ment, 
■ml  thii  is  a  coiiFenicnt  place.'*  With  that  he 
ftlightetl,  helped  her  off,  and  hit  atteiidaDt  Ims- 
ImiDg  the  horse  to  a  tree,  took  aome  meat  out 
of  one  of  his  bags,  and  spread  it  on  the  grass, 
irith  a  bottle  of  wine,  and  they  all  sat  down  to 
Ihe  refreshment,  whioh  our  young-  baron  wonld 
•rillinf^y  have  partook,  if  he  durst.  Howe? er, 
in  peeping  at  them,  he  made  a  noise,  that 
■lu-med  the  servant,  who  starting  up  saw  him, 
and  cried  to  his  master  they  were  betrayed,  at 
the  same  time  striking  at  him  with  his  drawn 
cntluB.  He  kneeling  protested  his  innocence, 
and  aner  repeating  his  story  prevailed  on  the 
Bwsler  to  pity  hi^  misfortunes.  They  now  in- 
▼Red  him  to  share  their  repast,  which  he 
IhankfuUy  accepted,  al^erwhicli  they  told  him 
they  were  going  to  Apoquenimink  to  embark 
lor  Holland,  and  would  procure  him  a  passage 
with  them.  This  happy  news  made  him  forgfet 
■11  he  bad  suffered,  and  gave  him  new  spirits 
fbr  his  Journey.  They  remounted,  and  he 
Ibllowed  on  foot ;  hut  tney  had  not  gone  far 
through  the  woods,  when  they  saw  by  the 
horses  and  lights  behind  them,  they  were  pur- 
•oed.  The  lady  gave  all  the  signs  of  the  ut- 
BMtt  consternation.  "It  is  he, it  is  hehim- 
■elf,  she  cried,  we  are  lost  for  ever."  The  ap- 
■ffoach  of  the  pursuers  gave  no  time  for  deli- 
Deration.  The  lady  jumped  off,  and  hid  her- 
self amongst  the  trees.  The  gentleman  and 
hU  servant  drew,  and  the  baron  with  his 
hedge  bill,  in  gratitude  thought  himself  bound 
to  assist  the  weakest  side,  but  the  combat 
«■■  oneqnal,  and  they  were  surrounded  and 
taken  prisoners.  The  lady,  who  had  fainted, 
vnderwent  the  same  fate,  and  in  this  manner 
tfa^  were  conducteil  that  night  to  a  village, 
and  the  next  day  lodged  separately  in  Chester 
gaol. 

"  It  was  here,  too  late,  the  young  baron  was 
hilbrmed  thai  the  lady  was  the  daughter  of  a 
rich  merchant,  who  having  an  inclination  for  a 

Emng  man  beneath  her  rank,  was  by  her 
ther  forced  to  marry  against  her  will;  but 
still  keeping  company  with  her  first  lover,  (the 
person  taken  with  her)  they  agreed  to  rob  her 
nusband  and  leave  the  country,  who  having 
timely  notice,  had  pursued  them,  and  there  w^s 
no  doubt  but  they  would  suffer  the  rigour  of 
the  law. 

"  The  noble  slave  trembled  at  this  relation, 
be  aaw  the  hazanl  of  associating  himself  with 
itraDgers,  and  yet  in  the  circumstances  he 
Was  in  he  knew  not  how  to  avoid  it. 

"  The  trial  came  on  next  mominfr.  The 
lady,  her  lover,  nnd  servant,  were  rundemned 
to  die  for  lobhery.  The  sentence  of  the  young 
barttn  ^vas  resipited,  as  he  did  not  bclons^  to  the 
^lilty  personji,  but  he  was  remanded  to  prison, 
iritii  orders  that  he  sliotild  be  expoi^ed  every 
lay  in  the  market-place  to  public  vie«v,  ami 
tf  It  conld  be  proved,  that  he  had  ever  been  at 
UhrMer  before,  he  should  lie  deemed  accessary 
lo  the  robliery  and  suffer  death. 

**  In  this  siispence  lie  rpmainrd  5  weeks. 
ivhen   some  affairs  of  trafiic  brooi^lit  Druin- 


mond,  his  old  master,  to  Chester,  who  im- 
mediately reclaimed  him  as  his  property.  Be- 
fore his  departure,  our  young  baron  was  a  me- 
lancholjr  spectator  of  the  execution  of  the 
three  criminals,  taken  with  him. 

'*  The  fnrit  the  young  baron  received  from 
this  attempt,  was  (by  the  laws  of  that  country) 
to  6nd  the  remaining  two  years  of  his  servitude 
redoubled,  and  the  severity  of  his  master  pro* 
portionablv  increased.  However  u|>on  a  com- 
plaint matte  to  the  justices  of  that  province,  at- 
tended  with  proofs  of  his  ill  usage,  his  master 
was  obliged  to  sell  him  to  another;  but  he 
gained  little  by  this  alteration  in  his  condition. 
He  bore  it  notwithstanding  for  three  years  with 
tolerable  ]iatienoe,  but  conversing  with  some 
sailors,  who  were  returning  to  Europe,  it  awa- 
kened all  his  ardour  for  liberty,  and  he  resolved 
at  any  rate  to  venture  a  second  escape.  His 
design  proved  again  abortive ;  he  was  re-taken 
before  he  could  get  aboard,  and  though  he  had 
but  one  year  to  serve,  he  was  condemned  to  suf- 
fer for  five.  Tliis  last  disappointment  and  ad- 
ditional bondage  quite  suni  his  spirits.  He 
fell  into  a  deep  melancholy,  which  appeared  in 
all  his  deportment ;  so  that  his  new  master  ap- 

tirehending  he  might  lose  him,  began  to  treat 
lim  with  less  austerity,  and  retommended  him 
to  the  care  of  his  wife,  wlio  being  a  woman  of 
humanity,  often  took  him  into  the  house,  and 
gave  him  part  of  such  provision  as  they  had 
at  their  own  table,  or  in  his  absence  ordered 
her  daughter  (who  was  called  Maria)  to  per- 
form the  same  kind  offices.  This  young  girl 
soon  conceived  a  great  tenderness  lor  the  young 
baron,^and  endeavoured  all  the  ways  she  possi- 
bly could  to  relieve  his  sadness,  which  was 
such  as  gave  him  no  ro<im  to  take  notice  of 
what  otherwise  he  must  have  observed.  It 
happened  she  was  not  the  only  one  on  whom 
the  graceful  person  of  our  noble  slave  had 
maile  an  impression  ;  a  young  Indian  maid  of 
the  Irokese  nation,  had  distinguished  him  from 
his  fellow  slaves,  and  as  she  made  no  itpcret  of 
her  affection,  used  to  express  her  kindness  for 
him,  by  assisting  him  in  his  daily  toils,  telling 
him,  it  he  woulil  marry  her  when  his  time  of 
servitude  was  expired,  she  would  work  so  hard 
for  him,  as  to  save  him  the  expence  of  two 
slaves.  The  young  baron  used  all  the  argu- 
ments he  roufd,  to  persuade  her  to  stifle  a  pas- 
sion 10  which  she  could  hope  no  returns,  it 
was  on  one  of  these  occasionn,  that  Aluria,  his 
master's  daughter,  surprised  him  sitting  \uth 
this  Indian  maid,  and  jealousy  awakening  htr 
love,  she  loaded  him  with  reproaches,  and  left 
him  without  allowing  him  to  make  a  reply. 

**  Thus  did  our  young  baron  in  his  caplivit\ 
find  himself  the  object  of  a  pasidon,  he  hud  no 
taste  or  inclination  for  himself,  and  studied  a« 
much  to  shun  the  caresses  of  his  two  niiMre^scs, 
as  others  would  have  done  to  return  them, 
l-nhirkily  Maria's  impatif ncc  to  sec  him,  car- 
ried her  one  day  to  a  field  distant  fi-oni  the 
plantation,  wlirrc  she  knew  he  worked.  In  her 
way  thiilier,  >lie  met  her  riial,  hml  on  the 
same  desij^n.     Tiie  Inilinn.  no  Um'^fr  mistress 


1451]  17  GEORC£  II.    Trial  in  Ejcdmtnt  behoeen  J.  Annedet^,  esq.  [Uat\ 


•f  lieneirflew  at  hM*  like  a  iygnu^  so  tbal  it 
wai  pot  without  some  strugi^ie  she  got  out  of 
Ler  fuUMl**  ^^^  fl^  towards  the  place  where  the 
noble  kjnf  e  was  employed.  The  Irokese  find- 
ing h^  revenge  disappointed,  and  perhaps 
<l reading  the  consequences  of  the  other's  power 
and  resentment  for  the  assault,  made  directly 
to  a  river  ailjacent,  and  plunging  herself  in, 
eodeit  at  once  her  lovo  and  her  life. 

"  Maria,  who  saw  this  catastrophe,  was 
Itfought  home  to  the  house  pale  and  speech- 
less; she  was  put  immediately  to  bed,  and 
when  she  recovered,  all  she  could  say  was  to 
repeat  the  name  of  the  Indian  maid  with  great 
emotion.  This,  joined  to  the  account  of  some 
slaves,  who  had  seen  all  that  passed  between 
tliem,  and  who  were  witnesses  to  the  Indiau's 
late,  greatly  alarmed  her  father  and  mother. 
James  only  (the  noble  slave)  ^nM^ssed  the  real 
truth  of  tiie  matter  ;  and  as  Maria  of^  men- 
tioned his  name,  it  was  concluded  by  her 
parents  to  send  him>  into  her  room  under  some 
pretence  or  other,  and  place  themselves  so  as 
to  liear  what  passed.  This  stratagem  had  the 
desired  success.  They  heard  their  dan^rhter 
express  the  roost  violent  passion,  whii:h  they 
found  was  no  way  encouraged  by  their  slave. 
As  they  could  not  but  entertain  a  just  opinion 
of  his  honesty  and  prudence,  they  resolved  to 
take  no  notice  of  what  passed ;  but  in  order  to 
<*ure  their  daughter  of  her  passion,  it  was  con> 
eluded  to  give  our  young  baron  the  liberty  his 
late  behaviour  deserved.  The  mistress  soon 
acquainted  him  with  this  good  fortune,  and  he 
liow  indulged  the  pleasing  hopes  of  returning 
to  Europe,  and  hems  restored  to  his  honour 
and  fortune.  He  looked  on  himself  as  already 
free,  when  his  master  gave  him  notice  he  was 
to  £jo  with  him  next  day  to  Dover :  but  his 
inastcr,  havinnr  secretly  less  favourable  inten- 
tions, as  he  was  very  covetous,  bpgan  to  re- 
flect, that  five  years  the  younof  baron  had  to 
serve  was  too  much  to  lose ;  and  though  to  his 
wife  he  pretended  his  intention  to  set  him  free, 
he  secretly  agreed  with  a  planter  near  Chiches- 
ter in  Sussex  county,  where  with  the  usual 
forms  he  transferred,  or  sold  him  for  the  term 
he  had  to  serve. 

*«  Never  was  astonishment  equal  to  that  of  the 
noble  slave  at  finding  the  baseness  and  ingra- 
titude of  Druminond.  He  reproached  him 
with  his  breach  of  promise  ;  and  had  not  those 
present  interpose<l,  he  had  probably  made  him 
pay  dear  for  his  perfidy.  His  new  master 
iniai;:ining  by  this  conduct,  that  he  was  of  a  tur- 
bulent disposition,  l»egan  to  repent  his  bargain  : 
However,  as  he  was  a  (fenerous  ^ood-natured 
man.  he  treated  him  mildly  ;  so  that  his  work 
was  easy,  and  he  had  the  privilej^e  of  a  good 
collection  of  books,  which  was  a  great  consola- 
tion t(»  hiiu.  This  kind  usage  had  such  an  ef- 
fect on  Ins  jjtcnerous  temper,  that  he  i-esolved 
patienilv  lo  wait  the  recovery  of  his  lilierty  ; 
but  unluckily  his  master  died  in  three  years, 
and  the  lieir'di<po»ing  of  jmrt  of  the  plantation, 
he  was  9M  to  a  new  master  in  \e\vcastle 
oouury,  almost  within  sight  of  Drummond*8 


Elantatioa.  Here  be  was  informeil  that  Xim, 
is  okl  mistress,  having  had  a  child  by  uoeif 
ber  father's  white  slaves,  he  was  by  the  Usitf 
the  couBlry  obliged  to  marry  her  ;  ami  thej 
were  gone  to  settle  at  a  distant  plaotatios,  miuk 
her  father  had  bought  for  him  ;  and  wIiumk 
nearly  concerned  him,  he  was  tohl,  that  tn 
brothers  of  Turquoise,  the  Indiau  maid,  (whw 
«lespair  for  him  had  occasioned  her  tiagiol 
death)  had  vowed  his  deMiuction.  As  liekaev 
the  desperate  and  revengeful  tem^Krr  ol'iim 
nation,  be  was  as  much  on  his  guard  as  |MK^iliir, 
but  all  his  precaution  had  been  fruitlet»s,  it  Pro- 
vi(k»nce  had  not  interposed  in  his  hxwu 
These  Indians  watched  him  so  narrowly,  ilat 
they  attackeil  him  one  day  in  the  remote  piir 
of  the  woods,  and  with  a  knife  had  cert^inij 
dispatched  him,  had  not  some  persons,  iuMsrd 
of  a  fugitive  slave,  at  that  instant  caroe  oy 
and  seized  the  assassins,  lie  escaped  witbi 
slight  wound  in  his  hip,  and  the  Indians  bnof 
carried  before  a  justice  were  sentenced  to  pay 
the  surgeon  for  his  cure,  and  the  master  for  tM 
loss  of  time  it  would  take  op,  and  to  Ipres^ 
curity  for  their  good  bchaviuur.  He  ew- 
tinned  two  mouths  ill  of  this  wound,  lodiK- 
ther  the  surgeon  nor  master  hastened  theico^ 
very,  which  was  against  both  their  i&terem 
During  this  indisposition  a  new  acciueat  is- 
volved  him  in  fresh  difficulties. 

<*  Going  out  one  Sunday  evening  for  dii 
Ifcnefit  of  the  air,  he  sat  him  down  under  a 
hedge,  which  partetl  bis  master ^s  ground  froo 
that  of  a  neighbouring  planter  ;  after  he  had 
read  here  a  while,  he  found  hiui!»eif  ilr>>ssy 
and  fell  asleep  ;  and  when  he  awoke  he  |xr- 
ceived  it  was  dark,  and  heard  near  him  ihs 
voices  of  two  persons,  whicii  laiseil  Ih<  cu- 
riosity. His  surprise  increased  to  tinJ  t>y  i:^ 
conversation,  that  his  mistress  was  fiirn::i.ja 
plot  with  Stephano  their  nei^libour's  sl;i^-..:.^ 
rob  her  husband  and  go  oft*  with  him  tor  L.- 
rope  in  a  ship,  he  had  prepared  for  that  }>::• 
poi^e.  The  noble  youth  was  struck  with  hv:n: 
at  the  discovery  ;  for  the  perlidious  umiu:.  .r. 
outwanl  appearance  seemed  to  live  «ory  l:/,>- 
pily  with  her  husband,  who  was  tuud  oi  iitr  iu 
excess.  He  resolved  to  prevent  the  %i!biiy, 
at  first  by  revealing  the  whole  to  his  uiacic-; 
but  reflecting,  that  a  woman  capaldt^  ut'  sucn 
treachery,  miifht  have  art  enou>;h  lo  luakc  x 
good  natured  husband  believe  her  innoccbt.  I.e 
resolved  to  try  another  method.  He  waUil 
till  the  guilty  pair  separated,  and  following  !  .i 
mistress,  hastily  over-took  her,  auvl  told  lit.-  U 
was  informed  of  all  that  passed.  He  rcir.o:i' 
sti-ated  to  her  the  baseness  o|  her  iK&>£m  ! 
flight,  and  ended  with  conjuiin;r  her  to  ri  riict. 
and  chan-ie  her  purpose  ;  in  whieli  cusc  lie  .i>* 
surcd  her,  what  had  passed  should  rLiiuiu  wiiii 
him  for  ever  secret. 

•*The  mistress,  finding  herself  disc  •! ore.', 
pn>teiided  a  sincere  repentance  fur  lur  t mil. 
which  she  promispil  him  she  w  onld  never  rv.  {Cit: 
adding  such  marks  of  kindness  to  him.  u^  i.rsve 
him  too  much  cause  to  imagine,  her  unlannd 
passion  had  changed  its  object. 


IS] 


and  Richard  Earl  nfAn^etea. 


A.  p.  1743. 


[1454 


^  Ai  the  young;  b&ron  coold  not  prersil  with 
■Mif  to  g^ratify  the  passion  of  his  mistress, 
jjiat  last  coDsifiered  him  ts  a  dangerous  per- 
il»  and  endeavoured  to  get  rid  of  him  by 


which,  though  his  serritude  was  a 
expired,  determined  him  to  make  his 
He  luckily  met  with  a  ship  that 
Might  him  to  Jamaica,  and  in  September 
W,  he  entered  on  board  one  of  the  ships  of  war 
•  common  sailor ;  but  tt  discorery  being 
^  made  of  his  birth,  and  several  circom- 
toces  of  his  story  remembered  by  some  in  the 
set.  he  was  introduced  to  the  captain,  who 
iewed  him  particular  regard,  and  the  admiral, 
amniserating  his  mistbrtanes,  not  only  ae- 
rified of  a  petition  for  bis  discharge,  bat  soon 
mt  biro  to  England  to  prosecote  his  claim, 
^ben  be  arrived^  he  applied  himself  to  a  gen- 
aaum  who  had  been  an  agent  for  the  family, 
•iit  was  not  bng  before  he  had  an  opporta- 

Sr  of  gifing  a  strong  proof  of  the  justice  of 
eause. 

**  The  woman  who  had  nursed  this  unfortu- 
lle  young  nobleman  three  years,  hearing  of 
b  arrif  al,  and  being  desirous  to  see  him,  was 
indoced  to  another  gentleman,  when  she 
Mf  **  You  are  not  my  boy,  you  are  a  cheat." 
Illffwards  she  was  brought  into  a  room,  in 
Meh  were  five  or  six  ^ntlemen  at  a  table, 
id  one  at  a  window  looking  out  of  it,  and  afler 
Mog  the  former,  said,  *<  My  boy  is  not 

rr,  except  be  be  at  the  window,"  then  seeing 
hetf  she  immediately  cried  out  io  great 


raptare,  This  is  be,  and  kissed  him.  Bat  being 
asked  to  give  a  particular  circanataiice  wbMA 
might  convince  others  that  she  was  not  de- 
ceived, she  answered,  that  he  had  a  scar  on  hk 
thigfh ;  for  having  in  his  father's  house  seen 
two  gentlemen  Teaming  to  fence,  the  foib 
being  carried  away,  he  and  his  young  play* 
felk>w  got  two  swords,  and  went  to  fencing, 
by  which  be  received  a  deep  woand  in  the 
thigh.  Upon  examination,  the  scar  of  it  was 
very  visible." 

The  reader  may  perceive  some  confusion  in 
the  preceding  Narrative ;  what  degreeof  anthen- 
ticity  it  posstises  I  pretend  not  Co  determine. 


James  Annesley,  esq.  died  January  5, 1760. 
He  was  twice  married ;  first,  to  a  daughter  of 
Mr.  Chester,  at  Suinea-Bridflre  m  ifiddlesez  } 
bv  whom  he  had  one  son  and  two  daoghtcrs; 
The  son,  James  Annesley,  esq.  died  November 
1763,  S.  P.  and  the  eldest  daughter  »  married 
to  Charles  Wheeler,  esq.  son  of  the  late  captain 
Wbeeler  in  the  Guinea  trade:  secondly,  to  m 
daughter  of  sir  Thomas  J' Anson  of  Boonda, 
near  Tnnbridge,  in  Kent,  gentleman-porter  of 
the  Tower,  by  whom  he  biul  a  daughter  and  m 
son,  who  are  both  dead ;  the  son,  aged  about 
seven  years,  died  about  the  beginning  of  1764; 
and  the  daughter,  aged  about  twelve,  died  in 
May  1765.    Former  Edition, 


£ND  OF  VOL.  XVII. 


TSS± 


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